Exhibit 4.28
AESOP FUNDING II L.L.C.,
as Issuer
and
The Bank of New York,
as Trustee and Series 2001-2 Agent
---------------------
AMENDED AND RESTATED SERIES 2001-2 SUPPLEMENT
dated as of June 29, 2001
to
AMENDED AND RESTATED BASE INDENTURE
dated as of July 30, 1997
---------------------
Up to $125,000,000 Series 2001-2 Rental Car Asset Backed Auction Rate Notes,
Class A-1
Up to $125,000,000 Series 2001-2 Rental Car Asset Backed Auction Rate Notes,
Class A-2
Up to $125,000,000 Series 2001-2 Rental Car Asset Backed Auction Rate Notes,
Class A-3
Up to $125,000,000 Series 2001-2 Rental Car Asset Backed Auction Rate Notes,
Class A-4
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.........................................................................2
ARTICLE II ADDITIONAL ISSUANCES OF SERIES 2001-2 NOTES........................................23
Section 2.1 Procedure for Issuing Additional Auction Rate Notes Amount....................23
Section 2.2 Optional Redemptions During the Series 2001-2 Revolving Period................27
ARTICLE III SERIES 2001-2 ALLOCATIONS..........................................................28
Section 3.1 Establishment of Series 2001-2 Collection Account, Series 2001-2
Excess Collection Account and Series 2001-2 Accrued Interest Account..........28
Section 3.2 Allocations with Respect to the Series 2001-2 Notes...........................28
Section 3.3 Payment of Note Interest......................................................35
Section 3.4 Payment of Note Principal.....................................................35
Section 3.5 Administrator's Failure to Instruct the Trustee to Make a Deposit or Payment..36
Section 3.6 Series-2001-2 Reserve Account.................................................36
Section 3.7 Series 2001-2 Distribution Account............................................38
Section 3.8 Series 2001-2 Interest Rate Caps..............................................39
Section 3.9 Series 2001-2 Accounts Permitted Investments..................................41
ARTICLE IV AMORTIZATION EVENTS................................................................43
ARTICLE V RIGHT TO WAIVE PURCHASE RESTRICTIONS...............................................44
ARTICLE VI FORM OF SERIES 2001-2 NOTES........................................................46
Section 6.1 Restricted Global Series 2001-2 Notes.........................................46
ARTICLE VII GENERAL............................................................................46
Section 7.1 Optional Redemption...........................................................46
Section 7.2 Mandatory Redemption..........................................................47
Section 7.3 Notice of Redemption..........................................................47
Section 7.4 Exhibits......................................................................47
Section 7.5 Information...................................................................47
Section 7.6 Ratification of Base Indenture................................................48
Section 7.7 Counterparts..................................................................48
i
TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.8 Governing Law.................................................................48
Section 7.9 Amendments....................................................................48
Section 7.10 Discharge of Indenture........................................................48
Section 7.11 Notice to Surety Provider and Rating Agencies.................................48
Section 7.12 Certain Rights of Surety Provider.............................................48
Section 7.13 Surety Provider Deemed Noteholder and Secured Party...........................49
Section 7.14 Capitalization of AFC-II......................................................49
Section 7.15 Series 2001-2 Required Non-Program Enhancement Percentage.....................49
Section 7.16 Third Party Beneficiary.......................................................49
Section 7.17 Prior Notice by Trustee to Surety Provider....................................49
Section 7.18 Effect of Payments by the Surety Provider; Subrogation........................50
Section 7.19 Series 2001-2 Demand Notes....................................................51
Section 7.20 Termination of Supplement.....................................................51
Section 7.21 Endorsement to Surety Bond....................................................51
Exhibit A: Form of Restricted Global Series 2001-2 Note
Exhibit B: [Reserved]
Exhibit C: Notices
Exhibit D: Form of Series 2001-2 Demand Note
Exhibit E: Form of Letter of Credit
Exhibit F: Form of Lease Payment Deficit Notice
Exhibit G: Form of Demand Notice
ii
AMENDED AND RESTATED SERIES 2001-2 SUPPLEMENT, dated as of June 29,
2001 (this "Supplement"), between AESOP FUNDING II L.L.C., a special purpose
limited liability company established under the laws of Delaware ("AFC-II"), THE
BANK OF
NEW YORK, a
New York banking corporation as successor in interest to the
corporate trust administration of Xxxxxx Trust and Savings Bank, as trustee
(together with its successors in trust thereunder as provided in the Base
Indenture referred to below, the "Trustee"), and THE BANK OF
NEW YORK, a
New
York banking corporation, as agent for the benefit of the Series 2001-2
Noteholders and the Surety Provider (the "Series 2001-2 Agent"), to the Amended
and Restated Base Indenture, dated as of July 30, 1997, between AFC-II and the
Trustee (as amended, modified or supplemented from time to time, exclusive of
Supplements creating a new Series of Notes, the "Base Indenture").
PRELIMINARY STATEMENT
WHEREAS, AFC-II, the Trustee and the Series 2001-2 Agent entered
into the Series 2001-2 Supplement dated as of May 17, 2001 (the "Original Series
2001-2 Supplement") pursuant to which the Series 2001-2 Notes were issued;
WHEREAS, AFC-II desires to amend and restate the Original Series
2001-2 Supplement to replace the amounts required to be on deposit in the Series
2001-2 Reserve Account with one or more demand notes and one or more letters of
credit; and
WHEREAS, the Original Series 2001-2 Supplement may be amended
pursuant to Section 7.9 and 7.13 thereof with the consent of the Surety
Provider, and the Surety Provider has consented to the amendment of the Original
Series 2001-2 Supplement in the form of this Supplement.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
There was created a Series of Notes issued pursuant to the Base
Indenture and the Original Series 2001-2 Supplement and such Series of Notes was
designated generally as Rental Car Asset Backed Auction Rate Notes, Series
2001-2. The Series 2001-2 Notes were issued in four classes: (i) Series 2001-2
Rental Car Asset Backed Auction Rate Notes, Class A-1, which shall be designated
generally as the Class A-1 Notes, (ii) Series 2001-2 Rental Car Asset Backed
Auction Rate Notes, Class A-2, which shall be designated generally as the Class
A-2 Notes, (iii) Series 2001-2 Rental Car Asset Backed Auction Rate Notes, Class
A-3, which shall be designated generally as the Class A-3 Notes and (iv) Series
2001-2 Rental Car Asset Backed Auction Rate Notes, Class A-4, which shall be
designated generally as the Class A-4 Notes. The Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 Notes are referred to collectively
as the "Series 2001-2 Notes".
The net proceeds from the sale of the Series 2001-2 Notes were, and
the net proceeds from any Increase (as defined herein) shall be, deposited in
the Collection Account and shall be paid to AFC-II and used to make Loans under
the Loan Agreements to the extent that the Borrowers have requested Loans
thereunder and Eligible Vehicles are available for acquisition or refinancing
thereunder on the date hereof. Any such portion of proceeds not so used to make
Loans shall be deemed to be Principal Collections.
The Series 2001-2 Notes are a non-Segregated Series of Notes (as
more fully described in the Base Indenture). Accordingly, all references in this
Supplement to "all" Series of Notes (and all references in this Supplement to
terms defined in the Base Indenture that contain references to "all" Series of
Notes) shall refer to all Series of Notes other than Segregated Series of Notes.
ARTICLE I
DEFINITIONS
(a) All capitalized terms not otherwise defined herein are defined
in the Definitions List attached to the Base Indenture as Schedule I thereto.
All Article, Section or Subsection references herein shall refer to Articles,
Sections or Subsections of the Base Indenture, except as otherwise provided
herein. Unless otherwise stated herein, as the context otherwise requires or if
such term is otherwise defined in the Base Indenture, each capitalized term used
or defined herein shall relate only to the Series 2001-2 Notes and not to any
other Series of Notes issued by AFC-II.
(b) The following words and phrases shall have the following
meanings with respect to the Series 2001-2 Notes and the definitions of such
terms are applicable to the singular as well as the plural form of such terms
and to the masculine as well as the feminine and neuter genders of such terms:
"ADDITIONAL AUCTION RATE NOTES" means, with respect to each Class of
Series 2001-2 Notes, any additional Series 2001-2 Notes issued or proposed to be
issued within such Class after the Series 2001-2 Closing Date.
"AGENT" means Xxxxxx Brothers Inc. and Xxxxxxx Xxxxx Xxxxxx Inc., in
their capacity as agents under the Distribution Agreement.
"APPLICABLE PERCENTAGE" means, on any date of determination with
respect to the Series 2001-2 Notes of any Class, the percentage determined as
set forth below based on the prevailing rating of the Series 2001-2 Notes in
effect at the close of business on the Business Day immediately preceding such
date of determination:
PREVAILING RATING APPLICABLE PERCENTAGE
2
"AAA"/"Aaa" 1.50%
"AA"/"Aa" 1.75%
"A"/"A" 2.25%
"BBB"/"Baa" 2.45%
Below "BBB"/"Baa" 3.50%
For purposes of this definition, the "prevailing rating" of the Series 2001-2
Notes will be:
(a) "AAA"/"Aaa", if the Series 2001-2 Notes have a rating of "AAA"
by Standard & Poor's and a rating of "Aaa" by Xxxxx'x;
(b) if not "AAA"/ "Aaa", then "AA"/"Aa" if the Series 2001-2 Notes
have a rating of "AA-" or better by Standard & Poor's and a rating of
"Aa3" or better by Xxxxx'x;
(c) if not "AAA"/ "Aaa" or "AA"/"Aa", then "A"/"A" if the Series
2001-2 Notes have a rating of "A-" or better by Standard & Poor's and a
rating of "A3" or better by Xxxxx'x;
(d) if not "AAA"/"Aaa", "AA"/"Aa" or "A"/"A", then "BBB"/"Baa" if
the Series 2001-2 Notes have a rating of "BBB-" or better by Standard &
Poor's and a rating of "Baa3" or better by Xxxxx'x; and
(e) if not "AAA"/"Aaa", "AA"/"Aa", "A"/"A" or "BBB"/"Baa", then
below "BBB"/"Baa", whether or not the Series 2001-2 Notes are rated by any
rating agency.
"AUCTION" means the periodic implementation of the Auction
Procedures.
"AUCTION AGENT" means the Initial Auction Agent unless and until a
Substitute Auction Agent Agreement becomes effective, after which "Auction
Agent" shall mean the Substitute Auction Agent.
"AUCTION AGENT AGREEMENT" means the Initial Auction Agent Agreement
unless and until a Substitute Auction Agent Agreement is entered into, after
which "Auction Agent Agreement" shall mean such Substitute Auction Agent
Agreement.
"AUCTION AGENT FEE" means the fee payable to the Auction Agent as
set forth in Section 6.4(b) of the Auction Agent Agreement.
"AUCTION DATE" means, with respect to the Series 2001-2 Note of any
Class, the Business Day immediately preceding the first day of each Auction Rate
Period therefor, other than:
3
(a) each Auction Rate Period commencing after the Series 2001-2
Notes of such Class are no longer represented by one or more Global Notes;
(b) each Auction Rate Period commencing after the occurrence and
during the continuance of a Surety Default; or
(c) any Auction Rate Period commencing less than two Business Days
after the cure of a Surety Default.
"AUCTION PROCEDURES" means the procedures set forth in Appendix A to
this Supplement by which each Auction Rate is determined.
"AUCTION RATE" means, with respect to the Series 2001-2 Notes of any
Class and any Auction Rate Period therefor, each per annum rate of interest that
results from the implementation of the Auction Procedures, with respect to the
Series 2001-2 Notes of such Class on the Auction Date immediately preceding such
Auction Rate Period, which rate is determined as described in Section
2.1.1(c)(ii) of the Auction Procedures.
"AUCTION RATE PERIOD" means, for the Series 2001-2 Notes of any
Class, the Initial Auction Rate Period therefor and any Subsequent Auction Rate
Period therefor, including any Special Auction Rate Period therefor.
"BROKER-DEALER" means, each of Xxxxxx Brothers Inc. and Xxxxxxx
Xxxxx Xxxxxx Inc., and each successor or assign permitted pursuant to the terms
of the related Broker-Dealer Agreement.
"BROKER-DEALER AGREEMENT" means, each agreement between the Auction
Agent and a Broker-Dealer, and approved by AFC-II, pursuant to which the
Broker-Dealer agrees to participate in Auctions as set forth in the Auction
Procedures, as from time to time amended or supplemented. Each Broker-Dealer
Agreement shall be in substantially the form of the Broker-Dealer Agreement
dated as of May 17, 2001, between the Auction Agent and Xxxxxx Brothers Inc.
"BROKER-DEALER FEE" means the fee payable to each Broker-Dealer as
set forth in the related Broker-Dealer Agreement.
"BUSINESS DAY" means any day other than (i) a Saturday, Sunday or
other day on which banks are authorized or required by law to be closed in
New
York City,
New York, or Chicago, Illinois, (ii) a day on which the Auction Agent
is authorized or required by law to be closed and (iii) a day on which the
New
York Stock Exchange is closed.
"CERTIFICATE OF LEASE DEFICIT DEMAND" means a certificate in the
form of ANNEX A to the Series 2001-2 Letters of Credit.
4
"CERTIFICATE OF TERMINATION DATE DEMAND" means a certificate in the
form of ANNEX D to the Series 2001-2 Letters of Credit.
"CERTIFICATE OF TERMINATION DEMAND" means a certificate in the form
of ANNEX C to the Series 2001-2 Letters of Credit.
"CERTIFICATE OF UNPAID DEMAND NOTE DEMAND" means a certificate in
the form of ANNEX B to the Series 2001-2 Letters of Credit.
"CLASS A-1 ADJUSTED PERIODIC INTEREST" means (a) for the initial
Distribution Date for the Class A-1 Notes, $290,700.00 and (b) for any other
Distribution Date for the Class A-1 Notes, the sum of (i) with respect to the
Interest Period with respect to the Class A-1 Notes ending on the day preceding
such Distribution Date, the sum of an amount equal to the product of (1) the
Class A-1 Note Rate for such Interest Period, (2) the Class A-1 Outstanding
Principal Amount on the first day of such Interest Period, and (3) a fraction,
the numerator of which is the number of days in such Interest Period and the
denominator of which is 360, and (ii) an amount equal to the amount of any
unpaid Shortfalls with respect to the Class A-1 Notes, as of the preceding
Distribution Date for the Class A-1 Notes (together with any accrued interest on
such Shortfalls).
"CLASS A-1 FINAL DISTRIBUTION DATE" means the first Principal
Distribution Date with respect to the Class A-1 Notes occurring on or after the
First Potential Series 2001-2 Redemption Date occurring in May, 2007.
"CLASS A-1 INITIAL INVESTED AMOUNT" means the aggregate initial
principal amount of the Class A-1 Notes, which is $95,000,000.
"CLASS A-1 INVESTED AMOUNT" means, when used with respect to any
date, an amount equal to the Class A-1 Outstanding Principal Amount PLUS the sum
of (a) the aggregate principal amount of any Class A-1 Notes which have been
redeemed with the proceeds of a demand on the Surety Bond on or prior to such
date and (b) the aggregate principal amount of Class A-1 Notes the redemption of
which shall been rescinded for any reason.
"CLASS A-1 NOTE RATE" means with respect to the initial Interest
Period for the Class A-1 Notes, 4.08% per annum, and for any subsequent Interest
Period for the Class A-1 Notes, the Auction Rate determined for the Subsequent
Auction Rate Period with respect to the Class A-1 Notes in which such Interest
Period occurs in accordance with Section 3.2(h) of this Supplement.
"CLASS A-1 NOTES" means any one of the Series 2001-2 Rental Car
Asset Backed Auction Rate Notes, Class A-1, executed by AFC-II and authenticated
by or on behalf of the Trustee, substantially in the form of Exhibit A hereto.
Definitive Class A-1 Notes shall have such insertions and deletions as are
necessary to give effect to the provisions of Section 2.18 of the Base
Indenture.
5
"CLASS A-1 OUTSTANDING PRINCIPAL AMOUNT" means as of any date of
determination, an amount equal to the Class A-1 Initial Invested Amount MINUS
the aggregate principal amount of Class A-1 Notes which have been redeemed
pursuant to Section 7.1 or 7.2 of this Supplement on or prior to such date PLUS
the aggregate principal amount of any Additional Class A-1 Notes issued after
the Series 2001-2 Closing Date and on or prior to such date.
"CLASS A-1 PERIODIC INTEREST" means, with respect to any Interest
Period for the Class A-1 Notes, an amount equal to the product of (A) the Class
A-1 Invested Amount on the first day of such Interest Period, (B) the Class A-1
Note Rate for such Interest Period and (C) the number of days in such Interest
Period divided by 360.
"CLASS A-1 RESTRICTED GLOBAL NOTE" has the meaning specified in
Article VI of this Supplement.
"CLASS A-2 ADJUSTED PERIODIC INTEREST" means (a) for the initial
Distribution Date for the Class A-2 Notes, $22,666.67 and (b) for any other
Distribution Date for the Class A-2 Notes, the sum of (i) with respect to the
Interest Period with respect to the Class A-2 Notes ending on the day preceding
such Distribution Date, the sum of an amount equal to the product of (1) the
Class A-2 Note Rate for such Interest Period, (2) the Class A-2 Outstanding
Principal Amount on the first day of such Interest Period, and (3) a fraction,
the numerator of which is the number of days in such Interest Period and the
denominator of which is 360, and (ii) an amount equal to the amount of any
unpaid Shortfalls with respect to the Class A-2 Notes, as of the preceding
Distribution Date for the Class A-2 Notes (together with any accrued interest on
such Shortfalls).
"CLASS A-2 FINAL DISTRIBUTION DATE" means the first Principal
Distribution Date with respect to the Class A-2 Notes occurring on or after the
First Potential Series 2001-2 Redemption Date occurring in May, 2007.
"CLASS A-2 INITIAL INVESTED AMOUNT" means the aggregate initial
principal amount of the Class A-2 Notes, which is $10,000,000.
"CLASS A-2 INVESTED AMOUNT" means, when used with respect to any
date, an amount equal to the Class A-2 Outstanding Principal Amount PLUS the sum
of (a) the aggregate principal amount of any Class A-2 Notes which have been
redeemed with the proceeds of a demand on the Surety Bond on or prior to such
date and (b) the aggregate principal amount of Class A-2 Notes the redemption of
which shall been rescinded for any reason.
"CLASS A-2 NOTE RATE" means with respect to the initial Interest
Period for the Class A-2 Notes, 4.08% per annum, and for any subsequent Interest
Period for the Class A-2 Notes, the Auction Rate determined for the Subsequent
Auction Rate Period with respect to the Class A-2 Notes in which such Interest
Period occurs in accordance with Section 3.2(h) of this Supplement.
6
"CLASS A-2 NOTES" means any one of the Series 2001-2 Rental Car
Asset Backed Auction Rate Notes, Class A-2, executed by AFC-II and authenticated
by or on behalf of the Trustee, substantially in the form of Exhibit A hereto.
Class A-2 Definitive Notes shall have such insertions and deletions as are
necessary to give effect to the provisions of Section 2.18 of the Base
Indenture.
"CLASS A-2 OUTSTANDING PRINCIPAL AMOUNT" means as of any date of
determination, an amount equal to the Class A-2 Initial Invested Amount MINUS
the aggregate principal amount of Class A-2 Notes which have been redeemed
pursuant to Section 7.1 or 7.2 of this Supplement on or prior to such date PLUS
the aggregate principal amount of any Additional Class A-2 Notes issued after
the Series 2001-2 Closing Date and on or prior to such date.
"CLASS A-2 PERIODIC INTEREST" means, with respect to any Interest
Period for the Class A-2 Notes, an amount equal to the product of (A) the Class
A-2 Invested Amount on the first day of such Interest Period, (B) the Class A-2
Note Rate for such Interest Period and (C) the number of days in such Interest
Period divided by 360.
"CLASS A-2 RESTRICTED GLOBAL NOTE" has the meaning specified in
Article VI of this Supplement.
"CLASS A-3 ADJUSTED PERIODIC INTEREST" means (a) for the initial
Distribution Date for the Class A-3 Notes, $38,533.33 and (b) for any other
Distribution Date for the Class A-3 Notes, the sum of (i) with respect to the
Interest Period with respect to the Class A-3 Notes ending on the day preceding
such Distribution Date, the sum of an amount equal to the product of (1) the
Class A-3 Note Rate for such Interest Period, (2) the Class A-3 Outstanding
Principal Amount on the first day of such Interest Period, and (3) a fraction,
the numerator of which is the number of days in such Interest Period and the
denominator of which is 360, and (ii) an amount equal to the amount of any
unpaid Shortfalls with respect to the Class A-3 Notes, as of the preceding
Distribution Date for the Class A-3 Notes (together with any accrued interest on
such Shortfalls).
"CLASS A-3 FINAL DISTRIBUTION DATE" means the first Principal
Distribution Date with respect to the Class A-3 Notes occurring on or after the
First Potential Series 2001-2 Redemption Date occurring in May, 2007.
"CLASS A-3 INITIAL INVESTED AMOUNT" means the aggregate initial
principal amount of the Class A-3 Notes, which is $10,000,000.
"CLASS A-3 INVESTED AMOUNT" means when used with respect to any
date, an amount equal to the Class A-3 Outstanding Principal Amount PLUS the sum
of (a) the aggregate principal amount of any Class A-3 Notes which have been
redeemed with the proceeds of a demand on the Surety Bond on or prior to such
date and (b) the aggregate principal amount of Class A-3 Notes the redemption of
which shall been rescinded for any reason.
7
"CLASS A-3 NOTE RATE" means with respect to the initial Interest
Period for the Class A-3 Notes, 4.08% per annum, and for any subsequent Interest
Period for the Class A-3 Notes, the Auction Rate determined for the Subsequent
Auction Rate Period with respect to the Class A-3 Notes in which such Interest
Period occurs in accordance with Section 3.2(h) of this Supplement.
"CLASS A-3 NOTES" means any one of the Series 2001-2 Rental Car
Asset Backed Auction Rate Notes, Class A-3, executed by AFC-II and authenticated
by or on behalf of the Trustee, substantially in the form of Exhibit A hereto.
Definitive Class A-3 Notes shall have such insertions and deletions as are
necessary to give effect to the provisions of Section 2.18 of the Base
Indenture.
"CLASS A-3 OUTSTANDING PRINCIPAL AMOUNT" means as of any date of
determination, an amount equal to the Class A-3 Initial Invested Amount MINUS
the aggregate principal amount of Class A-3 Notes which have been redeemed
pursuant to Section 7.1 or 7.2 of this Supplement on or prior to such date PLUS
the aggregate principal amount of any Additional Class A-3 Notes issued after
the Series 2001-2 Closing Date and on or prior to such date.
"CLASS A-3 PERIODIC INTEREST" means, with respect to any Interest
Period for the Class A-3 Notes, an amount equal to the product of (A) the Class
A-3 Invested Amount on the first day of such Interest Period, (B) the Class A-3
Note Rate for such Interest Period and (C) the number of days in such Interest
Period divided by 360.
"CLASS A-3 RESTRICTED GLOBAL NOTE" has the meaning specified in
Article VI of this Supplement.
"CLASS A-4 ADJUSTED PERIODIC INTEREST" means (a) for the initial
Distribution Date for the Class A-4 Notes, $46,466.67 and (b) for any other
Distribution Date for the Class A-4 Notes, the sum of (i) with respect to the
Interest Period with respect to the Class A-4 Notes ending on the day preceding
such Distribution Date, the sum of an amount equal to the product of (1) the
Class A-4 Note Rate for such Interest Period, (2) the Class A-4 Outstanding
Principal Amount on the first day of such Interest Period, and (3) a fraction,
the numerator of which is the number of days in such Interest Period and the
denominator of which is 360, and (ii) an amount equal to the amount of any
unpaid Shortfalls with respect to the Class A-4 Notes, as of the preceding
Distribution Date for the Class A-4 Notes (together with any accrued interest on
such Shortfalls).
"CLASS A-4 FINAL DISTRIBUTION DATE" means the first Principal
Distribution Date with respect to the Class A-4 Notes occurring on or after the
First Potential Series 2001-2 Redemption Date occurring in May, 2007.
"CLASS A-4 INITIAL INVESTED AMOUNT" means the aggregate initial
principal amount of the Class A-4 Notes, which is $10,000,000.
8
"CLASS A-4 INVESTED AMOUNT" means when used with respect to any
date, an amount equal to the Class A-4 Outstanding Principal Amount PLUS the sum
of (a) the aggregate principal amount of any Class A-4 Notes which have been
redeemed with the proceeds of a demand on the Surety Bond on or prior to such
date and (b) the aggregate principal amount of Class A-4 Notes the redemption of
which shall been rescinded for any reason.
"CLASS A-4 NOTE RATE" means with respect to the initial Interest
Period for the Class A-4 Notes, 4.08% per annum, and for any subsequent Interest
Period for the Class A-4 Notes, the Auction Rate determined for the Subsequent
Auction Rate Period with respect to the Class A-4 Notes in which such Interest
Period occurs in accordance with Section 3.2(h) of this Supplement.
"CLASS A-4 NOTES" means any one of the Series 2001-2 Rental Car
Asset Backed Auction Rate Notes, Class A-4, executed by AFC-II and authenticated
by or on behalf of the Trustee, substantially in the form of Exhibit A hereto.
Definitive Class A-4 Notes shall have such insertions and deletions as are
necessary to give effect to the provisions of Section 2.18 of the Base
Indenture.
"CLASS A-4 OUTSTANDING PRINCIPAL AMOUNT" means as of any date of
determination, an amount equal to the Class A-4 Initial Invested Amount MINUS
the aggregate principal amount of Class A-4 Notes which have been redeemed
pursuant to Section 7.1 or 7.2 of this Supplement on or prior to such date PLUS
the aggregate principal amount of any Additional Class A-4 Notes issued after
the Series 2001-2 Closing Date and on or prior to such date.
"CLASS A-4 PERIODIC INTEREST" means, with respect to any Interest
Period for the Class A-4 Notes, an amount equal to the product of (A) the Class
A-4 Invested Amount on the first day of such Interest Period, (B) the Class A-4
Note Rate for such Interest Period and (C) the number of days in such Interest
Period divided by 360.
"CLASS A-4 RESTRICTED GLOBAL NOTE" has the meaning specified in
Article VI of this Supplement.
"DEMAND NOTE ISSUER" means each issuer of a Series 2001-2 Demand
Note.
"DETERMINATION DATE" means five days prior to each Program
Distribution Date.
"DISBURSEMENT" shall mean any Lease Deficit Disbursement, any Unpaid
Demand Note Disbursement, any Termination Disbursement or any Termination Date
Disbursement under a Series 2001-2 Letter of Credit, or any combination thereof,
as the context may require.
9
"DISTRIBUTION AGREEMENT" means the Distribution Agreement, dated May
17, 2001, among AFC-II, ARAC, AGH, Xxxxxxx Xxxxx Xxxxxx Inc. and Xxxxxx Brothers
Inc., pursuant to which Xxxxxx Brothers Inc. and Xxxxxxx Xxxxx Xxxxxx Inc. will
agree, subject to the terms and conditions thereof, to solicit bids to purchase
Additional Auction Rate Notes.
"DISTRIBUTION DATE" with respect to the Series 2001-2 Notes of each
Class has the meaning set forth in Section 3.2(f) of this Supplement.
"DISTRIBUTION DATE STATEMENT" means the statement to be provided to
the Trustee pursuant to Section 7.5(a) of this Supplement.
"EXISTING NOTEHOLDER" of the Series 2001-2 Notes of any Class means
a Person who has signed and delivered to a Broker-Dealer a Purchaser's Letter
and is listed as the beneficial owner of the Series 2001-2 Notes of such Class
in the Existing Noteholder Registry of such Class.
"EXISTING NOTEHOLDER REGISTRY" means the register in respect of the
Series 2001-2 Notes maintained by the Auction Agent pursuant to Section 2.2(c)
of the Auction Agent Agreement.
"EXCESS COLLECTIONS" has the meaning specified in Section 3.3(g)(i)
of this Supplement.
"FIRST POTENTIAL SERIES 2001-2 REDEMPTION DATE" means the fifth
Business Day after the Determination Date in each calendar month.
"GLOBAL NOTES" means, the Class A-1 Restricted Global Notes, the
Class A-2 Restricted Global Notes, the Class A-3 Restricted Global Notes and/or
the Class A-4 Restricted Global Notes, as applicable.
"HIGHEST SERIES 2001-2 INVESTED AMOUNT" shall mean, on any date of
determination, the highest Series 2001-2 Invested Amount at any time prior to
such date of determination.
"INCREASE" has the meaning set forth in Section 2.1(a) of this
Supplement.
"INITIAL AUCTION AGENT" means The Bank of
New York, a
New York
banking corporation, and its successors and assigns.
"INITIAL AUCTION AGENT AGREEMENT" means the Auction Agent Agreement,
dated as of May 17, 2001, between AFC-II and the Initial Auction Agent,
including any amendment thereof or supplement thereto.
"INITIAL AUCTION RATE PERIOD" means, for any Class of Series 2001-2
Notes, the period from and including the Series 2001-2 Closing Date to but
excluding the Initial Distribution Date with respect to such Class of Series
2001-2 Notes.
10
"INITIAL DISTRIBUTION DATE" means (i) with respect to the Class A-1
Notes, June 13, 2001, (ii) with respect to the Class A-2 Notes, June 6, 2001,
(iii) with respect to the Class A-3 Notes, June 20, 2001, and (iv) with respect
to the Class A-4 Notes, June 27, 2001.
"INITIAL INTEREST PERIOD" means, for any Class of Series 2001-2
Notes, the period from and including the Series 2001-2 Closing Date to but
excluding the Initial Distribution Date with respect to such Class of Series
2001-2 Notes.
"INITIAL RAPID PRINCIPAL DETERMINATION DATE" has the meaning
specified in Section 3.5(a) of this Supplement.
"INSURANCE AGREEMENT" means the Insurance Agreement, dated as of May
17, 2001, among the Surety Provider, the Trustee and AFC-II, which shall
constitute an "Enhancement Agreement" with respect to the Series 2001-2 Notes
for all purposes under the Indenture.
"INSURED PRINCIPAL DEFICIT AMOUNT" means with respect to any Program
Distribution Date, next succeeding each Determination Date, the excess, if any,
of (a) the Series 2001-2 Outstanding Principal Amount on such Program
Distribution Date over (b) the sum of the Series 2001-2 Available Reserve
Account Amount on such Program Distribution Date, the Series 2001-2 AESOP I
Operating Lease Loan Agreement Borrowing Base and the amount on deposit in the
Series 2001-2 Excess Collection Account and the Series 2001-2 Distribution
Account and set aside for application to a redemption of Series 2001-2 Notes of
any Class pursuant to Section 7.1 or 7.2 of this Supplement on such Program
Distribution Date.
"INTEREST PERIOD" means for any Class of Series 2001-2 Notes, the
period from and including one Distribution Date with respect to such Class of
Series 2001-2 Notes to but excluding the next succeeding Distribution Date with
respect to such Class of Series 2001-2 Notes.
"INTEREST RATE CAP COUNTERPARTY" shall mean AFC-II's counterparty
under a Series 2001-2 Interest Rate Cap.
"INTEREST REPORTING PERIOD" has the meaning specified in Section 7.5
of this Supplement.
"INVESTED AMOUNT" means, as of any date of determination, the Class
A-1 Invested Amount, the Class A-2 Invested Amount, the Class A-3 Invested
Amount or the Class A-4 Invested Amount, as the context may require, as of such
date of determination.
"LEASE DEFICIT DISBURSEMENT" means an amount drawn under a Series
2001-2 Letter of Credit pursuant to a Certificate of Lease Deficit Demand.
11
"LIBOR" means, on any date of determination for any Auction Rate
Period:
(a) subject to clause (b) below,
(i) for any Standard Auction Rate Period or Special Auction
Rate Period of fewer than 49 Rate Period Days, such rate for deposits in
U.S. dollars for a one-month period on such date, or if such date is not a
date on which dealings in U.S. dollars are transacted in the London
interbank market, then on the next preceding day on which such dealings
were transacted in such market;
(ii) for any Special Auction Rate Period of 49 or more but
fewer than 70 Rate Period Days, such rates for deposits in U.S. dollars
for a two-month period on such date, or if such date is not a date on
which dealings in U.S. dollars are transacted in the London interbank
market, then on the next preceding day on which such dealings were
transacted in such market;
(iii) for any Special Auction Rate Period of 70 or more but
fewer than 85 Rate Period Days, the arithmetic average of such rates for
deposits in U.S. dollars for two and three-month periods on such date, or
if such date is not a date on which dealings in U.S. dollars are
transacted in the London interbank market, then on the next preceding day
on which such dealings were transacted in such market;
(iv) for any Special Auction Rate Period of 85 or more but
fewer than 120 Rate Period Days, such rate for deposits in U.S. dollars
for a three-month period on such date, or if such date is not a date on
which dealings in U.S. dollars are transacted in the London interbank
market, then on the next preceding day on which such dealings were
transacted in such market;
(v) for any Special Auction Rate Period of 120 or more but
fewer than 148 Rate Period Days, the arithmetic average of such rates for
deposits in U.S. dollars for three and six-month periods on such date, or
if such date is not a date on which dealings in U.S. dollars are
transacted in the London interbank market, then on the next preceding day
on which such dealings were transacted in such market;
(vi) for any Special Auction Rate Period of 148 or more but
fewer than 176 Rate Period Days, such rate for deposits in U.S. dollars
for a six-month period on such date, or if such date is not a date on
which dealings in U.S. dollars are transacted in the London interbank
market, then on the next preceding day on which such dealings were
transacted in such market; or
(b) If on any date of determination (i) no rate appears on the
Telerate Page 3750 as specified in clause (a) above, the arithmetic average of
the offered quotations of four major banks in the London interbank market,
selected by the Auction
12
Agent, for deposits in U.S. dollars for the respective periods specified in
clause (a) above to prime banks in the London interbank market at approximately
11:00 a.m., London time, on such date and in a principal amount of not less than
$1,000,000 that is representative of a single transaction in such market at such
time, unless fewer than two such quotations are provided, in which case, the
arithmetic average of the rates quoted at approximately 11:00 a.m., New York
City time, on the date next preceding such date by three major banks in New York
City selected by the Auction Agent for loans in U.S. dollars to leading European
banks in a principal amount equal to an amount of not less than $1,000,000 that
is representative of a single transaction in such market at such time.
"MAXIMUM AUCTION RATE" means on any date of determination for any
Auction Rate Period for the Series 2001-2 Notes of any Class the interest rate
per annum equal to the lower of:
(a) the sum of LIBOR for a Standard Auction Rate Period for the
Series 2001-2 Notes of such Class on such date plus the
Applicable Percentage, unless such Auction Rate Period is
proposed to be a Special Auction Rate Period pursuant to
Section 3.12 of this Supplement, in which case, the sum of the
Applicable Percentage on such date and LIBOR for such Special
Auction Rate Period; and
(b) the maximum rate on such date permitted by applicable law.
"MOODY'S" means Xxxxx'x Investors Service.
"MOODY'S QUALIFIED INTEREST RATE CAP COUNTERPARTY" shall mean (i) at
the time of entering into the related Series 2001-2 Interest Rate Cap, a bank or
other financial institution having a short-term senior unsecured debt rating of
at least "P-1" from Moody's or having a long-term senior unsecured debt rating
of at least "A1" from Moody's and (ii) at any other time, (A) a bank or other
financial institution having a short-term unsecured senior debt rating of at
least "P-1" from Moody's or having a long-term unsecured senior debt rating of
at least "A1" from Moody's or (B) a bank or other financial institution without
either a short-term unsecured senior debt rating of at least "P-1" from Moody's
or a long-term unsecured senior debt rating of at least "A1" from Moody's who
fully collateralized its obligations under the related Series 2001-2 Interest
Rate Cap; PROVIDED that at no time shall a bank or other financial institution
with a long-term unsecured senior debt rating which has been withdrawn or is
less than "A2" from Moody's be a Moody's Qualified Interest Rate Cap
Counterparty.
"NOTE RATE" means, with respect to the Series 2001-2 Notes of any
Class, the Class A-1 Note Rate, the Class A-2 Note Rate, the Class A-3 Note Rate
or the Class A-4 Note Rate, as applicable.
"OVERDUE RATE" as of the first day of any Subsequent Auction Rate
Period means the Maximum Auction Rate for such Subsequent Auction Period
calculated on the
13
basis that the Series 2001-2 Notes are assumed to be rated below "Baa3" by
Moody's and below "BBB-" by Standard & Poor's.
"PRE-PREFERENCE PERIOD DEMAND NOTE PAYMENTS" means, as of any date
of determination, the aggregate amount of all proceeds of demands made on the
Series 2001-2 Demand Notes included in the Series 2001-2 Demand Note Payment
Amount as of the Series 2001-2 Letter of Credit Termination Date that were paid
by the Demand Note Issuers more than one year before such date of determination;
PROVIDED, HOWEVER, that if an Event of Bankruptcy (or the occurrence of an event
described in clause (a) of the definition thereof, without the lapse of a period
of 60 consecutive days) with respect to a Demand Note issuer occurs during such
one year period, (x) the Pre-Preference Period Demand Note Payments as of any
date during the period from and including the date of the occurrence of such
Event of Bankruptcy to and including the conclusion or dismissal of the
proceedings giving rise to such Event of Bankruptcy without continuing
jurisdiction by the court in such proceedings shall equal the Pre-Preference
Period Demand Note Payments as of the date of such occurrence for all Demand
Note Issuers and (y) the Pre-Preference Period Demand Note Payments as of any
date after the conclusion or dismissal of such proceedings shall equal the
Series 2001-2 Demand Note Payment Amount as of the date of the conclusion or
dismissal of such proceedings.
"PRINCIPAL DEFICIT AMOUNT" means, with respect to any Distribution
Date, the excess, if any, of (a) the Series 2001-2 Invested Amount on such
Distribution Date (after giving effect to the distribution of the Monthly Total
Principal Allocation for the Related Month) over (b) the sum of the Series
2001-2 Liquidity Amount (calculated after giving effect to any withdrawals or
draws on such Distribution Date) on such Distribution Date and the Series 2001-2
AESOP I Operating Lease Loan Agreement Borrowing Base on such Distribution Date.
"PRINCIPAL DISTRIBUTION DATE" means, with respect to the Series
2001-2 Notes of any Class, each Distribution Date with respect to such Class of
Series 2001-2 Notes falling on the day after the last day of each Auction Rate
Period for such Class of Series 2001-2 Notes.
"PRINCIPAL REPORTING PERIOD" has the meaning specified in Section
7.5 of this Supplement.
"PRO RATA SHARE" means, with respect to any Series 2001-2 Letter of
Credit Provider as of any date, the fraction (expressed as a percentage)
obtained by dividing (A) the available amount under such Series 2001-2 Letter of
Credit Provider's Series 2001-2 Letter of Credit as of such date by (B) an
amount equal to the aggregate available amount under all Series 2001-2 Letters
of Credit as of such date; PROVIDED, that only for purposes of calculating the
Pro Rata Share with respect to any Series 2001-2 Letter of Credit Provider as of
any date, if such Series 2001-2 Letter of Credit Provider has not complied with
its obligation to pay the Trustee the amount of any draw under its Series 2001-2
Letter of Credit made prior to such date, the available amount under such Series
2001-2 Letter of Credit Provider's Series 2001-2 Letter of Credit as of such
date
14
shall be treated as reduced (for calculation purposes only) by the amount of
such unpaid demand and shall not be reinstated for purposes of such calculation
unless and until the date as of which such Series 2001-2 Letter of Credit
Provider has paid such amount to the Trustee and been reimbursed by the Lessee
or the applicable Demand Note Issuer, as the case may be, for such amount
(PROVIDED that the foregoing calculation shall not in any manner reduce the
undersigned's actual liability in respect of any failure to pay any demand under
its Series 2001-2 Letter of Credit).
"PROGRAM DISTRIBUTION DATE" means, the twentieth day of each
calendar month, or if such day is not a Business Day, the next succeeding
Business Day.
"PURCHASER'S LETTER" means a letter addressed and delivered to
AFC-II, the Trustee, the Broker-Dealer, the Agent, and each other Person
required by the Broker-Dealer Agreement in substantially the form set forth in
Exhibit E to the Broker-Dealer Agreement.
"QUALIFIED INTEREST RATE CAP COUNTERPARTY" means a counterparty to a
Series 2001-2 Interest Rate Cap who (i) is an S&P Qualified Interest Rate Cap
Counterparty, (ii) is a Moody's Qualified Interest Rate Cap Counterparty and
(iii) is a Surety Provider Qualified Interest Rate Cap Counterparty.
"RATE PERIOD DAYS" means for any Auction Rate Period or Interest
Period the actual number of days that would constitute such Auction Rate Period
or Interest Period but for the application of Section 3.12(b) of this
Supplement.
"RECORD DATE" means, with respect to the Series 2001-2 Note of any
Class, one Business Day prior to each Auction Date with respect to such Class of
Series 2001-2 Notes.
"REQUISITE NOTEHOLDERS" means Series 2001-2 Noteholders holding more
than 50% of the Series 2001-2 Invested Amount.
"S&P QUALIFIED INTEREST RATE CAP COUNTERPARTY" shall mean a bank or
other financial institution, which has a short-term senior and unsecured debt
rating of at least "A-1" and a long-term senior and unsecured rating of at least
"A+", in each case, from Standard & Poor's, or is otherwise approved by Standard
& Poor's.
"SERIES 1997-1 NOTES" means the Series of Notes designated as the
Series 1997-1 Notes.
"SERIES 1997-2 SUPPLEMENT" means the supplement to the Base
Indenture authorizing the issuance of the Series of Notes designated as the
Series 1997-2 Notes.
"SERIES 1998-1 NOTES" means the Series of Notes designated as the
Series 1998-1 Notes.
15
"SERIES 2000-1 NOTES" means the Series of Notes designated as the
Series 2000-1 Notes.
"SERIES 2000-2 NOTES" means the Series of Notes designated as the
Series 2000-2 Notes.
"SERIES 2000-3 NOTES" means the Series of Notes designated as the
Series 2000-3 Notes.
"SERIES 2000-4 NOTES" means the Series of Notes designated as the
Series 2000-4 Notes.
"SERIES 2001-1 NOTES" means the Series of Notes designated as the
Series 2001-1 Notes.
"SERIES 2001-2 ACCOUNTS" shall mean each of the Series 2001-2
Distribution Account, the Series 2001-2 Reserve Account, the Series 2001-2
Collection Account, the Series 2001-2 Excess Collection Account and the Series
2001-2 Accrued Interest Account.
"SERIES 2001-2 ACCRUED INTEREST ACCOUNT" has the meaning specified
in Section 3.1(b) of this Supplement.
"SERIES 2001-2 AESOP I OPERATING LEASE LOAN AGREEMENT BORROWING
BASE" means, as of any date of determination, the product of (a) the Series
2001-2 AESOP I Operating Lease Vehicle Percentage as of such date and (b) the
AESOP I Operating Lease Loan Agreement Borrowing Base as of such date.
"SERIES 2001-2 AESOP I OPERATING LEASE VEHICLE PERCENTAGE" means, as
of any date of determination, a fraction, expressed as a percentage, the
numerator of which is the Series 2001-2 Required AESOP I Operating Lease Vehicle
Amount as of such date and the denominator of which is the sum of the Required
AESOP I Operating Lease Vehicle Amounts for all Series of Notes as of such date.
"SERIES 2001-2 AVAILABLE CASH COLLATERAL ACCOUNT AMOUNT" means, as
of any date of determination, the amount on deposit in the Series 2001-2 Cash
Collateral Account (after giving effect to any deposits thereto and withdrawals
and releases therefrom on such date).
"SERIES 2001-2 AGENT" has the meaning specified in the first
paragraph of this Supplement.
"SERIES-2001-2 AVAILABLE RESERVE ACCOUNT AMOUNT" means, as of any
date of determination, the amount on deposit in the Series 2001-2 Reserve
Account (after giving effect to any deposits thereto and withdrawals and
releases therefrom on such date).
16
"SERIES 2001-2 CASH COLLATERAL ACCOUNT" has the meaning specified in
SECTION 3.8(f) of this Supplement.
"SERIES 2001-2 CASH COLLATERAL ACCOUNT COLLATERAL" has the meaning
specified in SECTION 3.8(a) of this Supplement.
"SERIES 2001-2 CASH COLLATERAL ACCOUNT SURPLUS" means, with respect
to any Distribution Date, the lesser of (a) the Series 2001-2 Available Cash
Collateral Account Amount and (b) the lesser of (A) the excess, if any, of the
Series 2001-2 Liquidity Amount over the Series 2001-2 Required Liquidity Amount
on such Distribution Date (after giving effect to any withdrawal from the Series
2001-2 Reserve Account on such Distribution Date) and (B) the access, if any, of
the Series 2001-2 Required Enhancement Amount over the Series 2001-2 Enhancement
Amount on such Distribution Date (after giving affect to any withdrawal from the
Series 2001-2 Reserve Account on such Distribution Date); PROVIDED, HOWEVER
that, on any date after the Series 2001-2 Letter of Credit Termination Date, the
Series 2001-2 Cash Collateral Account Surplus shall mean the excess, if any, of
(x) the Series 2001-2 Available Cash Collateral Account Amount over (y) the
Series 2001-2 Demand Note Payment Amount MINUS the Pre-Preference Period Demand
Note Payments as of such date.
"SERIES 2001-2 CASH COLLATERAL PERCENTAGE" means, as of any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Series 2001-2 Available Cash Collateral Amount as of such date and the
denominator of which is the Series 2001-2 Letter of Credit Liquidity Amount as
of such date.
"SERIES 2001-2 CLASS PERCENTAGE" means in respect of the Series
2001-2 Notes of any Class, as of any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Series 2001-2 Invested
Amount in respect of the Series 2001-2 Notes of such Class as of such date and
the denominator of which is the sum of the aggregate Invested Amount of each
Series of Notes outstanding as of such date.
"SERIES 2001-2 CLOSING DATE" means May 17, 2001.
"SERIES 2001-2 COLLATERAL" means the Collateral, each Series 2001-2
Letter of Credit, each Series 2001-2 Demand Note, the Series 2001-2 Distribution
Account Collateral, the Series 2001-2 Interest Rate Cap Collateral, the Series
2001-2 Cash Collateral Account Collateral and the Series 2001-2 Reserve Account
Collateral.
"SERIES 2001-2 COLLECTION ACCOUNT" has the meaning specified in
Section 3.1(b) of this Supplement.
"SERIES 2001-2 DEMAND NOTE" means each demand note made by a Demand
Note Issuer, substantially in the form of EXHIBIT D to this Supplement, as
amended, modified or restated from time to time.
17
"SERIES 2001-2 DEMAND NOTE PAYMENT AMOUNT" means, as of the Series
2001-2 Letter of Credit Termination Date, the aggregate amount of all proceeds
of demands made on the Series 2001-2 Demand Notes pursuant to SECTION 3.5(b) or
(c) of this Supplement that were deposited into the Series 2001-2 Distribution
Account and paid to the Series 2001-2 Noteholders during the one year period
ending on the Series 2001-2 Letter of Credit Termination Date; PROVIDED, HOWEVER
that if an Event of Bankruptcy (or the occurrence of an event described in
clause (a) of the definition thereof, without the lapse of a period of 60
consecutive days) with respect to a Demand Note Issuer shall have occurred
during such one year period, the Series 2001-2 Demand Note Payment Amount as of
the Series 2001-2 Letter of Credit Termination Date shall equal the Series
2001-2 Demand Note Payment Amount as if it were calculated as of the date of
such occurrence.
"SERIES 2001-2 DEPOSIT DATE" has the meaning specified in Section
3.2 of this Supplement.
"SERIES 2001-2 DISTRIBUTION ACCOUNT" has the meaning specified in
Section 3.9(a) of this Supplement.
"SERIES 2001-2 DISTRIBUTION ACCOUNT COLLATERAL" has the meaning
specified in Section 3.9(d) of this Supplement.
"SERIES 2001-2 ELIGIBLE LETTER OF CREDIT PROVIDER" means a person
satisfactory to ARAC, the Demand Note Issuers and the Surety Provider and
having, at the time of the issuance of the related Series 2001-2 Letter of
Credit, a long-term senior unsecured debt rating (or the equivalent thereof in
the case of Xxxxx'x or S&P, as applicable) of at least "A+" from S&P and at
least "Al" from Xxxxx'x and a short term senior unsecured debt rating of at
least "P-1" from Xxxxx'x that is (a) a commercial bank having total assets in
excess of $500,000,000, (b) a finance company, insurance company or other
financial institution that in the ordinary course of business issues letters of
credit and has total assets in excess of $200,000,000 or (c) any other financial
institution; PROVIDED that if a person is not a Series 2001-2 Letter of Credit
Provider (or a letter of credit provider under the Supplement for any other
Series of Notes), then such person shall not be a Series 2001-2 Eligible Letter
of Credit Provider until AFC-II has provided 10 days' prior notice to the Rating
Agencies that such person has been proposed as a Series 2001-2 Letter of Credit
Provider.
"SERIES 2001-2 ENHANCEMENT" means the Series 2001-2 Cash Collateral
Account Collateral, the Series 2001-2 Letters of Credit, the Series 2001-2
Overcollateralization Amount and the Series 2001-2 Reserve Account Amount.
"SERIES 2001-2 ENHANCEMENT AMOUNT" means, as of any date of
determination, the sum of (i) the Series 2001-2 Overcollateralization Amount,
(ii) the Series 2001-2 Letter of Credit Amount and (iii) the Series 2001-2
Available Reserve Account Amount as of such date.
18
"SERIES 2001-2 ENHANCEMENT DEFICIENCY" means, on any date of
determination, the amount by which the Series 2001-2 Enhancement Amount is less
than the Series 2001-2 Required Enhancement Amount as of such date.
"SERIES 2001-2 EXCESS COLLECTION ACCOUNT" has the meaning specified
in Section 3.1(b) of this Supplement.
"SERIES 2001-2 FINAL DISTRIBUTION DATE" means, the Class A-1 Final
Distribution Date, the Class A-2 Final Distribution Date, the Class A-3 Final
Distribution Date and the Class A-4 Final Distribution Date, as the context may
require.
"SERIES 2001-2 INTEREST RATE CAP" has the meaning specified in
Section 3.10(a) of this Supplement.
"SERIES 2001-2 INTEREST RATE CAP COLLATERAL" has the meaning
specified in Section 3.10 (d) of this Supplement.
"SERIES 2001-2 INTEREST RATE CAP PROCEEDS" means the amounts
received by the Trustee from an Interest Rate Cap Counterparty from time to time
in respect of a Series 2001-2 Interest Rate Cap (including amounts received from
a guarantor or from collateral).
"SERIES 2001-2 INVESTED AMOUNT" means, as of any date of
determination, the sum of the Class A-1 Invested Amount, the Class A-2 Invested
Amount, the Class A-3 Invested Amount and the Class A-4 Invested Amount, in each
case as of such date of determination.
"SERIES 2001-2 INVESTED PERCENTAGE" means, as of any date of
determination:
(a) when used with respect to Principal Collections, the percentage
equivalent (which percentage shall never exceed 100%) of a fraction the
numerator of which shall be equal to the sum of the Series 2001-2 Invested
Amount and the Series 2001-2 Overcollateralization Amount, determined
during the Series 2001-2 Revolving Period as of the end of the most
recently ended calendar month (or, until June 1, 2001, on the Series
2001-2 Closing Date), or, during the Series 2001-2 Rapid Amortization
Period, as of the end of the Series 2001-2 Revolving Period, and the
denominator of which shall be the greater of (I) the Aggregate Asset
Amount as of the end of the most recently ended calendar month (or, until
June 1, 2001, on the Series 2001-2 Closing Date), and (II) as of the same
date as in clause (I), the sum of the numerators used to determine (i)
invested percentages for allocations with respect to Principal Collections
(for all Series of Notes and all classes of such Series of Notes) and (ii)
overcollateralization percentages for allocations with respect to
Principal Collections (for all Series of Notes that provide for credit
enhancement in the form of overcollateralization); and
19
(b) when used with respect to Interest Collections, the percentage
equivalent (which percentage shall never exceed 100%) of a fraction the
numerator of which shall be the Accrued Amounts with respect to the Series
2001-2 Notes on such date of determination, and the denominator of which
shall be the aggregate Accrued Amounts with respect to all Series of Notes
on such date of determination.
"SERIES 2001-2 LEASE PAYMENT DEFICIT" means on any Distribution Date
an amount equal to the excess, if any, of the aggregate amount of Interest
Collections and Principal Collections which pursuant to SECTION 3.2(a), (b),
(c), or (d) of this Supplement would have been allocated to the Series 2001-2
Noteholders if all payments required under the Leases to have been made during
the period from and excluding the immediately preceding Distribution Date to and
including such Distribution Date were made in full, over the aggregate amount of
Interest Collections and Principal Collections which pursuant to SECTION 3.2(a),
(b), (c), or (d) of this Supplement have been allocated to the Series 2001-2
Noteholders during such period. For this purpose, amounts paid or determined
pursuant to SECTION 3.2(a)(ii), (b)(ii), (c)(ii), and (d)(ii) of this Supplement
shall be deemed allocated to the Series 2001-2 Noteholders.
"SERIES 2001-2 LETTER OF CREDIT" means an irrevocable letter of
credit, if any, substantially in the form of EXHIBIT E to this Supplement issued
by a Series 2001-2 Eligible Letter of Credit Provider in favor of the Trustee
for the benefit of the Series 2001-2 Noteholders and the Surety Provider in form
and substance satisfactory to the Surety Provider.
"SERIES 2001-2 LETTER OF CREDIT AMOUNT" means, as of any date of
determination, the lesser of (a) the sum of (i) the aggregate amount available
to be drawn on such date under each Series 2001-2 Letter of Credit, as specified
therein, and (ii) if the Series 2001-2 Cash Collateral Account has been
established and funded pursuant to SECTION 38 of this Supplement, the Series
2001-2 Available Cash Collateral Account Amount on such date and (b) the
aggregate outstanding principal amount of the Series 2001-2 Demand Notes on such
date.
"SERIES 2001-2 LETTER OF CREDIT EXPIRATION DATE" means, with respect
to any Series 2001-2 Letter of Credit, the expiration date set forth in such
Series 2001-2 Letter of Credit, as such date may be extended in accordance with
the terms of such Series 2001-2 Letter of Credit.
"SERIES 2001-2 LETTER OF CREDIT LIQUIDITY AMOUNT" means, as of any
date of determination, the sum of (a) the aggregate amount available to be drawn
on such date under each Series 2001-2 Letter of Credit, as specified therein,
and (b) if the Series 2001-2 Cash Collateral Account has been established and
funded pursuant to SECTION 3.8 of this Supplement, the Series 2001-2 Available
Cash Collateral Account Amount on such date.
"SERIES 2001-2 LETTER OF CREDIT PROVIDER" means the issuer of a
Series 2001-2 Letter of Credit.
20
"SERIES 2001-2 LETTER OF CREDIT TERMINATION DATE" means the first to
occur of (a) the date on which the Series 2001-2 Notes are fully paid and the
Surety Provider has been paid all Surety Provider Fees and all other Surety
Provider Reimbursement Amounts then due, (b) the Series 2001-2 Termination Date
and (c) such earlier date consented to by the Surety Provider and the Rating
Agencies which consent by the Surety Provider shall be in writing.
"SERIES 2001-2 LIMITED LIQUIDATION EVENT OF DEFAULT" means, so long
as such event or condition continues, any event or condition of the type
specified in clauses (a) through (h) of Article IV of this Supplement; PROVIDED,
HOWEVER, that any event or condition of the type specified in clauses (a)
through (e) of Article IV of this Supplement shall not constitute a Series
2001-2 Limited Liquidation Event of Default if (i) within the thirty (30) day
period following the occurrence of such event or condition, such Amortization
Event shall have been cured and, after such cure of such Amortization Event is
provided for, the Trustee shall have received the written consent of the Surety
Provider waiving the occurrence of such Series 2001-2 Limited Liquidation Event
of Default or (ii) the Trustee shall have received the written consent of the
Surety Provider waiving the occurrence of such Series 2001-2 Limited Liquidation
Event of Default.
"SERIES 2001-2 LIQUIDITY AMOUNT" means, as of any date of
determination, the sum of (a) the Series 2001-2 Letter of Credit Liquidity
Amount on such date and (b) the Series 2001-2 Available Reserve Account Amount
on such date.
"SERIES 2001-2 MAXIMUM AGGREGATE SUBARU/HYUNDAI/SUZUKI AMOUNT"
means, as of any day, with respect to Subaru, Hyundai and Suzuki, in the
aggregate, an amount equal to 10% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
"SERIES 2001-2 MAXIMUM AMOUNT" means any of the Series 2001-2
Maximum Manufacturer Amounts, the Series 2001-2 Maximum Non-Eligible
Manufacturer Amount, the Series 2001-2 Maximum Non-Program Vehicle Amount or the
Series 2001-2 Maximum Specified States Amount.
"SERIES 2001-2 MAXIMUM INDIVIDUAL SUBARU/HYUNDAI/SUZUKI AMOUNT"
means, as of any day, with respect to Subaru, Hyundai or Suzuki, individually,
an amount equal to 5% of the aggregate Net Book Value of all Vehicles leased
under the Leases on such day.
"SERIES 2001-2 MAXIMUM INVESTED AMOUNT" means, $125,000,000.
"SERIES 2001-2 MAXIMUM MANUFACTURER AMOUNT" means, as of any day,
any of the Series 2001-2 Maximum Mitsubishi Amount, the Series 2001-2 Maximum
Individual Subaru/Hyundai/Suzuki Amount, the Series 2001-2 Maximum Aggregate
Subaru/Hyundai/Suzuki Amount, the Series 2001-2 Maximum Mazda Amount or the
Series 2001-2 Maximum Mazda Program Vehicle Amount.
21
"SERIES 2001-2 MAXIMUM MAZDA AMOUNT" means, as of any day, an amount
equal to 20% of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
"SERIES 2001-2 MAXIMUM MAZDA PROGRAM VEHICLE AMOUNT" means, as of
any day, an amount equal to the Series 2001-2 Maximum Mazda Program Vehicle
Percentage of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
"SERIES 2001-2 MAXIMUM MAZDA PROGRAM VEHICLE PERCENTAGE" means 20%
or such lesser percentage as may be agreed to in writing by AFC-II and the
Surety Provider (initially 5%) on or after the Series 2001-2 Closing Date, with
prompt written notice thereof delivered by AFC-II to the Trustee.
"SERIES 2001-2 MAXIMUM MITSUBISHI AMOUNT" means, as of any day, an
amount equal to 10% of the aggregate Net Book Value of all Vehicles leased under
the Leases on such day.
"SERIES 2001-2 MAXIMUM NON-ELIGIBLE MANUFACTURER AMOUNT" means, as
of any day, an amount equal to 3% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
"SERIES 2001-2 MAXIMUM NON-PROGRAM VEHICLE PERCENTAGE" means 25% or
such lesser percentage as may be agreed to in writing by AFC-II and the Surety
Provider on or after the Series 2001-2 Closing Date, with prompt written notice
thereof delivered by AFC-II to the Trustee.
"SERIES 2001-2 MAXIMUM NON-PROGRAM VEHICLE AMOUNT" means, as of any
day, an amount equal to the Series 2001-2 Maximum Non-Program Vehicle Percentage
of the aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
"SERIES 2001-2 MAXIMUM SPECIFIED STATES AMOUNT" means, as of any
day, an amount equal to 7.5% of the aggregate Net Book Value of all Vehicles
leased under the Leases on such day.
"SERIES 2001-2 MINIMUM INVESTED AMOUNT" means, $5,000,000.
"SERIES 2001-2 NON-PROGRAM VEHICLE PERCENTAGE" means, as of any date
of determination, a fraction, expressed as a percentage, the numerator of which
is the aggregate Net Book Value of all Non-Program Vehicles leased under the
AESOP I Operating Lease as of such date and the denominator of which is the
aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease as of such date.
22
"SERIES 2001-2 NOTE RATE" means the Class A-1 Note Rate, the Class
A-2 Note Rate, the Class A-3 Note Rate or the Class A-4 Note Rate, as the
context may require.
"SERIES 2001-2 NOTEHOLDERS" means, collectively, the Class A-1
Noteholders, the Class A-2 Noteholders, the Class A-3 Noteholders and the Class
A-4 Noteholders.
"SERIES 2001-2 NOTES" means, collectively, the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes.
"SERIES 2001-2 OUTSTANDING PRINCIPAL AMOUNT" means, as of any date
of determination, the sum of the Class A-1 Outstanding Principal Amount, the
Class A-2 Outstanding Principal Amount, the Class A-3 Outstanding Principal
Amount and the Class A-4 Outstanding Principal Amount.
"SERIES 2001-2 OVERCOLLATERALIZATION AMOUNT" means (i) as of any
date on which no AESOP I Operating Lease Vehicle Deficiency exists, the Series
2001-2 Required Overcollateralization Amount as of such date and (ii) as of any
date on which an AESOP I Operating Lease Vehicle Deficiency exists, the excess,
if any, of (x) the Series 2001-2 AESOP I Operating Lease Loan Agreement
Borrowing Base as of such date over (y) the Series 2001-2 Invested Amount as of
such date.
"SERIES 2001-2 PERCENTAGE" means, as of any date of determination, a
fraction, expressed as a percentage, the numerator of which is the Series 2001-2
Invested Amount as of such date and the denominator of which is the sum of the
aggregate Invested Amount of each Series of Notes outstanding as of such date.
"SERIES 2001-2 PERIODIC INTEREST" means, with respect to the Series
2001-2 Notes of any Class, the Class A-1 Periodic Interest, the Class A-2
Periodic Interest, the Class A-3 Periodic Interest or the Class A-4 Periodic
Interest, as applicable.
"SERIES 2001-2 PRINCIPAL ALLOCATION" has the meaning specified in
Section 3.2(a)(ii) of this Supplement.
"SERIES 2001-2 PROGRAM VEHICLE PERCENTAGE" means, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the aggregate Net Book Value of all Program Vehicles leased under the AESOP I
Operating Lease as of such date and the denominator of which is the aggregate
Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of
such date.
"SERIES 2001-2 RAPID AMORTIZATION PERIOD" means the period beginning
at the close of business on the Business Day immediately preceding the day on
which an Amortization Event is deemed to have occurred with respect to the
Series 2001-2 Notes and ending upon the earliest to occur of (i) the date on
which the Series 2001-2 Notes are fully paid or redeemed and the Surety Provider
has been paid all Surety Provider Fees
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and all other Surety Provider Reimbursement Amounts then due, (ii) the Series
2001-2 Termination Date and (iii) the termination of the Indenture.
"SERIES 2001-2 REIMBURSEMENT AGREEMENT" means any and each agreement
providing for the reimbursement of a Series 2001-2 Letter of Credit Provider for
draws under its Series 2001-2 Letter of Credit as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"SERIES 2001-2 RELATED MONTH" means, with respect to any Principal
Distribution Date in respect of the Series 2001-2 Notes of any Class on which
Series 2001-2 Notes of such Class are required to be redeemed pursuant to
Section 3.5(a) of this Supplement, the calendar month immediately preceding the
most recent First Potential Series 2001-2 Redemption Date; PROVIDED that if the
preceding Principal Distribution Date on which the Series 2001-2 Notes of such
Class were redeemed occurred prior to the First Potential Series 2001-2
Redemption Date in the calendar month immediately preceding the most recent
First Potential Series 2001-2 Redemption Date, "Series 2001-2 Related Month"
shall mean the calendar month immediately preceding the most recent First
Potential Series 2001-2 Redemption Date, the calendar month prior to the month
in which such preceding Principal Distribution Date occurred and any intervening
calendar month; PROVIDED, further that with respect to the initial Principal
Distribution Date in respect of the Series 2001-2 Notes of such Class on which
Series 2001-2 Notes of such Class are required to be redeemed pursuant to
Section 3.5(a) of this Supplement, "Series 2001-2 Related Month" shall mean the
calendar month immediately prior to the month in which the Initial Rapid
Principal Determination Date occurred, and each calendar month thereafter ending
prior to the calendar month in which the First Potential Series 2001-2
Redemption Date immediately preceding such initial Principal Distribution Date
shall have occurred.
"SERIES 2001-2 REQUIRED AESOP I OPERATING LEASE VEHICLE AMOUNT"
means, as of any date of determination, the sum of the Series 2001-2 Invested
Amount and the Series 2001-2 Required Overcollateralization Amount as of such
date.
"SERIES 2001-2 REQUIRED ENHANCEMENT AMOUNT" means, as of any date of
determination, the sum of (i) the product of the Series 2001-2 Required
Enhancement Percentage as of such date and the Series 2001-2 Invested Amount as
of such date, (ii) the Series 2001-2 Percentage of the excess, if any, of the
Non-Program Vehicle Amount as of such date over the Series 2001-2 Maximum
Non-Program Vehicle Amount as of such date, (iii) the Series 2001-2 Percentage
of the excess, if any, of the aggregate Net Book Value of all Vehicles
manufactured by Mitsubishi and leased under the Leases as of such date over the
Series 2001-2 Maximum Mitsubishi Amount as of such date, (iv) the Series 2001-2
Percentage of the excess, if any, of the aggregate Net Book Value of all
Vehicles manufactured by Subaru, Hyundai or Suzuki, individually, and leased
under the Leases as of such date over the Series 2001-2 Maximum Individual
Subaru/ Hyundai/Suzuki Amount as of such date, (v) the Series 2001-2 Percentage
of the excess, if any, of the aggregate Net Book Value of all Vehicles
manufactured by Subaru, Hyundai or Suzuki, in the aggregate, and leased under
the Leases as of such date over the
24
Series 2001-2 Maximum Aggregate Subaru/Hyundai/Suzuki Amount as of such date,
(vi) the Series 2001-2 Percentage of the excess, if any, of the aggregate Net
Book Value of all Vehicles manufactured by Mazda and leased under the Leases as
of such date over the Series 2001-2 Maximum Mazda Amount as of such date, (vii)
the Series 2001-2 Percentage of the excess, if any, of the aggregate Net Book
Value of all Program Vehicles manufactured by Mazda and leased under the Leases
as of such date over the Series 2001-2 Maximum Mazda Program Vehicle Amount as
of such date, (viii) the Series 2001-2 Percentage of the excess, if any, of the
Specified States Amount as of such date over the Series 2001-2 Maximum Specified
States Amount as of such date and (ix) the Series 2001-2 Percentage of the
excess, if any, of the Non-Eligible Manufacturer Amount as of such date over the
Series 2001-2 Maximum Non-Eligible Manufacturer Amount as of such date.
"SERIES 2001-2 REQUIRED ENHANCEMENT PERCENTAGE" means, as of any
date of determination, the sum of (i) the product of (A) 11% times (B) the
Series 2001-2 Program Vehicle Percentage as of such date and (ii) the product of
(A) the Series 2001-2 Required Non-Program Enhancement Percentage as of such
date times (B) the Series 2001-2 Non-Program Vehicle Percentage as of such date.
"SERIES 2001-2 REQUIRED LIQUIDITY AMOUNT" means, with respect to any
Distribution Date, an amount equal to 4.50% of the Series 2001-2 Invested Amount
on such Distribution Date (after giving effect to any payments of principal to
be made on the Series 2001-2 Notes on such Distribution Date).
"SERIES 2001-2 REQUIRED NON-PROGRAM ENHANCEMENT PERCENTAGE" means,
as of any date of determination, the greater of (a) 15% and (b) the sum of (i)
15% and (ii) the sum, for each calendar month within the preceding twelve
calendar months, of the greater of (x) an amount (not less than zero) equal to
100% minus the Measurement Month Average for the immediately preceding
Measurement Month and (y) an amount (not less than zero) equal to 100% minus the
Market Value Average as of the Determination Date within such calendar month
(excluding the Market Value Average for any Determination Date which has not yet
occurred).
"SERIES 2001-2 REQUIRED OVERCOLLATERALIZATION AMOUNT" means, as of
any date of determination, the excess, if any, of the Series 2001-2 Required
Enhancement Amount over the sum of (i) the Series 2001-2 Letter of Credit Amount
as of such date and (ii) the amount of cash and Permitted Investments on deposit
in the Series 2001-2 Collection Account (not including amounts allocable to the
Series 2001-2 Accrued Interest Account) and the Series 2001-2 Excess Collection
Account on such date.
"SERIES 2001-2 REQUIRED RESERVE ACCOUNT AMOUNT" means, with respect
to any Distribution Date, an amount equal to the excess, if any, of the Series
2001-2 Required Liquidity Amount on such Distribution Date over the Series
2001-2 Liquidity Amount (calculated as if the Series 2001-2 Available Reserve
Account Amount is zero) on such Distribution Date (after giving effect to any
payments of principal to be made on the Series 2001-2 Notes an such Distribution
Date).
25
"SERIES 2001-2 RESERVE ACCOUNT" has the meaning specified in Section
3.7(a) of this Supplement.
"SERIES 2001-2 RESERVE ACCOUNT COLLATERAL" has the meaning specified
in Section 3.7(d) of this Supplement.
"SERIES 2001-2 RESERVE ACCOUNT SURPLUS" means, with respect to any
Distribution Date, the excess, if any, of the Series 2001-2 Available Reserve
Account Amount over the Series 2001-2 Required Reserve Account Amount on such
Distribution Date.
"SERIES 2001-2 REVOLVING PERIOD" means the period from and including
the Series 2001-2 Closing Date to the commencement of any Series 2001-2 Rapid
Amortization Period.
"SERIES 2001-2 TERMINATION DATE" means the latest occurring Series
2001-2 Final Distribution Date.
"SERIES 2001-2 UNPAID DEMAND AMOUNT" means, with respect to any
single draw pursuant to Section 2.5(b) or (c) on the Series 2001-2 Letters of
Credit, the aggregate amount drawn by the Trustee on all Series 2001-2 Letters
of Credit.
"SHADOW RATING" means the rating of the Series 2001-2 Notes by
Standard & Poor's or Xxxxx'x, as applicable, without giving effect to the Surety
Bond.
"SHORTFALL" has the meaning specified in Section 3.3(h) of this
Supplement.
"SPECIAL AUCTION RATE PERIOD" means a Subsequent Auction Rate Period
designated pursuant to Section 3.12 of this Supplement that consists of a
specified number of Rate Period Days greater than 35 and not more than 175 and
evenly divisible by seven, subject to adjustment as provided in Section 3.12(b)
of this Supplement.
"STANDARD AUCTION RATE PERIOD" means, with respect to the Class A-1
Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, any
Auction Rate Period consisting of 35 Rate Period Days.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"SUBSEQUENT AUCTION RATE PERIOD" means, for the Series 2001-2 Notes
of any Class, the period from and including the Initial Distribution Date with
respect to the Series 2001-2 Notes of such Class to but excluding the next
Distribution Date with respect to the Series 2001-2 Notes of such Class and each
period thereafter from and including one Distribution Date with respect to the
Series 2001-2 Notes of such Class to but excluding the next succeeding
Distribution Date with respect to the Series 2001-2 Notes of such Class;
PROVIDED that if any Subsequent Auction Rate Period for the Series 2001-2 Notes
of such Class is also a Special Auction Rate Period consisting of more than
26
35 Rate Period Days, such term shall mean the period commencing on the first day
of such Special Auction Rate Period and ending on the last day of the last
Interest Period thereof.
"SUBSTITUTE AUCTION AGENT" means the Person with whom AFC-II enters
into a Substitute Auction Agent Agreement.
"SUBSTITUTE AUCTION AGENT AGREEMENT" means an auction agent
agreement approved by the Surety Provider containing terms substantially similar
to the terms of the Initial Auction Agent Agreement, whereby a Person having the
qualifications required by Section 2.1.5 of the Auction Procedures agrees with
AFC-II to perform the duties of the Auction Agent under this Supplement
(including Appendix A hereto).
"SUPPLEMENT" has the meaning set forth in the preamble.
"SURETY BOND" means the Note Guaranty Insurance Policy No. AB 0458
BE, dated May 17, 2001, issued by the Surety Provider.
"SURETY DEFAULT" means (i) the occurrence and continuance of any
failure by the Surety Provider to pay upon a demand for payment in accordance
with the requirements of the Surety Bond or (ii) the occurrence of an Event of
Bankruptcy with respect to the Surety Provider.
"SURETY PROVIDER" means Ambac Assurance Corporation. The Surety
Provider shall constitute an "Enhancement Provider" with respect to the Series
2001-2 Notes for all purposes under the Indenture and the other Related
Documents.
"SURETY PROVIDER FEE" has the meaning set forth in the Insurance
Agreement.
"SURETY PROVIDER QUALIFIED INTEREST RATE CAP COUNTERPARTY" shall
mean at the time of entering into the related Series 2001-2 Interest Rate Cap, a
bank or other financial institution having a long-term senior and unsecured debt
rating of at least "AA-" from Standard & Poor's and "Aa3" from Xxxxx'x.
"SURETY PROVIDER REIMBURSEMENT AMOUNTS" means, as of any date of
determination, (i) an amount equal to the aggregate of any amounts due as of
such date to the Surety Provider pursuant to the Insurance Agreement in respect
of unreimbursed draws under the Surety Bond, including interest thereon
determined in accordance with the Insurance Agreement, and (ii) an amount equal
to the aggregate of any other amounts due as of such date to the Surety Provider
pursuant to the Insurance Agreement.
"TELERATE PAGE 3750" means the display page currently so designated
on the Dow Xxxxx Telerate Service (or such other page as may replace that page
on that service for the purpose of displaying comparable rates or prices).
27
"TERMINATION DATE DISBURSEMENT" means an amount drawn under a Series
2001-2 Letter of Credit pursuant to a Certificate of Termination Date Demand.
"TERMINATION DISBURSEMENT" means an amount drawn under a Series
2001-2 Letter of Credit pursuant to a Certificate of Termination Demand.
"TRUSTEE" has the meaning specified in the first paragraph of this
Supplement.
"UNPAID DEMAND NOTE DISBURSEMENT" means an amount drawn under a
Series 2001-2 Letter of Credit pursuant to a Certificate of Unpaid Demand Note
Demand.
ARTICLE II
ADDITIONAL ISSUANCES OF
SERIES 2001-2 NOTES
Section 2.1 PROCEDURE FOR ISSUING ADDITIONAL AUCTION RATE NOTES.
(a) Subject to satisfaction of the conditions precedent set forth in
subsection (b) of this Section 2.1, AFC-II may issue Additional Auction Rate
Notes of any Class which have not been previously optionally redeemed in full
pursuant to Section 7.1 of this Supplement (any such issuance an "Increase") on
any Principal Distribution Date with respect to such Class during the Series
2001-2 Revolving Period, upon written notice to the Trustee, each Agent and the
Auction Agent, such notice to be provided at least six Business Days prior to
such Principal Distribution Date. Proceeds from the issuance of any Additional
Auction Rate Notes shall be deposited into the Collection Account and allocated
in accordance with ARTICLE III hereof.
(b) Additional Auction Rate Notes of any Class which have not been
previously optionally redeemed in full pursuant to Section 7.1 of this
Supplement may be issued on any Principal Distribution Date with respect to the
Series 2001-2 Notes of such Class during the Series 2001-2 Revolving Period only
upon satisfaction of each of the following conditions with respect thereto:
(i) the amount of such Increase shall be equal to or greater
than $5,000,000 and an integral multiple of $50,000;
(ii) after giving effect to such Increase, the Class A-1
Invested Amount, the Class A-2 Invested Amount, the Class A-3 Invested
Amount or the Class A-4 Invested Amount, as the case may be, shall not
exceed the Series 2001-2 Maximum Invested Amount for such Class of Notes;
(iii) the amount on deposit in the Series 2001-2 Reserve
Account shall be equal to or greater than the Series 2001-2 Required
Reserve Account Amount (calculated after giving effect to such Increase);
28
(iv) after giving effect to such Increase and the application
of the proceeds thereof, no AESOP I Operating Lease Vehicle Deficiency
shall exist;
(v) after giving effect to such Increase, the aggregate
notional amount of all Series 2001-2 Interest Rate Caps will equal or
exceed the Series 2001-2 Invested Amount;
(vi) no event or occurrence which with the passage of time or
the giving of notice thereof or both would become an Amortization Event, a
Liquidation Event of Default or a Series 2001-2 Limited Liquidation Event
of Default shall have occurred and be continuing and such Increase shall
not result in the occurrence of (1) an Amortization Event, a Liquidation
Event of Default or a Series 2001-2 Limited Liquidation Event of Default,
or (2) an event or occurrence, which, with the passing of time or the
giving of notice thereof, or both, would become an Amortization Event, a
Liquidation Event of Default or a Series 2001-2 Limited Liquidation Event
of Default;
(vii) all conditions precedent to the issuance of such
Additional Auction Rate Notes set forth in Section 6 of the Distribution
Agreement shall have been satisfied;
(viii) each Borrower (or ARAC in the case of Financed
Vehicles) shall have good and marketable title to each Vehicle purchased
or financed by such Borrower with the proceeds of Loans, free and clear of
all Liens and encumbrances, other than any Permitted Liens; and each
Manufacturer Program shall be in full force and effect, and shall be
enforceable against the related Manufacturer;
(ix) each Borrower shall have granted to AFC-II, and AFC-II
shall have granted to the Trustee, a first priority security interest in
all Vehicles now or hereafter leased by such Xxxxxxxx;
(x) each Borrower shall have granted to AFC-II, and AFC-II
shall have granted to the Trustee, a first priority security interest in
its right, title and interest in and to the Leases to which it is party;
(xi) AFC-II shall have granted to the Trustee a first priority
security interest in all of its right, title and interest in and to the
Loan Collateral;
(xii) the Trustee shall have received from the Borrowers a
copy of each Manufacturer Program under which Program Vehicles will be or
have been purchased and are included or proposed to be included in the
Aggregate Asset Amount and an Officer's Certificate, dated the Series
2001-2 Closing Date (or, if later, the date on which such Manufacturer
Program becomes an Eligible Manufacturer Program), and duly executed by an
Authorized Officer of each of the Borrowers certifying that each such copy
is true, correct and complete as of
29
the Series 2001-2 Closing Date (or, if later, the date on which such
Manufacturer Program becomes an Eligible Manufacturer Program);
(xiii) the Trustee shall have received executed counterparts
of the Assignment Agreements related to the assignment of rights under
each Manufacturer Program under which Program Vehicles will be or have
been purchased and are included or proposed to be included in the
Aggregate Asset Amount, by each Lessee, the Borrowers, AFC-II and each
applicable Manufacturer;
(xiv) the Trustee shall have received evidence (which, in the
case of the filing of financing statements on form UCC-1, may be
telephonic confirmation of such filing, followed by prompt written
confirmation) that AFC-II has caused or is causing the Trustee's name to
be noted on each Vehicle's Certificate of Title (other than Certificates
of Title with respect to Vehicles titled in the States of Ohio, Oklahoma
or Nebraska) in accordance with the Loan Agreements and all filings
(including filings of financing statements on form UCC-l) and recordings
have been accomplished as may be required by law to establish, perfect,
protect and preserve the rights, titles, interests, remedies, powers,
privileges, licenses and security interest of the Trustee in such Vehicles
and other Collateral for the benefit of the Secured Parties (except, as to
perfection, with respect to Vehicles titled in the States of Nebraska,
Ohio and Oklahoma);
(xv) the Trustee shall have received a duly executed copy of
the Administration Agreement;
(xvi) all representations and warranties set forth in Section
8 of the applicable Loan Agreement and Section 7 of the Base Indenture
shall be true and correct; and
(xvii) the Trustee shall have received on or prior to the
Series 2001-2 Closing Date, the original of each of the Borrower's Loan
Notes and original Counterpart No. 1 of each of the Leases to which such
Borrower is a party (as set forth in the cover page and signature page of
each Lease);
PROVIDED that if in the simulated Auction for such Class of Series 2001-2
Notes on the related Auction Date for such Class of Series 2001-2 notes
including such Additional Auction Rate notes, Sufficient Bids do not
exist, then such Additional Auction Rate Notes shall not be issued.
Section 2.2 OPTIONAL REDEMPTIONS DURING THE SERIES 2001-2 REVOLVING
PERIOD. In connection with any optional redemption of the Series 2001-2 Notes of
any Class pursuant to Section 7.1 of this Supplement, AFC-II shall withdraw
funds from the Series 2001-2 Excess Collection Account and the Series 2001-2
Accrued Interest Account and deposit such funds in the Series 2001-2
Distribution Account for application of such funds to the redemption of the
Series 2001-2 Notes of such Class; PROVIDED,
30
HOWEVER, that AFC-II shall only be permitted to redeem the Series 2001-2 Notes
of any Class pursuant to Section 7.1 of this Series Supplement, if after giving
effect to such redemption either (i) such Class of Series 2001-2 Notes shall
have been redeemed in full or (ii) the aggregate principal amount of the Series
2001-2 Notes of such Class shall equal or exceed the Series 2001-2 Minimum
Invested Amount. The amount of any such redemption must be in minimum
denominations of $50,000 and integral multiples of $50,000 in excess thereof,
and shall not exceed the amount on deposit in the Series 2001-2 Excess
Collection Account and available for distribution to the holders of the Class of
Series 2001-2 Notes being redeemed.
ARTICLE III
SERIES 2001-2 ALLOCATIONS
With respect to the Series 2001-2 Notes, the following shall apply:
Section 3.1 ESTABLISHMENT OF SERIES 2001-2 COLLECTION ACCOUNT,
SERIES 2001-2 EXCESS COLLECTION ACCOUNT AND SERIES 2001-2 ACCRUED INTEREST
ACCOUNT. (a) All Collections allocable to the Series 2001-2 Notes shall be
allocated to the Collection Account.
(b) The Trustee will create three administrative subaccounts within
the Collection Account for the benefit of the Series 2001-2 Noteholders and the
Surety Provider: the Series 2001-2 Collection Account (such sub-account, the
"Series 2001-2 Collection Account"), the Series 2001-2 Excess Collection Account
(such sub-account, the "Series 2001-2 Excess Collection Account") and the Series
2001-2 Accrued Interest Account (such sub-account, the "Series 2001-2 Accrued
Interest Account").
Section 3.2 ALLOCATIONS WITH RESPECT TO THE SERIES 2001-2 NOTES. The
net proceeds from the initial sale of the Series 2001-2 Notes and each Increase
will be deposited into the Collection Account. On the Series 2001-2 Closing Date
and each Business Day on which Collections or the proceeds of any Increase are
deposited into the Collection Account (each such date, a "Series 2001-2 Deposit
Date"), the Administrator will direct the Trustee in writing pursuant to the
Administration Agreement to allocate all amounts deposited into the Collection
Account in accordance with the provisions of this Section 3.2.
(a) ALLOCATIONS OF COLLECTIONS DURING THE SERIES 2001-2 REVOLVING
PERIOD. During the Series 2001-2 Revolving Period, the Administrator will direct
the Trustee in writing pursuant to the Administration Agreement to allocate on
each day, prior to 11:00 a.m. (New York City time) on each Series 2001-2 Deposit
Date, all amounts deposited into the Collection Account as set forth below:
(i) allocate to the Series 2001-2 Collection Account an amount
equal to the sum of (A) the Series 2001-2 Invested Percentage (as of such
day) of the aggregate amount of Interest Collections on such day and (B)
any amounts
31
received by the Trustee on such day in respect of the Series 2001-2
Interest Rate Cap. All such amounts allocated to the Series 2001-2
Collection Account shall be further allocated to the Series 2001-2 Accrued
Interest Account; and
(ii) allocate to the Series 2001-2 Excess Collection Account
(A) an amount equal to the Series 2001-2 Invested Percentage (as of such
day) of the aggregate amount of Principal Collections on such day, and (B)
on the Series 2001-2 Closing Date, the net proceeds from the issuance of
the Series 2001-2 Notes, and on the date of any Increase, the net proceeds
from such Increase (for any such day, the "Series 2001-2 Principal
Allocation").
(b) RESERVED.
(c) ALLOCATIONS OF COLLECTIONS DURING THE SERIES 2001-2 RAPID
AMORTIZATION PERIOD. With respect to the Series 2001-2 Rapid Amortization
Period, other than after the occurrence of an Event of Bankruptcy with respect
to ARAC, any other Lessee or Avis Group Holdings, Inc. ("AGH"), the
Administrator will direct the Trustee in writing pursuant to the Administration
Agreement to allocate, prior to 11:00 a.m. (New York City time) on any Series
2001-2 Deposit Date, all amounts deposited into the Collection Account as set
forth below:
(i) allocate to the Series 2001-2 Collection Account an amount
determined as set forth in Section 3.2(a)(i) above for such day, which
amount shall be further allocated to the Series 2001-2 Accrued Interest
Account; and
(ii) allocate to the Series 2001-2 Collection Account an
amount equal to the Series 2001-2 Principal Allocation for such day, which
amount shall be ratably allocated among each outstanding Class of Series
2001-2 Notes in accordance with the Invested Amount of each such Class of
Series 2001-2 Notes as of such Series 2001-2 Deposit Date, to be used to
redeem the Series 2001-2 Notes in accordance with Section 7.2 of this
Supplement.
(d) ALLOCATIONS OF COLLECTIONS AFTER THE OCCURRENCE OF AN
EVENT OF BANKRUPTCY. After the occurrence of an Event of Bankruptcy with respect
to ARAC, any other Lessee or AGH, the Administrator will direct the Trustee in
writing pursuant to the Administration Agreement to allocate, prior to 11:00
a.m. (New York City time) on any Series 2001-2 Deposit Date, all amounts
attributable to the AESOP I Operating Lease Loan Agreement deposited into the
Collection Account as set forth below:
(i) allocate to the Series 2001-2 Collection Account an amount
equal to the sum of (A) the Series 2001-2 AESOP I Operating Lease Vehicle
Percentage as of the date of the occurrence of such Event of Bankruptcy of
the aggregate amount of Interest Collections made under the AESOP I
Operating Lease Loan Agreement for such day and (B) any amounts received
by the Trustee in respect of the Series 2001-2 Interest Rate Cap on such
day. All such amounts
32
allocated to the Series 2001-2 Collection Account shall be further
allocated to the Series 2001-2 Accrued Interest Account;
(ii) allocate to the Series 2001-2 Collection Account an
amount equal to the Series 2001-2 AESOP I Operating Lease Vehicle
Percentage as of the date of the occurrence of such Event of Bankruptcy of
the aggregate amount of Principal Collections made under the AESOP I
Operating Lease Loan Agreement, which amount shall be ratably allocated
among each outstanding Class of Series 2001-2 Notes in accordance with the
Invested Amount of each such Class of Series 2001-2 Notes as of such
Series 2001-2 Deposit Date, to be used to redeem the Series 2001-2 Notes
pursuant to Section 7.2 of this Supplement.
After the occurrence of an Event of Bankruptcy with respect to ARAC, any other
Lessee or AGH, the Administrator will direct the Trustee in writing pursuant to
the Administration Agreement to allocate all amounts attributable to the AESOP I
Finance Lease Loan Agreement and the AESOP II Loan Agreement in accordance with
the provisions of the Series 1997-2 Supplement.
(e) SERIES 2001-2 EXCESS COLLECTION ACCOUNT. Amounts allocated
to the Series 2001-2 Excess Collection Account on any Series 2001-2 Deposit Date
will be (v) first, subject to the conditions of Section 7.1 of this Supplement,
used or set aside to effect a redemption of the Series 2001-2 Notes of any
Class, (w) second, deposited in the Series 2001-2 Reserve Account in an amount
up to the excess, if any, of the Series 2001-2 Required Reserve Account Amount
for such date, after giving effect to any Increase or redemption of Series
2001-2 Notes on such date, over the Series 2001-2 Available Reserve Account
Amount for such date, (x) third, used to pay the principal amount of other
Series of Notes that are then in amortization (y) fourth, released to AESOP
Leasing in an amount equal to the product of (A) the Loan Agreement's Share with
respect to the AESOP I Operating Lease Loan Agreement as of such date times (B)
100% minus the Loan Payment Allocation Percentage with respect to the AESOP I
Operating Lease Loan Agreement as of such date times (C) the amount of any
remaining funds and (z) fifth, paid to AFC-II and used to make Loans under the
Loan Agreements to the extent the Borrowers have requested Loans thereunder and
Eligible Vehicles are available for financing thereunder; PROVIDED, in the case
of clauses (x), (y) and (z), that no Series 2001-2 Enhancement Deficiency or
AESOP I Operating Lease Vehicle Deficiency would result therefrom or exist
immediately thereafter. Upon the occurrence of an Amortization Event, funds on
deposit in the Series 2001-2 Excess Collection Account will be withdrawn by the
Trustee, deposited in the Series 2001-2 Collection Account and allocated ratably
based on the Invested Amount of such Class of Series 2001-2 Notes as of the date
on which such Amortization Event occurred, as Principal Collections to redeem
all or a portion of the Series 2001-2 Notes of each Class on the next succeeding
Principal Distribution Date with respect to each such Class of Series 2001-2
Notes occurring more than five Business Days following the occurrence of such
Amortization Event.
33
(f) DISTRIBUTION DATES. Interest on the Series 2001-2 Notes of
each Class shall accrue at the Note Rate with respect to the Series 2001-2 Notes
of such Class for each Auction Rate Period therefor and shall be payable in
arrears, commencing on the Initial Distribution Date with respect to Series
2001-2 Notes of such Class and
(i) in the case of the Class A-1 Notes, so long as each
Subsequent Auction Rate Period for the Class A-1 Notes is a Standard
Auction Rate Period therefor, on each succeeding fifth Wednesday
thereafter;
(ii) in the case of the Class A-2 Notes, so long as each
Subsequent Auction Rate Period for the Class A-2 Notes is a Standard
Auction Rate Period therefor, on each succeeding fifth Wednesday
thereafter;
(iii) in the case of the Class A-3 Notes, so long as each
Subsequent Auction Rate Period for the Class A-3 Notes is a Standard
Auction Rate Period therefor, on each succeeding fifth Wednesday
thereafter;
(iv) in the case of the Class A-4 Note, so long as each
Subsequent Auction Rate Period for the Class A-4 Notes is a Standard
Auction Rate Period therefor, on each succeeding fifth Wednesday
thereafter;
PROVIDED that if AFC-II, subject to the conditions set forth in Section 3.12(a)
of this Supplement, designates a Subsequent Auction Rate Period for the Series
2001-2 Notes of any Class as a Special Auction Rate Period that consists of:
(i) greater than 35 but fewer than 71 Rate Period Days,
interest shall be payable on the fifth Wednesday occurring after the first
day of such Special Auction Rate Period and on the day after the last day
of such Special Auction Rate Period;
(ii) greater than 70 but fewer than 106 Rate Period Days,
interest shall be payable on the fifth and tenth Wednesdays occurring
after the first day of such Special Auction Rate Period and on the day
after the last day of such Special Auction Rate Period;
(iii) greater than 105 but fewer than 141 Rate Period Days,
interest shall be payable on the fifth, tenth and fifteenth Wednesdays
occurring after the first day of such Special Auction Rate Period and on
the day after the last day of such Special Auction Rate Period; or
(iv) greater than 140 Rate Period Days, interest shall be
payable on the fifth, tenth, fifteenth and twentieth Wednesdays occurring
after the first day of such Special Auction Rate Period and on the day
after the last day of such Special Auction Rate Period
34
(with respect to the Series 2001-2 Notes of each Class, each date
referred to above and in Section 3.2(g) of this Supplement, a "Distribution
Date"). Notwithstanding the foregoing, if any Distribution Date is not a
Business Day, then such Distribution Date shall be the next succeeding Business
Day. For all purposes under the Series 2001-2 Supplement and each Related
Document, interest with respect to any Class of Series 2001-2 Notes, which is
scheduled to be paid on any Distribution Date with respect to such Class of
Series 2001-2 Notes which accrues from the Program Distribution Date immediately
preceding such Distribution Date to such Distribution Date shall be deemed to
have accrued as of such preceding Program Distribution Date.
(g) DISTRIBUTION DATES AFTER A SPECIAL AUCTION RATE PERIOD. After
any Special Auction Rate Period with respect to Series 2001-2 Notes of any
Class, interest shall be payable on each succeeding fifth Wednesday after the
last day of such Special Auction Rate Period, subject in each case to the option
of AFC-II to further designate from time to time any Subsequent Auction Rate
Period with respect to the Series 2001-2 Notes of such Class as a Special
Auction Rate Period.
(h) NOTE RATES. The rate of interest on the Series 2001-2 Notes of
each Class for each Subsequent Auction Rate Period for the Series 2001-2 Notes
of such Class shall be equal to the rate per annum that the Auction Agent
advises AFC-II has resulted on the Business Day preceding the first day of such
Subsequent Auction Rate Period from implementation of the Auction Procedures as
set forth in Appendix A of this Supplement; PROVIDED that if on any Auction Date
with respect to the Series 2001-2 Notes of such Class an Auction is not held for
any reason, the rate of interest on the Series 2001-2 Notes of such Class for
the next succeeding Subsequent Auction Rate Period therefor shall equal the
Maximum Auction Rate for the Series 2001-2 Notes of such Class on such Auction
Date. Notwithstanding the foregoing, if:
(i) the Series 2001-2 Notes of any Class are no longer
represented by one or more Global Notes, the rate of interest on the
Series 2001-2 Notes of such Class for any Subsequent Auction Rate Period
therefor commencing after the delivery of Definitive Notes of such Class
pursuant to Section 2.18 of the Base Indenture shall equal the Maximum
Auction Rate for the Series 2001-2 Notes of such Class on the Business Day
immediately preceding the first day of such Subsequent Auction Rate
Period; or
(ii) a Surety Default shall have occurred, the rate of
interest on (A) the Series 2001-2 Notes the Subsequent Auction Rate Period
of which commenced on or immediately prior to the date on which such
Surety Default shall have occurred shall equal for such Subsequent Auction
Rate Period the Overdue Rate as of the first day of such Subsequent
Auction Rate Period and (B) the Series 2001-2 Notes of each Class for each
Subsequent Auction Rate Period therefor commencing thereafter to and
including the Subsequent Auction Rate Period, if any, during which, or
commencing less than two Business Days after, the Surety Default is cured,
shall equal the Overdue Rate on the first day of each such Subsequent
Auction Rate Period.
35
Section 3.3 PAYMENTS TO NOTEHOLDERS. On each Determination Date, as
provided below the Administrator shall instruct the Paying Agent in writing
pursuant to the Administration Agreement to withdraw, and on each Distribution
Date related to the Series 2001-2 Notes of each Class occurring during the
period from and including such Determination Date to but excluding the next
succeeding Determination Date, the Paying Agent, acting in accordance with such
instructions, shall withdraw the amounts required to be withdrawn from the
Collection Account pursuant to Sections 3.3(a) and (g) below in respect of all
funds available from Series 2001-2 Interest Rate Cap Proceeds and Interest
Collections processed since the preceding Distribution Date and allocated to the
holders of the Series 2001-2 Notes.
(a) NOTE INTEREST WITH RESPECT TO THE SERIES 2001-2 NOTES. On each
Determination Date, the Administrator shall instruct the Trustee and the Paying
Agent in writing pursuant to the Administration Agreement as to the amount to be
withdrawn and deposited in the Series 2001-2 Collection Account and paid
pursuant to Section 3.4 of this Supplement from the Series 2001-2 Accrued
Interest Account to the extent funds are anticipated to be available from
Interest Collections and the Series 2001-2 Interest Rate Cap Proceeds on each
Distribution Date related to the Series 2001-2 Notes of each Class occurring
during the period from and including the Program Distribution Date related to
such Determination Date to but excluding the next succeeding Program
Distribution Date, in each case processed from but not including the Program
Distribution Date preceding such Determination Date to and including the next
succeeding Program Distribution Date in respect of (w) first, PRO RATA, to the
Auction Agent, the Auction Agent Fee payable in respect of the Series 2001-2
Notes of such Class on such Distribution Date, and to each applicable
Broker-Dealer, the Broker-Dealer Fee payable in respect of the Series 2001-2
Notes of such Class payable in respect of the Series 2001-2 Notes of such Class
on such Distribution Date, (x) second, an amount equal to the Series 2001-2
Periodic Interest for the Series 2001-2 Notes of such Class for the Interest
Period ending on the day preceding such Distribution Date, (y) third, an amount
equal to the amount of any unpaid Shortfalls with respect to the Series 2001-2
Notes of such Class as of the preceding Distribution Date with respect to the
Series 2001-2 Notes of such Class (together with any accrued interest on such
Shortfall) and (z) fourth, an amount equal to the Surety Provider Fee with
respect to the Series 2001-2 Notes of such Class for such Interest Period plus
any Surety Provider Reimbursement Amounts then due and owing. On the following
Distribution Date with respect to the Series 2001-2 Notes of such Class, the
Trustee shall withdraw the amounts described in this Section 3.3 from the Series
2001-2 Accrued Interest Account and deposit such amounts in the Series 2001-2
Distribution Account.
(b) LEASE PAYMENT DEFICIT NOTICE. On or before 10:00 a.m. (New York
City time) on each Distribution Date, the Administrator shall notify the Trustee
of the amount of any Series 2001-2 Lease Payment Deficit, such notification to
be in the form of EXHIBIT F to this Supplement (each a "LEASE PAYMENT DEFICIT
NOTICE").
(c) WITHDRAWALS FROM SERIES 2001-2 RESERVE ACCOUNT. If the
Administrator determines on any Distribution Date that the amounts available
from the
36
Series 2001-2 Accrued Interest Account are insufficient to pay the sum of the
amounts described in clauses (w), (x), (y) and (z) of Section 3.3(a) above on
such Distribution Date with respect to the Series 2001-2 Notes of any Class, the
Administrator shall instruct the Trustee in writing to withdraw from the Series
2001-2 Reserve Account and deposit in the Series 2001-2 Distribution Account on
such Distribution Date an amount equal to the lesser of the Series 2001-2
Available Reserve Account Amount and such insufficiency. During the continuance
of a Surety Default, no amounts in respect of the Surety Provider Fee shall be
drawn from the Series 2001-2 Reserve Account. The Trustee shall withdraw such
amount from the Series 2001-2 Reserve Account and deposit such amount in the
Series 2001-2 Distribution Account.
(d) DRAWS ON SERIES 2001-2 LETTER OF CREDIT PRIOR TO THE SERIES
2001-2 RAPID AMORTIZATION PERIOD. If the Administrator determines on any
Distribution Date prior to the commencement of the Series 2001-2 Rapid
Amortization Period that the sum of the amounts available from the Series 2001-2
Accrued Interest Account PLUS the amount, if any, to be withdrawn from the
Series 2001-2 Reserve Account pursuant to SECTION 3.3(C) above is insufficient
to pay the sum of the amounts described in clauses (w), (x), (y) and (z) of
SECTION 3.3(A) above on such Distribution Date with respect to the Series 2001-2
Notes of any Class, the Administrator shall instruct the Trustee in writing to
draw on the Series 2001-2 Letter of Credit and, upon receipt of such notice by
the Trustee on or prior to 11:00 a.m. (New York City time) on such Distribution
Date, the Trustee shall, by 12:00 noon (New York City time) on such Distribution
Date draw an amount (the "SECTION 3.3(D) AMOUNT") equal to the least of (i) such
insufficiency, (ii) the Series 2001-2 Lease Payment Deficit on such Distribution
Date and (iii) the Series 2001-2 Letter of Credit Liquidity Amount, on the
Series 2001-2 Letters of Credit by presenting to each Series 2001-2 Letter of
Credit Provider a draft accompanied by a Certificate of Lease Deficit Demand and
shall cause the Lease Deficit Disbursement to be deposited in the Series 2001-2
Distribution Account on such Distribution Date; PROVIDED, HOWEVER that if the
Series 2001-2 Cash Collateral Account has been established and funded, the
Administrator shall instruct the Trustee in writing to withdraw from the Series
2001-2 Cash Collateral Account and deposit in the Series 2001-2 Distribution
Account a portion of the Section 3.3(d) Amount equal to the lesser of (x) the
Series 2001-2 Cash Collateral Percentage on such Distribution Date of the lesser
of such insufficiency and the Series 2001-2 Lease Payment Deficit and (y) the
Series 2001-2 Available Cash Collateral Account Amount on such Distribution Date
and draw an amount equal to the remainder of the Section 3.3(d) Amount on the
Series 2001-2 Letters of Credit. During the continuance of a Surety Default, no
amounts in respect of the Surety Provider Fee shall be drawn on the Series
2001-2 Letters of Credit.
(e) DRAWS ON SERIES 2001-2 LETTER OF CREDIT DURING A SERIES 2001-2
RAPID AMORTIZATION PERIOD. If the Administrator determines on any Distribution
Date during the Series 2001-2 Rapid Amortization Period that there exists a
Series 2001-2 Lease Payment Deficit, the Administrator shall instruct the
Trustee in writing to draw on the Series 2001-2 Letters of Credit and, upon
receipt of such notice by the Trustee on or prior to 11:00 a.m. (New York City
time) on such Distribution Date, the Trustee shall, by
37
12:00 noon (New York City time) on such Distribution Date draw an amount (the
"SECTION 3.3(E) AMOUNT") equal to the lesser of (i) such Series 2001-2 Lease
Payment Deficit and (ii) the Series 2001-2 Letter of Credit Liquidity Amount, on
the Series 2001-2 Letters of Credit by presenting to each Series 2001-2 Letter
of Credit Provider a draft accompanied by a Certificate of Lease Deficit Demand
and shall cause the Lease Deficit Disbursement to be deposited in the Series
2001-2 Collection Account on such Distribution Date; PROVIDED, HOWEVER that if
the Series 2001-2 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2001-2 Cash Collateral Account and
deposit in the Series 2001-2 Collection Account a portion of the Section 3.3(e)
Amount equal to the lesser of (x) the Series 2001-2 Cash Collateral Percentage
on such Distribution Date of the Series 2001-2 Lease Payment Deficit and (y) the
Series 2001-2 Available Cash Collateral Account Amount on such Distribution Date
and draw an amount equal to the remainder of the Section 3.3(e) Amount on the
Series 2001-2 Letters of Credit. During the continuance of a Surety Default, no
amounts in respect of the Surety Provider Fee shall be drawn on the Series
2001-2 Letters of Credit.
(f) SURETY BOND. If the Administrator determines on any Distribution
Date that the sum of the amounts available from the Series 2001-2 Accrued
Interest Account PLUS the amount, if any, to be withdrawn from the Series 2001-2
Reserve Account pursuant to SECTION 3.3(c) above PLUS the amount, if any, to be
drawn under the Series 2001-2 Letters of Credit (and/or withdrawn from the
Series 2001-2 Cash Collateral Account) pursuant to SECTIONS 3.3(d) or (e) above
is insufficient to pay the Series 2001-2 Adjusted Periodic Interest for such
Distribution Date related to the Series 2001-2 Notes of any Class, the
Administrator shall instruct the Trustee in writing to make a demand on the
Surety Bond and, upon receipt of such notice by the Trustee on or prior to 11:00
a.m. (New York City time) on such Distribution Date, the Trustee shall, by 12:00
noon (New York City time) on such Distribution Date, make a demand on the Surety
Bond in an amount equal to such insufficiency in accordance with the terms
thereof (PROVIDED that for the purposes of a draw on the Surety Bond, the phrase
"amounts in the Series 2001-2 Accrued Interest Account and the Series 2001-2
Reserve Account" in the Surety Bond shall include, without duplication, the
Series 2001-2 Liquidity Amount) and shall cause the proceeds thereof to be
deposited in the Series 2001-2 Distribution Account.
(g) BALANCE. On or prior to the second Business Day preceding each
Distribution Date for the Series 2001-2 Notes of any Class, the Administrator
shall have instructed the Trustee and the Paying Agent in writing pursuant to
the Administration Agreement to pay the balance (after making the payments
required in Section 3.3(a) of this Supplement), if any, of the Series 2001-2
Interest Rate Cap Proceeds and Interest Collections allocated to holders of the
Series 2001-2 Notes since the preceding Distribution Date related to the Series
2001-2 Notes of such Class as follows:
(i) on each Distribution Date for the Series 2001-2 Notes of
any Class prior to the commencement of the Series 2001-2 Rapid
Amortization Period, (1) first, PRO RATA, to the Auction Agent, the
Auction Agent Fee payable in respect of the Series 2001-2 Notes of such
Class on such Distribution Date, and to the Broker-Dealer, the
Broker-Dealer Fee payable in respect of the Series 2001-2
38
Notes of such Class on such Distribution Date, (2) second, to the Surety
Provider, in an amount equal to (x) the Surety Provider Fee with respect
to the Series 2001-2 Notes of such Class for the related Interest Period
and, without duplication, and (y) any Surety Provider Reimbursement
Amounts then due and owing, (3) third, to the Administrator, an amount
equal to the Series 2001-2 Class Percentage as of the beginning of such
Interest Period of the portion of the Monthly Administration Fee payable
by AFC-II (as specified in clause (iii) of the definition thereof) for
such Interest Period, (4) fourth, to the Trustee, an amount equal to the
Series 2001-2 Class Percentage as of the beginning of such Interest Period
of the Trustee's fees for such Interest Period, (5) fifth, to pay any
Carrying Charges (other than Carrying Charges provided for above) to the
Persons to whom such amounts are owed, an amount equal to the Series
2001-2 Class Percentage as of the beginning of such Interest Period of
such Carrying Charges (other than Carrying Charges provided for above) for
such Interest Period and (6) sixth, the balance, if any ("Excess
Collections"), shall be withdrawn by the Paying Agent from the Series
2001-2 Collection Account and deposited in the Series 2001-2 Excess
Collection Account; and
(ii) on each Distribution Date for the Series 2001-2 Notes of
any Class during the Series 2001-2 Rapid Amortization Period, (1) first,
PRO RATA, to the Auction Agent, the Auction Agent Fee payable in respect
of the Series 2001-2 Notes of such Class, and to the Broker-Dealer, the
Broker-Dealer Fee payable in respect of the Series 2001-2 Notes of such
Class, (2) second, to the Surety Provider, in an amount equal to (x) the
Surety Provider Fee with respect to the Notes of such Class for the
related Interest Period and, without duplication, and (y) any Surety
Provider Reimbursement Amounts then due and owing, (3) third, to the
Trustee, an amount equal to the Series 2001-2 Class Percentage as of the
beginning of such Interest Period of the Trustee's fees for such Interest
Period, (4) fourth, to the Administrator, an amount equal to the Series
2001-2 Class Percentage as of the beginning of such Interest Period of the
portion of the Monthly Administration Fee (as specified in clause (iii) of
the definition thereof) payable by AFC-II for such Interest Period, (5)
fifth, to pay any Carrying Charges (other than Carrying Charges provided
for above) to the Persons to whom such amounts are owed, an amount equal
to the Series 2001-2 Class Percentage as of the beginning of such Interest
Period of such Carrying Charges (other than Carrying Charges provided for
above) for such Interest Period and (6) sixth, the balance, if any, shall
constitute Excess Collections and shall be withdrawn by the Paying Agent
from the Series 2001-2 Collection Account and deposited in the Series
2001-2 Excess Collection Account.
(h) SHORTFALLS. If the amounts described in Section 3.3 are
insufficient to pay the Series 2001-2 Periodic Interest on any Distribution Date
related to any Series 2001-2 Notes of any Class payments of interest to the
Series 2001-2 Noteholders will be reduced on a PRO RATA basis by the amount of
such deficiency. The aggregate amount, if any, of such deficiency on any
Distribution Date shall be referred to as the "Series 2001-2
39
Shortfall." Interest shall accrue on any Series 2001-2 Shortfall at the Series
2001-2 Note Rate.
Section 3.4 PAYMENT OF NOTE INTEREST. On each Distribution Date for
the Series 2001-2 Notes of any Class, subject to Section 9.8 of the Base
Indenture, the Paying Agent shall, in accordance with Section 6.1 of the Base
Indenture, pay to the Series 2001-2 Noteholders of such Class from the Series
2001-2 Distribution Account the amount deposited in the Series 2001-2
Distribution Account for the payment of interest pursuant to Section 3.3(a) of
this Supplement and, to the extent necessary to pay interest on the Series
2001-2 Notes of such Class, first, amounts on deposit in the Series 2001-2
Collection Account, second, amounts on deposit in the Series 2001-2 Reserve
Account and third, proceeds of a demand on the Surety Bond made in accordance
with the terms thereof.
40
Section 3.5 PAYMENT OF NOTE PRINCIPAL. (a) MANDATORY REDEMPTIONS
DURING SERIES 2001-2 RAPID AMORTIZATION PERIOD. Commencing on the first
Determination Date following the commencement of the Series 2001-2 Rapid
Amortization Period (such date, the "INITIAL RAPID PRINCIPAL DETERMINATION
DATE"), and on each subsequent Determination Date thereafter, the Administrator
shall instruct the Trustee and the Paying Agent in writing pursuant to the
Administration Agreement and in accordance with this Section 3.5 as to (i) the
amount allocated to the Series 2001-2 Notes of each Class during the Related
Month pursuant to Section 3.2(c)(ii) or (d)(ii) of this Supplement, as the case
may be, (ii) any amounts to be withdrawn from the Series 2001-2 Reserve Account
or the Series 2001-1 Cash Collateral Account and deposited into the Series
2001-2 Distribution Account, (iii) any amounts to be drawn on the Series 2001-2
Letters of Credit and (iv) the amount of any demand on the Surety Bond in
accordance with the terms thereof. On the first Principal Distribution Date with
respect to the Series 2001-2 Notes of each Class occurring on or after the First
Potential Series 2001-2 Redemption Date, commencing with the First Potential
Series 2001-2 Redemption Date occurring in the month in which the Initial Rapid
Principal Determination Date occurs, the Trustee shall withdraw the amount
allocated to the Series 2001-2 Notes of such Class during the Series 2001-2
Related Month with respect to such Principal Distribution Date pursuant to
Section 3.2(c)(ii) or (d)(ii) of this Supplement, as the case may be, from the
Series 2001-2 Collection Account and deposit such amount in the Series 2001-2
Distribution Account, to be applied to redeem Series 2001-2 Notes of such Class
in accordance with Section 7.2 of this Supplement. The entire principal amount
of all outstanding Class A-1 Notes shall be due and payable on the Class A-1
Final Distribution Date. The entire principal amount of all outstanding Class
A-2 Notes shall be due and payable on the Class A-2 Final Distribution Date. The
entire principal amount of all outstanding Class A-3 Notes shall be due and
payable on the Class A-3 Final Distribution Date. The entire principal amount of
all outstanding Class A-4 Notes shall be due and payable on the Class A-4 Final
Distribution Date.
(a) FINAL DISTRIBUTION DATE. If the amount to be deposited in the
Series 2001-2 Distribution Account in accordance with SECTION 3.5 above with
respect to the Series 2001-2 Final Distribution Date is less than the Class A-1
Outstanding Principal Amount, the Class A-2 Outstanding Principal Amount, the
Class A-3 Outstanding Principal Amount or the Class A-4 Outstanding Principal
Amount, as the case may be, on such Series 2001-2 Final Distribution Date, then,
prior to 10:00 a.m. (New York City time) on the second Business Day prior to
such Series 2001-2 Final Distribution Date, the Administrator shall instruct the
Trustee in writing to withdraw from the Series 2001-2 Reserve Account, an amount
equal to the lesser of the Series 2001-2 Available Reserve Account Amount and
such insufficiency and deposit it in the Series 2001-2 Distribution Account on
the Series 2001-2 Final Distribution Date. The Trustee shall withdraw such
amount from the Series 2001-2 Reserve Account and deposit such amount in the
Series 2001-2 Distribution Account on or prior to the Series 2001-2 Final
Distribution Date. If the Series 2001-2 Available Reserve Account Amount is less
than such insufficiency and there are any Series 2001-2 Letters of Credit on
such date, then, prior to 10:00 a.m. (New York City time) on the second Business
Day prior to such Series 2001-2 Final
41
Distribution Date, the Administrator shall instruct the Trustee in writing to
make a demand (a "DEMAND NOTICE") substantially in the form attached hereto as
EXHIBIT G on the Demand Note Issuers for payment under the Series 2001-2 Demand
Notes in an amount equal to the least of (i) the aggregate outstanding principal
amount of the Series 2001-2 Demand Notes, (ii) such remaining insufficiency and
(iii) the Series 2001-2 Letter of Credit Liquidity Amount. The Trustee shall,
prior to 12:00 noon (New York City time) on the second Business Day preceding
the Series 2001-2 Final Distribution Date, deliver such Demand Notice to the
Demand Note Issuers; PROVIDED, HOWEVER that if an Event of Bankruptcy (or the
occurrence of an event described in clause (a) of the definition thereof,
without the lapse of a period of 60 consecutive days) with respect to a Demand
Note Issuer shall have occurred and be continuing, the Trustee shall not be
required to deliver such Demand Notice to the Demand Note Issuers. The Trustee
shall cause the proceeds of any demand on the Series 2001-2 Demand Notes to be
deposited into the Series 2001-2 Distribution Account. In the event that either
(x) on or prior to 10:00 a.m. (New York City time) on the Business Day
immediately preceding any Distribution Date next succeeding any date on which a
Demand Notice has been transmitted by the Trustee to the Demand Note Issuers
pursuant to this SECTION 3.5(a), the Demand Note Issuers shall have failed to
pay to the Trustee or deposit into the Series 2001-2 Distribution Account the
amount specified in such Demand Notice in whole or in part or (y) due to the
occurrence of an Event of Bankruptcy (or the occurrence of an event described in
clause (a) of the definition thereof, without the lapse of a period of 60
consecutive days) with respect to one or more of the Demand Note Issuers, the
Trustee shall not have delivered such Demand Notice to the Demand Note Issuers,
on the second Business Day preceding the Series 2001-2 Final Distribution Date,
the Trustee shall draw on the Series 2001-2 Letters of Credit by 12:00 noon (New
York City time) on such Business Day an amount equal to the lesser of (a) the
amount that the Demand Note Issuers failed to pay under the Series 2001-2 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (b) the Series 2001-2 Letter of Credit Amount on such Business Day by
presenting to each Series 2001-2 Letter of Credit Provider a draft accompanied
by a Certificate of Unpaid Demand Note Demand; PROVIDED, HOWEVER that if the
Series 2001-2 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2001-2 Cash Collateral Account and
deposit in the Series 2001-2 Distribution Account an amount equal to the lesser
of (x) the Series 2001-2 Cash Collateral Percentage on such Business Day of the
amount that the Demand Note Issuers failed to pay under the Series 2001-2 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (y) the Series 2001-2 Available Cash Collateral Account Amount on such
Business Day and draw an amount equal to the remainder of the amount that the
Demand Note Issuers failed to pay under the Series 2001-2 Demand Notes (or, the
amount that the Trustee failed to demand for payment thereunder) on the Series
2001-2 Letters of Credit. The Trustee shall deposit, or cause the deposit of,
the proceeds of any draw on the Series 2001-2 Letters of Credit and the proceeds
of any withdrawal from the Series 2001-2 Cash Collateral Account to be deposited
in the Series 2001-2 Distribution Account. If, after giving effect to the
deposit into the Series 2001-2 Distribution Account of the amount to be
deposited in accordance with SECTION 3.5(a) above and the amounts described in
the preceding three
42
sentences, the amount to be deposited in the Series 2001-2 Distribution Account
with respect to the Series 2001-2 Final Distribution Date is or will be less
than the Series 2001-2 Invested Amount, as the case may be, the Trustee shall
make a demand on the Surety Bond by 12:00 p.m. (New York City time) on the
second Business Day preceding such Distribution Date in an amount equal to such
insufficiency in accordance with the terms thereof (PROVIDED that for the
purposes of a draw on the Surety Bond, the phrase "amounts in the Series 2001-2
Accrued Interest Account and the Series 2001-2 Reserve Account" in the Surety
Bond shall include, without duplication, the Series 2001-2 Liquidity Amount) and
shall cause the proceeds thereof to be deposited in the Series 2001-2
Distribution Account.
(b) PRINCIPAL DEFICIT AMOUNT. If on any Determination Date, the
Administrator determines that the Principal Deficit Amount with respect to the
next succeeding Program Distribution Date will be greater than zero, prior to
10:00 a.m. (New York City time) on the second Business Day prior to such Program
Distribution Date, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 2001-2 Reserve Account and deposit in the Series 2001-2
Distribution Account on the following Distribution Date an amount equal to the
lesser of (i) the Series 2001-2 Available Reserve Account Amount and (ii) the
Principal Deficit Amount. The Trustee shall withdraw such amount from the Series
2001-2 Reserve Account and deposit such amount in the Series 2001-2 Distribution
Account on or prior to such Program Distribution Date. If the Series 2001-2
Available Reserve Account Amount is less than the Principal Deficit Amount and
there are any Series 2001-2 Letters of Credit on such date, prior to 10:00 a.m.
(New York City time) on the second Business Day prior to such Program
Distribution Date, the Administrator shall instruct the Trustee in writing to
deliver a Demand Notice to the Demand Note Issuers demanding payment of an
amount equal to the least of (A) the aggregate outstanding principal amount of
the Series 2001-2 Demand Notes, (B) the remaining Principal Deficit Amount and
(C) the Series 2001-2 Letter of Credit Liquidity Amount. The Trustee shall,
prior to 12:00 noon (New York City time) on the second Business Day preceding
such Program Distribution Date, deliver such Demand Notice to the Demand Note
Issuers; PROVIDED, HOWEVER that if an Event of Bankruptcy (or the occurrence of
an event described in clause (a) of the definition thereof, without the lapse of
a period of 60 consecutive days) with respect to a Demand Note Issuer shall have
occurred and be continuing, the Trustee shall not be required to deliver such
Demand Notice to the Demand Note Issuers. The Trustee shall cause the proceeds
of any demand on the Series 2001-2 Demand Note to be deposited into the Series
2001-2 Distribution Account. In the event that either (x) on or prior to 10:00
a.m. (New York City time) on the Business Day prior to such Program Distribution
Date, any Demand Note Issuer shall have failed to pay to the Trustee or deposit
in the Series 2001-2 Distribution Account the amount specified in such Demand
Notice in whole or in part or (y) due to the occurrence of an Event of
Bankruptcy (or the occurrence of an event described in clause (a) of the
definition thereof, without the lapse of a period of 60 consecutive days) with
respect to any Demand Note Issuer, the Trustee shall not have delivered such
Demand Notice to the Demand Note Issuers on the second Business Day preceding
such Distribution Date, the Trustee shall draw on the Series 2001-2 Letters of
Credit an amount equal to the lesser of
43
(i) Series 2001-2 Letter of Credit Amount and (ii) the aggregate amount that the
Demand Note Issuers failed to pay under the Series 2001-2 Demand Notes (or, the
amount that the Trustee failed to demand for payment thereunder) by presenting
to each Series 2001-2 Letter of Credit Provider a draft accompanied by a
Certificate of Unpaid Demand Note Demand; PROVIDED, HOWEVER that if the Series
2001-2 Cash Collateral Account has been established and funded, the Trustee
shall withdraw from the Series 2001-2 Cash Collateral Account and deposit in the
Series 2001-2 Distribution Account an amount equal to the lesser of (x) the
Series 2001-2 Cash Collateral Percentage on such Business Day of the aggregate
amount that the Demand Note Issuers failed to pay under the Series 2001-2 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (y) the Series 2001-2 Available Cash Collateral Account Amount on such
Business Day and draw an amount equal to the remainder of the aggregate amount
that the Demand Note Issuers failed to pay under the Series 2001-2 Demand Notes
(or, the amount that the Trustee failed to demand for payment thereunder) on the
Series 2001-2 Letters of Credit. The Trustee shall deposit into, or cause the
deposit of, the proceeds of any draw on the Series 2001-2 Letters of Credit and
the proceeds of any withdrawal from the Series 2001-2 Cash Collateral Account to
be deposited in the Series 2001-2 Distribution Account. If the aggregate amount
of the Series 2001-2 Demand Notes or the Series 2001-2 Letter of Credit Amount
is less than the remaining Principal Deficit Amount, the Trustee shall make a
demand on the Surety Bond in accordance with the terms thereof (PROVIDED that
for the purposes of a draw on the Surety Bond, the phrase "amounts in the Series
2001-2 Accrued Interest Account and the Series 2001-2 Reserve Account" in the
Surety Bond shall include, without duplication, the Series 2001-2 Liquidity
Amount) by 12:00 noon (New York City time) on the second Business Day preceding
such Program Distribution Date in an amount equal to the amount of such
insufficiency and shall cause the proceeds thereof to be deposited in the Series
2001-2 Distribution Account.
Section 3.6 ADMINISTRATOR'S FAILURE TO INSTRUCT THE TRUSTEE TO MAKE
A DEPOSIT OR PAYMENT. If the Administrator fails to give notice or instructions
to make any payment from or deposit into the Collection Account required to be
given by the Administrator, at the time specified in the Administration
Agreement or any other Related Document (including applicable grace periods),
the Trustee shall make such payment or deposit into or from the Collection
Account without such notice or instruction from the Administrator; PROVIDED that
the Administrator, upon request of the Trustee, promptly provides the Trustee
with all information necessary to allow the Trustee to make such a payment or
deposit. When any payment or deposit hereunder or under any other Related
Document is required to be made by the Trustee or the Paying Agent at or prior
to a specified time, the Administrator shall deliver any applicable written
instructions with respect thereto reasonably in advance of such specified time.
Section 3.7 SERIES-2001-2 RESERVE ACCOUNT. (a) ESTABLISHMENT OF
SERIES 2001-2 RESERVE ACCOUNT. AFC-II shall establish and maintain in the name
of the Series 2001-2 Agent for the benefit of the Series 2001-2 Noteholders and
the Surety Provider, or cause to be established and maintained, an account (the
"Series 2001-2
44
Reserve Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Series 2001-2 Noteholders and
the Surety Provider. The Series 2001-2 Reserve Account shall be maintained (i)
with a Qualified Institution, or (ii) as a segregated trust account with the
corporate trust department of a depository institution or trust company having
corporate trust powers and acting as trustee for funds deposited in the Series
2001-2 Reserve Account; PROVIDED that, if at any time such Qualified Institution
is no longer a Qualified Institution or the credit rating of any securities
issued by such depositary institution or trust company shall be reduced to below
"BBB-" by Standard & Poor's or "A1" by Xxxxx'x, then AFC-II shall, within 30
days of such reduction, establish a new Series 2001-2 Reserve Account with a new
Qualified Institution. If the Series 2001-2 Reserve Account is not maintained in
accordance with the previous sentence, AFC-II shall establish a new Series
2001-2 Reserve Account, within ten (10) Business Days after obtaining knowledge
of such fact, which complies with such sentence, and shall instruct the Series
2001-2 Agent in writing to transfer all cash and investments from the
non-qualifying Series 2001-2 Reserve Account into the new Series 2001-2 Reserve
Account. Initially, the Series 2001-2 Reserve Account will be established with
The Bank of New York.
(b) ADMINISTRATION OF THE SERIES 2001-2 RESERVE ACCOUNT. The
Administrator may instruct the institution maintaining the Series 2001-2 Reserve
Account to invest funds on deposit in the Series 2001-2 Reserve Account from
time to time in Permitted Investments; PROVIDED, HOWEVER, that any such
investment shall mature not later than the Business Day prior to the first
Distribution Date following the date on which such funds were received, unless
any Permitted Investment held in the Series 2001-2 Reserve Account is held with
the Paying Agent, then such investment may mature on such Distribution Date and
such funds shall be available for withdrawal on or prior to such Distribution
Date. All such Permitted Investments will be credited to the Series 2001-2
Reserve Account.
(c) EARNINGS FROM SERIES 2001-2 RESERVE ACCOUNT. All interest and
earnings (net of losses and investment expenses) paid on funds on deposit in the
Series 2001-2 Reserve Account shall be deemed to be on deposit therein and
available for distribution.
(d) SERIES 2001-2 RESERVE ACCOUNT CONSTITUTES ADDITIONAL COLLATERAL
FOR SERIES 2001-2 NOTES. In order to secure and provide for the repayment and
payment of the AFC-II Obligations with respect to the Series 2001-2 Notes,
AFC-II hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Series 2001-2 Agent, for the benefit of the
Series 2001-2 Noteholders and the Surety Provider, all of AFC-II's right, title
and interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2001-2 Reserve Account, including any security
entitlement thereto; (ii) all funds on deposit therein from time to time; (iii)
all certificates and instruments, if any, representing or evidencing any or all
of the Series 2001-2 Reserve Account or the funds on deposit therein from time
to time; (iv) all investments made at any time and from time to time with monies
in the Series 2001-2 Reserve Account, whether constituting securities,
instruments, general intangibles, investment
45
property, financial assets or other property; (v) all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the Series 2001-2 Reserve
Account, the funds on deposit therein from time to time or the investments made
with such funds; and (vi) all proceeds of any and all of the foregoing,
including, without limitation, cash (the items in the foregoing clauses (i)
through (vi) are referred to, collectively, as the "Series 2001-2 Reserve
Account Collateral"). The Series 2001-2 Agent shall possess all right, title and
interest in and to all funds on deposit from time to time in the Series 2001-2
Reserve Account and in all proceeds thereof, and shall be the only person
authorized to originate entitlement orders in respect of the Series 2001-2
Reserve Account. The Series 2001-2 Reserve Account Collateral shall be under the
sole dominion and control of the Series 2001-2 Agent for the benefit of the
Series 2001-2 Noteholders and the Surety Provider.
(e) SERIES 2001-2 RESERVE ACCOUNT SURPLUS. In the event that the
Series 2001-2 Reserve Account Surplus on any Distribution Date, after giving
effect to all withdrawals from the Series 2001-2 Reserve Account, is greater
than zero, the Trustee, acting in accordance with the written instructions of
the Administrator pursuant to the Administration Agreement, if no Series 2001-2
Enhancement Deficiency or AESOP I Operating Lease Vehicle Deficiency would
result therefrom or exist thereafter, shall withdraw from the Series 2001-2
Reserve Account an amount equal to the Series 2001-2 Reserve Account Surplus and
shall pay such amount to AFC-II. On the date hereof, after giving effect to the
Series 2001-2 Letters of Credit, the Trustee, acting in accordance with the
written instructions of the Administrator, if no Amortization Event, Series
2001-2 Enhancement Deficiency or AESOP I Operating Lease Vehicle Deficiency
would result therefrom or exist thereafter, shall withdraw from the Series
2001-2 Reserve Account an amount equal to the Series 2001-2 Reserve Account
Surplus and shall pay such amount to AFC-II.
(f) TERMINATION OF SERIES 2001-2 RESERVE ACCOUNT. Upon the
termination of the Indenture pursuant to Section 11.1 of the Base Indenture, the
Trustee, acting in accordance with the written instructions of the
Administrator, after the prior payment of all amounts owing to the Series 2001-2
Noteholders and to the Surety Provider and payable from the Series 2001-2
Reserve Account as provided herein, shall withdraw from the Series 2001-2
Reserve Account all amounts on deposit therein for payment to AFC-II.
Section 3.8 SERIES 2001-2 LETTERS OF CREDIT AND SERIES 2001-2 CASH
COLLATERAL ACCOUNT.
(a) SERIES 2001-2 LETTERS OF CREDIT AND SERIES 2001-2 CASH
COLLATERAL ACCOUNT CONSTITUTE ADDITIONAL COLLATERAL FOR SERIES 2001-2
NOTES. In order to secure and provide for the repayment and payment of
AFC-II's obligations with respect to the Series 2001-2 Notes, AFC-II
hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Trustee, for the benefit of the Series
2001-2 Noteholders and the Surety Provider, all of AFC-II's right, title
and interest in and to the following (whether now or hereafter existing or
acquired): (i) each Series 2001-2 Letter of Credit; (ii) the Series 2001-2
Cash
46
Collateral Account, including any security entitlement thereto; (iii) all
funds on deposit in the Series 2001-2 Cash Collateral Account from time to
time; (iv) all certificates and instruments, if any, representing or
evidencing any or all of the Series 2001-2 Cash Collateral Account or the
funds on deposit therein from time to time; (v) all investments made at
any time and from time to time with monies in the Series 2001-2 Cash
Collateral Account, whether constituting securities, instruments, general
intangibles, investment property, financial assets or other property; (vi)
all interest, dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in
exchange for the Series 2001-2 Cash Collateral Account, the funds on
deposit therein from time to time or the investments made with such funds;
and (vii) all proceeds of any and all of the foregoing, including, without
limitation, cash (the items in the foregoing clauses (ii) through (vii)
are referred to, collectively, as the "Series 2001-2 Cash Collateral
Account Collateral"). The Trustee shall, for the benefit of the Series
2001-2 Noteholders and the Surety Provider, possess all right, title and
interest in all funds on deposit from time to time in the Series 2001-2
Cash Collateral Account and in all proceeds thereof, and shall be the only
person authorized to originate entitlement orders in respect of the Series
2001-2 Cash Collateral Account. The Series 2001-2 Cash Collateral Account
shall be under the sole dominion and control of the Trustee for the
benefit of the Series 2001-2 Noteholders and the Surety Provider.
(b) SERIES 2001-2 LETTER OF CREDIT EXPIRATION DATE. If prior to the
date which is ten (10) days prior to the then scheduled Series 2001-2
Letter of Credit Expiration Date with respect to any Series 2001-2 Letter
of Credit, excluding the amount available to be drawn under such Series
2001-2 Letter of Credit but taking into account each substitute Series
2001-2 Letter of Credit which has been obtained from a Series 2001-2
Eligible Letter of Credit Provider and is in full force and effect on such
date, the Series 2001-2 Enhancement Amount would be equal to or more than
the Series 2001-2 Required Enhancement Amount and the Series 2001-2
Liquidity Amount would be equal to or greater than the Series 2001-2
Required Liquidity Amount, then the Administrator shall notify the Trustee
in writing (with a copy to the Surety Provider) no later than two Business
Days prior to such Series 2001-2 Letter of Credit Expiration Date of such
determination. If prior to the date which is ten (10) days prior to the
then scheduled Series 2001-2 Letter of Credit Expiration Date with respect
to any Series 2001-2 Letter of Credit, excluding the amount available to
be drawn under such Series 2001-2 Letter of Credit but taking into account
a substitute Series 2001-2 Letter of Credit which has been obtained from a
Series 2001-2 Eligible Letter of Credit Provider and is in full force and
effect on such date, the Series 2001-2 Enhancement Amount would be less
than the Series 2001-2 Required Enhancement Amount or the Series 2001-2
Liquidity Amount would be less than the Series 2001-2 Required Liquidity
Amount, then the Administrator shall notify the Trustee in writing (with a
copy to the Surety Provider) no later than two Business Days prior to such
Series 2001-2 Letter of Credit Expiration Date of (x)
47
the greater of (A) the excess, if any, of the Series 2001-2 Required
Enhancement Amount over the Series 2001-2 Enhancement Amount, excluding
the available amount under such expiring Series 2001-2 Letter of Credit,
on such date, and (B) the excess, if any, of the Series 2001-2 Required
Liquidity Amount over the Series 2001-2 Liquidity Amount, excluding the
available amount under such expiring Series 2001-2 Letter of Credit, on
such date, and (y) the amount available to be drawn on such expiring
Series 2001-2 Letter of Credit on such date. Upon receipt of such notice
by the Trustee on or prior to 10:00 a.m. (New York City time) on any
Business Day, the Trustee shall, by 12:00 p.m. (New York City time) on
such Business Day (or, in the case of any notice given to the Trustee
after 10:00 a.m. (New York City time), by 12:00 p.m. (New York City time)
on the next following Business Day), draw the lesser of the amounts set
forth in clauses (x) and (y) above on such Series 2001-2 Letter of Credit
by presenting a draft accompanied by a Certificate of Termination Demand
and shall cause the Termination Disbursement to be deposited in the Series
2001-2 Cash Collateral Account.
If the Trustee does not receive the notice from the Administrator
described in the first paragraph of this SECTION 3.8(b) on or prior to the
date that is two Business Days prior to each Series 2001-2 Letter of
Credit Expiration Date, the Trustee shall, by 12:00 p.m. (New York City
time) on such Business Day draw the full amount of such Series 2001-2
Letter of Credit by presenting a draft accompanied by a Certificate of
Termination Demand and shall cause the Termination Disbursement to be
deposited in the Series 2001-2 Cash Collateral Account.
(c) SERIES 2001-2 LETTER OF CREDIT PROVIDERS. The Administrator
shall notify the Trustee and the Surety Provider in writing within one
Business Day of becoming aware that (i) the long-term senior unsecured
debt credit rating of any Series 2001-2 Letter of Credit Provider has
fallen below "A+" as determined by Standard & Poor's or "Al" as determined
by Xxxxx'x or (ii) the short-term senior unsecured debt credit rating of
any Series 2001-2 Letter of Credit Provider has fallen below "P-1" as
determined by Xxxxx'x. At such time the Administrator shall also notify
the Trustee of (i) the greater of (A) the excess, if any, of the Series
2001-2 Required Enhancement Amount over the Series 2001-2 Enhancement
Amount, excluding the available amount under the Series 2001-2 Letter of
Credit issued by such Series 2001-2 Letter of Credit Provider, on such
date, and (B) the excess, if any, of the Series 2001-2 Required Liquidity
Amount over the Series 2001-2 Liquidity Amount, excluding the available
amount under such Series 2001-2 Letter of Credit, on such date, and (ii)
the amount available to be drawn on such Series 2001-2 Letter of Credit on
such date. Upon receipt of such notice by the Trustee on or prior to 10:00
a.m. (New York City time) on any Business Day, the Trustee shall, by 12:00
p.m. (New York City time) on such Business Day (or, in the case of any
notice given to the Trustee after 10:00 a.m. (New York City time), by
12:00 p.m. (New York City time) on the next following
48
Business Day), draw on such Series 2001-2 Letter of Credit in an amount
equal to the lesser of the amount in clause (i) or clause (ii) of the
immediately preceding sentence on such Business Day by presenting a draft
accompanied by a Certificate of Termination Demand and shall cause the
Termination Disbursement to be deposited in the Series 2001-2 Cash
Collateral Account.
(d) TERMINATION DATE DEMANDS ON THE SERIES 2001-2 LETTERS OF CREDIT.
Prior to 10:00 a.m. (New York City time) on the second Business Day prior
to the Series 2001-2 Letter of Credit Termination Date, the Administrator
shall determine the Series 2001-2 Demand Note Payment Amount, if any, as
of the Series 2001-2 Letter of Credit Termination Date and, if the Series
2001-2 Demand Note Payment Amount is greater than zero, instruct the
Trustee in writing to draw on the Series 2001-2 Letters of Credit. Upon
receipt of any such notice by the Trustee on or prior to 11:00 a.m. (New
York City time) on a Business Day, the Trustee shall, by 12:00 noon (New
York City time) on such Business Day draw an amount equal to the lesser of
(i) the Series 2001-2 Demand Note Payment Amount and (ii) the Series
2001-2 Letter of Credit Liquidity Amount on the Series 2001-2 Letters of
Credit by presenting to each Series 2001-2 Letter of Credit Provider a
draft accompanied by a Certificate of Termination Date Demand and shall
cause the Termination Date Disbursement to be deposited in the Series
2001-2 Cash Collateral Account; PROVIDED, HOWEVER, that if the Series
2001-2 Cash Collateral Account has been established and funded, the
Trustee shall draw an amount equal to the product of (a) 100% minus the
Series 2001-2 Cash Collateral Percentage and (b) the lesser of the amounts
referred to in clause (i) or (ii) on such Business Day on the Series
2001-2 Letters of Credit as calculated by the Administrator and provided
in writing to the Trustee.
(e) DRAWS ON THE SERIES 2001-2 LETTERS OF CREDIT. If there is more
than one Series 2001-2 Letter of Credit on the date of any draw on the
Series 2001-2 Letters of Credit pursuant to the terms of this Supplement,
the Administrator shall instruct the Trustee, in writing, to draw on each
Series 2001-2 Letter of Credit in an amount equal to the Pro Rata Share of
the Series 2001-2 Letter of Credit Provider issuing such Series 2001-2
Letter of Credit of the amount of such draw on the Series 2001-2 Letters
of Credit.
(f) ESTABLISHMENT OF SERIES 2001-2 CASH COLLATERAL ACCOUNT. On or
prior to the date of any drawing under a Series 2001-2 Letter of Credit
pursuant to SECTION 3.8(b), (c) or (d) above, AFC-II shall establish and
maintain in the name of the Trustee for the benefit of the Series 2001-2
Noteholders and the Surety Provider, or cause to be established and
maintained, an account (the "Series 2001-2 Cash Collateral Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Series 2001-2 Noteholders and the Surety
Provider. The Series 2001-2 Cash Collateral Account shall be maintained
(i) with a Qualified Institution, or (ii) as a segregated trust account
with the corporate trust department of a depository institution or trust
company having corporate trust powers and acting as trustee for funds
deposited in the
49
Series 2001-2 Cash Collateral Account; PROVIDED that, if at any time such
Qualified Institution is no longer a Qualified Institution or the credit
rating of any securities issued by such depository institution or trust
company shall be reduced to below BBB- by S&P or Baa3 by Xxxxx'x, then
AFC-II shall, within 30 days of such reduction, establish a new Series
2001-2 Cash Collateral Account with a new Qualified Institution or a new
segregated trust account with the corporate trust department of a
depository institution or trust company having corporate trust powers and
acting as trustee for funds deposited in the Series 2001-2 Cash Collateral
Account. If a new Series 2001-2 Cash Collateral Account is established,
AFC-II shall instruct the Trustee in writing to transfer all cash and
investments from the non-qualifying Series 2001-2 Cash Collateral Account
into the new Series 2001-2 Cash Collateral Account.
(g) ADMINISTRATION OF THE SERIES 2001-2 CASH COLLATERAL ACCOUNT.
AFC-II may instruct (by standing instructions or otherwise) the
institution maintaining the Series 2001-2 Cash Collateral Account to
invest funds on deposit in the Series 2001-2 Cash Collateral Account from
time to time in Permitted Investments; PROVIDED, HOWEVER, that any such
investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were received,
unless any Permitted Investment held in the Series 2001-2 Cash Collateral
Account is held with the Paying Agent, in which case such investment may
mature on such Distribution Date so long as such funds shall be available
for withdrawal on or prior to such Distribution Date. All such Permitted
Investments will be credited to the Series 2001-2 Cash Collateral Account
and any such Permitted Investments that constitute (i) physical property
(and that is not either a United States security entitlement or a security
entitlement) shall be physically delivered to the Trustee; (ii) United
States security entitlements or security entitlements shall be controlled
by the Trustee pending maturity or disposition, and (iii) uncertificated
securities (and not United States security entitlements) shall be
delivered to the Trustee by causing the Trustee to become the registered
holder of such securities. The Trustee shall, at the expense of AFC-II,
take such action as is required to maintain the Trustee's security
interest in the Permitted Investments credited to the Series 2001-2 Cash
Collateral Account. AFC-II shall not direct the Trustee to dispose of (or
permit the disposal of) any Permitted Investments prior to the maturity
thereof to the extent such disposal would result in a loss of principal of
such Permitted Investment. In the absence of written investment
instructions hereunder, funds on deposit in the Series 2001-2 Cash
Collateral Account shall remain uninvested.
(h) EARNINGS FROM SERIES 2001-2 CASH COLLATERAL ACCOUNT. All
interest and earnings (net of losses and investment expenses) paid on
funds on deposit in the Series 2001-2 Cash Collateral Account shall be
deemed to be on deposit therein and available for distribution.
(i) SERIES 2001-2 CASH COLLATERAL ACCOUNT SURPLUS. In the event that
the Series 2001-2 Cash Collateral Account Surplus on any Distribution Date
(or,
50
after the Series 2001-2 Letter of Credit Termination Date, on any date) is
greater than zero, the Trustee, acting in accordance with the written
instructions of the Administrator, shall withdraw from the Series 2001-2
Cash Collateral Account an amount equal to the Series 2001-2 Cash
Collateral Account Surplus and shall pay such amount: FIRST, to the Series
2001-2 Letter of Credit Providers to the extent of any unreimbursed
drawings under the related Series 2001-2 Reimbursement Agreement, for
application in accordance with the provisions of the related Series 2001-2
Reimbursement Agreement, and, SECOND, to AFC-II any remaining amount.
(j) POST-SERIES 2001-2 LETTER OF CREDIT TERMINATION DATE WITHDRAWALS
FROM THE SERIES 2001-2 CASH COLLATERAL ACCOUNT. If the Surety Provider
notifies the Trustee in writing that the Surety Provider shall be required
to pay a Preference Amount (as defined in the Surety Bond) under the
Surety Bond, subject to the satisfaction of the conditions set forth in
the next succeeding sentence, the Trustee shall withdraw from the Series
2001-2 Cash Collateral Account and pay to the Surety Provider an amount
equal to the lesser of (i) the Series 2001-2 Available Cash Collateral
Account Amount on such date and (ii) such Preference Amount. Prior to any
withdrawal from the Series 2001-2 Cash Collateral Account pursuant to this
SECTION 3.8(j), the Trustee shall have received a certified copy of the
order requiring the return of such Preference Amount.
(k) TERMINATION OF SERIES 2001-2 CASH COLLATERAL ACCOUNT. Upon the
termination of this Supplement in accordance with its terms, the Trustee, acting
in accordance with the written instructions of the Administrator, after the
prior payment of all amounts owing to the Series 2001-2 Noteholders and to the
Surety Provider and payable from the Series 2001-2 Cash Collateral Account as
provided herein, shall withdraw from the Series 2001-2 Cash Collateral Account
all amounts on deposit therein (to the extent not withdrawn pursuant to SECTION
3.8(i) above) and shall pay such amounts: FIRST, to the Series 2001-2 Letter of
Credit Providers to the extent of any unreimbursed drawings under the related
Series 2001-2 Reimbursement Agreement, for application in accordance with the
provisions of the related Series 2001-2 Reimbursement Agreement, and, SECOND, to
AFC-II any remaining amount.
Section 3.9 SERIES 2001-2 DISTRIBUTION ACCOUNT. (a) ESTABLISHMENT OF
SERIES 2001-2 DISTRIBUTION ACCOUNT. The Trustee shall establish and maintain in
the name of the Series 2001-2 Agent for the benefit of the Series 2001-2
Noteholders and the Surety Provider, or cause to be established and maintained,
an account (the "Series 2001-2 Distribution Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Series 2001-2 Noteholders and the Surety Provider. The Series 2001-2
Distribution Account shall be maintained (i) with a Qualified Institution, or
(ii) as a segregated trust account with the corporate trust department of a
depository institution or trust company having corporate trust powers and acting
as trustee for funds deposited in the Series 2001-2 Distribution Account;
PROVIDED that, if at any time such Qualified Institution is no longer a
Qualified Institution or the
51
credit rating of any securities issued by such depositary institution or trust
company shall be reduced to below "BBB-" by Standard & Poor's or "A1" by
Xxxxx'x, then AFC-II shall, within 30 days of such reduction, establish a new
Series 2001-2 Distribution Account with a new Qualified Institution. If the
Series 2001-2 Distribution Account is not maintained in accordance with the
previous sentence, AFC-II shall establish a new Series 2001-2 Distribution
Account, within ten (10) Business Days after obtaining knowledge of such fact,
which complies with such sentence, and shall instruct the Series 2001-2 Agent in
writing to transfer all cash and investments from the non-qualifying Series
2001-2 Distribution Account into the new Series 2001-2 Distribution Account.
Initially, the Series 2001-2 Distribution Account will be established with The
Bank of New York.
(b) ADMINISTRATION OF THE SERIES 2001-2 DISTRIBUTION ACCOUNT. The
Administrator may instruct the institution maintaining the Series 2001-2
Distribution Account to invest funds on deposit in the Series 2001-2
Distribution Account from time to time in Permitted Investments; PROVIDED,
HOWEVER, that any such investment shall mature not later than the Business Day
for any Class of Series 2001-2 Notes next following the date on which such funds
were received, unless any Permitted Investment held in the Series 2001-2
Distribution Account is held with the Paying Agent, then such investment may
mature on such Distribution Date and such funds shall be available for
withdrawal on or prior to such Distribution Date. All such Permitted Investments
will be credited to the Series 2001-2 Distribution Account.
(c) EARNINGS FROM SERIES 2001-2 DISTRIBUTION ACCOUNT. All interest
and earnings (net of losses and investment expenses) paid on funds on deposit in
the Series 2001-2 Distribution Account shall be deemed to be on deposit and
available for distribution.
(d) SERIES 2001-2 DISTRIBUTION ACCOUNT CONSTITUTES ADDITIONAL
COLLATERAL FOR SERIES 2001-2 NOTES. In order to secure and provide for the
repayment and payment of the AFC-II Obligations with respect to the Series
2001-2 Notes, AFC-II hereby grants a security interest in and assigns, pledges,
grants, transfers and sets over to the Series 2001-2 Agent, for the benefit of
the Series 2001-2 Noteholders and the Surety Provider, all of AFC-II's right,
title and interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2001-2 Distribution Account, including any security
entitlement thereto; (ii) all funds on deposit therein from time to time; (iii)
all certificates and instruments, if any, representing or evidencing any or all
of the Series 2001-2 Distribution Account or the funds on deposit therein from
time to time; (iv) all investments made at any time and from time to time with
monies in the Series 2001-2 Distribution Account, whether constituting
securities, instruments, general intangibles, investment property, financial
assets or other property; (v) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for the Series 2001-2 Distribution Account, the
funds on deposit therein from time to time or the investments made with such
funds; and (vi) all proceeds of any and all of the foregoing, including, without
limitation, cash (the items in the foregoing clauses (i) through (vi) are
referred to, collectively, as the "Series
52
2001-2 Distribution Account Collateral"). The Series 2001-2 Agent shall possess
all right, title and interest in all funds on deposit from time to time in the
Series 2001-2 Distribution Account and in and to all proceeds thereof, and shall
be the only person authorized to originate entitlement orders in respect of the
Series 2001-2 Distribution Account. The Series 2001-2 Distribution Account
Collateral shall be under the sole dominion and control of the Series 2001-2
Agent for the benefit of the Series 2001-2 Noteholders and the Surety Provider.
Section 3.10 SERIES 2001-2 INTEREST RATE CAPS. (a) On the Series
2001-2 Closing Date, AFC-II shall acquire one or more interest rate caps (each a
"Series 2001-2 Interest Rate Cap") from a Qualified Interest Rate Cap
Counterparty. The aggregate initial notional amount of all Series 2001-2
Interest Rate Caps shall equal or exceed the Series 2001-2 Invested Amount, and
at any time after the Series 2001-2 Revolving Period, the aggregate notional
amount of all Series 2001-2 Interest Rate Caps may be reduced pursuant to the
related Series 2001-2 Interest Rate Cap but shall not at any time be less than
the Series 2001-2 Invested Amount. The strike rate of each Series 2001-2
Interest Rate Cap shall not be greater than 7.0%. Each Series 2001-2 Interest
Rate Cap will be required to have a termination date no earlier than the Series
2001-2 Termination Date.
(b) If, at any time, an Interest Rate Cap Counterparty does not have
at least one of (x) a short-term unsecured debt rating of at least "A-1" or (y)
a long-term unsecured debt rating of at least "A+" or (z) a counterparty rating
of "AAA", in each case, from Standard & Poor's, then AFC-II shall cause the
Interest Rate Cap Counterparty within 30 days following such occurrence, at the
Interest Rate Cap Counterparty's expense, to do one of the following (the choice
of such action to be determined by the Interest Rate Cap Counterparty) (i)
obtain a replacement interest rate cap on the same terms as the Series 2001-2
Interest Rate Cap from a Qualified Interest Rate Cap Counterparty and
simultaneously with such replacement AFC-II shall terminate the Series 2001-2
Interest Rate Cap being replaced or (ii) enter into any arrangement satisfactory
to Standard & Poor's, Xxxxx'x and the Surety Provider, which is sufficient to
maintain or restore the immediately prior Shadow Rating; PROVIDED that no
termination of the Series 2001-2 Interest Rate Cap shall occur until AFC-II has
entered into a replacement Series 2001-2 Interest Rate Cap. Each Series 2001-2
Interest Rate Cap must provide that if the Interest Rate Cap Counterparty is
required to take any of the actions described in clause (i) or (ii) of the
preceding sentence and such action is not taken within 30 days, then the
Interest Rate Cap Counterparty must, until a replacement Series 2001-2 Interest
Rate Cap is executed and in effect, collateralize its obligations under such
Series 2001-2 Interest Rate Cap in an amount equal to the greatest of (i) the
marked to market value of such Series 2001-2 Interest Rate Cap, (ii) the next
payment due from the Interest Rate Cap Counterparty and (iii) 1% of the notional
amount of such Series 2001-2 Interest Rate Cap.
(c) If, at any time, an Interest Rate Cap Counterparty is not a
Xxxxx'x Qualified Interest Rate Cap Counterparty, then AFC-II shall cause the
Interest Rate Cap Counterparty within 30 days following such occurrence, at such
Interest Rate Cap
53
Counterparty's expense and its option, to do one of the following (the choice of
such action to be determined by the Interest Rate Cap Counterparty) (i) enter
into a replacement Series 2001-2 Interest Rate Cap with a Qualified Interest
Rate Cap Counterparty on substantially similar terms to the Series 2001-2
Interest Rate Cap being replaced, and simultaneously with such replacement,
AFC-II shall terminate the Series 2001-2 Interest Rate Cap being replaced, (ii)
obtain a guaranty of the obligations of the Interest Rate Cap Counterparty under
its Series 2001-2 Interest Rate Cap from another person who qualifies as a
Qualified Interest Rate Cap Counterparty, (iii) enter into a collateral
agreement with the Interest Rate Cap Counterparty, the Surety Provider and a
third party collateral agent if necessary, in form and substance and with
collateral acceptable to the Surety Provider to post and maintain collateral, in
an amount at least equal to the then marked to market value of the Series 2001-2
Interest Rate Cap in form and substance satisfactory to the Surety Provider or
(iv) enter into any arrangement satisfactory to Standard & Poor's, Xxxxx'x and
the Surety Provider.
(d) If (w) the long-term senior and unsecured debt rating of the
Interest Rate Cap Counterparty falls below "A1" from Xxxxx'x or "A+" by Standard
& Poor's, (x) the short-term senior and unsecured debt rating of the Interest
Rate Cap Counterparty falls below "P-1" from Xxxxx'x or "A-1" from Standard &
Poor's, (y) the long-term senior and unsecured debt rating of the Interest Rate
Cap Counterparty falls below "Aa3" from Xxxxx'x and the short-term senior and
unsecured debt of the Interest Rate Cap Counterparty is not rated at least "P-1"
from Xxxxx'x, or (z) the long-term senior and unsecured debt rating of the
Interest Rate Cap Counterparty falls below "AA-" from Standard & Poor's and the
short-term senior and unsecured debt of the Interest Rate Cap Counterparty is
not rated at least "A-1" from Standard & Poor's, then, in each case AFC-II shall
cause the Interest Rate Cap Counterparty within 30 days following such
occurrence to do one of the following (the choice of such action to be
determined by the Interest Rate Cap Counterparty) (i) enter into a replacement
Series 2001-2 Interest Rate Cap with a Qualified Interest Rate Cap Counterparty
on substantially similar terms to the Series 2001-2 Interest Rate Cap being
replaced, and simultaneously with such replacement, AFC-II shall terminate the
Series 2001-2 Interest Rate Cap being replaced, (ii) obtain a guaranty of the
obligations of the Interest Rate Cap Counterparty under the Series 2001-2
Interest Rate Cap from another person who qualifies as a Qualified Interest Rate
Cap Counterparty, (iii) enter into a collateral agreement with the Interest Rate
Cap Counterparty, the Surety Provider and a third party collateral agent if
necessary, in form and substance and with collateral acceptable to the Surety
Provider to post and maintain collateral, in an amount at least equal to the
then marked to market value of the Series 2001-2 Interest Rate Cap or (iv) enter
into any arrangement satisfactory to Standard & Poor's, Xxxxx'x and the Surety
Provider. If the Interest Rate Cap Counterparty fails to take any of the actions
described in clauses (i) through (iv) of the preceding sentence upon the
occurrence of any of the events described in clauses (w) through (z) of the
preceding sentence, or if at any time the long-term senior and unsecured debt
rating of the Interest Rate Cap Counterparty is withdrawn or falls below "Baa1"
by Xxxxx'x or "BBB+" by Standard & Poor's, then the Surety Provider may
terminate the Series 2001-2 Interest Rate Cap; PROVIDED, HOWEVER, that such
Series 2001-2 Interest Rate Cap shall not
54
terminate until the completion of either (A) or (B) below: (A) the Interest Rate
Cap Counterparty, or AFC-II at the direction of the Surety Provider, and in each
case at the expense of the Interest Rate Cap Counterparty, obtains a replacement
Series 2001-2 Interest Rate Cap with a Qualified Interest Rate Cap Counterparty
on substantially similar terms to the Series 2001-2 Interest Rate Cap being
replaced (or with modifications acceptable to the Surety Provider) or (B) the
Interest Rate Cap Counterparty at its expense enters into any arrangement
satisfactory to Standard & Poor's, Xxxxx'x and the Surety Provider.
(e) To secure payment of all obligations to the Series 2001-2
Noteholders and the Surety Provider, AFC-II grants a security interest in, and
assigns, pledges, grants, transfers and sets over to the Series 2001-2 Agent,
for the benefit of the Series 2001-2 Noteholders and the Surety Provider, all of
AFC-II's right, title and interest in each Series 2001-2 Interest Rate Cap and
all proceeds thereof (the "Series 2001-2 Interest Rate Cap Collateral"). AFC-II
shall require all Series 2001-2 Interest Rate Cap Proceeds to be paid to, and
the Trustee shall allocate all Series 2001-2 Interest Rate Cap Proceeds to, the
Series 2001-2 Accrued Interest Account of the Collection Account.
Section 3.11 SERIES 2001-2 ACCOUNTS PERMITTED INVESTMENTS. AFC-II
shall not, and shall not permit, funds on deposit in the Series 2001-2 Accounts
to be invested in:
(i) Permitted Investments that do not mature at least one
Business Day before the next Distribution Date;
(ii) demand deposits, time deposits or certificates of deposit
with a maturity in excess of 360 days;
(iii) commercial paper which is not rated at least "P-1" by
Xxxxx'x;
(iv) money market funds or eurodollar time deposits which are
not rated at least "AAAm" by Standard & Poor's;
(v) eurodollar deposits that are not rated at least "P-1" by
Xxxxx'x or that are with financial institutions not organized under the
laws of a G-7 nation; or
(vi) any investment, instrument or security not otherwise
listed in clause (i) through (vi) of the definition of "Permitted
Investments" in the Base Indenture that is not approved in writing by the
Surety Provider.
Section 3.12 CALCULATION OF MAXIMUM AUCTION RATE AND OVERDUE RATE.
The Auction Agent shall calculate the Maximum Auction Rate on each Auction Date
in accordance with the Auction Agent Agreement. If the Series 2001-2 Notes of
any Class are no longer represented by one or more Global Notes, the Trustee
shall calculate the
55
Maximum Auction Rate for the Series 2001-2 Notes of such Class on the Business
Day immediately preceding the first day of each Subsequent Auction Rate Period
therefor commencing after the delivery of Definitive Notes representing the
Series 2001-2 Notes of such Class pursuant to Section 2.18 of the Base
Indenture. If a Surety Default shall have occurred, the Trustee, upon written
notice thereof, shall calculate the Overdue Rate (i) as of the first day of the
Subsequent Auction Rate Period for the Series 2001-2 Notes of any Class
commencing on or immediately prior to the date on which such Surety Default
shall have occurred, and (ii) on the first day of any Subsequent Auction Rate
Period for the Series 2001-2 Notes of any Class commencing after the occurrence
of such Surety Default to and including the Subsequent Auction Rate Period
therefor, if any, commencing less then two Business Days after the Surety
Default is cured.
Section 3.13 DESIGNATION OF SPECIAL AUCTION RATE PERIODS.
(a) At any time prior to the commencement of the Series 2001-2 Rapid
Amortization Period AFC-II, at its option, may designate any succeeding
Subsequent Auction Rate Period for the Series 2001-2 Notes of any Class as a
Special Auction Rate Period.
(b) In the event AFC-II wishes to designate a Subsequent Auction
Rate Period for the Series 2001-2 Notes of any Class as a Special Auction Rate
Period, but the day next succeeding what would otherwise be the last day of such
Special Auction Rate Period is not a Wednesday that is a Business Day, then
AFC-II shall designate such Subsequent Auction Rate Period as a Special Auction
Rate Period consisting of the period commencing on the first day next succeeding
the end of the immediately preceding Auction Rate Period and ending on the next
succeeding day that is a Business Day preceding what would otherwise be such
last day and that is followed by a Wednesday that is a Business Day.
(c) If AFC-II proposes to designate any succeeding Subsequent
Auction Rate Period for the Series 2001-2 Notes of any Class as a Special
Auction Rate Period pursuant to Section 3.12(a) of this Supplement, not less
than 6 (or such lesser number of days as may be agreed to from time to time by
the Auction Agent) nor more than 30 Business Days prior to the date AFC-II
proposes to designate as the first day of such Special Auction Rate Period
(which shall be the day that would otherwise be the first day of the next
succeeding Auction Rate Period for the Series 2001-2 Notes of such Class),
AFC-II shall give written notice (which notice may be by facsimile) in
substantially the form of Exhibit C-1 to this Supplement to the Trustee and the
Auction Agent. Each such notice shall state (i) that AFC-II may exercise its
option to designate a succeeding Subsequent Auction Rate Period with respect to
the Series 2001-2 Notes of such Class as a Special Auction Rate Period,
specifying the first and last days thereof, and the conditions thereto and (ii)
that AFC-II will, by 11:00 a.m., New York City time, on the second Business Day
next preceding the first day of such proposed Special Auction Rate Period (or by
such later time or date, or both, as may be agreed to by the Auction Agent) will
notify the Auction Agent of either (x) its determination, to exercise such
option, in
56
which case, AFC-II shall specify the Special Auction Rate Period designated, or
(y) its determination not to exercise such option.
(d) No later than 11:00 a.m., New York City time, on the second
Business Day next preceding the first day of any proposed Special Auction Rate
Period as to which notice has been given with respect to the Series 2001-2 Notes
of any Class as set forth in Section 3.13(c) of this Supplement (or such later
time or date, or both, as may be agreed to by the Auction Agent), AFC-II shall
deliver (which delivery may be by facsimile) to the Auction Agent either:
(i) a notice in substantially the form of Exhibit C-2 to this
Supplement stating (1) that AFC-II has determined to designate the next
succeeding Auction Rate Period for the Series 2001-2 Notes of such Class
as a Special Auction Rate Period, specifying the same and the first and
last days thereof, (2) the Auction Date immediately prior to the first day
of such Special Auction Rate Period, (3) that such Special Auction Rate
Period shall not commence if (x) an Auction shall not be held on such
Auction Date for any reason or (y) an Auction shall be held on such
Auction Date but Sufficient Bids shall not exist in such Auction and (4)
the Distribution Date(s) with respect to the Series 2001-2 Notes of such
Class during such Special Auction Rate Period; or
(ii) a notice in substantially the form of Exhibit C-3 to this
Supplement stating that AFC-II has determined not to exercise its option
to designate a Special Auction Rate Period and that the next succeeding
Auction Rate Period for the Series 2001-2 Notes of such Class shall be a
Standard Auction Rate Period for the Series 2001-2 Notes of such Class.
(e) If AFC-II fails to deliver either of the notices described in
Section 3.13(d)(i) or (ii) of this Supplement with respect to any designation of
any proposed Special Auction Rate Period to the Auction Agent by 11:00 a.m., New
York City time, on the second Business Day next preceding the first day of such
proposed Special Auction Rate Period (or by such later time or date, or both, as
may be agreed to by the Auction Agent), AFC-II shall be deemed to have delivered
a notice to the Auction Agent with respect to such Special Auction Rate Period
to the effect set forth in Section 3.13(d)(ii) of this Supplement.
Section 3.14 SERIES 2001-2 DEMAND NOTES CONSTITUTE ADDITIONAL
COLLATERAL FOR SERIES 2001-2 NOTES.
In order to secure and provide for the repayment and payment of the
obligations with respect to the Series 2001-2 Notes, AFC-II hereby grants a
security interest in and assigns, pledges, grants, transfers and sets over to
the Trustee, for the benefit of the Series 2001-2 Noteholders and the Surety
Provider, all of AFC-II's right, title and interest in and to the following
(whether now or hereafter existing or acquired): (i) the Series 2001-2 Demand
Notes; (ii) all certificates and instruments, if any, representing or evidencing
the Series 2001-2 Demand Notes; and (iii) all proceeds of any
57
and all of the foregoing, including, without limitation, cash. On the date
hereof, AFC-II shall deliver to the Trustee, for the benefit of the Series
2001-2 Noteholders and the Surety Provider, the Series 2001-2 Demand Note,
endorsed in blank. The Trustee, for the benefit of the Series 2001-2 Noteholders
and the Surety Provider, shall be the only Person authorized to make a demand
for payments on the Series 2001-2 Demand Notes.
ARTICLE IV
AMORTIZATION EVENTS
In addition to the Amortization Events set forth in Section 9.1 of
the Base Indenture, any of the following shall be an Amortization Event with
respect to the Series 2001-2 Notes and collectively shall constitute the
Amortization Events set forth in Section 9.1(n) of the Base Indenture with
respect to the Series 2001-2 Notes (without notice or other action on the part
of the Trustee or any holders of the Series 2001-2 Notes) and shall not be
subject to waiver:
(a) a Series 2001-2 Enhancement Deficiency shall occur and continue
for at least two (2) Business Days; provided, however, that such event or
condition shall not be an Amortization Event if (i) during such two (2) Business
Day period such Series 2001-2 Enhancement Deficiency shall have been cured in
accordance with the terms and conditions of the Indenture and the Related
Documents;
(b) the Series 2001-2 Liquidity Amount shall be less than the Series
2001-2 Required Liquidity Amount for at least two (2) Business Days; PROVIDED,
HOWEVER, that such event or condition shall not be an Amortization Event if (i)
during such two (2) Business Day period such insufficiency shall have been cured
in accordance with the terms and conditions of the Indenture and the Related
Documents;
(c) the Collection Account, the Series 2001-2 Collection Account,
the Series 2001-2 Excess Collection Account or the Series 2001-2 Reserve Account
shall be subject to an injunction, estoppel or other stay or a Lien (other than
Liens permitted under the Related Documents);
(d) all principal of and interest on the Series 2001-2 Notes of any
Class is not paid in full on or before May 1, 2006;
(e) the Trustee shall make a demand for payment under the Surety
Bond;
(f) the Series 2001-2 Invested Amount exceeds $450,000,000 as of any
date after November 1, 2005;
(g) the occurrence of an Event of Bankruptcy with respect to the
Surety Provider;
58
(h) the Surety Provider fails to pay a demand for payment in
accordance with the requirements of the Surety Bond;
(i) a Series 2001-2 Enhancement Deficiency shall continue for at
least two (2) Business Days, excluding from the calculation thereof one or more
of the following amounts:
(i) any cash or Permitted Investments on deposit in the Series
2001-2 Excess Collection Account, the Series 2001-2 Cash Collateral
Account or the Series 2001-2 Reserve Account if at the time of such
calculation the Series 2001-2 Excess Collection Account, the Series 2001-2
Cash Collateral Account or the Series 2001-2 Reserve Account, as the case
may be, shall be subject to an injunction, estoppel or other stay or a
Lien (other than Liens permitted under the Related Documents) (each, a
"Restrictive Action"); and
(ii) the amount available to be drawn under any Series 2001-2
Letter of Credit if at the time of such calculation (A) such Series 2001-2
Letter of Credit shall not be in full force and effect, (B) an Event of
Bankruptcy shall have occurred with respect to the Series 2001-2 Letter of
Credit Provider of such Series 2001-2 Letter of Credit or (C) such Series
2001-2 Letter of Credit Provider shall have repudiated such Series 2001-2
Letter of Credit or refused to honor a proper draw thereon; and
(j) the Series 2001-2 Liquidity Amount shall be less than the Series
2001-2 Required Liquidity Amount for at least two (2) Business Days, excluding
from the calculation thereof one or more of the following amounts:
(i) any cash or Permitted Investments on deposit in the Series
2001-2 Excess Collection Account, the Series 2001-2 Cash Collateral
Account or the Series 2001-2 Reserve Account if at the time of such
calculation the Series 2001-2 Excess Collection Account, the Series 2001-2
Cash Collateral Account or the Series 2001-2 Reserve Account, as the case
may be, shall be subject to a Restrictive Action; and
(ii) the amount available to be drawn under any Series 2001-2
Letter of Credit if at the time of such calculation (A) such Series 2001-2
Letter of Credit shall not be in full force and effect, (B) an Event of
Bankruptcy shall have occurred with respect to the Series 2001-2 Letter of
Credit Provider of such Series 2001-2 Letter of Credit or (C) such Series
2001-2 Letter of Credit Provider shall have repudiated such Series 2001-2
Letter of Credit or refused to honor a proper draw thereon.
59
ARTICLE V
[RESERVED]
ARTICLE VI
FORM OF SERIES 2001-2 NOTES
RESTRICTED GLOBAL SERIES 2001-2 NOTES. The Series 2001-2 Notes will
be issued in book-entry form and represented by one or more permanent global
Notes in fully registered form without interest coupons (each, a "Class A-1
Restricted Global Note", a "Class A-2 Restricted Global Note", a "Class A-3
Restricted Global Note" or a "Class A-4 Restricted Global Note", as the case may
be), substantially in the form set forth in EXHIBIT A hereto, with such legends
as may be applicable thereto as set forth in the Base Indenture, and shall be
deposited on behalf of the purchasers of the Series 2001-2 Notes represented
thereby, with a custodian for DTC, and registered in the name of Cede & Co. as
DTC's nominee, duly executed by AFC-II and authenticated by the Trustee in the
manner set forth in Section 2.4 of the Base Indenture. Interests in a Restricted
Global Series 2001-2 Note will be exchangeable for definitive Series 2001-2
Notes in accordance with the provisions of the Base Indenture (as modified by
this Series Supplement). The sale of any Series 2001-1 Notes is limited to
Persons who have executed and delivered a Purchaser's Letter to one of the
Broker-Dealers or Agents.
So long as the Series 2001-2 Notes of any Class are represented by a
Global Note, an Existing Noteholder of such Class of Series 2001-2 Notes may
sell, transfer or otherwise dispose of Series 2001-2 Notes of such Class only to
AFC-II (pursuant to a redemption or otherwise), pursuant to a Bid or Sell Order
placed in an Auction or to or through a Broker-Dealer; PROVIDED, HOWEVER, that
in the case of all transfers to or through a Broker-Dealer, that Broker-Dealer
shall advise the Auction Agent of such transfer. If the Series 2001-2 Notes of
any Class are no longer represented by a Global Note, the Series 2001-2 Notes of
such Class may be sold only in reliance from an exemption from the registration
requirements of the Securities Act.
ARTICLE VII
GENERAL
Section 7.1 OPTIONAL REDEMPTION. AFC-II may, at its option, redeem
the Series 2001-2 Notes of any Class, as a whole at any time, or in part from
time to time during the Series 2001-2 Revolving Period, on any Principal
Distribution Date for the Series 2001-2 Notes of such Class, with funds
deposited in the Series 2001-2 Distribution Account pursuant to Section 2.2 of
this Supplement, at 100% of the principal amount thereof, together with interest
accrued and unpaid thereon to the date fixed for redemption; PROVIDED, HOWEVER
that AFC-II shall only be permitted to redeem the Series
60
2001-2 Notes of any Class pursuant to this Section 7.1, if after giving effect
to such redemption, either (i) such Class of Series 2001-2 Notes shall have been
redeemed in full or (ii) the aggregate principal amount of the Series 2001-2
Notes of such Class if after giving effect to such redemption would equal or
exceed the Series 2001-2 Minimum Invested Amount; PROVIDED, FURTHER, that, in
the event the AFC-II shall at any time optionally redeem any Class of Series
2001-2 Notes in full, such redemption shall be permanent, and at no time
following such optional redemption in full may AFC-II issue Additional Auction
Rate Notes of such Class. The amount of any such redemption of Series 2001-2
Notes must be in minimum denominations of $50,000 and integral multiples of
$50,000 in excess thereof, and shall not exceed the amount on deposit in the
Series 2001-2 Excess Collection Account.
Section 7.2 MANDATORY REDEMPTION. On the first Principal
Distribution Date with respect to the Series 2001-2 Notes of each Class
occurring on or after each First Potential Series 2001-2 Redemption Date,
commencing with the First Potential Series 2001-2 Redemption Date occurring in
the month in which the Initial Rapid Principal Determination Date occurs, AFC-II
shall redeem Series 2001-2 Notes of such Class in an aggregate principal amount
equal to the amount to be deposited into the Series 2001-2 Distribution Account
in respect of Series 2001-2 Notes of such Class on such Principal Distribution
Date pursuant to Sections 3.5(a) and (b) of this Supplement at 100% of the
principal amount thereof, together with accrued and unpaid interest thereon to
the date fixed for redemption.
Section 7.3 NOTICE OF REDEMPTION. AFC-II shall give notice of any
redemption of the Series 2001-2 Notes of any Class pursuant to Section 7.1 or
7.2 of this Supplement not less than five Business Days and not more than 30
Business Days prior to the date fixed for such redemption to the Broker-Dealer,
the Auction Agent, the Series 2001-2 Noteholders of such Class and the Surety
Provider. Each notice of redemption shall state (i) the Principal Distribution
Date fixed for redemption of the Series 2001-2 Notes being redeemed and the
aggregate principal amount of the Series 2001-2 Notes of such Class being
redeemed (which shall be in integral multiples of $50,000). AFC-II shall not
give a notice of redemption of the Series 2001-2 Notes of any Class unless it
shall have on deposit in the Series 2001-2 Excess Collection Account and the
Series 2001-2 Collection Account on the date of such notice sufficient funds
available to redeem such Series 2001-2 Notes of such Class.
Section 7.4 EXHIBITS. The following exhibits attached hereto
supplement the exhibits included in the Indenture.
EXHIBIT A: Form of Restricted Global Series 2001-2 Note
EXHIBIT B: [Reserved]
EXHIBIT C: Forms of Notices
EXHIBIT D: Form of Letter of Credit
61
EXHIBIT E: Form of Lease Payment Deficit Notice
EXHIBIT F: Form of Demand Notice
Section 7.5 INFORMATION.
(a) On or before each Determination Date AFC-II shall furnish to the
Trustee a Distribution Date Statement with respect to the Series 2001-2 Notes of
such Class, including the following information:
(i) the Series 2001-2 Invested Percentage with respect to
Interest Collections for the period from and including the
immediately preceding Determination Date to but excluding such
Determination Date (such period, the "Interest Reporting Period");
(ii) the total amount of Interest Collections available to be
distributed to Series 2001-2 Noteholders during the Interest
Reporting Period;
(iii) the amount of such distribution of Interest Collections
allocable to the Series 2001-2 Notes of each Class;
(iv) the amount of such allocation to be distributed to the
Series 2001-2 Noteholders of each Class in respect of interest on
the Series 2001-2 Notes of such Class on the Distribution Date for
such Class occurring during the period from and including the
Program Distribution Date related to such Determination Date to but
excluding the next succeeding Distribution Date;
(v) the Series 2001-2 Invested Percentage with respect to
Principal Collections for the period from and including the
immediately preceding Program Distribution Date to but excluding the
Program Distribution Date related to such Determination Date (such
period, the "Principal Reporting Period");
(vi) the total amount of Principal Collections available to be
distributed to Series 2001-2 Noteholders during the Principal
Reporting Period;
(vii) the amount of such distribution of Principal Collections
allocable to the Series 2001-2 Notes of each Class; and
(viii) the amount of such allocation to be applied to a
redemption of the Series 2001-2 Notes of each Class on any Principal
Distribution Date for such Class occurring during the period from
and
62
including the Program Distribution Date related to such
Determination Date to but excluding the next succeeding Distribution
Date.
(b) The Trustee shall provide to the Series 2001-2 Noteholders, or
their designated agent, and the Surety Provider copies of all information
furnished to the Trustee or AFC-II pursuant to the Related Documents, as such
information relates to the Series 2001-2 Notes or the Series 2001-2 Collateral.
In connection with any Preference Amount payable under the Surety Bond, the
Trustee shall furnish to the Surety Provider its records evidencing the
distributions of principal of and interest on the Series 2001-2 Notes that have
been made and subsequently recovered from Series 2001-2 Noteholders and the
dates on which such payments were made.
Section 7.6 RATIFICATION OF BASE INDENTURE. As supplemented by this
Supplement, the Base Indenture is in all respects ratified and confirmed and the
Base Indenture as so supplemented by this Supplement shall be read, taken, and
construed as one and the same instrument.
Section 7.7 COUNTERPARTS. This Supplement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
Section 7.8 GOVERNING LAW. This Supplement shall be construed in
accordance with the law of the State of New York (without giving effect to the
provisions thereof regarding conflicts of laws), and the obligations, rights and
remedies of the parties hereto shall be determined in accordance with such law.
Section 7.9 AMENDMENTS. This Supplement may be modified or amended
from time to time with the consent of the Surety Provider and in accordance with
the terms of the Base Indenture; PROVIDED, HOWEVER, that if, pursuant to the
terms of the Base Indenture or this Supplement, the consent of the Required
Noteholders is required for an amendment or modification of this Supplement,
such requirement shall be satisfied if such amendment or modification is
consented to by the Series 2001-2 Noteholders representing more than 50% of the
aggregate outstanding principal amount of the Series 2001-2 Notes affected
thereby.
Section 7.10 DISCHARGE OF INDENTURE. Notwithstanding anything to the
contrary contained in the Base Indenture, no discharge of the Indenture pursuant
to Section 11.1(b) of the Base Indenture will be effective as to the Series
2001-2 Notes without the consent of the Required Noteholders.
Section 7.11 NOTICE TO SURETY PROVIDER AND RATING AGENCIES. The
Trustee shall provide to the Surety Provider and each Rating Agency a copy of
each notice, opinion of counsel, certificate or other item delivered to, or
required to be provided by, the Trustee pursuant to this Supplement or any other
Related Document. Each such opinion of counsel shall be addressed to the Surety
Provider, shall be from counsel reasonably acceptable to the Surety Provider and
shall be in form and substance
63
reasonably acceptable to the Surety Provider. All such notices, opinions,
certificates or other items delivered to the Surety Provider shall be forwarded
to Ambac Assurance Corporation, Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: General Counsel, telephone: (000) 000-0000.
Section 7.12 CERTAIN RIGHTS OF SURETY PROVIDER. The Surety Provider
shall be deemed to be an Enhancement Provider entitled to receive confirmation
of the rating on the Series 2001-2 Notes (without regard to the Surety Bond)
pursuant to the definition of "Rating Agency Confirmation Condition." In
addition, the Surety Provider shall be deemed to be an Enhancement Provider
entitled to exercise the consent rights described in clause (ii) of the
definition of "Rating Agency Consent Condition."
Section 7.13 SURETY PROVIDER DEEMED NOTEHOLDER AND SECURED PARTY.
Except for any period during which a Surety Default is continuing, the Surety
Provider shall be deemed to be the holder of 100% of the Series 2001-2 Notes for
the purposes of giving any consents, waivers, approvals, instructions,
directions, requests, declarations and/or notices pursuant to the Base Indenture
and this Supplement. Any reference in the Base Indenture or the Related
Documents (including, without limitation, in Sections 2.3, 8.14, 9.1, 9.2 or
12.1 of the Base Indenture) to materially, adversely, or detrimentally affecting
the rights or interests of the Noteholders, or words of similar meaning, shall
be deemed, for purposes of the Series 2001-2 Notes, to refer to the rights or
interests of the Surety Provider. The Surety Provider shall constitute an
"Enhancement Provider" with respect to the Series 2001-2 Notes for all purposes
under the Indenture and the other Related Documents. Furthermore, the Surety
Provider shall be deemed to be a "Secured Party" under the Base Indenture and
the Related Documents to the extent of amounts payable to the Surety Provider
pursuant to this Supplement and the Insurance Agreement shall constitute an
"Enhancement Agreement" with respect to the Series 2001-2 Notes for all purposes
under the Indenture and the Related Documents. Moreover, wherever in the Related
Documents money or other property is assigned, conveyed, granted or held for, a
filing is made for, action is taken for or agreed to be taken for, or a
representation or warranty is made for the benefit of the Noteholders, the
Surety Provider shall be deemed to be the Noteholder with respect to 100% of the
Series 2001-2 Notes for such purposes.
Section 7.14 CAPITALIZATION OF AFC-II. (a) AFC-II agrees that on the
Series 2001-2 Closing Date it will have capitalization in an amount equal to or
greater than 3% of the sum of (x) the Series 2001-2 Invested Amount and (y) the
invested amount of the Series 1997-1 Notes, the Series 1998-1 Notes, the Series
2000-1 Notes, the Series 2000-2 Notes, the Series 2000-3 Notes, the Series
2000-4 Notes and the Series 2001-1 Notes.
(b) AFC-II represents that, on the Series 2001-2 Closing Date, it
received capital contributions from (i) AESOP Leasing in the amount of
$12,250,000 and (ii) Original AESOP in the amount of $250,000.
(c) On any date following the Series 2001-2 Closing Date that AFC-II
desires to issue Additional Series 2001-2 Notes in an amount which would cause
the
64
Series 2001-2 Invested Amount to exceed the Highest Series 2001-2 Invested
Amount as of such date, then as a condition precedent to the issuance of the
Additional Series 2001-2 Notes which would cause the Series 2001-2 Invested
Amount to exceed such Highest Series 2001-2 Invested Amount, AFC-II shall have
received capital contributions in connection with such issuance in an amount
equal to or greater than the product of (1) 10% and (2) the excess of (i) the
Series 2001-2 Invested Amount which would result from the issuance of the
Additional Series 2001-2 Notes OVER (ii) the Highest Series 2001-2 Invested
Amount in effect as of such date.
Section 7.15 SERIES 2001-2 REQUIRED NON-PROGRAM ENHANCEMENT
PERCENTAGE. AFC-II agrees that it will not make any Loan under any Loan
Agreement to finance the acquisition of any Vehicle by AESOP Leasing, AESOP
Leasing II or ARAC, as the case may be, if, after giving effect to the making of
such Loan, the acquisition of such Vehicle and the inclusion of such Vehicle
under the relevant Lease, the Series 2001-2 Required Non-Program Enhancement
Percentage would exceed 25.0%.
Section 7.16 THIRD PARTY BENEFICIARY. The Surety Provider is an
express third party beneficiary of (i) the Base Indenture to the extent of
provisions relating to any Enhancement Provider and (ii) this Supplement.
Section 7.17 PRIOR NOTICE BY TRUSTEE TO SURETY PROVIDER. Subject to
Section 10.1 of the Base Indenture, the Trustee agrees that, so long as no
Amortization Event shall have occurred and be continuing with respect to any
Series of Notes other than the Series 2001-2 Notes, it shall not exercise any
rights or remedies available to it as a result of the occurrence of an
Amortization Event with respect to the Series 2001-2 Notes (except those set
forth in clauses (f) and (g) of Article IV of this Supplement) or a Series
2001-2 Limited Liquidation Event of Default until after the Trustee has given
prior written notice thereof to the Surety Provider and obtained the direction
of the Required Noteholders with respect to the Series 2001-2 Notes. The Trustee
agrees to notify the Surety Provider promptly following any exercise of rights
or remedies available to it as a result of the occurrence of any Amortization
Event or a Series 2001-2 Limited Liquidation Event of Default.
Section 7.18 EFFECT OF PAYMENTS BY THE SURETY PROVIDER; SUBROGATION.
(a) Anything herein to the contrary notwithstanding, any distribution of
principal of or interest on the Series 2001-2 Notes that is made with moneys
received pursuant to the terms of the Surety Bond shall not (except for the
purpose of calculating the Insured Principal Deficit Amount) be considered
payment of the Series 2001-2 Notes by the AFC-II. The Trustee acknowledges that,
without the need for any further action on the part of the Surety Provider, (i)
to the extent the Surety Provider makes payments, directly or indirectly, on
account of principal of or interest on the Series 2001-2 Notes to the Trustee
for the benefit of the Series 2001-2 Noteholders or to the Series 2001-2
Noteholders (including any Preference Amounts as defined in the Surety Bond),
the Surety Provider will be fully subrogated to the rights of such Series 2001-2
Noteholders to receive such principal and interest and will be deemed to the
extent of the payments so made to be a Series 2001-2 Noteholder and (ii) the
Surety Provider shall be paid principal
65
and interest in its capacity as a Series 2001-2 Noteholder until all such
payments by the Surety Provider have been fully reimbursed, but only from the
sources and in the manner provided herein for the distribution of such principal
and interest and in each case only after the Series 2001-2 Noteholders have
received all payments of principal and interest due to them hereunder on the
related Distribution Date.
(b) In furtherance of and not in limitation of the Surety Provider's
equitable right of subrogation, each of the Trustee and AFC-II acknowledge that,
to the extent of any payment made by the Surety Provider under the Surety Bond
with respect to interest on or principal of the Series 2001-2 Notes (including
any Preference Amount, as defined in the Surety Bond), the Surety Provider is to
be fully subrogated to the extent of such payment and any additional interest
due on any late payment, to the rights of the Series 2001-2 Noteholders under
the Indenture. Each of AFC-II and the Trustee agree to take such actions as the
Surety Provider may reasonably request in writing to evidence such subrogation.
Section 7.19 SERIES 2001-2 DEMAND NOTES. (a) Other than pursuant to
a demand thereon pursuant to SECTION 3.5 of this Supplement, AFC-II shall not
reduce the amount of the Series 2001-2 Demand Notes or forgive amounts payable
thereunder so that the outstanding principal amount of the Series 2001-2 Demand
Notes after such reduction or forgiveness is less than the greater of the Series
2001-2 Letter of Credit Liquidity Amount. AFC-II shall not agree to any
amendment of the Series 2001-2 Demand Notes without first satisfying the Rating
Agency Confirmation Condition and the Rating Agency Consent Condition.
(b) On the date of any Increase made in accordance with Section 2.1,
AFC-II may accept additional Series 2001-2 Demand Notes as a capital
contribution, which shall satisfy the provisions of Section 7.14(b); PROVIDED
that any such additional Series 2001-2 Demand Notes shall be supported by a
Series 2001-2 Letter of Credit issued by a Series 2001-2 Eligible Letter of
Credit Provider in an amount at least equal to the excess of the Series 2001-2
Required Liquidity Amount (after giving effect to the Increase on such date)
over the sum of (i) the Series 2001-2 Liquidity Amount on such date (prior to
giving effect to the Increase) and any amounts contributed in cash to AFC-II on
such date.
Section 7.20 TERMINATION OF SUPPLEMENT. This Supplement shall cease
to be of further effect when all outstanding Series 2001-2 Notes theretofore
authenticated and issued have been delivered (other than destroyed, lost or
stolen Series 2001-2 Notes which have been replaced or paid) to the Trustee for
cancellation, AFC-II has paid all sums payable hereunder, the Surety Provider
has been paid all Surety Provider Fees and all other Surety Provider
Reimbursement Amounts due under the Insurance Agreement and, if the Series
2001-2 Demand Note Payment Amount on the Series 2001-2 Letter of Credit
Termination Date was greater than zero, all amounts have been withdrawn from the
Series 2001-2 Cash Collateral Account in accordance with SECTION 3(8)(i) of this
Supplement.
66
Section 7.21 ENDORSEMENT TO SURETY BOND. The Trustee acknowledges
and agrees to the endorsement to the Surety Bond amending the definition of
"Deficiency Amount" executed in connection with this Supplement, which conforms
the Surety Bond to the amendments made hereto.
67
IN WITNESS WHEREOF, AFC-II and the Trustee have caused this
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
AESOP FUNDING II L.L.C.
By /s/ Xxxx X. Xxxxxxxxxxxx
------------------------
Title: President
THE BANK OF NEW YORK,
(as successor in
interest to the
corporate trust
administration of
Xxxxxx Trust and
Savings Bank), as
Trustee
By /s/ Xxxxxxxx Xxxxxxxxxxx
------------------------
Title: Vice President
THE BANK OF NEW YORK, as
Series 2001-2 Agent
By /s/ Xxxxxxxx Xxxxxxxxxxx
------------------------
Title: Vice President
68
EXHIBIT A
to
SERIES 2001-2 SUPPLEMENT
FORM OF RESTRICTED GLOBAL [CLASS A-1] [CLASS A-2] [CLASS A-3][CLASS A-4] NOTE
REGISTERED $125,000,000
No. R-_____
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. _______________
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES OR "BLUE SKY"
LAWS. THE HOLDER HEREOF, BY PURCHASING ANY [CLASS A-1][CLASS A-2][CLASS
A-3][CLASS A-4] NOTE, AGREES FOR THE BENEFIT OF THE ISSUER THAT SUCH [CLASS
A-1][CLASS A-2][CLASS A-3][CLASS A-4] NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT
AND NOT WITH A VIEW TO DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR TRANSFERRED
ONLY TO THE ISSUER (PURSUANT TO A REDEMPTION OR OTHERWISE), IN AN AUCTION OR TO
OR THROUGH A BROKER-DEALER PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH SUCH CASE, IN
COMPLIANCE WITH THE INDENTURE AND ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER JURISDICTION. EACH PURCHASER OF [CLASS A-1][CLASS
A-2][CLASS A-3][CLASS A-4] NOTES WILL BE REQUIRED TO EXECUTE A PURCHASER'S
LETTER IN THE FORM OF EXHIBIT A TO THE OFFERING CIRCULAR SUPPLEMENT CERTIFYING,
AMONG OTHER THINGS, THAT SUCH PURCHASER IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.9 OF THE BASE INDENTURE,
THIS [CLASS A-1] [CLASS A-2] [CLASS A-3][CLASS A-4] Note MAY BE TRANSFERRED, IN
WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF THE CLEARING AGENCY OR TO A
SUCCESSOR CLEARING AGENCY OR TO A NOMINEE OF SUCH SUCCESSOR CLEARING AGENCY.
UNLESS THIS [CLASS A-1] [CLASS A-2] [CLASS A-3][CLASS A-4] NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO AESOP FUNDING II L.L.C. OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY [CLASS A-1] [CLASS A-2] [CLASS A-3][CLASS
A-4] NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED
A-1
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS [CLASS A-1] [CLASS A-2] [CLASS A-3][CLASS A-4]
NOTE IS PAYABLE IN INSTALLMENTS AND SUBJECT TO INCREASES AND OPTIONAL
REDEMPTIONS AS SET FORTH HEREIN AND IN THE INDENTURE. ACCORDINGLY, THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS [CLASS A-1] [CLASS A-2] [CLASS A-3][CLASS
A-4] NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
AESOP FUNDING II L.L.C.
RENTAL CAR ASSET BACKED AUCTION RATE NOTES
AESOP FUNDING II L.L.C., a Delaware limited liability company
(herein referred to as the "Company"), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the principal sum of ONE HUNDRED
TWENTY-FIVE MILLION DOLLARS, or, if less, the aggregate unpaid principal amount
shown on the schedule attached hereto (and any continuation thereof), which
amount shall be payable in the amounts and at the times set forth in the
Indenture, PROVIDED, HOWEVER, that the entire unpaid principal amount of this
[Class A-1] [Class A-2] [Class A-3][Class A-4] Note shall be due on the [Class
A-1] [Class A-2] [Class A-3][Class A-4] Final Distribution Date. However,
principal with respect to the [Class A-1] [Class A-2] [Class A-3][Class A-4]
Notes may be paid earlier or later under certain limited circumstances described
in the Indenture. The Company will pay interest on this [Class A-1] [Class A-2]
[Class A-3][Class A-4] Note at the [Class A-1] [Class A-2] [Class A-3][Class
A-4] Note Rate. Such interest shall be payable on each Distribution Date with
respect to the [Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes until the
principal of this [Class A-1] [Class A-2] [Class A-3][Class A-4] Note is paid or
made available for payment. Interest on this [Class A-1] [Class A-2] [Class
A-3][Class A-4] Note will accrue at the [Class A-1] [Class A-2] [Class A-3]
[Class A-4] Note Rate for each Auction Rate Period for the [Class A-1] [Class
A-2] [Class A-3] [Class A-4] Notes. Interest with respect to the [Class A-1]
[Class A-2] [Class A-3][Class A-4] Note will be calculated in the manner
provided in the Indenture. The principal amount of this [Class A-1] [Class A-2]
[Class A-3][Class A-4] Note is subject to Increases on no less than six Business
Days written notice on any Principal Distribution Date with respect to the
[Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes during the Series 2001-2
Revolving Period. This [Class A-1] [Class A-2] [Class A-3] [Class A-4] Note is
subject to optional redemption on any Principal Distribution Date with respect
to the [Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes on 6 Business Days'
written notice, and accordingly, such principal amount is subject to redemption
at any time. Such principal of and interest on this [Class A-1]
A-2
[Class A-2] [Class A-3][Class A-4] Note shall be paid in the manner specified on
the reverse hereof.
The principal of and interest on this [Class A-1] [Class A-2] [Class
A-3][Class A-4] Note are payable in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts. All payments made by the Company with respect to this [Class A-1]
[Class A-2] [Class A-3][Class A-4] Note shall be applied first to interest due
and payable on this [Class A-1] [Class A-2] [Class A-3][Class A-4] Note as
provided above and then to the unpaid principal of this [Class A-1] [Class A-2]
[Class A-3][Class A-4] Note. This [Class A-1] [Class A-2] [Class A-3][Class A-4]
Note does not represent an interest in, or an obligation of Original AESOP,
AESOP Leasing, AESOP Leasing II, AFC-II, AGH, ARAC or any affiliate of Original
AESOP, AESOP Leasing, AESOP Leasing II, AFC-II, AGH, ARAC other than the
Company.
Interests in this Note may be exchangeable in whole or in part for
duly executed and issued definitive registered Notes if so provided in Article 2
of the Base Indenture, with the applicable legends as marked therein, subject to
the provisions of the Base Indenture.
Reference is made to the further provisions of this [Class A-1]
[Class A-2] [Class A-3][Class A-4] Note set forth on the reverse hereof, which
shall have the same effect as though fully set forth on the face of this [Class
A-1] [Class A-2] [Class A-3][Class A-4] Note. Although a summary of certain
provisions of the Indenture are set forth below and on the reverse hereof and
made a part hereof, this [Class A-1] [Class A-2] [Class A-3][Class A-4] Note
does not purport to summarize the Indenture and reference is made to the
Indenture for information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
obligations of AESOP Leasing, AESOP Leasing II, ARAC and the Trustee. A copy of
the Indenture may be requested from the Trustee by writing to the Trustee at:
The Bank of New York, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
To the extent not defined herein, the capitalized terms used herein have the
meanings ascribed to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this [Class A-1]
[Class A-2] [Class A-3][Class A-4] Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof, or be valid or obligatory
for any purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date:_________
AESOP FUNDING II L.L.C.
By
--------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [Class A-1] [Class A-2] [Class A-3][Class A-4]
Notes issued under the within-mentioned Indenture.
The Bank of New York, as Trustee
By
--------------------------------
Authorized Signatory
A-4
[REVERSE OF [CLASS A-1] [CLASS A-2] [CLASS A-3][CLASS A-4] NOTE]
This [Class A-1] [Class A-2] [Class A-3][Class A-4] Note is one of a
duly authorized issue of [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes of
the Company, designated as its Rental Car Asset Backed Auction Rate Notes
(herein called the "Series 2001-2-Notes"), all issued under (i) an Amended and
Restated Base Indenture dated as of July 30, 1997 (such Base Indenture, as
amended, supplemented or modified, is herein called the "Base Indenture"),
between the Company and The Bank of New York, as successor in interest to the
corporate trust administration of Xxxxxx Trust and Savings Bank, as trustee (the
"Trustee", which term includes any successor Trustee under the Base Indenture),
and (ii) a Series 2001-2 Supplement dated as of May [ ], 2001 (the "Series
2001-2 Supplement") among the Company, the Trustee and The Bank of New York, as
Series 2001-2 Agent. The Base Indenture and the Series 2001-2 Supplement are
referred to herein as the "Indenture" The [Class A-1] [Class A-2] [Class
A-3][Class A-4] Notes are subject to all terms of the Indenture. All terms used
in this [Class A-1] [Class A-2] [Class A-3][Class A-4] Note that are defined in
the Indenture, as supplemented or amended, shall have the meanings assigned to
them in or pursuant to the Indenture, as so supplemented or amended.
The [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes are and
will be equally and ratably secured by the Series 2001-2 Collateral pledged as
security therefor as provided in the Indenture.
Principal of the [Class A-1] [Class A-2] [Class A-3][Class A-4]
Notes will be payable on each Distribution Date specified in and in the amounts
described in the Indenture. Commencing on the Initial Rapid Principal
Determination Date, and on each subsequent Determination Date thereafter, the
Administrator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement (i) as to the amount allocated to the
Series 2001-2 Notes of each Class during the Related Month, (ii) as to any
amounts to be withdrawn from the Series 2001-2 Reserve Account and deposited
into the Series 2001-2 Distribution Account, and (iii) as to the amount of any
demand on the Policy in accordance with the terms thereof, in the case of
clauses (ii) and (iii) during the period from and including the Program
Distribution Date immediately preceding such Determination Date to but excluding
the next succeeding Program Distribution Date. On the first Principal
Distribution Date with respect to the Series 2001-2 Notes of each Class
occurring on or after each First Potential Series 2001-2 Redemption Date,
commencing with the First Potential Series 2001-2 Redemption Date occurring in
the month in which the Initial Rapid Principal Determination Date occurs, the
Trustee shall withdraw the amount allocated to the Series 2001-2 Notes of such
Class during the Series 2001-2 Related Month with respect to such Principal
Distribution Date, from the Series 2001-2 Collection Account and deposit such
amount in the Series 2001-2 Distribution Account, to be applied to redeem Series
2001-2 Notes of such Class. Notwithstanding the foregoing, if an Amortization
Event, Liquidation Event of Default, Waiver Event or Series 2001-2 Limited
Liquidation Event of Default shall have occurred and be continuing then, in
certain circumstances, principal of the [Class A-1] [Class A-2] [Class
A-3][Class A-4] Notes may be paid earlier, as described in the Indenture. All
A-5
principal payments on the [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes
shall be made PRO RATA to the Noteholders entitled thereto.
Payments of interest on this [Class A-1] [Class A-2] [Class
A-3][Class A-4] Note due and payable on each Distribution Date, together with
the installment of principal then due, if any, and any payments of principal
made on any Business Day in respect of Decreases, to the extent not in full
payment of this [Class A-1] [Class A-2] [Class A-3][Class A-4] Note, shall be
made by wire transfer for credit to the account designated by the Holder of
record of this [Class A-1] [Class A-2] [Class A-3][Class A-4] Note (or one or
more predecessor [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes registered on
the Record Date in the name of the nominee of the Clearing Agency (initially,
such nominee to be Cede & Co.), payments will be made by wire transfer in
immediately available funds to the account designated by such nominee. Any
reduction in the principal amount of this [Class A-1] [Class A-2] [Class
A-3][Class A-4] Note (or any one or more predecessor [Class A-1] [Class A-2]
[Class A-3][Class A-4] Notes) effected by any payments made on any Distribution
Date shall be binding upon all future Holders of this [Class A-1] [Class A-2]
[Class A-3][Class A-4] Note and of any [Class A-1] [Class A-2] [Class A-3][Class
A-4] Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted thereon.
Interest on the [Class A-1] [Class A-2] [Class A-3] [Class A-4]
Notes will be payable on the Distribution Date related to [Class A-1] [Class
A-2] [Class A-3] [Class A-4] Notes. The Distribution Dates for the [Class A-1]
[Class A-2] [Class A-3] [Class A-4] Notes will generally be the day following
the last day of each Auction Rate Period, in the case of an Auction Rate Period
of 35 days, and every 35 days and on the day following the last day each Auction
Rate Period therefore, in the case of an Auction Rate Period of more than 35
days.
The per annum rate of interest on the [Class A-1] [Class A-2] [Class
A-3] [Class A-4] Notes for each Interest Period, subject to certain limitations,
will equal the rate determined from time to time at an Auction conducted
pursuant to the Auction Procedures described in Annex II to the Series 2001-2
Offering Circular. Auctions are expected to occur every 35 days with respect to
[Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes but, as further described
herein, such Auctions may occur less frequently. Interest with respect to the
[Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes will be calculated on the
basis of a 360-day year and the actual number of days elapsed during the
respective Interest Period.
The Company shall pay interest on overdue installments of interest
at the [Class A-1] [Class A-2] [Class A-3] [Class A-4] Note Rate to the extent
lawful.
The Company, at its option, may redeem the [Class A-1] [Class A-2]
[Class A-3] [Class A-4] Notes, as a whole at any time, or in part from time to
time during the Series 2001-2 Revolving Period, in each case on any Principal
Distribution Date for
A-6
the [Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes, with funds deposited
in the Series 2001-2 Distribution Account, at 100% of the principal amount
thereof, together with interest accrued and unpaid thereon to the date fixed for
redemption; PROVIDED, HOWEVER, that the Issuer will only be permitted to redeem
the [Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes, if after giving
effect to such redemption either (i) the [Class A-1] [Class A-2] [Class A-3]
[Class A-4] Notes shall have been redeemed in full or (ii) the aggregate
principal amount of the [Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes
would equal or exceed $5,000,000; PROVIDED further that, in the event the
Company shall at any time optionally redeem the [Class A-1] [Class A-2] [Class
A-3] [Class A-4] Notes in full, such redemption shall be permanent, and at no
time following such optional redemption in full may the Company issue additional
[Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes. The amount of any such
redemption of [Class A-1] [Class A-2] [Class A-3] [Class A-4] Notes must be in
minimum denominations of $50,000 and integral multiples of $50,000 in excess
thereof, and shall not exceed the amount on deposit in the Series 2001-2 Excess
Collection Account.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this [Class A-1] [Class A-2] [Class A-3][Class
A-4] Note may be registered on the Note Register upon surrender of this [Class
A-1] [Class A-2] [Class A-3][Class A-4] Note for registration of transfer at the
office or agency designated by the Company pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trustee duly executed by, the Holder hereof or his attorney
duly authorized in writing, with such signature guaranteed by an "Eligible
Guarantor Institution" (as defined in Rule 17Ad-15 under the Exchange Act), and
such other documents as the Trustee may reasonably require, and thereupon one or
more new [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes of authorized
denominations in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this [Class A-1] [Class A-2] [Class
A-3][Class A-4] Note, but the transferor may be required to pay a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any such registration of transfer or exchange.
Each Noteholder or Note Owner by acceptance of a [Class A-1] [Class
A-2] [Class A-3][Class A-4] Note or, in the case of a Note Owner, a beneficial
interest in a [Class A-1] [Class A-2] [Class A-3][Class A-4] Note, covenants and
agrees that no recourse may be taken, directly or indirectly, with respect to
the obligations of the Company, AESOP Leasing, AESOP Leasing II, ARAC or the
Trustee on the [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes or under the
Indenture or any certificate or other writing delivered in connection therewith,
against (i) the Trustee, AESOP Leasing, AESOP Leasing II or ARAC in its
individual capacity, (ii) any owner of a beneficial interest in the Company or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Trustee, XXXXX Xxxxxxx, AESOP Leasing II or ARAC in its individual capacity,
any holder of a beneficial interest in the Company, AESOP Leasing, AESOP Leasing
II, ARAC or the Trustee or of any successor or assign of the Trustee, AESOP
A-7
Leasing, AESOP Leasing II or ARAC in its individual capacity, except (a) as any
such Person may have expressly agreed and (b) any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity; PROVIDED, HOWEVER, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Company for any and all liabilities, obligations and
undertakings contained in the Indenture or in this [Class A-1] [Class A-2]
[Class A-3][Class A-4] Note, subject to Section 13.18 of the Base Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
by accepting the benefits of the Indenture that such Noteholder will not for a
period of one year and one day following payment in full of all Notes institute
against the Company, or join in any institution against the Company of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under any United States Federal or state bankruptcy or similar law in connection
with any obligations relating to the Notes, the Indenture or the Related
Documents.
Prior to the due presentment for registration of transfer of this
[Class A-1] [Class A-2] [Class A-3][Class A-4] Note, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
this [Class A-1] [Class A-2] [Class A-3][Class A-4] Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this [Class A-1]
[Class A-2] [Class A-3][Class A-4] Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
It is the intent of the Company, each Noteholder and each Note Owner
that, for Federal, state and local income and franchise tax purposes only, the
[Class A-1] [Class A-2] [Class A-3][Class A-4] Notes will evidence indebtedness
of the Company secured by the Series 2001-2 Collateral. Each Noteholder and each
Note Owner, by the acceptance of this [Class A-1] [Class A-2] [Class A-3][Class
A-4] Note, agrees to treat this [Class A-1] [Class A-2] [Class A-3][Class A-4]
Note for Federal, state and local income and franchise tax purposes as
indebtedness of the Company.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the [Class A-1] [Class A-2] [Class
A-3][Class A-4] Notes under the Indenture at any time by the Company with the
consent of the Holders of [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes
representing more than 50% in principal amount of the aggregate outstanding
amount of the [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes which are
affected by such amendment or modification. The Indenture also contains
provisions permitting the Holders of [Class A-1] [Class A-2] [Class A-3][Class
A-4] Notes representing specified percentages of the aggregate outstanding
amount of the Series [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes, on
behalf of the Holders of all the [Class A-1] [Class A-2] [Class A-3][Class A-4]
Notes,
A-8
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this [Class A-1] [Class A-2] [Class
A-3][Class A-4] Note (or any one of more predecessor [Class A-1] [Class A-2]
[Class A-3][Class A-4] Notes) shall be conclusive and binding upon such Holder
and upon all future Holders of this [Class A-1] [Class A-2] [Class A-3][Class
A-4] Note and of any [Class A-1] [Class A-2] [Class A-3][Class A-4] Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this [Class A-1]
[Class A-2] [Class A-3][Class A-4] Note. The Indenture also permits the Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the [Class A-1] [Class A-2] [Class A-3][Class
A-4] Notes issued thereunder.
Except for any period during which a Surety Provider Default is
continuing, the Surety Provider shall be deemed to be the sole [Class A-1]
[Class A-2] [Class A-3][Class A-4] Note Owner for the purposes of giving any
consents, approvals, instructions, directions, declarations and/or notices
pursuant to the Indenture and the other Related Documents.
The term "Company" as used in this [Class A-1] [Class A-2] [Class
A-3][Class A-4] Note includes any successor to the Company under the Indenture.
The [Class A-1] [Class A-2] [Class A-3][Class A-4] Notes are
issuable only in registered form in denominations as provided in the Indenture,
subject to certain limitations set forth therein.
This [Class A-1] [Class A-2] [Class A-3][Class A-4] Note and the
Indenture shall be construed in accordance with the law of the State of New
York, without reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder and thereunder shall be determined
in accordance with such law.
No reference herein to the Indenture and no provision of this [Class
A-1] [Class A-2] [Class A-3][Class A-4] Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this [Class A-1] [Class A-2] [Class
A-3][Class A-4] Note at the times, place, and rate, and in the coin or currency
herein prescribed.
Interests in this Restricted Global Note may be exchanged for
Definitive Notes, subject to the provisions of the Indenture.
A-9
INCREASES AND DECREASES
=================================================================================================================
UNPAID CLASS
PRINCIPAL A-[1][2][3] INTEREST PERIOD NOTATION
DATE AMOUNT INCREASE DECREASE TOTAL [4] NOTE RATE (IF APPLICABLE) MADE BY
=================================================================================================================
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-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
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=================================================================================================================
A-10
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
_______________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
(name and address of assignee)
the within [Class A-1] [Class A-2] [Class A-3][Class A-4] Note
and all rights thereunder, and hereby irrevocably constitutes and appoints
_________________________, attorney, to transfer said [Class A-1] [Class A-2]
[Class A-3][Class A-4] Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated: ____________
By (1)
---------------------------------
Signature Guaranteed:
---------------------------------
---------------------------------
----------
(1) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note, without
alteration, enlargement or any change whatsoever.
A-11
EXHIBIT B
to
SERIES 2001-2 SUPPLEMENT
[RESERVED]
B-1
AESOP FUNDING II L.L.C.
SERIES 2001-2 ASSET BACKED AUCTION RATE NOTES
CLASS ____
NOTICE OF PROPOSAL OF DESIGNATION OF A SUCCEEDING SUBSEQUENT AUCTION RATE
PERIOD AS A SPECIAL AUCTION RATE PERIOD
To: Trustee
Auction Agent
From: AFC-II
1. We desire to exercise our option to designate a succeeding Subsequent
Auction Rate Period with respect to the Series 2001-2 Notes of Class [ ]
as a Special Auction Rate Period.
2. We designate the Special Auction Rate Period to begin on [ ] and end on
[ ].
3. By 11:00 a.m., New York City time, on the second Business Day next
preceding the first day of such proposed Special Auction Rate Period (or
by such later time or date, or both, as may be agreed to by the Auction
Agent), we will notify the Auction Agent of either (x) our determination,
to exercise such option, in which case, we shall specify the Special
Auction Rate Period designated, or (y) our determination not to exercise
such option.
--------------------------------------------
AESOP Funding II L.L.C.
By:
-----------------------------------------
Printed Name:
-------------------------------
Title:
--------------------------------------
E-1
EXHIBIT C-1
to
Series 2001-2 Supplement
AESOP FUNDING II L.L.C.
SERIES 2001-2 ASSET BACKED AUCTION RATE NOTES
CLASS ____
NOTICE OF DESIGNATION OF A SUCCEEDING SUBSEQUENT AUCTION RATE PERIOD AS A
SPECIAL AUCTION RATE PERIOD
To: Trustee
Auction Agent
From: AFC-II
1. We have determined to designate the next succeeding Auction Rate Period
for the Series 2001-2 Notes of Class [ ] as a Special Auction Rate Period.
2. We designate the Special Auction Rate Period to begin on [ ] and end on
[ ].
3. The Auction Date immediately prior to the first day of such Special
Auction Rate Period is [ ].
4. Such Special Auction Rate Period shall not commence if (x) an Auction
shall not be held on such Auction Date for any reason or (y) an Auction
shall be held on such Auction Date but Sufficient Bids shall not exist in
such Auction.
4. The Distribution Date(s) with respect to the Series 2001-2 Notes of Class
[ ] during such Special Auction Rate Period is [].
--------------------------------------------
AESOP Funding II L.L.C.
By:
-----------------------------------------
Printed Name:
-------------------------------
Title:
--------------------------------------
B-2
EXHIBIT C-1
to
Series 2001-2 Supplement
AESOP FUNDING II L.L.C.
SERIES 2001-2 ASSET BACKED AUCTION RATE NOTES
CLASS ____
NOTICE OF INTENT NOT TO DESIGNATE A SUCCEEDING SUBSEQUENT AUCTION RATE PERIOD
AS A SPECIAL AUCTION RATE PERIOD
To: Trustee
Auction Agent
From: AFC-II
1. We have determined not to exercise our option to designate a Special
Auction Rate Period and that the next succeeding Auction Rate Period for
the Series 2001-2 Notes of Class [ ] shall be a Standard Auction Rate
Period for the Series 2001-2 Notes of such Class.
---------------------------------------------
AESOP Funding II L.L.C.
By:
-----------------------------------------
Printed Name:
-------------------------------
Title:
--------------------------------------
B-2
