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EXHIBIT 10.7
EXECUTION COPY
AESOP FUNDING II L.L.C.,
as Issuer
AVIS RENT A CAR SYSTEM, INC.,
.
JPMORGAN CHASE BANK,
as Administrative Agent
CERTAIN CP CONDUIT PURCHASERS,
CERTAIN FUNDING AGENTS,
CERTAIN APA BANKS
and
THE BANK OF NEW YORK,
as Trustee and Series 2002-4 Agent
---------------------
SERIES 2002-4 SUPPLEMENT
dated as of November 22, 2002
to
AMENDED AND RESTATED BASE INDENTURE
dated as of July 30, 1997
---------------------
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS...............................................................................2
ARTICLE II PURCHASE AND SALE OF SERIES 2002-4 NOTES; INCREASES AND DECREASES OF SERIES 2002-4
INVESTED AMOUNT..........................................................................24
Section 2.1. Purchases of the Series 2002-4 Notes.................................................24
Section 2.2. Delivery.............................................................................24
Section 2.3. Procedure for Initial Issuance and for Increasing the Series 2002-4 Invested
Amount...............................................................................25
Section 2.4. Sales by CP Conduit Purchasers of Series 2002-4 Notes to APA Banks...................27
Section 2.5. Procedure for Decreasing the Series 2002-4 Invested Amount; Optional
Termination..........................................................................27
Section 2.6. Increases and Reductions of the Commitments; Extensions of the Commitments...........28
Section 2.7. Interest; Fees.......................................................................30
Section 2.8. Indemnification by AFC-II............................................................32
Section 2.9. Funding Agents.......................................................................33
ARTICLE III SERIES 2002-4 ALLOCATIONS.................................................................33
Section 3.1. Establishment of Series 2002-4 Collection Account, Series 2002-4 Excess
Collection Account and Series 2002-4 Accrued Interest Account........................33
Section 3.2. Allocations with Respect to the Series 2002-4 Notes..................................34
Section 3.3. Payments to Noteholders..............................................................37
Section 3.4. Payment of Note Interest and Commitment Fees.........................................40
Section 3.5. Payment of Note Principal............................................................41
Section 3.6. Administrator's Failure to Instruct the Trustee to Make a Deposit or Payment.........45
Section 3.7. Series 2002-4 Reserve Account........................................................46
Section 3.8. Series 2002-4 Letters of Credit and Series 2002-4 Cash Collateral Account............48
Section 3.9. Series 2002-4 Distribution Account...................................................52
Section 3.10. Series 2002-4 Demand Notes Constitute Additional Collateral for Series 2002-4
Notes................................................................................53
Section 3.11. Payments to Funding Agents or Purchaser Groups.......................................54
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ARTICLE IV AMORTIZATION EVENTS.......................................................................54
ARTICLE V RIGHT TO WAIVE PURCHASE RESTRICTIONS......................................................56
ARTICLE VI CONDITIONS PRECEDENT......................................................................58
Section 6.1. Conditions Precedent to Effectiveness of Supplement..................................58
ARTICLE VII CHANGE IN CIRCUMSTANCES...................................................................62
Section 7.1. Increased Costs......................................................................62
Section 7.2. Taxes................................................................................63
Section 7.3. Break Funding Payments...............................................................65
Section 7.4. Alternate Rate of Interest...........................................................66
Section 7.5. Mitigation Obligations...............................................................66
ARTICLE VIII REPRESENTATIONS AND WARRANTIES, COVENANTS.................................................67
Section 8.1. Representations and Warranties of AFC-II and the Administrator.......................67
Section 8.2. Covenants of AFC-II and the Administrator............................................67
ARTICLE IX THE ADMINISTRATIVE AGENT..................................................................68
Section 9.1. Appointment..........................................................................68
Section 9.2. Delegation of Duties.................................................................69
Section 9.3. Exculpatory Provisions...............................................................69
Section 9.4. Reliance by Administrative Agent.....................................................69
Section 9.5. Notice of Administrator Default or Amortization Event or Potential
Amortization Event...................................................................70
Section 9.6. Non-Reliance on the Administrative Agent and Other Purchaser Groups..................70
Section 9.7. Indemnification......................................................................71
Section 9.8. The Administrative Agent in Its Individual Capacity..................................71
Section 9.9. Resignation of Administrative Agent; Successor Administrative Agent..................71
ARTICLE X THE FUNDING AGENTS........................................................................72
Section 10.1. Appointment..........................................................................72
Section 10.2. Delegation of Duties.................................................................72
Section 10.3. Exculpatory Provisions...............................................................72
Section 10.4. Reliance by Each Funding Agent.......................................................73
Section 10.5. Notice of Administrator Default or Amortization Event or Potential
Amortization Event...................................................................73
Section 10.6. Non-Reliance on Each Funding Agent and Other Purchaser Groups........................73
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Section 10.7. Indemnification......................................................................74
ARTICLE XI GENERAL...................................................................................74
Section 11.1. Successors and Assigns...............................................................74
Section 11.2. Securities Law.......................................................................76
Section 11.3. Adjustments; Set-off.................................................................77
Section 11.4. No Bankruptcy Petition...............................................................77
Section 11.5. Limited Recourse.....................................................................78
Section 11.6. Costs and Expenses...................................................................79
Section 11.7. Exhibits.............................................................................79
Section 11.8. Ratification of Base Indenture.......................................................79
Section 11.9. Counterparts.........................................................................79
Section 11.10. Governing Law........................................................................80
Section 11.11. Amendments...........................................................................80
Section 11.12. Discharge of Indenture...............................................................80
Section 11.13. Capitalization of AFC-II.............................................................80
Section 11.14. Series 2002-4 Required Non-Program Enhancement Percentage............................80
Section 11.15. Series 2002-4 Demand Notes...........................................................80
Section 11.16. Termination of Supplement............................................................80
Section 11.17. Collateral Representations and Warranties of AFC-II..................................81
Section 11.18. No Waiver; Cumulative Remedies.......................................................82
Section 11.19. Waiver of Setoff.....................................................................82
Section 11.20. Notices..............................................................................82
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SERIES 2002-4 SUPPLEMENT, dated as of November 22, 2002 (this
"SUPPLEMENT"), among AESOP FUNDING II L.L.C., a special purpose limited
liability company established under the laws of Delaware ("AFC-II"), AVIS RENT A
CAR SYSTEM, INC., a Delaware corporation, as administrator (the
"ADMINISTRATOR"), JPMORGAN CHASE BANK ("JPMORGAN CHASE"), in its capacity as
administrative agent for the CP Conduit Purchasers, the APA Banks and the
Funding Agents (the "ADMINISTRATIVE AGENT"), the several commercial paper
conduits and secured liquidity note conduits listed on Schedule I and their
respective permitted successors and assigns (the "CP CONDUIT PURCHASERS"; each,
individually, a "CP CONDUIT PURCHASER"), the several banks set forth opposite
the name of each CP Conduit Purchaser on Schedule I and the other banks parties
hereto pursuant to Section 11.1 (each an "APA BANK" with respect to such CP
Conduit Purchaser), the agent bank set forth opposite the name of each CP
Conduit Purchaser on Schedule I and its permitted successor and assign (the
"FUNDING AGENT" with respect to such CP Conduit Purchaser) and THE BANK OF NEW
YORK, a New York banking corporation, as successor in interest to the corporate
trust administration of Harris Trust and Savings Bank, as trustee (together with
its successors in trust thereunder as provided in the Base Indenture referred to
below, the "TRUSTEE"), THE BANK OF NEW YORK, a New York banking corporation, as
agent for the benefit of the Series 2002-4 Noteholders (the "SERIES 2002-4
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, Sections 2.2 and 12.1 of the Base Indenture provide, among
other things, that AFC-II and the Trustee may at any time and from time to time
enter into a supplement to the Base Indenture for the purpose of authorizing the
issuance of one or more Series of Notes;
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is hereby created a Series of Notes to be issued pursuant to the
Base Indenture and this Supplement and such Series of Notes shall be designated
generally as Variable Funding Rental Car Asset Backed Notes, Series 2002-4.
The proceeds from the sale of the Series 2002-4 Notes 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 2002-4 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.
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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 this Supplement, 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 2002-4 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 2002-4 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:
"ACQUIRING APA BANK" is defined in Section 11.1(c).
"ACQUIRING PURCHASER GROUP" is defined in Section 11.1(e).
"ADDITIONAL CP CONDUIT PURCHASER" is defined in Section 2.6(e).
"ADDITIONAL FUNDING AGENT" is defined in Section 2.6(e).
"ADJUSTED LIBO RATE" means, with respect to each day during each
Eurodollar Period, pertaining to a portion of the Purchaser Group Invested
Amount with respect to any Purchaser Group allocated to a Eurodollar Tranche, an
interest rate per annum (rounded upwards, if necessary, to the nearest 1/16th of
1%) equal to the LIBO Rate for such Eurodollar Period multiplied by the
Statutory Reserve Rate.
"ADMINISTRATIVE AGENT" is defined in the recitals hereto.
"ADMINISTRATOR" is defined in the recitals hereto.
"AFFECTED PARTY" means any CP Conduit Purchaser and any Program
Support Provider with respect to such CP Conduit Purchaser.
"AGH" means Avis Group Holdings, Inc., a Delaware corporation.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day AND (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"APA BANK" is defined in the recitals hereto.
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"APA BANK FUNDED AMOUNT" means, with respect to any Purchaser Group
for any day, the excess, if any, of the Purchaser Group Invested Amount with
respect to such Purchaser Group over the CP Conduit Funded Amount for such day.
"APA BANK PERCENTAGE" means, with respect to any APA Bank, the
percentage set forth opposite the name of such APA Bank on Schedule I.
"APPLICABLE MARGIN" is defined in the Fee Letter.
"ARTICLE VII COSTS" means any amounts due pursuant to Article VII.
"ASSET PURCHASE AGREEMENT" means, with respect to any CP Conduit
Purchaser, the asset purchase agreement, liquidity agreement or other agreement
among such CP Conduit Purchaser, the Funding Agent with respect to such CP
Conduit Purchaser and the APA Bank with respect to such CP Conduit Purchaser, as
amended, modified or supplemented from time to time.
"AVAILABLE APA BANK FUNDING AMOUNT" means, with respect to any
Purchaser Group for any Business Day, the sum of (i) the portion of such
Purchaser Group's Commitment Percentage of the Series 2002-4 Initial Invested
Amount not to be funded by such Purchaser Group by issuing Commercial Paper if
such Business Day is the Series 2002-4 Closing Date, (ii) the portion of the APA
Bank Funded Amount with respect to such Purchaser Group not allocated to a
Eurodollar Tranche on such Business Day, (iii) the portion of the APA Bank
Funded Amount with respect to such Purchaser Group allocated to any Eurodollar
Tranche the Eurodollar Period in respect of which expires on such Business Day
and (iv) the portion of such Purchaser Group's Purchaser Group Increase Amount
for such Business Day not to be funded by such Purchaser Group by issuing
Commercial Paper.
"AVAILABLE CP FUNDING AMOUNT" means, with respect to any Purchaser
Group for any Business Day, the sum of (i) the portion of such Purchaser Group's
Commitment Percentage of the Series 2002-4 Initial Invested Amount to be funded
by such Purchaser Group by issuing Commercial Paper if such Business Day is the
Series 2002-4 Closing Date, (ii) the portion of the CP Conduit Funded Amount
with respect to such Purchaser Group allocated to any CP Tranche, the CP Rate
Period in respect of which expires on such Business Day and (iii) the portion of
such Purchaser Group's Purchaser Group Increase Amount for such Business Day to
be funded by such Purchaser Group by issuing Commercial Paper.
"BANK ACCOUNTS" is defined in Section 11.17(f).
"BENEFITTED PURCHASER GROUP" is defined in Section 11.3.
"BOARD" means the Board of Governors of the Federal Reserve System or
any successor thereto.
"BUSINESS DAY" means any day other than (a) a Saturday or a Sunday or
(b) a day on which banking institutions in New York, New York, Charlotte, North
Carolina, Chicago, Illinois or the city in which the corporate trust office of
the Trustee is located are authorized or obligated by law or executive order to
close.
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"CENDANT" means Cendant Corporation, a Delaware corporation.
"CERTIFICATE OF LEASE DEFICIT DEMAND" means a certificate in the form
of ANNEX A to the Series 2002-4 Letters of Credit.
"CERTIFICATE OF TERMINATION DATE DEMAND" means a certificate in the
form of ANNEX D to the Series 2002-4 Letters of Credit.
"CERTIFICATE OF TERMINATION DEMAND" means a certificate in the form of
ANNEX C to the Series 2002-4 Letters of Credit.
"CERTIFICATE OF UNPAID DEMAND NOTE DEMAND" means a certificate in the
form of ANNEX B to the Series 2002-4 Letters of Credit.
"CHANGE IN CONTROL" means (a) Cendant shall at any time cease to own
or control, directly or indirectly, greater than 50% of the Voting Stock of AGH
or ARAC, any Lessee, the Sublessee or the Administrator or (b) either AFC-II or
AESOP Leasing is no longer indirectly wholly-owned by AGH.
"CHANGE IN LAW" means (a) any law, rule or regulation or any change
therein or in the interpretation or application thereof (whether or not having
the force of law), in each case, adopted, issued or occurring after the Series
2002-4 Closing Date or (b) any request, guideline or directive (whether or not
having the force of law) from any government or political subdivision or agency,
authority, bureau, central bank, commission, department or instrumentality
thereof, or any court, tribunal, grand jury or arbitrator, or any accounting
board or authority (whether or not part of government) which is responsible for
the establishment or interpretation of national or international accounting
principles in each case, whether foreign or domestic (each an "OFFICIAL BODY")
charged with the administration, interpretation or application thereof, or the
compliance with any request or directive of any Official Body (whether or not
having the force of law) made, issued or occurring after the Series 2002-4
Closing Date.
"CLAIM" is defined in Section 2.8.
"COMMERCIAL PAPER" means, with respect to any CP Conduit Purchaser,
the promissory notes issued by, or for the benefit of, such CP Conduit Purchaser
in the commercial paper or secured liquidity note market.
"COMMITMENT" means, with respect to the APA Banks included in any
Purchaser Group, the obligation of such APA Banks to purchase a Series 2002-4
Note on the Series 2002-4 Closing Date and, thereafter, to maintain and, subject
to certain conditions, increase the Purchaser Group Invested Amount with respect
to such Purchaser Group, in each case, in an amount up to the Maximum Purchaser
Group Invested Amount with respect to such Purchaser Group.
"COMMITMENT AMOUNT" means, with respect to the APA Banks included in
any Purchaser Group, an amount equal to 102% of the amount set forth opposite
the name of the CP Conduit Purchaser included in such Purchaser Group on
Schedule I, as such amount may be increased or reduced from time to time as
provided in Section 2.6.
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"COMMITMENT FEE" is defined in Section 2.7(e).
"COMMITMENT FEE RATE" is defined in the Fee Letter.
"COMMITMENT PERCENTAGE" means, on any date of determination, with
respect to any Purchaser Group, the ratio, expressed as a percentage, which such
Purchaser Group's Maximum Purchaser Group Invested Amount bears to the Series
2002-4 Maximum Invested Amount on such date.
"COMPANY INDEMNIFIED PERSON" is defined in Section 2.8.
"CONDUIT ASSIGNEE" means, with respect to any CP Conduit Purchaser,
any commercial paper conduit administered by the Funding Agent with respect to
such CP Conduit Purchaser and designated by such Funding Agent to accept an
assignment from such CP Conduit Purchaser of the Purchaser Group Invested Amount
or a portion thereof with respect to such CP Conduit Purchaser pursuant to
Section 11.1(b).
"CONSENT" is defined in Article V.
"CONSENT PERIOD EXPIRATION DATE" is defined in Article V.
"CP CONDUIT FUNDED AMOUNT" means, with respect to any Purchaser Group
for any day, the portion of the Purchaser Group Invested Amount with respect to
such Purchaser Group funded by such Purchaser Group through the issuance of
Commercial Paper outstanding on such day.
"CP CONDUIT PURCHASER" is defined in the recitals hereto.
"CP RATE PERIOD" means, with respect to any CP Tranche, a period of
days not to exceed 270 days or, in the case of secured liquidity notes, 90 days,
commencing on a Business Day selected in accordance with Section 2.7(b);
PROVIDED that (x) if a CP Rate Period would end on a day that is not a Business
Day, such CP Rate Period shall end on the next succeeding Business Day or, in
the case of secured liquidity notes, the preceding Business Day and (y) during
the Series 2002-4 Amortization Period, each CP Rate Period shall end on or prior
to the next succeeding Distribution Date.
"CP TRANCHE" means, with respect to a Match Funding CP Conduit
Purchaser, a portion of the CP Conduit Funded Amount with respect to such Match
Funding CP Conduit Purchaser for which the Monthly Funding Costs with respect to
such Match Funding CP Conduit Purchaser is calculated by reference to a
particular Discount and a particular CP Rate Period.
"DECAR" means HFS Decar Funding Corporation, a Delaware corporation.
"DECAR SERIES 2002-2 NOTES" means the notes issued by Decar pursuant
to, and as defined under, the Decar Series 2002-2 Supplement.
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"DECAR SERIES 2002-2 SUPPLEMENT" means the Series 2002-2 Supplement,
dated as of November 22, 2002, to the Decar Base Indenture among Decar, as
Issuer, Avis Rent A Car System, Inc., as Administrator, JPMorgan Chase Bank, as
Administrative Agent, the CP Conduit Purchasers, the APA Banks and the Funding
Agents named therein and The Bank of New York, as Trustee and Series 2002-2
Agent.
"DECREASE" is defined in Section 2.5(a).
"DEMAND NOTE ISSUER" means each issuer of a Series 2002-4 Demand Note.
"DEMAND NOTE PREFERENCE PAYMENT AMOUNT" means, as of any day, (i) the
aggregate amount of all proceeds of demands made on the Series 2002-4 Demand
Notes pursuant to Section 3.5(d)(ii) or 3.5(e)(i) that were deposited into the
Series 2002-4 Distribution Account and paid to the Series 2002-4 Noteholders
during the one-year period ending on such day; 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 Demand Note Preference Payment Amount as of such day shall equal the
Demand Note Preference Payment Amount as if it were calculated as of the date of
such occurrence MINUS (ii) the aggregate amount withdrawn from the Series 2002-4
Reserve Account or the Series 2002-4 Cash Collateral Account and paid to a
Funding Agent pursuant to Section 3.7(e) on account of a Preference Amount.
"DESIGNATED AMOUNTS" is defined in Article V.
"DISBURSEMENT" means any Lease Deficit Disbursement, any Unpaid Demand
Note Disbursement, any Termination Date Disbursement or any Termination
Disbursement under a Series 2002-4 Letter of Credit, or any combination thereof,
as the context may require.
"DISCOUNT" means, (a) with respect to any Match Funding CP Conduit
Purchaser, the interest or discount component of the Commercial Paper issued by
such Match Funding CP Conduit Purchaser to fund or maintain the CP Conduit
Funded Amount with respect to such Match Funding CP Conduit Purchaser, including
an amount equal to the portion of the face amount of the outstanding Commercial
Paper issued to fund or maintain the CP Conduit Funded Amount with respect to
such CP Conduit Purchaser that corresponds to the portion of the proceeds of
such Commercial Paper that was used to pay the interest or discount component of
maturing Commercial Paper issued to fund or maintain such CP Conduit Funded
Amount, to the extent that such CP Conduit Purchaser has not received payments
of interest in respect of such interest component prior to the maturity date of
such maturing Commercial Paper, and including the portion of such interest or
discount component constituting dealer or placement agent commissions and (b)
with respect to any Pooled Funding CP Conduit Purchaser, the amount of interest
or discount to accrue on or in respect of the Commercial Paper issued by such
Pooled Funding CP Conduit Purchaser allocated, in whole or in part, by the
Funding Agent with respect to such Pooled Funding CP Conduit Purchaser, to fund
the purchase or maintenance of the CP Conduit Funded Amount with respect to such
Pooled Funding CP Conduit Purchaser (including, without limitation, any interest
attributable to the commissions of placement agents and dealers in respect of
such Commercial Paper and any costs associated with funding small or odd-lot
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amounts, to the extent that such commissions or costs are allocated, in whole or
in part, to such Commercial Paper by such Funding Agent).
"EFFECTIVE DATE" is defined in Section 6.1.
"ELIGIBLE ASSIGNEE" means a financial institution having short-term
debt ratings of at least A-1 from Standard & Poor's and P-1 from Moody's.
"EURODOLLAR PERIOD" means, with respect to any Eurodollar Tranche and
any Purchaser Group:
(a) initially, the period commencing on the Series 2002-4 Closing
Date, the Increase Date or a conversion date, as the case may be, with
respect to such Eurodollar Tranche and ending one month thereafter (or such
other period which is acceptable to the Funding Agent with respect to such
Purchaser Group and which in no event will be less than 7 days); and
(b) thereafter, each period commencing on the last day of the
immediately preceding Eurodollar Period applicable to such Eurodollar
Tranche and ending one month thereafter (or such other period which is
acceptable to the Funding Agent with respect to such Purchaser Group and
which in no event will be less than 7 days);
PROVIDED that all Eurodollar Periods must end on the next Distribution Date
and all of the foregoing provisions relating to Eurodollar Periods are
subject to the following:
(i) if any Eurodollar Period would otherwise end on a day
that is not a Business Day, such Eurodollar Period shall be extended
to the next succeeding Business Day unless the result of such
extension would be to carry such Eurodollar Period into another
calendar month, in which event such Eurodollar Period shall end on the
immediately preceding Business Day; and
(ii) any Eurodollar Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Eurodollar
Period) shall end on the last Business Day of the calendar month at
the end of such Eurodollar Period.
"EURODOLLAR TRANCHE" means, with respect to any Purchaser Group, a
portion of the APA Bank Funded Amount with respect to such Purchaser Group
allocated to a particular Eurodollar Period and an Adjusted LIBO Rate determined
by reference thereto.
"EXCESS COLLECTIONS" is defined in Section 3.3(e)(i).
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
CP Conduit Purchaser, any APA Bank, any Funding Agent, any Program Support
Provider or any other recipient of any payment to be made by or on account of
any obligation of AFC-II hereunder, (a) income or franchise taxes imposed on (or
measured by) its net income by the United States of America or by any other
Governmental Authority, in each case, as a result of a present or former
connection between the United States of America or the jurisdiction of such
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Governmental Authority imposing such tax, as the case may be, and the
Administrative Agent, such CP Conduit Purchaser, such APA Bank, such Funding
Agent, such Program Support Provider or any other such recipient (except a
connection arising solely from the Administrative Agent's, such CP Conduit
Purchaser's, such APA Bank's, such Program Support Provider's or such
recipient's having executed, delivered or performed its obligations hereunder,
receiving a payment hereunder or enforcing the Series 2002-4 Notes) and (b) any
branch profits tax imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which AFC-II is located (except any such
branch profits or similar tax imposed as a result of a connection with the
United States of America or other jurisdiction as a result of a connection
arising solely from the Administrative Agent's, such CP Conduit Purchaser's,
such APA Bank's, such Program Support Provider's or such recipient's having
executed, delivered or performed its obligations hereunder, receiving a payment
hereunder or enforcing the Series 2002-4 Notes).
"EXPIRY DATE" means, with respect to any Purchaser Group, the earlier
of (a) the Scheduled Expiry Date with respect to such Purchaser Group and (b)
the date on which an Amortization Event with respect to the Series 2002-4 Notes
shall have been declared or automatically occurred.
"EXTENDING PURCHASER GROUP" shall mean a Purchaser Group other than a
Non-Extending Purchaser Group.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day of such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"FEE LETTER" means the letter dated the date hereof, from AFC-II
addressed to the Administrative Agent and each of the CP Conduit Purchasers, the
Funding Agents and the APA Banks setting forth certain fees payable from time to
time to the Purchaser Groups, as such letter may be amended or replaced from
time to time.
"FLOATING TRANCHE" means, with respect to any Purchaser Group, the
portion of the APA Bank Funded Amount with respect to such Purchaser Group not
allocated to a Eurodollar Tranche.
"FUNDING AGENT" is defined in the recitals hereto.
"INCREASE" is defined in Section 2.3(a).
"INCREASE AMOUNT" is defined in Section 2.3(a).
"INCREASE DATE" is defined in Section 2.3(a).
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"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"JPMORGAN CHASE" is defined in the recitals hereto.
"LEASE DEFICIT DISBURSEMENT" means an amount drawn under a Series
2002-4 Letter of Credit pursuant to a Certificate of Lease Deficit Demand.
"LIBO RATE" means, with respect to each day during each Eurodollar
Period pertaining to a Eurodollar Tranche, the rate appearing on Telerate Page
3750 of the Dow Jones Telerate Service (or on any successor or substitute page
of such service, providing rate quotations comparable to those currently
provided on such page of such service, as determined by the Administrative Agent
from time to time in accordance with its customary practices for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m. (London time) on the second
London Banking Day prior to the commencement of such Eurodollar Period, as the
rate for dollar deposits with a maturity comparable to the Eurodollar Period
applicable to such Eurodollar Tranche.
"LOC PRO RATA SHARE" means, with respect to any Series 2002-4 Letter
of Credit Provider as of any date, the fraction (expressed as a percentage)
obtained by dividing (A) the available amount under such Series 2002-4 Letter of
Credit Provider's Series 2002-4 Letter of Credit as of such date by (B) an
amount equal to the aggregate available amount under all Series 2002-4 Letters
of Credit as of such date; PROVIDED that only for purposes of calculating the
LOC Pro Rata Share with respect to any Series 2002-4 Letter of Credit Provider
as of any date, if such Series 2002-4 Letter of Credit Provider has not complied
with its obligation to pay the Trustee the amount of any draw under its Series
2002-4 Letter of Credit made prior to such date, the available amount under such
Series 2002-4 Letter of Credit Provider's Series 2002-4 Letter of Credit as of
such date 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 2002-4 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 2002-4 Letter of Credit).
"LONDON BANKING DAY" means any business day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
"MATCH FUNDING CP CONDUIT PURCHASER" means each CP Conduit Purchaser
that, after the Series 2002-4 Closing Date, notifies AFC-II and the
Administrative Agent in accordance with Section 2.7(d) in writing that it is
funding its CP Conduit Funded Amount with Commercial Paper issued by it, or for
its benefit, in specified CP Tranches selected in accordance with Sections
2.7(b) and (c) and that, in each case, has not subsequently notified AFC-II and
the Administrative Agent in writing that AFC-II will no longer be permitted to
select CP Tranches in accordance with Sections 2.7(b) and (c) in respect of the
CP Conduit Funded Amount with respect to such CP Conduit Purchaser.
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"MATCHED PURCHASER GROUP INVESTED AMOUNT" means, with respect to any
Purchaser Group, the "Purchaser Group Invested Amount" under, and as defined in,
the Decar Series 2002-2 Supplement for such Purchaser Group.
"MAXIMUM PURCHASER GROUP INVESTED AMOUNT" means, with respect to any
Purchaser Group, the amount set forth opposite the name of the CP Conduit
Purchaser included in such Purchaser Group on Schedule I, as such amount may be
increased or reduced from time to time as provided in Section 2.6, MINUS the
Matched Purchaser Group Invested Amount with respect to such Purchaser Group.
The Maximum Purchaser Group Invested Amount with respect to each Non-Extending
Purchaser Group shall be reduced to zero on the Scheduled Expiry Date with
respect to such Purchaser Group.
"MONTHLY FUNDING COSTS" means, with respect to each Series 2002-4
Interest Period and any Purchaser Group, the sum of:
(a) for each day during such Series 2002-4 Interest Period, (i) with
respect to a Match Funding CP Conduit Purchaser, the aggregate amount of
Discount accruing on all outstanding Commercial Paper issued by, or for the
benefit of, such Match Funding CP Conduit Purchaser to fund the CP Conduit
Funded Amount with respect to such Match Funding CP Conduit Purchaser on
such day or (ii) with respect to a Pooled Funding CP Conduit Purchaser, the
aggregate amount of Discount accruing on or otherwise in respect of the
Commercial Paper issued by, or for the benefit of, such Pooled Funding CP
Conduit Purchaser allocated, in whole or in part, by the Funding Agent with
respect to such Pooled Funding CP Conduit Purchaser, to fund the purchase
or maintenance of the CP Conduit Funded Amount with respect to such Pooled
Funding CP Conduit Purchaser; PLUS
(b) for each day during such Series 2002-4 Interest Period, the sum
of:
(i) the product of (A) the portion of the APA Bank Funded
Amount with respect to such Purchaser Group allocated to the Floating
Tranche with respect to such Purchaser Group on such day TIMES (B) the
Alternate Base Rate PLUS the Applicable Margin, DIVIDED by (C) 365 (or
366, as the case may be) PLUS
(ii) the product of (A) the portion of the APA Bank Funded
Amount with respect to such Purchaser Group allocated to Eurodollar
Tranches with respect to such Purchaser Group on such day TIMES (B)
the weighted average Adjusted LIBO Rate with respect to such
Eurodollar Tranches PLUS the Applicable Margin on such day in effect
with respect thereto DIVIDED by (C) 360; PLUS
(c) for each day during such Series 2002-4 Interest Period, the
product of (A) the CP Conduit Funded Amount with respect to such Purchaser
Group on such day TIMES (B) the Program Fee Rate per annum DIVIDED by (C)
360.
"MONTHLY TOTAL PRINCIPAL ALLOCATION" means for any Related Month the
sum of all Series 2002-4 Principal Allocations with respect to such Related
Month.
"MOODY'S" means Moody's Investors Service.
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"NON-EXTENDING PURCHASER GROUP" means any Purchaser Group who shall
not have agreed to an extension of its Scheduled Expiry Date pursuant to Section
2.6(b).
"OPTIONAL TERMINATION DATE" is defined in Section 2.5(b).
"OPTIONAL TERMINATION NOTICE" is defined in Section 2.5(b).
"OTHER TAXES" means any and all current or future stamp or documentary
taxes or other excise or property taxes, charges or similar levies arising from
any payment made under this Supplement, the Base Indenture, or any Related
Documents or from the execution, delivery or enforcement of, or otherwise with
respect to, this Supplement, the Base Indenture or any Related Document.
"OUTSTANDING" means, with respect to the Series 2002-4 Notes, the
Series 2002-4 Invested Amount shall not have been reduced to zero and all
accrued interest and other amounts owing on the Series 2002-4 Notes and to the
Administrative Agent, the Funding Agents, the CP Conduit Purchasers and the APA
Banks hereunder shall not have been paid in full.
"PARTICIPANTS" is defined in Section 11.1(d).
"PAST DUE RENT PAYMENT" is defined in Section 3.2(f).
"POOLED FUNDING CP CONDUIT PURCHASER" means each CP Conduit Purchaser
that is not a Match Funding CP Conduit Purchaser.
"PREFERENCE AMOUNT" means any amount previously distributed to a
member or members of a Purchaser Group on or relating to a Series 2002-4 Note
that is recoverable or that has been recovered as a voidable preference by the
trustee in a bankruptcy proceeding of a Demand Note Issuer pursuant to the
United State Bankruptcy Code (11 U.S.C.), as amended from time to time, in
accordance with a final nonappealable order of a court having competent
jurisdiction.
"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 2002-4 Demand Notes included in the Series 2002-4 Demand Note Payment
Amount as of the Series 2002-4 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 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 2002-4 Demand Note
Payment Amount as of the date of the conclusion or dismissal of such
proceedings.
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"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective.
"PRINCIPAL DEFICIT AMOUNT" means, on any date of determination, the
excess, if any, of (i) the Series 2002-4 Invested Amount on such date (after
giving effect to the distribution of the Monthly Total Principal Allocation for
the Related Month if such date is a Distribution Date) over (ii) the Series
2002-4 AESOP I Operating Lease Loan Agreement Borrowing Base on such date.
"PRO RATA SHARE" means, with respect to any Purchaser Group, on any
date, the ratio, expressed as a percentage, which the Purchaser Group Invested
Amount with respect to such Purchaser Group bears to the Series 2002-4 Invested
Amount on such date.
"PROGRAM FEE RATE" is defined in the Fee Letter.
"PROGRAM SUPPORT PROVIDER" means, with respect to any CP Conduit
Purchaser, the APA Bank with respect to such CP Conduit Purchaser and any other
or additional Person now or hereafter extending credit, or having a commitment
to extend credit to or for the account of, or to make purchases from, such CP
Conduit Purchaser or issuing a letter of credit, surety bond or other instrument
to support any obligations arising under or in connection with such CP Conduit
Purchaser's securitization program.
"PURCHASE EFFECTIVE DATE" is defined in Section 2.6(d).
"PURCHASER GROUP" means, collectively, a CP Conduit Purchaser and the
APA Banks with respect to such CP Conduit Purchaser.
"PURCHASER GROUP ADDITION DATE" is defined in Section 2.6(e).
"PURCHASER GROUP INCREASE AMOUNT" means, with respect to any Purchaser
Group, for any Business Day, such Purchaser Group's Commitment Percentage of the
Increase Amount, if any, on such Business Day.
"PURCHASER GROUP INVESTED AMOUNT" means, with respect to any Purchaser
Group, (a) when used with respect to the Series 2002-4 Closing Date, such
Purchaser Group's Commitment Percentage of the Series 2002-4 Initial Invested
Amount and (b) when used with respect to any other date, an amount equal to (i)
the Purchaser Group Invested Amount with respect to such Purchaser Group on the
immediately preceding Business Day PLUS (ii) the Purchaser Group Increase Amount
with respect to such Purchaser Group on such date MINUS (iii) the amount of
principal payments made to such Purchaser Group pursuant to Section 3.5(f) on
such date PLUS (iv) the amount of principal payments recovered from such
Purchaser Group by a trustee as a preference payment in a bankruptcy proceeding
of a Demand Note Issuer or otherwise.
"PURCHASER GROUP SUPPLEMENT" is defined in Section 11.1(e).
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"RECORD DATE" means, with respect to each Distribution Date, the
immediately preceding Business Day.
"RELATED ADDITIONAL APA BANKS" is defined in Section 2.6(e).
"RELATED PURCHASER GROUP" means, with respect to any Funding Agent,
the CP Conduit Purchaser identified next to such Funding Agent on Schedule I and
each APA Bank identified on Schedule I next to such CP Conduit Purchaser.
"REQUISITE NOTEHOLDERS" means Purchaser Groups having Commitment
Percentages aggregating more than 50%.
"SCHEDULED EXPIRY DATE" shall mean, with respect to any Purchaser
Group, the later of (a) November 21, 2003 and (b) the last day of any extension
thereof made in accordance with Section 2.6(b).
"SERIES 1997-1 NOTES" means the Series of Notes designated as the
Series 1997-1 Notes.
"SERIES 1997-2 NOTES" means 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.
"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 NOTES" means the Series of Notes designated as the
Series 2001-2 Notes.
"SERIES 2002-1 NOTES" means the Series of Notes designated as the
Series 2002-1 Notes.
"SERIES 2002-2 NOTES" means the Series of Notes designated as the
Series 2002-2 Notes.
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"SERIES 2002-3 NOTES" means the Series of Notes designated as the
Series 2002-3 Notes.
"SERIES 2002-4 ACCRUED INTEREST ACCOUNT" is defined in Section 3.1(b).
"SERIES 2002-4 AESOP I OPERATING LEASE LOAN AGREEMENT BORROWING BASE"
means, as of any date of determination, the product of (a) the Series 2002-4
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 2002-4 AESOP I OPERATING LEASE VEHICLE PERCENTAGE" means, as
of any date of determination, a fraction, expressed as a percentage (which
percentage shall never exceed 100%), the numerator of which is the Series 2002-4
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 2002-4 AGENT" is defined in the recitals hereto.
"SERIES 2002-4 AMORTIZATION PERIOD" means the period beginning at the
earliest to occur of (a) the close of business on the Business Day immediately
preceding the date on which the Expiry Date with respect to each Purchaser Group
shall have occurred, (b) the close of business on the Optional Termination Date
and (c) the close of business on the Business Day immediately preceding the day
on which an Amortization Event is deemed to have occurred or been declared with
respect to the Series 2002-4 Notes and ending upon the earlier to occur of (i)
the date on which the Series 2002-4 Notes are fully paid and (ii) the
termination of the Indenture.
"SERIES 2002-4 AVAILABLE CASH COLLATERAL ACCOUNT AMOUNT" means, as of
any date of determination, the amount on deposit in the Series 2002-4 Cash
Collateral Account (after giving effect to any deposits thereto and withdrawals
and releases therefrom on such date).
"SERIES-2002-4 AVAILABLE RESERVE ACCOUNT AMOUNT" means, as of any date
of determination, the amount on deposit in the Series 2002-4 Reserve Account
(after giving effect to any deposits thereto and withdrawals and releases
therefrom on such date).
"SERIES 2002-4 CASH COLLATERAL ACCOUNT" is defined in Section 3.8(e).
"SERIES 2002-4 CASH COLLATERAL ACCOUNT COLLATERAL" is defined in
Section 3.8(a).
"SERIES 2002-4 CASH COLLATERAL ACCOUNT SURPLUS" means, with respect to
any Distribution Date, the lesser of (a) the Series 2002-4 Available Cash
Collateral Account Amount and (b) the lesser of (A) the excess, if any, of the
Series 2002-4 Liquidity Amount (after giving effect to any withdrawal from the
Series 2002-4 Reserve Account on such Distribution Date) over the Series 2002-4
Required Liquidity Amount on such Distribution Date and (B) the excess, if any,
of the Series 2002-4 Enhancement Amount (after giving effect to any withdrawal
from the Series 2002-4 Reserve Account on such Distribution Date) over the
Series 2002-4 Required Enhancement Amount on such Distribution Date; PROVIDED,
HOWEVER, that, on any date after the Series 2002-4 Letter of Credit Termination
Date, the Series 2002-4 Cash Collateral Account Surplus shall mean the excess,
if any, of (x) the Series 2002-4 Available Cash Collateral
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Account Amount over (y) the Series 2002-4 Demand Note Payment Amount MINUS the
Pre-Preference Period Demand Note Payments as of such date.
"SERIES 2002-4 CASH COLLATERAL PERCENTAGE" means, as of any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Series 2002-4 Available Cash Collateral Amount as of such date and the
denominator of which is the Series 2002-4 Letter of Credit Liquidity Amount as
of such date.
"SERIES 2002-4 CLOSING DATE" is defined in Section 2.1(a).
"SERIES 2002-4 COLLATERAL" means the Collateral, each Series 2002-4
Letter of Credit, each Series 2002-4 Demand Note, the Series 2002-4 Distribution
Account Collateral, the Series 2002-4 Cash Collateral Account Collateral and the
Series 2002-4 Reserve Account Collateral.
"SERIES 2002-4 COLLECTION ACCOUNT" is defined in Section 3.1(b).
"SERIES 2002-4 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.
"SERIES 2002-4 DEMAND NOTE PAYMENT AMOUNT" means, as of the Series
2002-4 Letter of Credit Termination Date, the aggregate amount of all proceeds
of demands made on the Series 2002-4 Demand Notes pursuant to Section 3.5(d)(ii)
or 3.5(e)(i) that were deposited into the Series 2002-4 Distribution Account and
paid to the Series 2002-4 Noteholders during the one-year period ending on the
Series 2002-4 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 2002-4 Demand Note Payment Amount as of the Series 2002-4
Letter of Credit Termination Date shall equal the Series 2002-4 Demand Note
Payment Amount as if it were calculated as of the date of such occurrence.
"SERIES 2002-4 DEPOSIT DATE" is defined in Section 3.2.
"SERIES 2002-4 DISTRIBUTION ACCOUNT" is defined in Section 3.9(a).
"SERIES 2002-4 DISTRIBUTION ACCOUNT COLLATERAL" is defined in Section
3.9(d).
"SERIES 2002-4 ELIGIBLE LETTER OF CREDIT PROVIDER" means a person
satisfactory to ARAC and the Demand Note Issuers and having, at the time of the
issuance of the related Series 2002-4 Letter of Credit, a long-term senior
unsecured debt rating of at least "A" from S&P and a short-term senior unsecured
debt rating of at least "A-1" from S&P and a long-term senior unsecured debt
rating of at least "A2" from Moody's and a short-term senior unsecured debt
rating of "P-1" from Moody's that is a commercial bank having total assets in
excess of $500,000,000; PROVIDED that if a person is not a Series 2002-4 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 2002-4 Eligible
Letter of Credit Provider until AFC-II has provided 10 days'
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prior notice to the Rating Agencies that such person has been proposed as a
Series 2002-4 Letter of Credit Provider.
"SERIES 2002-4 ENHANCEMENT" means the Series 2002-4 Cash Collateral
Account Collateral, the Series 2002-4 Letters of Credit, the Series 2002-4
Demand Notes, the Series 2002-4 Overcollateralization Amount and the Series
2002-4 Reserve Account Amount.
"SERIES 2002-4 ENHANCEMENT AMOUNT" means, as of any date of
determination, the sum of (i) the Series 2002-4 Overcollateralization Amount as
of such date, (ii) the Series 2002-4 Letter of Credit Amount as of such date,
(iii) the Series 2002-4 Available Reserve Account Amount as of such date and
(iv) the amount of cash and Permitted Investments on deposit in the Series
2002-4 Collection Account (not including amounts allocable to the Series 2002-4
Accrued Interest Account) and the Series 2002-4 Excess Collection Account as of
such date.
"SERIES 2002-4 ENHANCEMENT DEFICIENCY" means, on any date of
determination, the amount by which the Series 2002-4 Enhancement Amount is less
than the Series 2002-4 Required Enhancement Amount as of such date.
"SERIES 2002-4 EXCESS COLLECTION ACCOUNT" is defined in Section
3.1(b).
"SERIES 2002-4 EXPECTED FINAL DISTRIBUTION DATE" means the
Distribution Date falling in the seventh calendar month after the calendar month
in which the Series 2002-4 Revolving Period ends.
"SERIES 2002-4 INITIAL INVESTED AMOUNT" is defined in Section 2.3(a).
"SERIES 2002-4 INTEREST PERIOD" means a period commencing on and
including a Distribution Date and ending on and including the day preceding the
next succeeding Distribution Date; PROVIDED, HOWEVER, that the initial Series
2002-4 Interest Period shall commence on and include the Series 2002-4 Closing
Date and end on and include December 19, 2002.
"SERIES 2002-4 INVESTED AMOUNT" means, on any date of determination,
the sum of the Purchaser Group Invested Amounts with respect to each of the
Purchaser Groups on such date.
"SERIES 2002-4 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 2002-4 Invested
Amount and the Series 2002-4 Overcollateralization Amount, determined
during the Series 2002-4 Revolving Period as of the end of the immediately
preceding Business Day, or, during the Series 2002-4 Amortization Period,
as of the end of the Series 2002-4 Revolving Period, and the denominator of
which shall be the greater as of the end of the immediately preceding
Business Day of (I) the Aggregate Asset Amount and (II) 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
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percentages for allocations with respect to Principal Collections (for all
Series of Notes that provide for credit enhancement in the form of
overcollateralization); and
(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
2002-4 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 2002-4 LEASE INTEREST PAYMENT DEFICIT" means on any
Distribution Date an amount equal to the excess, if any, of (a) the aggregate
amount of Interest Collections which pursuant to Section 3.2(a), (b) or (c)
would have been allocated to the Series 2002-4 Accrued Interest Account if all
payments of Monthly Base Rent required to have been made under the Leases from
and excluding the preceding Distribution Date to and including such Distribution
Date were made in full over (b) the aggregate amount of Interest Collections
which pursuant to Section 3.2(a), (b) or (c) have been allocated to the Series
2002-4 Accrued Interest Account (excluding any amounts paid into the Series
2002-4 Accrued Interest Account pursuant to the proviso in Sections 3.2(b)(ii)
and 3.2(c)(ii)) from and excluding the preceding Distribution Date to and
including such Distribution Date.
"SERIES 2002-4 LEASE PAYMENT DEFICIT" means either a Series 2002-4
Lease Interest Payment Deficit or a Series 2002-4 Lease Principal Payment
Deficit.
"SERIES 2002-4 LEASE PRINCIPAL PAYMENT CARRYOVER DEFICIT" means (a)
for the initial Distribution Date, zero and (b) for any other Distribution Date,
the excess of (x) the Series 2002-4 Lease Principal Payment Deficit, if any, on
the preceding Distribution Date OVER (y) the amount deposited in the
Distribution Account on such preceding Distribution Date pursuant to Section
3.5(c) of this Supplement on account of such Series 2002-4 Lease Principal
Payment Deficit.
"SERIES 2002-4 LEASE PRINCIPAL PAYMENT DEFICIT" means on any
Distribution Date the sum of (a) the Series 2002-4 Monthly Lease Principal
Payment Deficit for such Distribution Date and (b) the Series 2002-4 Lease
Principal Payment Carryover Deficit for such Distribution Date.
"SERIES 2002-4 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 2002-4 Eligible Letter of Credit Provider in favor of the Trustee
for the benefit of the Series 2002-4 Noteholders.
"SERIES 2002-4 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 2002-4 Letter of Credit, as specified
therein, and (ii) if the Series 2002-4 Cash Collateral Account has been
established and funded pursuant to Section 3.8, the Series 2002-4 Available Cash
Collateral Account Amount on such date and (b) the aggregate outstanding
principal amount of the Series 2002-4 Demand Notes on such date.
"SERIES 2002-4 LETTER OF CREDIT EXPIRATION DATE" means, with respect
to any Series 2002-4 Letter of
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Credit, the expiration date set forth in such Series 2002-4 Letter of Credit, as
such date may be extended in accordance with the terms of such Series 2002-4
Letter of Credit.
"SERIES 2002-4 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 2002-4 Letter of Credit, as specified therein,
and (b) if the Series 2002-4 Cash Collateral Account has been established and
funded pursuant to Section 3.8 of this Supplement, the Series 2002-4 Available
Cash Collateral Account Amount on such date.
"SERIES 2002-4 LETTER OF CREDIT PROVIDER" means the issuer of a Series
2002-4 Letter of Credit.
"SERIES 2002-4 LETTER OF CREDIT TERMINATION DATE" means the first to
occur of (a) the date on which the Series 2002-4 Notes are fully paid and (b)
the Series 2002-4 Termination Date.
"SERIES 2002-4 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; PROVIDED, HOWEVER, that any event or
condition of the type specified in clauses (a) through (h) of Article IV shall
not constitute a Series 2002-4 Limited Liquidation Event of Default if (i)
within such thirty (30) day period, such Amortization Event shall have been
cured and, after such cure of such Amortization Event is provided for, the
Trustee shall have received written confirmation from Moody's that the Series
2002-4 Notes continue to be rated at least "A2" and written confirmation from
Standard & Poor's that the Series 2002-4 Notes continue to be rated at least "A"
or (ii) the Trustee shall have received the written consent of each of the
Series 2002-4 Noteholders waiving the occurrence of such Series 2002-4 Limited
Liquidation Event of Default.
"SERIES 2002-4 LIQUIDITY AMOUNT" means, as of any date of
determination, the sum of (a) the Series 2002-4 Letter of Credit Liquidity
Amount on such date and (b) the Series 2002-4 Available Reserve Account Amount
on such date.
"SERIES 2002-4 MAXIMUM AGGREGATE KIA/ISUZU/SUBARU/HYUNDAI/SUZUKI
AMOUNT" means, as of any day, with respect to Kia, Isuzu, Subaru, Hyundai and
Suzuki, in the aggregate, an amount equal to 15% of the aggregate Net Book Value
of all Vehicles leased under the Leases on such day.
"SERIES 2002-4 MAXIMUM AMOUNT" means any of the Series 2002-4 Maximum
Manufacturer Amounts, the Series 2002-4 Maximum Non-Eligible Manufacturer
Amount, the Series 2002-4 Maximum Non-Program Vehicle Amount or the Series
2002-4 Maximum Specified States Amount.
"SERIES 2002-4 MAXIMUM INDIVIDUAL KIA/ISUZU/SUBARU/HYUNDAI/SUZUKI
AMOUNT" means, as of any day, with respect to Kia, Isuzu, 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.
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"SERIES 2002-4 MAXIMUM INVESTED AMOUNT" means, on any date of
determination, the sum of the Maximum Purchaser Group Invested Amounts with
respect to each of the Purchaser Groups on such date. The Series 2002-4 Maximum
Invested Amount shall be reduced by the Maximum Purchaser Group Invested Amount
of each Non-Extending Purchaser Group on the Scheduled Expiry Date with respect
to such Purchaser Group.
"SERIES 2002-4 MAXIMUM MANUFACTURER AMOUNT" means, as of any day, any
of the Series 2002-4 Maximum Mitsubishi Amount, the Series 2002-4 Maximum Nissan
Amount, the Series 2002-4 Maximum Individual Kia/Isuzu/Subaru/Hyundai/Suzuki
Amount or the Series 2002-4 Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki
Amount.
"SERIES 2002-4 MAXIMUM MITSUBISHI AMOUNT" means, as of any day, an
amount equal to 5% of the aggregate Net Book Value of all Vehicles leased under
the Leases on such day.
"SERIES 2002-4 MAXIMUM NISSAN AMOUNT" means, as of any day, an amount
equal to 5% of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
"SERIES 2002-4 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 2002-4 MAXIMUM NON-PROGRAM VEHICLE AMOUNT" means, as of any
day, an amount equal to 25% of the aggregate Net Book Value of all Vehicles
leased under the Leases on such day.
"SERIES 2002-4 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 2002-4 MONTHLY INTEREST" means, with respect to any Series
2002-4 Interest Period, an amount equal to the product of (a) the average daily
Series 2002-4 Invested Amount during such Series 2002-4 Interest Period, (b) the
Series 2002-4 Note Rate for such Series 2002-4 Interest Period and (c) the
number of days in such Series 2002-4 Interest Rate Period divided by 360.
"SERIES 2002-4 MONTHLY LEASE PRINCIPAL PAYMENT DEFICIT" means on any
Distribution Date an amount equal to the excess, if any, of (a) the aggregate
amount of Principal Collections which pursuant to Section 3.2(a), (b) or (c)
would have been allocated to the Series 2002-4 Collection Account if all
payments required to have been made under the Leases from and excluding the
preceding Distribution Date to and including such Distribution Date were made in
full over (b) the aggregate amount of Principal Collections which pursuant to
Section 3.2(a), (b) or (c) have been allocated to the Series 2002-4 Collection
Account (without giving effect to any amounts paid into the Series 2002-4
Accrued Interest Account pursuant to the proviso in Sections 3.2(b)(ii) and/or
3.2(c)(ii)) from and excluding the preceding Distribution Date to and including
such Distribution Date.
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"SERIES 2002-4 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.
"SERIES 2002-4 NOTE" means any one of the Series 2002-4 Variable
Funding Rental Car Asset Backed Notes, executed by AFC-II authenticated and
delivered by or on behalf of the Trustee, substantially in the form of EXHIBIT
A.
"SERIES 2002-4 NOTE RATE" means for any Series 2002-4 Interest Period,
the interest rate equal to the product of (a) the percentage equivalent of a
fraction, the numerator of which is equal to the sum of the Monthly Funding
Costs with respect to each Purchaser Group for such Series 2002-4 Interest
Period and the denominator of which is equal to the average daily Series 2002-4
Invested Amount during such Series 2002-4 Interest Period and (b) a fraction,
the numerator of which is 360 and the denominator of which is the number of days
in such Series 2002-4 Interest Period; PROVIDED, HOWEVER, that the Series 2002-4
Note Rate will in no event be higher than the maximum rate permitted by
applicable law.
"SERIES 2002-4 NOTEHOLDER" means a Person in whose name a Series
2002-4 Note is registered in the Note Register.
"SERIES 2002-4 OVERCOLLATERALIZATION AMOUNT" means (i) as of any date
on which no AESOP I Operating Lease Vehicle Deficiency exists, the Series 2002-4
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 2002-4 AESOP I Operating Lease Loan Agreement Borrowing Base
as of such date over (y) the Series 2002-4 Invested Amount as of such date.
"SERIES 2002-4 PAST DUE RENT PAYMENT" is defined in Section 3.2(f).
"SERIES 2002-4 PERCENTAGE" means, as of any date of determination, a
fraction, expressed as a percentage, the numerator of which is the Series 2002-4
Invested Amount as of such date and the denominator of which is the Aggregate
Invested Amount as of such date.
"SERIES 2002-4 PRINCIPAL ALLOCATION" is defined in Section 3.2(a)(ii).
"SERIES 2002-4 PROGRAM VEHICLE PERCENTAGE" means, as of any date of
determination, 100% minus the Series 2002-4 Non-Program Vehicle Percentage.
"SERIES 2002-4 REIMBURSEMENT AGREEMENT" means any and each agreement
providing for the reimbursement of a Series 2002-4 Letter of Credit Provider for
draws under its Series 2002-4 Letter of Credit as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"SERIES 2002-4 REQUIRED AESOP I OPERATING LEASE VEHICLE AMOUNT" means,
as of any date of determination, the sum of the Series 2002-4 Invested Amount
and the Series 2002-4 Required Overcollateralization Amount as of such date.
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"SERIES 2002-4 REQUIRED ENHANCEMENT AMOUNT" means, as of any date of
determination, the sum of (i) the product of the Series 2002-4 Required
Enhancement Percentage as of such date and the Series 2002-4 Invested Amount as
of such date, (ii) the Series 2002-4 AESOP I Operating Lease Vehicle Percentage
as of the immediately preceding Business Day of the excess, if any, of the
Non-Program Vehicle Amount as of such date over the Series 2002-4 Maximum
Non-Program Vehicle Amount as of such date, (iii) the Series 2002-4 AESOP I
Operating Lease Vehicle Percentage as of the immediately preceding Business Day
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 2002-4 Maximum Mitsubishi Amount as of such date, (iv) the Series 2002-4
AESOP I Operating Lease Vehicle Percentage as of the immediately preceding
Business Day of the excess, if any, of the aggregate Net Book Value of all
Vehicles manufactured by Kia, Isuzu, Subaru, Hyundai or Suzuki, individually,
and leased under the Leases as of such date over the Series 2002-4 Maximum
Individual Kia/Isuzu/Subaru/Hyundai/Suzuki Amount as of such date, (v) the
Series 2002-4 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the aggregate Net Book Value of
all Vehicles manufactured by Kia, Isuzu, Subaru, Hyundai or Suzuki, in the
aggregate, and leased under the Leases as of such date over the Series 2002-4
Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki Amount as of such date, (vi)
the Series 2002-4 AESOP I Operating Lease Vehicle Percentage as of the
immediately preceding Business Day of the excess, if any, of the Specified
States Amount as of such date over the Series 2002-4 Maximum Specified States
Amount as of such date, (vii) the Series 2002-4 AESOP I Operating Lease Vehicle
Percentage as of the immediately preceding Business Day of the excess, if any,
of the Non-Eligible Manufacturer Amount as of such date over the Series 2002-4
Maximum Non-Eligible Manufacturer Amount as of such date and (viii) at any time
that the long-term senior unsecured debt rating of Nissan is "BBB-" or above
from Standard & Poor's and "Baa3" or above from Moody's, 0 and in all other
cases the Series 2002-4 AESOP I Operating Lease Vehicle Percentage as of the
immediately preceding Business Day of the excess, if any, of the aggregate Net
Book Value of all Vehicles manufactured by Nissan and leased under the Leases as
of such date over the Series 2002-4 Maximum Nissan Amount as of such date.
"SERIES 2002-4 REQUIRED ENHANCEMENT PERCENTAGE" means, as of any date
of determination, the sum of (i) the product of (A) 24.0% times (B) the Series
2002-4 Program Vehicle Percentage as of the immediately preceding Business Day
and (ii) the product of (A) the Series 2002-4 Required Non-Program Enhancement
Percentage as of such date times (B) the Series 2002-4 Non-Program Vehicle
Percentage as of the immediately preceding Business Day.
"SERIES 2002-4 REQUIRED LIQUIDITY AMOUNT" means, with respect to any
Distribution Date, an amount equal to 4.00% of the Series 2002-4 Invested Amount
on such Distribution Date (after giving effect to any payments of principal to
be made on the Series 2002-4 Notes on such Distribution Date).
"SERIES 2002-4 REQUIRED NON-PROGRAM ENHANCEMENT PERCENTAGE" means, as
of any date of determination, the greater of (a) 24.0% and (b) the sum of (i)
24.0% and (ii) the highest, for any 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
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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 2002-4 REQUIRED OVERCOLLATERALIZATION AMOUNT" means, as of any
date of determination, the excess, if any, of the Series 2002-4 Required
Enhancement Amount over the sum of (i) the Series 2002-4 Letter of Credit Amount
as of such date, (ii) the Series 2002-4 Available Reserve Account Amount on such
date and (iii) the amount of cash and Permitted Investments on deposit in the
Series 2002-4 Collection Account (not including amounts allocable to the Series
2002-4 Accrued Interest Account) and the Series 2002-4 Excess Collection Account
on such date.
"SERIES 2002-4 REQUIRED RESERVE ACCOUNT AMOUNT" means, with respect to
any Distribution Date, an amount equal to the sum of (a) the greater of (i) the
greater of (A) the excess, if any, of the Series 2002-4 Required Liquidity
Amount on such Distribution Date over the Series 2002-4 Letter of Credit
Liquidity Amount on such Distribution Date (after giving effect to any payments
of principal to be made on the Series 2002-4 Notes on such Distribution Date)
and (B) the excess, if any, of the Series 2002-4 Required Enhancement Amount
over the Series 2002-4 Enhancement Amount (excluding therefrom the Series 2002-4
Available Reserve Account Amount and calculated after giving effect to any
payments of principal to be made on the Series 2002-4 Notes) on such
Distribution Date and (ii) an amount equal to 1% of the Series 2002-4 Invested
Amount on such Distribution Date (after giving effect to any payments of
principal to be made on the Series 2002-4 Notes on such Distribution Date) and
(b) the Demand Note Preference Payment Amount.
"SERIES 2002-4 RESERVE ACCOUNT" is defined in Section 3.7(a).
"SERIES 2002-4 RESERVE ACCOUNT COLLATERAL" is defined in Section
3.7(d).
"SERIES 2002-4 RESERVE ACCOUNT SURPLUS" means, with respect to any
Distribution Date, the excess, if any, of the Series 2002-4 Available Reserve
Account Amount over the Series 2002-4 Required Reserve Account Amount on such
Distribution Date.
"SERIES 2002-4 REVOLVING PERIOD" means the period from and including,
the Series 2002-4 Closing Date to the commencement of the Series 2002-4
Amortization Period.
"SERIES 2002-4 SHORTFALL" is defined in Section 3.3(f).
"SERIES 2002-4 TERMINATION DATE" means the Distribution Date falling
in the nineteenth calendar month after the calendar month in which the Series
2002-4 Revolving Period ends.
"SERIES 2002-4 UNPAID DEMAND AMOUNT" means, with respect to any single
draw pursuant to Section 3.5(d) or (e) on the Series 2002-4 Letters of Credit,
the aggregate amount drawn by the Trustee on all Series 2002-4 Letters of
Credit.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.
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"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one MINUS the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
(rounded up to the nearest 1/100th of 1%) established by the Board with respect
to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to Regulation D. Eurodollar
Tranches shall be deemed to constitute eurocurrency funding and to be subject to
such reserve requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time under such Regulation D or
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in the reserve
percentage.
"SUPPLEMENT" is defined in the recitals hereto.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERMINATION DATE DISBURSEMENT" means an amount drawn under a Series
2002-4 Letter of Credit pursuant to a Certificate of Termination Date Demand.
"TERMINATION DISBURSEMENT" means an amount drawn under a Series 2002-4
Letter of Credit pursuant to a Certificate of Termination Demand.
"TRANSFER SUPPLEMENT" is defined in Section 11.1(c).
"TRANSFEREE" is defined in Section 11.1(f).
"TRUSTEE" is defined in the recitals hereto.
"UNPAID DEMAND NOTE DISBURSEMENT" means an amount drawn under a Series
2002-4 Letter of Credit pursuant to a Certificate of Unpaid Demand Note Demand.
"VOTING STOCK" of any Person means the common stock or membership
interests of such Person and any other security of, or ownership interest in,
such Person having ordinary voting power to elect a majority of the board of
directors or a majority of the managers (or other Persons serving similar
functions) of such Person.
"WAIVER EVENT" means the occurrence of the delivery of a Waiver
Request and the subsequent waiver of any Series 2002-4 Maximum Amount.
"WAIVER REQUEST" is defined in Article V.
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ARTICLE II
PURCHASE AND SALE OF SERIES 2002-4 NOTES;
INCREASES AND DECREASES OF SERIES 2002-4 INVESTED AMOUNT
Section 2.1. PURCHASES OF THE SERIES 2002-4 NOTES. (a) INITIAL
PURCHASES. Subject to the terms and conditions of this Supplement, including
delivery of notice in accordance with Section 2.3, (i) each CP Conduit Purchaser
may, in its sole discretion, purchase a Series 2002-4 Note in an amount equal to
all or a portion of its Commitment Percentage of the Series 2002-4 Initial
Invested Amount on any Business Day during the period from the Effective Date
(the "SERIES 2002-4 CLOSING DATE") to and including the Expiry Date with respect
to such CP Conduit Purchaser, and if such CP Conduit Purchaser shall have
notified the Administrative Agent and the Funding Agent with respect to such CP
Conduit Purchaser that it has elected not to fund a Series 2002-4 Note in an
amount equal to its Commitment Percentage of the Series 2002-4 Initial Invested
Amount on the Series 2002-4 Closing Date, each APA Bank with respect to such CP
Conduit Purchaser shall fund on the Series 2002-4 Closing Date its APA Bank
Percentage of that portion of such Series 2002-4 Note not to be funded by such
CP Conduit Purchaser and (ii) thereafter, (A) if a CP Conduit Purchaser shall
have purchased a Series 2002-4 Note on the Series 2002-4 Closing Date, such CP
Conduit Purchaser may, in its sole discretion, maintain its Series 2002-4 Note,
subject to increase or decrease during the period from the Series 2002-4 Closing
Date to and including the Expiry Date with respect to such CP Conduit Purchaser,
in accordance with the provisions of this Supplement and (B) the APA Banks with
respect to such CP Conduit Purchaser shall maintain their respective APA Bank
Percentages of the Series 2002-4 Note with respect to such Purchaser Group,
subject to increase or decrease during the period from the Series 2002-4 Closing
Date to and including the Expiry Date with respect to such CP Conduit Purchaser,
in accordance with the provisions of this Supplement. Payments by each CP
Conduit Purchaser and/or the APA Banks with respect to such CP Conduit Purchaser
shall be made in immediately available funds on the Series 2002-4 Closing Date
to the Funding Agent with respect to such CP Conduit Purchaser for remittance to
the Trustee for deposit into the Series 2002-4 Collection Account.
(b) MAXIMUM PURCHASER GROUP INVESTED AMOUNTS. Notwithstanding
anything to the contrary contained in this Supplement, at no time shall the
Purchaser Group Invested Amount with respect to any Purchaser Group exceed the
Maximum Purchaser Group Invested Amount with respect to such Purchaser Group at
such time.
(c) FORM OF SERIES 2002-4 NOTES. The Series 2002-4 Notes shall be
issued in fully registered form without interest coupons, substantially in the
form set forth in EXHIBIT A hereto.
Section 2.2. DELIVERY. (a) On the Series 2002-4 Closing Date, AFC-II
shall sign and shall direct the Trustee in writing pursuant to Section 2.2 of
the Base Indenture to duly authenticate, and the Trustee, upon receiving such
direction, shall so authenticate a Series 2002-4 Note in the name of the Funding
Agent with respect to each Purchaser Group in an amount equal to the Maximum
Purchaser Group Invested Amount with respect to such Purchaser Group and deliver
such Series 2002-4 Note to such Funding Agent in accordance with such written
directions.
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(b) The Administrative Agent shall maintain a record of the actual
Purchaser Group Invested Amount outstanding with respect to each Purchaser Group
and the actual Series 2002-4 Invested Amount outstanding on any date of
determination, which, absent manifest error, shall constitute PRIMA FACIE
evidence of the outstanding Purchaser Group Invested Amounts and outstanding
Series 2002-4 Invested Amount from time to time. Upon a written request from the
Trustee, the Administrative Agent shall provide in writing the identity of the
Purchaser Groups, the related Funding Agents, the Purchaser Group Invested
Amount for each Purchaser Group and the Commitment Percentage with respect to
such Purchaser Group to the Trustee.
Section 2.3. PROCEDURE FOR INITIAL ISSUANCE AND FOR INCREASING THE
SERIES 2002-4 INVESTED AMOUNT. (a) Subject to Section 2.3(c), (i) on the Series
2002-4 Closing Date, each CP Conduit Purchaser may agree, in its sole
discretion, to purchase, and the APA Banks with respect to such CP Conduit
Purchaser shall purchase, a Series 2002-4 Note in accordance with Section 2.1
and (ii) on any Business Day during the period from the Effective Date to and
including the Expiry Date with respect to a CP Conduit Purchaser, such CP
Conduit Purchaser may agree, in its sole discretion, and each APA Bank with
respect to such CP Conduit Purchaser hereby agrees that the Purchaser Group
Invested Amount with respect to such Purchaser Group may be increased by an
amount equal to its APA Bank Percentage of the Commitment Percentage with
respect to such Purchaser Group of the Increase Amount (an "INCREASE"), upon the
request of AFC-II (each date on which an increase in the Series 2002-4 Invested
Amount occurs hereunder being herein referred to as the "INCREASE DATE"
applicable to such Increase); PROVIDED, HOWEVER, that AFC-II shall have given
the Administrative Agent (with a copy to the Trustee) irrevocable written notice
(effective upon receipt), by telecopy (receipt confirmed), substantially in the
form of EXHIBIT B hereto, of such request no later than 3:00 p.m. (New York City
time) on the second Business Day prior to the Series 2002-4 Closing Date or such
Increase Date, as the case may be. Such notice shall state (x) the Series 2002-4
Closing Date or the Increase Date, as the case may be, and (y) the initial
invested amount (the "SERIES 2002-4 INITIAL INVESTED AMOUNT") or the proposed
amount of the increase in the Series 2002-4 Invested Amount (an "INCREASE
Amount"), as the case may be.
(b) If a CP Conduit Purchaser elects not to fund the full amount of
its Commitment Percentage of the Series 2002-4 Initial Invested Amount or a
requested Increase, such CP Conduit Purchaser shall notify the Administrative
Agent and the Funding Agent with respect to such CP Conduit Purchaser, and each
APA Bank with respect to such CP Conduit Purchaser shall fund its APA Bank
Percentage of the portion of the Commitment Percentage with respect to such
Purchaser Group of the Series 2002-4 Initial Invested Amount or such Increase,
as the case may be, not funded by such CP Conduit Purchaser.
(c) No Purchaser Group shall be required to make the initial
purchase of a Series 2002-4 Note on the Series 2002-4 Closing Date or to
increase its Purchaser Group Invested Amount on any Increase Date hereunder
unless:
(i) such Purchaser Group's Commitment Percentage of the Series
2002-4 Initial Invested Amount or such Increase Amount is equal to (A)
$1,000,000 or an integral multiple of $100,000 in excess thereof or (B) if
less, the excess of the Maximum Purchaser Group Invested Amount with
respect to such Purchaser Group over the Purchaser Group Invested Amount
with respect to such Purchaser Group;
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(ii) after giving effect to the Series 2002-4 Initial Invested Amount
or such Increase Amount, (A) the Purchaser Group Invested Amount with
respect to such Purchaser Group would not exceed the Maximum Purchaser
Group Invested Amount with respect to such Purchaser Group and (B) the
Series 2002-4 Invested Amount would not exceed the Series 2002-4 Maximum
Invested Amount;
(iii) after giving effect to the Series 2002-4 Initial Invested Amount
or such Increase Amount, no AESOP I Operating Lease Vehicle Deficiency
would occur and be continuing;
(iv) no Amortization Event with respect to the Series 2002-4 Notes or
Potential Amortization Event with respect to the Series 2002-4 Notes would
occur and be continuing prior to or after giving effect to such Series
2002-4 Initial Invested Amount or such Increase;
(v) not more than two Increases have occurred in the four Business
Days immediately preceding the date of such Increase;
(vi) all of the representations and warranties made by each of
AFC-II, the Lessees, the Lessors and the Administrator in the Base
Indenture, this Supplement and the Related Documents to which each is a
party are true and correct in all material respects on and as of the Series
2002-4 Closing Date or such Increase Date, as the case may be, as if made
on and as of such date (except to the extent such representations and
warranties are expressly made as of another date); and
(vii) all conditions precedent to the making of any Loan under the
applicable Loan Agreements would be satisfied.
AFC-II's acceptance of funds in connection with (x) the initial purchase of
Series 2002-4 Notes on the Series 2002-4 Closing Date and (y) each Increase
occurring on any Increase Date shall constitute a representation and warranty by
AFC-II to the Purchaser Groups as of the Series 2002-4 Closing Date or such
Increase Date (except to the extent such representations and warranties are
expressly made as of another date), as the case may be, that all of the
conditions contained in this Section 2.3(c) have been satisfied.
(d) Upon receipt of any notice required by Section 2.3(a) from
AFC-II, the Administrative Agent shall forward (by telecopy or electronic
messaging system) a copy of such notice to the Funding Agent with respect to
each Purchaser Group, no later than 5:00 p.m. (New York City time) on the day
received. After receipt by any Funding Agent with respect to a Purchaser Group
of such notice from the Administrative Agent, such Funding Agent shall, so long
as the conditions set forth in Sections 2.3(a) and (c) are satisfied, promptly
provide telephonic notice to the related CP Conduit Purchaser and the related
APA Banks, of the Increase Date and of such Purchaser Group's Commitment
Percentage of the Increase Amount. If such CP Conduit Purchaser elects to fund
all or a portion of its Commitment Percentage of the Increase Amount, such CP
Conduit Purchaser shall pay in immediately available funds its Commitment
Percentage (or any portion thereof) of the amount of such Increase on the
related Increase Date to the Funding Agent with respect to such Purchaser Group
for deposit into the
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Series 2002-4 Collection Account. If such CP Conduit Purchaser does not fund the
full amount of its Commitment Percentage of the Increase Amount and the related
APA Banks are required to fund the portion thereof not funded by the CP Conduit
Purchaser, each such APA Bank shall pay in immediately available funds its APA
Bank Percentage of such portion on the related Increase Date to the Funding
Agent with respect to such Purchaser Group for deposit in the Series 2002-4
Collection Account. Each Funding Agent shall remit the amounts received by it
from its CP Conduit Purchaser or the related APA Banks pursuant to this Section
2.3(d) to the Trustee for deposit into the Series 2002-4 Collection Account.
Section 2.4. SALES BY CP CONDUIT PURCHASERS OF SERIES 2002-4 NOTES TO
APA BANKS. Notwithstanding any limitation to the contrary contained herein, each
CP Conduit Purchaser may, in its own discretion, at any time, sell or assign all
or any portion of its interest in its Series 2002-4 Note to any Conduit Assignee
or to the APA Banks with respect to such CP Conduit Purchaser pursuant to, and
subject to the terms and conditions of, the Asset Purchase Agreement with
respect to such CP Conduit Purchaser.
Section 2.5. PROCEDURE FOR DECREASING THE SERIES 2002-4 INVESTED
AMOUNT; OPTIONAL TERMINATION. (a) On any Business Day prior to the occurrence of
an Amortization Event with respect to the Series 2002-4 Notes, upon the written
request of AFC-II or the Administrator on behalf of AFC-II, the Series 2002-4
Invested Amount may be reduced (a "DECREASE") by the Trustee's withdrawing from
the Series 2002-4 Excess Collection Account, depositing into the Series 2002-4
Distribution Account and distributing to the Administrative Agent funds on
deposit in the Series 2002-4 Excess Collection Account on such day in accordance
with Section 3.5(b) in an amount not to exceed the amount of such funds on
deposit on such day; PROVIDED that AFC-II shall have given the Administrative
Agent (with a copy to the Trustee) irrevocable written notice (effective upon
receipt) of the amount of such Decrease prior to 9:30 a.m. (New York City time)
on the second Business Day prior to such Decrease, in the case of any such
Decrease in an amount less than $200,000,000, and prior to 9:30 a.m. (New York
City time) on a Business Day that is at least ten days prior to such Decrease,
in the case of any such Decrease in an amount of $200,000,000 or more; PROVIDED,
FURTHER, that any such Decrease shall be in an amount equal to $10,000,000 and
integral multiples of $500,000 in excess thereof (or, if such Decrease will be
used to reduce one or more Non-Extending Purchaser Group's Purchaser Group
Invested Amounts, such Decrease may be in such amount as is necessary to reduce
the Purchaser Group Invested Amounts of all such Non-Extending Purchaser Groups
to zero). Upon each Decrease, the Administrative Agent shall indicate in its
records such Decrease and the Purchaser Group Invested Amount outstanding with
respect to each Purchaser Group after giving effect to such Decrease. Upon
receipt of any notice required by Section 2.5(a) from AFC-II, the Administrative
Agent shall forward (by telecopy or electronic messaging system) a copy of such
notice to the Funding Agent with respect to each Purchaser Group, no later than
1:00 p.m. (New York City time) on the day received.
(b) On any Business Day, AFC-II shall have the right to deliver an
irrevocable written notice (an "OPTIONAL TERMINATION NOTICE") to the
Administrative Agent, the Trustee, the Administrator and the Rating Agencies in
which AFC-II declares that the Commitments shall terminate on the date (the
"OPTIONAL TERMINATION DATE") set forth in such notice (which date, in any event,
shall be a Distribution Date not less than twenty Business Days from the date on
which such notice is delivered). Upon receipt of any Optional Termination Notice
from AFC-II,
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the Administrative Agent shall promptly notify the Funding Agent with respect to
each Purchaser Group thereof.
(c) From and after the Optional Termination Date, the Series 2002-4
Amortization Period shall commence for all purposes under this Supplement, the
Base Indenture and the Related Documents.
(d) If there are Principal Collections on deposit in the Series
2002-4 Excess Collection Account on any Business Day on which the Purchaser
Group Invested Amount with respect to any Non-Extending Purchaser Group shall
not have been reduced to zero and AFC-II would be permitted under the terms of
Section 2.5(a) to effect a Decrease with such funds, AFC-II shall request such a
Decrease in accordance with Section 2.5(a) on the earliest possible date.
Section 2.6. INCREASES AND REDUCTIONS OF THE COMMITMENTS; EXTENSIONS
OF THE COMMITMENTS. (a) AFC-II may from time to time request that any Purchaser
Group agree to increase the amount set forth opposite the name of the CP Conduit
Purchaser included in such Purchaser Group on Schedule I. An increase in such
amount shall be effective hereunder if such Purchaser Group shall have agreed in
its sole discretion to such increase.
(b) If AFC-II desires to extend the Scheduled Expiry Date with
respect to the Purchaser Groups, AFC-II shall notify the Administrative Agent at
least 60 days prior to such Scheduled Expiry Date of its desire to extend the
Scheduled Expiry Date with respect to the Purchaser Groups, whereupon the
Administrative Agent shall notify the Funding Agent with respect to each
Purchaser Group of AFC-II's desire to so extend the Scheduled Expiry Date. Each
Funding Agent, on behalf of its Purchaser Group, shall notify the Administrative
Agent and AFC-II in writing of whether such Purchaser Group agrees to an
extension of the Scheduled Expiry Date with respect to such Purchaser Group;
PROVIDED that failure by a Funding Agent to respond to such request shall not be
construed as a consent by such Purchaser Group to such extension. The decision
to extend or not extend shall be made by each Purchaser Group in its sole
discretion and any such extension shall be subject to the Rating Agency Consent
Condition. In the event that any Purchaser Group desires to extend its Scheduled
Expiry Date for an amount that is less than its Maximum Purchaser Group Invested
Amount prior to AFC-II's request for an extension, AFC-II, in its sole
discretion, may accept such extension; PROVIDED, HOWEVER, that such Purchaser
Group (x) shall be deemed to be a Non-Extending Purchaser Group for purposes of
Section 3.5 having a Purchaser Group Invested Amount equal to the excess of its
Purchaser Group Invested Amount over a percentage of its Maximum Purchaser Group
Invested Amount that will be available after the extension of its Scheduled
Expiry Date equal to the percentage equivalent of a fraction, the numerator of
which is the sum of the Purchaser Group Invested Amounts with respect to all
Extending Purchaser Groups, other than such Purchaser Group and any other
Purchaser Group reducing its Maximum Purchaser Group Invested Amount, and the
denominator of which is the sum of the Maximum Purchaser Group Invested Amounts
of all Extending Purchaser Groups, other than such Purchaser Group and any other
Purchaser Group reducing its Maximum Purchaser Group Invested Amount and (y)
shall be deemed to be an Extending Purchaser Group with a Maximum Purchaser
Group Invested Amount equal to the portion of its Maximum Purchaser Group
Invested Amount that will be available after the extension of its Scheduled
Expiry Date.
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(c) On any Business Day during the Series 2002-4 Revolving Period,
AFC-II may, upon two (2) Business Days' prior written notice to the
Administrative Agent (effective upon receipt) (with copies to the Administrator
and the Trustee) reduce the Series 2002-4 Maximum Invested Amount in an amount
equal to $10,000,000 or a whole multiple of $1,000,000 in excess thereof;
PROVIDED that no such termination or reduction shall be permitted if, after
giving effect thereto and to any reduction in the Series 2002-4 Invested Amount
on such date, (x) the Purchaser Group Invested Amount with respect to any
Purchaser Group would exceed the Maximum Purchaser Group Invested Amount with
respect to such Purchaser Group then in effect or (y) the Series 2002-4 Invested
Amount would exceed the Series 2002-4 Maximum Invested Amount. Any reduction in
the Series 2002-4 Maximum Invested Amount shall be made on a PRO RATA basis to
the Maximum Purchaser Group Invested Amounts with respect to the Purchaser
Groups, based on the Maximum Purchaser Group Invested Amount with respect to
each Purchaser Group. Once reduced, the Maximum Purchaser Group Invested Amounts
may not be subsequently reinstated without each such Purchaser Group's prior
written consent, which consent shall be granted or not in the sole discretion of
such Purchaser Group.
(d) If, after receiving a request for extension of its Scheduled
Expiry Date from AFC-II pursuant to Section 2.6(b), the Funding Agent with
respect to a CP Conduit Purchaser notifies AFC-II in writing of its decision not
to extend its Scheduled Expiry Date as requested or fails to respond to AFC-II's
request within 30 days of its receipt of such request, at the request of AFC-II,
such CP Conduit Purchaser and the APA Banks with respect to such CP Conduit
Purchaser shall on a Distribution Date thereafter selected by AFC-II (or such
other date as may be agreed by AFC-II, the Funding Agent and the Administrative
Agent) assign all or any portion of their respective rights and obligations
under this Supplement and the Series 2002-4 Notes pursuant to Section 11.1 to a
replacement CP Conduit Purchaser and the APA Banks with respect to such
replacement CP Conduit Purchaser selected by AFC-II upon payment by the
replacement CP Conduit Purchaser and the APA Banks with respect to such
replacement CP Conduit Purchaser (or upon payment by AFC-II as agreed to by
AFC-II, the assignor and the assignee) of an amount equal to the sum of (i) the
Purchaser Group Invested Amount with respect to such Non-Extending Purchaser
Group, PLUS (ii) (A) if such Purchaser Group includes a Match Funding CP Conduit
Purchaser, the sum of (x) all accrued and unpaid Discount on all outstanding
Commercial Paper issued by, or for the benefit of, such Match Funding CP Conduit
Purchaser to fund the CP Funded Amount with respect to such Match Funding CP
Conduit Purchaser from the issuance date(s) thereof to but excluding the date
(the "PURCHASE EFFECTIVE DATE") of the assignment to the replacement CP Conduit
Purchaser and the APA Banks with respect to such CP Conduit Purchaser and (y)
the aggregate Discount to accrue on all outstanding Commercial Paper issued by,
or for the benefit of, such Match Funding CP Conduit Purchaser to fund the CP
Funded Amount with respect to such Match Funding CP Conduit Purchaser from and
including the Purchase Effective Date to and excluding the maturity date of each
CP Tranche with respect to such Match Funding CP Conduit Purchaser or (B) if
such Non-Extending Purchaser Group includes a Pooled Funding CP Conduit
Purchaser, the sum of (x) the aggregate amount of accrued and unpaid Discount on
or in respect of the Commercial Paper issued by, or for the benefit of, such
Pooled Funding CP Conduit Purchaser allocated, in whole or in part, by the
Funding Agent with respect to such Pooled Funding CP Conduit Purchaser, to fund
the purchase or maintenance of the CP Funded Amount with respect to such Pooled
Funding CP Conduit Purchaser as of the Purchase Effective Date and (y) the
aggregate amount of Discount to accrue on or in respect of the Commercial Paper
issued by, or for the benefit of, such Pooled
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Funding CP Conduit Purchaser allocated, in whole or in part, by the Funding
Agent with respect to such Pooled Funding CP Conduit Purchaser, to fund the
purchase or maintenance of the CP Funded Amount with respect to such Pooled
Funding CP Conduit Purchaser from and including the Purchase Effective Date to
and excluding the maturity dates of such Commercial Paper, PLUS (iii) all
accrued and unpaid interest on the APA Bank Funded Amount with respect to such
Purchaser Group, calculated at the Alternate Base Rate or the applicable
Adjusted LIBO Rate PLUS the Applicable Margin as of the Purchase Effective Date,
PLUS (iv) for each day from but excluding the last day of the Series 2002-4
Interest Period immediately preceding the Purchase Effective Date, the product
of (x) the CP Funded Amount with respect to such Non-Extending Purchaser Group
on such day TIMES (y) the Program Fee Rate DIVIDED by (z) 360, PLUS (v) for each
day from but excluding the last day of the Series 2002-4 Interest Period
immediately preceding the Purchase Effective Date, the product of (x) the
excess, if any, of the Commitment Amount with respect to such Non-Extending
Purchaser Group over the sum of the Purchaser Group Invested Amount with respect
to such Purchaser Group and the Matched Purchaser Group Invested Amount with
respect to such Purchaser Group on such day TIMES (y) the Commitment Fee Rate
DIVIDED by (z) 360, PLUS (vi) all Article VII Costs then due and payable to such
Non-Extending Purchaser Group, PLUS (vii) without duplication, any other amounts
then due and payable to such Non-Extending Purchaser Group pursuant to this
Supplement.
(e) AFC-II may at any time add a multi-seller commercial paper
conduit as an additional CP Conduit Purchaser (an "ADDITIONAL CP CONDUIT
PURCHASER") and one or more banks providing support to the Additional CP Conduit
Purchaser as APA Banks with respect to the Additional CP Conduit Purchaser (the
"RELATED ADDITIONAL APA BANKS"), with the prior written consent of the
Administrative Agent (which consent shall not be unreasonably withheld), by
providing at least ten Business Days written notice of (i) the names of the
Additional CP Conduit Purchaser, the Related Additional APA Banks and the
funding agent with respect to the Additional CP Conduit Purchaser and the
Related Additional APA Banks (the "ADDITIONAL FUNDING AGENT"), (ii) the date on
which AFC-II desires to effect such addition (the "PURCHASER GROUP ADDITION
DATE"), (iii) the proposed Maximum Purchaser Group Invested Amount with respect
to the Additional CP Conduit Purchaser and the Related Additional APA Banks and
(iv) the Commitment Percentage of each Purchaser Group on the Purchaser Group
Addition Date, after giving effect to the addition of the Additional CP Conduit
Purchaser and the Related Additional APA Banks. On the Purchaser Group Addition
Date, each CP Conduit Purchaser, the APA Banks with respect to such CP Conduit
Purchaser and the Funding Agent with respect to such CP Conduit Purchaser shall
make an assignment and assumption to the Additional CP Conduit Purchaser, the
Related Additional APA Banks and the Additional Funding Agent pursuant to
Section 11.1, as directed by the Administrative Agent, with the result that
after giving effect thereto, the Purchaser Group Invested Amount with respect to
each such Purchaser Group shall equal the product of (x) the Series 2002-4
Invested Amount on the Purchaser Group Addition Date and (y) the Commitment
Percentage of such Purchaser Group on the Purchaser Group Addition Date, after
giving effect to the addition of the Additional CP Conduit Purchaser and the
Related Additional APA Banks. No Purchaser Group shall be required to make any
assignment unless such assigning Purchaser Group shall receive in cash an amount
equal to the reduction in its Series 2002-4 Invested Amount.
Section 2.7. INTEREST; FEES. (a) Interest shall be payable on the
Series 2002-4 Notes on each Distribution Date pursuant to Section 3.3.
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(b) On any Business Day, AFC-II may, subject to Section 2.7(c),
elect to allocate all or any portion of the Available CP Funding Amount with
respect to any Match Funding CP Conduit Purchaser, to one or more CP Tranches
with CP Rate Periods commencing on such Business Day by giving the
Administrative Agent and the Funding Agent with respect to such Match Funding CP
Conduit Purchaser irrevocable written or telephonic (confirmed in writing)
notice thereof, which notice must be received by such Funding Agent prior to
3:00 p.m. (New York City time) on the second Business Day prior to such Business
Day. Such notice shall specify (i) the applicable Business Day, (ii) the CP Rate
Period for each CP Tranche to which a portion of the Available CP Funding Amount
with respect to such Purchaser Group is to be allocated and (iii) the portion of
such Available CP Funding Amount being allocated to each such CP Tranche. On any
Business Day, AFC-II may, subject to Sections 2.7(c) and 7.4, elect to allocate
all or any portion of the Available APA Bank Funding Amount with respect to any
Purchaser Group to one or more Eurodollar Tranches with Eurodollar Periods
commencing on such Business Day by giving the Administrative Agent and the
Funding Agent with respect to such Purchaser Group irrevocable written or
telephonic (confirmed in writing) notice thereof, which notice must be received
by such Funding Agent prior to 1:00 p.m. (New York City time) three Business
Days prior to such Business Day. Such notice shall specify (i) the applicable
Business Day, (ii) the Eurodollar Period for each Eurodollar Tranche to which a
portion of the Available APA Bank Funding Amount with respect to such Purchaser
Group is to be allocated and (iii) the portion of such Available APA Bank
Funding Amount being allocated to each such Eurodollar Tranche. Upon receipt of
any such notice, the Funding Agent with respect to a Purchaser Group shall
notify the CP Conduit Purchaser and the APA Bank with respect to such Purchaser
Group of the contents of such notice promptly upon receipt thereof.
(c) Notwithstanding anything to the contrary contained in this
Section 2.7, (i) (A) each Match Funding CP Conduit Purchaser shall approve the
length of each CP Rate Period and the portion of the Available CP Funding Amount
with respect to such Match Funding CP Conduit Purchaser allocated to such CP
Rate Period, (B) such Match Funding CP Conduit Purchaser may select, in its sole
discretion, any new CP Rate Period if (x) AFC-II does not provide notice of a
new CP Rate Period on a timely basis or (y) the Funding Agent with respect to
such Match Funding CP Conduit Purchaser, on behalf of such Match Funding CP
Conduit Purchaser, determines, in its sole discretion, that the CP Rate Period
requested by AFC-II is unavailable or for any reason commercially undesirable
and (C) the portion of the Available CP Funding Amount with respect to such
Match Funding CP Conduit Purchaser allocable to each CP Tranche must be in an
amount equal to $1,000,000 or an integral multiple of $100,000 in excess thereof
and (ii) (A) the portion of the Available APA Bank Funding Amount with respect
to any Purchaser Group allocable to each Eurodollar Tranche must be in an amount
equal to $100,000 or an integral multiple of $100,000 in excess thereof, (B) no
more than 7 Eurodollar Tranches with respect to such Purchaser Group shall be
outstanding at any one time, (C) after the occurrence and during the continuance
of any Amortization Event with respect to the Series 2002-4 Notes or Potential
Amortization Event with respect to the Series 2002-4 Notes, AFC-II may not elect
to allocate any portion of the Available APA Bank Funding Amount with respect to
any Purchaser Group to a Eurodollar Tranche and (D) during the Series 2002-4
Amortization Period, AFC-II may not select any Eurodollar Period that does not
end on or prior to the next succeeding Distribution Date.
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(d) On any Business Day, a Match Funding CP Conduit Purchaser may
elect that AFC-II no longer be permitted to select CP Tranches in accordance
with Sections 2.7(b) and (c) in respect of the CP Conduit Funded Amount with
respect to such CP Conduit Purchaser by giving AFC-II and the Administrative
Agent irrevocable written notice thereof, which notice must be received by
AFC-II and the Administrative Agent at least one Business Day prior to such
Business Day. On any Business Day, a Pooled Funding CP Conduit Purchaser may
with the prior written consent of the Administrator (which consent shall not be
unreasonably withheld) elect thereafter to allow AFC-II to select CP Tranches in
accordance with Sections 2.7(b) and (c) in respect of the CP Conduit Funded
Amount with respect to such CP Conduit Purchaser by giving AFC-II and the
Administrative Agent irrevocable written notice thereof, which notice and
consent must be received by AFC-II and the Administrative Agent at least one
Business Day prior to such election. Any CP Conduit Purchaser making an election
to change the manner in which its funding costs in respect of its Series 2002-4
Note are allocated in accordance with this Section 2.7(d) will be both a Match
Funding CP Conduit Purchaser and a Pooled Funding CP Conduit Purchaser during
the period that its Series 2002-4 Note is funded on both a "pooled" and "match
funded" basis and its Monthly Funding Costs during that period will be
calculated accordingly.
(e) AFC-II shall pay with funds available pursuant to Section 3.3(a)
to the Administrative Agent, for the account of each Purchaser Group, on each
Distribution Date, a commitment fee with respect to the Series 2002-4 Interest
Period ending on the day preceding such Distribution Date (the "COMMITMENT FEE")
during the period from the Series 2002-4 Closing Date to and including the
Expiry Date with respect to such Purchaser Group at the Commitment Fee Rate of
the average daily Commitment Amount with respect to such Purchaser Group during
such Series 2002-4 Interest Period less the sum of the average daily Purchaser
Group Invested Amount with respect to such Purchaser Group and the average daily
Matched Purchaser Group Invested Amount with respect to such Purchaser Group
during such Series 2002-4 Interest Period. The Commitment Fees shall be payable
monthly in arrears on each Distribution Date.
(f) Calculations of per annum rates under this Supplement shall be
made on the basis of a 360- (or 365-/366- in the case of interest on the
Floating Tranche based on the Prime Rate) day year. Calculations of Commitment
Fees shall be made on the basis of a 360-day year. Each determination of the
Adjusted LIBOR Rate by the Administrative Agent shall be conclusive and binding
upon each of the parties hereto in the absence of manifest error.
Section 2.8. INDEMNIFICATION BY AFC-II. AFC-II agrees to indemnify and
hold harmless the Trustee, the Administrative Agent, each Funding Agent, each CP
Conduit Purchaser, each APA Bank and each of their respective officers,
directors, agents and employees (each, a "COMPANY INDEMNIFIED PERSON") from and
against any loss, liability, expense, damage or injury suffered or sustained by
(a "CLAIM") such Company indemnified person by reason of (i) any acts, omissions
or alleged acts or omissions arising out of, or relating to, activities of
AFC-II pursuant to the Indenture or the other Related Documents to which it is a
party, (ii) a breach of any representation or warranty made or deemed made by
AFC-II (or any of its officers) in the Indenture or other Related Document or
(iii) a failure by AFC-II to comply with any applicable law or regulation or to
perform its covenants, agreements, duties or obligations required to be
performed or observed by it in accordance with the provisions of the Indenture
or the other
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Related Documents, including, but not limited to, any judgment, award,
settlement, reasonable attorneys' fees and other reasonable costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim, except to the extent such loss, liability, expense, damage
or injury resulted from the gross negligence, bad faith or willful misconduct of
such Company indemnified person or its officers, directors, agents, principals,
employees or employers or includes any Excluded Taxes; PROVIDED that any
payments made by AFC-II pursuant to this Section 2.8 shall be made solely from
funds available pursuant to Section 3.3(e), shall be non-recourse other than
with respect to such funds, and shall not constitute a claim against AFC-II to
the extent that such funds are insufficient to make such payment.
Section 2.9. FUNDING AGENTS. (a) The Funding Agent with respect to
each Purchaser Group is hereby authorized to record on each Business Day the CP
Funded Amount with respect to such Purchaser Group and the aggregate amount of
Discount accruing with respect thereto on such Business Day and the APA Bank
Funded Amount with respect to such Purchaser Group and the amount of interest
accruing with respect thereto on such Business Day and, based on such
recordations, to determine the Monthly Funding Costs with respect to each Series
2002-4 Interest Period and such Purchaser Group. Any such recordation by a
Funding Agent, absent manifest error, shall constitute prima facie evidence of
the accuracy of the information so recorded. Furthermore, the Funding Agent with
respect to each Purchaser Group will maintain records sufficient to identify the
percentage interest of the related CP Conduit Purchaser and each APA Bank with
respect to such Purchaser Group holding an interest in the Series 2002-4 Note
registered in the name of such Funding Agent and any amounts owing thereunder.
(b) Upon receipt of funds from the Administrative Agent on each
Distribution Date and the date of any Decrease, each Funding Agent shall pay
such funds to the related CP Conduit Purchaser and/or the related APA Bank owed
such funds in accordance with the recordations maintained by it in accordance
with Section 2.9(a) and the Asset Purchase Agreement with respect to such CP
Conduit Purchaser. If a Funding Agent shall have paid to any CP Conduit
Purchaser or APA Bank any funds that (i) must be returned for any reason
(including bankruptcy) or (ii) exceeds that which such CP Conduit Purchaser or
APA Bank was entitled to receive, such amount shall be promptly repaid to such
Funding Agent by such CP Conduit Purchaser or APA Bank.
ARTICLE III
SERIES 2002-4 ALLOCATIONS
With respect to the Series 2002-4 Notes, the following shall apply:
Section 3.1. ESTABLISHMENT OF SERIES 2002-4 COLLECTION ACCOUNT, SERIES
2002-4 EXCESS COLLECTION ACCOUNT AND SERIES 2002-4 ACCRUED INTEREST ACCOUNT. (a)
All Collections allocable to the Series 2002-4 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 2002-4 Noteholders: the
Series 2002-4 Collection Account (such sub-account, the "SERIES 2002-4
COLLECTION ACCOUNT"), the Series
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2002-4 Excess Collection Account (such sub-account, the "SERIES 2002-4 EXCESS
COLLECTION ACCOUNT") and the Series 2002-4 Accrued Interest Account (such
sub-account, the "SERIES 2002-4 ACCRUED INTEREST ACCOUNT").
Section 3.2. ALLOCATIONS WITH RESPECT TO THE SERIES 2002-4 NOTES. The
net proceeds from the initial sale of the Series 2002-4 Notes and any Increase
will be deposited into the Collection Account. On each Business Day on which
Collections are deposited into the Collection Account (each such date, a "SERIES
2002-4 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 2002-4 REVOLVING
PERIOD. During the Series 2002-4 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 2002-4 Deposit
Date, all amounts deposited into the Collection Account as set forth below:
(i) allocate to the Series 2002-4 Collection Account an
amount equal to the Series 2002-4 Invested Percentage (as of such day)
of the aggregate amount of Interest Collections on such day. All such
amounts allocated to the Series 2002-4 Collection Account shall be
further allocated to the Series 2002-4 Accrued Interest Account; and
(ii) allocate to the Series 2002-4 Excess Collection Account
the sum of (A) the Series 2002-4 Invested Percentage (as of such day)
of the aggregate amount of Principal Collections on such day (for any
such day, the "SERIES 2002-4 PRINCIPAL ALLOCATION") and (B) the
proceeds from the initial issuance of the Series 2002-4 Notes and from
any Increase; PROVIDED, HOWEVER, if a Waiver Event shall have
occurred, then such allocation shall be modified as provided in
Article V of this Supplement.
(b) ALLOCATIONS OF COLLECTIONS DURING THE SERIES 2002-4 AMORTIZATION
PERIOD. With respect to the Series 2002-4 Amortization Period, other than 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 2002-4 Deposit Date, all amounts deposited into the Collection
Account as set forth below:
(i) allocate to the Series 2002-4 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 2002-4
Accrued Interest Account; and
(ii) allocate to the Series 2002-4 Collection Account an
amount equal to the Series 2002-4 Principal Allocation for such day,
which amount shall be used to make principal payments in respect of
the Series 2002-4 Notes, ratably, without preference or priority of
any kind, until the Series 2002-4 Invested Amount is paid in full;
PROVIDED that if on any Determination Date (A) the
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Administrator determines that the amount anticipated to be available
from Interest Collections allocable to the Series 2002-4 Notes and
other amounts available pursuant to Section 3.3 to pay Series 2002-4
Monthly Interest and the Commitment Fees on the next succeeding
Distribution Date will be less than the Series 2002-4 Monthly Interest
and Commitment Fees for the Series 2002-4 Interest Period ending on
the day preceding such Distribution Date and (B) the Series 2002-4
Enhancement Amount is greater than zero, then the Administrator shall
direct the Trustee in writing to reallocate a portion of the Principal
Collections allocated to the Series 2002-4 Notes during the Related
Month equal to the lesser of such insufficiency and the Series 2002-4
Enhancement Amount to the Series 2002-4 Accrued Interest Account to be
treated as Interest Collections on such Distribution Date.
(c) 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 2002-4 Deposit Date, all amounts deposited into
the Collection Account as set forth below:
(i) allocate to the Series 2002-4 Collection Account an
amount equal to the Series 2002-4 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. All such amounts allocated
to the Series 2002-4 Collection Account shall be further allocated to
the Series 2002-4 Accrued Interest Account; and
(ii) allocate to the Series 2002-4 Collection Account an
amount equal to the Series 2002-4 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 used
to make principal payments in respect of the Series 2002-4 Notes until
the Series 2002-4 Notes have been paid in full; PROVIDED that if on
any Determination Date (A) the Administrator determines that the
amount anticipated to be available from Interest Collections allocable
to the Series 2002-4 Notes and other amounts available pursuant to
Section 3.3 to pay Series 2002-4 Monthly Interest and the Commitment
Fees on the next succeeding Distribution Date will be less than the
Series 2002-4 Monthly Interest and Commitment Fees for the Series
2002-4 Interest Period ending on the day preceding such Distribution
Date and (B) the Series 2002-4 Enhancement Amount is greater than
zero, then the Administrator shall direct the Trustee in writing to
reallocate a portion of the Principal Collections allocated to the
Series 2002-4 Notes during the Related Month equal to the lesser of
such insufficiency and the Series 2002-4 Enhancement Amount to the
Series 2002-4 Accrued Interest Account to be treated as Interest
Collections on such Distribution Date.
(d) ALLOCATIONS FROM OTHER SERIES. Amounts allocated to other Series
of Notes that have been reallocated by AFC-II to the Series 2002-4 Notes (i)
during the Series
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2002-4 Revolving Period shall be allocated to the Series 2002-4 Excess
Collection Account and applied in accordance with Section 3.2(e) and (ii) during
the Series 2002-4 Amortization Period shall be allocated to the Series 2002-4
Collection Account and applied in accordance with Section 3.2(b) to make
principal payments in respect of the Series 2002-4 Notes.
(e) SERIES 2002-4 EXCESS COLLECTION ACCOUNT. Amounts allocated to
the Series 2002-4 Excess Collection Account on any Series 2002-4 Deposit Date
will be (i) first, used to reduce the Purchaser Group Invested Amount with
respect to any Non-Extending Purchaser Group to the extent required pursuant to
Section 2.5(d), (ii) second, deposited in the Series 2002-4 Reserve Account in
an amount up to the excess, if any, of the Series 2002-4 Required Reserve
Account Amount for such date, after giving effect to any Increase or Decrease on
such date, over the Series 2002-4 Available Reserve Account Amount for such
date, (iii) third, to the extent directed by AFC-II used to pay the principal
amount of other Series of Notes that are then required to be paid, (iv) fourth,
to the extent directed in writing by the Administrator, used to make a voluntary
Decrease in the Series 2002-4 Invested Amount, (v) fifth, to the extent directed
in writing by the Administrator used to make a voluntary decrease in the
Invested Amount of any other Series of Notes that may be reduced in accordance
with the Indenture, (vi) sixth, 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 (vii)
seventh, 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 (v), (vi)
and (vii), that no 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 2002-4 Excess Collection
Account will be withdrawn by the Trustee, deposited in the Series 2002-4
Collection Account and allocated as Principal Collections to reduce the Series
2002-4 Invested Amount on the immediately succeeding Distribution Date.
(f) PAST DUE RENTAL PAYMENTS. Notwithstanding Section 3.2(a), if
after the occurrence of a Series 2002-4 Lease Payment Deficit, the Lessees shall
make payments of Monthly Base Rent or other amounts payable by the Lessees under
the Leases on or prior to the fifth Business Day after the occurrence of such
Series 2002-4 Lease Payment Deficit (a "PAST DUE RENT PAYMENT"), the
Administrator shall direct the Trustee in writing pursuant to the Administration
Agreement to allocate to the Series 2002-4 Collection Account an amount equal to
the Series 2002-4 Invested Percentage as of the date of the occurrence of such
Series 2002-4 Lease Payment Deficit of the Collections attributable to such Past
Due Rent Payment (the "SERIES 2002-4 PAST DUE RENT PAYMENT"). The Administrator
shall instruct the Trustee in writing pursuant to the Administration Agreement
to withdraw from the Series 2002-4 Collection Account and apply the Series
2002-4 Past Due Rent Payment in the following order:
(i) if the occurrence of such Series 2002-4 Lease Payment
Deficit resulted in a withdrawal being made from the Series 2002-4
Reserve Account pursuant to Section 3.3(d), deposit in the Series
2002-4 Reserve Account an amount equal to the lesser of (x) the Series
2002-4 Past Due Rent Payment and
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(y) the excess, if any, of the Series 2002-4 Required Reserve Account
Amount over the Series 2002-4 Available Reserve Account Amount on such
day;
(ii) if the occurrence of the related Series 2002-4 Lease
Payment Deficit resulted in one or more Lease Deficit Disbursements
being made under the Series 2002-4 Letters of Credit, pay to each
Series 2002-4 Letter of Credit Provider who made such a Lease Deficit
Disbursement for application in accordance with the provisions of the
applicable Series 2002-4 Reimbursement Agreement an amount equal to
the lesser of (x) the unreimbursed amount of such Series 2002-4 Letter
of Credit Provider's Lease Deficit Disbursement and (y) such Series
2002-4 Letter of Credit Provider's pro rata share, calculated on the
basis of the unreimbursed amount of each Series 2002-4 Letter of
Credit Provider's Lease Deficit Disbursement, of the amount of the
Series 2002-4 Past Due Rent Payment remaining after payment pursuant
to clause (i) above;
(iii) if the occurrence of such Series 2002-4 Lease Payment
Deficit resulted in a withdrawal being made from the Series 2002-4
Cash Collateral Account, deposit in the Series 2002-4 Cash Collateral
Account an amount equal to the lesser of (x) the amount of the Series
2002-4 Past Due Rent Payment remaining after any payment pursuant to
clauses (i) and (ii) above and (y) the amount withdrawn from the
Series 2002-4 Cash Collateral Account on account of such Series 2002-4
Lease Payment Deficit;
(iv) allocate to the Series 2002-4 Accrued Interest Account
the amount, if any, by which the Series 2002-4 Lease Interest Payment
Deficit, if any, relating to such Series 2002-4 Lease Payment Deficit
exceeds the amount of the Series 2002-4 Past Due Rent Payment applied
pursuant to clauses (i), (ii) and (iii) above; and
(v) treat the remaining amount of the Series 2002-4 Past Due
Rent Payment as Principal Collections allocated to the Series 2002-4
Notes in accordance with Section 3.2(a)(ii) or 3.2(b)(ii), as the case
may be.
Section 3.3. PAYMENTS TO NOTEHOLDERS. The Funding Agent with respect
to each Purchaser Group shall provide written notice to the Administrative Agent
(x) no later than two Business Days prior to each Determination Date, setting
forth the Monthly Funding Costs with respect to such Purchaser Group with
respect to the portion of the current Series 2002-4 Interest Period ending on
such Business Day and a reasonable estimation of the Monthly Funding Costs with
respect to such Purchaser Group for the remainder of such Series 2002-4 Interest
Period and (y) within three Business Days after the end of each calendar month,
setting forth the Monthly Funding Costs (calculated as if such calendar month
was a Series 2002-4 Interest Period) with respect to such Purchaser Group for
such calendar month. The Administrative Agent shall, within two Business Days
following its receipt of such information, compile the information provided in
such written notice provided pursuant to (x) or (y) above, as applicable, into
one written notice for all Purchaser Groups and forward such notice to the
Administrator. On each Determination Date, the Administrator shall determine the
Series 2002-4 Note Rate for the current Series 2002-4 Interest Period. If the
actual amount of the Monthly Funding Costs with
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respect to any Purchaser Group for a Series 2002-4 Interest Period is less than
or greater than the amount thereof estimated by the Funding Agent with respect
to such Purchaser Group on a Determination Date, such Funding Agent shall notify
the Administrator and the Administrative Agent thereof on the next succeeding
Determination Date and the Administrator will reduce or increase the Monthly
Funding Costs with respect to such Purchaser Group for the next succeeding
Series 2002-4 Interest Period accordingly. The Administrator shall determine the
Series 2002-4 Note Rate for the last Series 2002-4 Interest Period on the
Determination Date immediately preceding the final Distribution Date based on
the information provided by the Funding Agents. If a Funding Agent determines
that the actual Monthly Funding Costs with respect to its Purchaser Group for
the last Series 2002-4 Interest Period will be more or less than the estimate
thereof provided to the Administrator and informs the Administrator of such
variance prior to the Distribution Date for such Series 2002-4 Interest Period,
the Administrator will recalculate the Series 2002-4 Note Rate for such Series
2002-4 Interest Period. 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 the following Distribution 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) below in respect of all funds available from Interest
Collections processed since the preceding Distribution Date and allocated to the
holders of the Series 2002-4 Notes.
(a) NOTE INTEREST WITH RESPECT TO THE SERIES 2002-4 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 paid pursuant to Section 3.4 from the Series 2002-4 Accrued
Interest Account to the extent funds are anticipated to be available from
Interest Collections allocable to the Series 2002-4 Notes processed from, but
not including, the preceding Distribution Date through the succeeding
Distribution Date in respect of (x) first, an amount equal to the Series 2002-4
Monthly Interest for the Series 2002-4 Interest Period ending on the day
preceding the related Distribution Date, (y) second, an amount equal to the
Commitment Fees for each Purchaser Group for the Series 2002-4 Interest Period
ending on the day preceding the related Distribution Date and (z) third, an
amount equal to the amount of any unpaid Series 2002-4 Shortfall as of the
preceding Distribution Date (together with any accrued interest on such Series
2002-4 Shortfall). On the following Distribution Date, the Trustee shall
withdraw the amounts described in the first sentence of this Section 3.3(a) from
the Series 2002-4 Accrued Interest Account and deposit such amounts in the
Series 2002-4 Distribution Account.
(b) WITHDRAWALS FROM SERIES 2002-4 RESERVE ACCOUNT. If the
Administrator determines on any Distribution Date that the amounts available
from the Series 2002-4 Accrued Interest Account are insufficient to pay the sum
of the amounts described in clauses (x), (y) and (z) of Section 3.3(a) above on
such Distribution Date, the Administrator shall instruct the Trustee in writing
to withdraw from the Series 2002-4 Reserve Account and deposit in the Series
2002-4 Distribution Account on such Distribution Date an amount equal to the
lesser of the Series 2002-4 Available Reserve Account Amount and such
insufficiency. The Trustee shall withdraw such amount from the Series 2002-4
Reserve Account and deposit such amount in the Series 2002-4 Distribution
Account.
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(c) 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 2002-4 Lease Payment Deficit, such notification to
be in the form of EXHIBIT F to this Supplement (each a "LEASE PAYMENT DEFICIT
Notice").
(d) DRAWS ON SERIES 2002-4 LETTERS OF CREDIT FOR SERIES 2002-4
LEASE INTEREST PAYMENT DEFICITS. If the Administrator determines on any
Distribution Date that there exists a Series 2002-4 Lease Interest Payment
Deficit, the Administrator shall instruct the Trustee in writing to draw on the
Series 2002-4 Letters of Credit, if any, and, the Trustee shall, by 12:00 noon
(New York City time) on such Distribution Date draw an amount (identified by the
Administrator) equal to the least of (i) such Series 2002-4 Lease Interest
Payment Deficit, (ii) the excess, if any, of the sum of the amounts described in
clauses (x), (y) and (z) of Section 3.3(a) above on such Distribution Date over
the amounts available from the Series 2002-4 Accrued Interest Account on such
Distribution Date plus the amount withdrawn from the Series 20002-4 Reserve
Account pursuant to Section 3.3(b) and (iii) the Series 2002-4 Letter of Credit
Liquidity Amount on the Series 2002-4 Letters of Credit by presenting to each
Series 2002-4 Letter of Credit Provider a draft accompanied by a Certificate of
Lease Deficit Demand and shall cause the Lease Deficit Disbursements to be
deposited in the Series 2002-4 Distribution Account on such Distribution Date
for distribution in accordance with Section 3.4; PROVIDED, however, that if the
Series 2002-4 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2002-4 Cash Collateral Account and
deposit in the Series 2002-4 Distribution Account an amount equal to the lesser
of (x) the Series 2002-4 Cash Collateral Percentage on such Distribution Date of
the least of the amounts described in clauses (i), (ii) and (iii) above and (y)
the Series 2002-4 Available Cash Collateral Account Amount on such Distribution
Date and draw an amount equal to the remainder of such amount on the Series
2002-4 Letters of Credit.
(e) BALANCE. On or prior to the second Business Day preceding each
Distribution Date, the Administrator shall instruct 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)), if any, of the amounts
available from the Series 2002-4 Accrued Interest Account as follows:
(i) on each Distribution Date during the Series 2002-4
Revolving Period, (1) first, to the Administrator, an amount equal to
the Series 2002-4 Percentage as of the beginning of such Series 2002-4
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 Series 2002-4 Interest Period, (2) second, to the
Trustee, an amount equal to the Series 2002-4 Percentage as of the
beginning of such Series 2002-4 Interest Period of the Trustee's fees
for such Series 2002-4 Interest Period, (3) third, to the Series
2002-4 Distribution Account to pay any Article VII Costs, (4) fourth,
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 2002-4 Percentage as of the beginning of such Series
2002-4 Interest Period of such Carrying Charges (other than Carrying
Charges provided for above) for such Series 2002-4 Interest Period and
(5) fifth, the balance, if any ("EXCESS COLLECTIONS"), shall be
withdrawn by the Paying Agent
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from the Series 2002-4 Collection Account and deposited in the Series
2002-4 Excess Collection Account; and
(ii) on each Distribution Date during the Series 2002-4
Amortization Period, (1) first, to the Trustee, an amount equal to the
Series 2002-4 Percentage as of the beginning of such Series 2002-4
Interest Period of the Trustee's fees for such Series 2002-4 Interest
Period, (2) second, to the Administrator, an amount equal to the
Series 2002-4 Percentage as of the beginning of such Series 2002-4
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 Series 2002-4 Interest Period, (3) third, to the Series
2002-4 Distribution Account to pay any Article VII Costs, (4) fourth,
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 2002-4 Percentage as of the beginning of such Series
2002-4 Interest Period of such Carrying Charges (other than Carrying
Charges provided for above) for such Series 2002-4 Interest Period and
(5) fifth, the balance, if any, shall be treated as Principal
Collections.
(f) SHORTFALLS. If the amounts described in Section 3.3 are
insufficient to pay the Series 2002-4 Monthly Interest and the Commitment Fees
of the Purchaser Groups on any Distribution Date, payments of interest to the
Series 2002-4 Noteholders and payments of Commitment Fees to the Purchaser
Groups 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 2002-4 SHORTFALL." Interest shall accrue on the
Series 2002-4 Shortfall at the Alternate Base Rate plus 2% per annum.
Section 3.4. PAYMENT OF NOTE INTEREST AND COMMITMENT FEES. On each
Distribution Date, 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
Administrative Agent for the accounts of the Purchaser Groups from the Series
2002-4 Distribution Account the amounts deposited in the Series 2002-4
Distribution Account pursuant to Section 3.3. Upon the receipt of funds from the
Paying Agent on each Distribution Date on account of Series 2002-4 Monthly
Interest, the Administrative Agent shall pay to each Funding Agent with respect
to a Purchaser Group an amount equal to the Monthly Funding Costs with respect
to such Purchaser Group with respect to the Series 2002-4 Interest Period ending
on the day preceding such Distribution Date PLUS the amount of any unpaid Series
2002-4 Shortfalls relating to unpaid Series 2002-4 Monthly Interest payable to
such Purchaser Group as of the preceding Distribution Date, together with any
interest thereon at the Alternate Base Rate plus 2% per annum. If the amount
paid to the Administrative Agent on any Distribution Date pursuant to this
Section 3.4 on account of Series 2002-4 Monthly Interest for the Series 2002-4
Interest Period ending on the day preceding such Distribution Date is less than
such Series 2002-4 Monthly Interest, the Administrative Agent shall pay the
amount available to the Funding Agents, on behalf of the Purchaser Groups, on a
PRO RATA basis, based on the Monthly Funding Costs with respect to each
Purchaser Group with respect to such Series 2002-4 Interest Period. Upon the
receipt of funds from the Paying Agent on each Distribution Date on account of
Commitment Fees, the Administrative Agent shall pay to each Funding Agent with
respect to a Purchaser Group an amount equal to the Commitment Fee payable to
such Purchaser Group with respect to the Series 2002-4 Interest Period ending on
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the day preceding such Distribution Date PLUS the amount of any unpaid Series
2002-4 Shortfalls relating to unpaid Commitment Fees payable to such Purchaser
Group as of the preceding Distribution Date, together with any interest thereon
at the Alternate Base Rate plus 2% per annum. If the amount paid to the
Administrative Agent on any Distribution Date pursuant to this Section 3.4 on
account of Commitment Fees is less than the Commitment Fees payable on such
Distribution Date, the Administrative Agent shall pay the amount available to
the Funding Agents, on behalf of the Purchaser Groups, on a PRO RATA basis,
based on the Commitment Fee payable to each Purchaser Group on such Distribution
Date. Upon the receipt of funds from the Trustee or the Paying Agent on any
Distribution Date on account of Article VII Costs, the Administrative Agent
shall pay such amounts to the Funding Agent with respect to the CP Conduit
Purchaser or the APA Bank owed such amounts. If the amounts paid to the
Administrative Agent on any Distribution Date pursuant to Section 3.3(e) on
account of Article VII Costs are less than the Article VII Costs due and payable
on such Distribution Date, the Administrative Agent shall pay the amounts
available to the Funding Agents with respect to the CP Conduit Purchasers and
APA Banks owed such amounts, on a PRO RATA basis, based on the Article VII Costs
owing to such CP Conduit Purchasers and APA Banks. Due and unpaid Article VII
Costs owing to a Purchaser Group shall accrue interest at the Alternate Base
Rate PLUS 2%; PROVIDED that Article VII Costs shall not be considered due until
the first Distribution Date following five days notice to AFC-II and the
Administrator of such Article VII Costs.
Section 3.5. PAYMENT OF NOTE PRINCIPAL. (a) MONTHLY PAYMENTS DURING
SERIES 2002-4 AMORTIZATION PERIOD. Commencing on the first Determination Date
after the commencement of the Series 2002-4 Amortization Period, 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 2002-4 Notes during the Related
Month pursuant to Section 3.2(b)(ii) or (c)(ii), as the case may be, (ii) any
amounts to be withdrawn from the Series 2002-4 Reserve Account and deposited
into the Series 2002-4 Distribution Account or (iii) any amounts to be drawn on
the Series 2002-4 Demand Notes and/or on the Series 2002-4 Letters of Credit (or
withdrawn from the Series 2002-4 Cash Collateral Account). On the Distribution
Date following each such Determination Date, the Trustee shall withdraw the
amount allocated to the Series 2002-4 Notes during the Related Month pursuant to
Section 3.2(b)(ii) or (c)(ii), as the case may be, from the Series 2002-4
Collection Account and deposit such amount in the Series 2002-4 Distribution
Account, to be paid to the holders of the Series 2002-4 Notes.
(b) DECREASES. On any Business Day during the Series 2002-Revolving
Period on which a Decrease is to be made pursuant to Section 2.5, the Trustee
shall withdraw from the Series 2002-4 Excess Collection Account in accordance
with the written instructions of the Administrator an amount equal to the lesser
of (i) the funds then allocated to the Series 2002-4 Excess Collection Account
and (ii) the amount of such Decrease, and deposit such amount in the Series
2002-4 Distribution Account, to be paid to the Administrative Agent for
distribution in accordance with Section 3.5(f).
(c) PRINCIPAL DEFICIT AMOUNT. On each Distribution Date on which the
Principal Deficit Amount is greater than zero, amounts shall be transferred to
the Series 2002-4 Distribution Account as follows:
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(i) RESERVE ACCOUNT WITHDRAWAL. The Administrator shall
instruct the Trustee in writing prior to 12:00 noon (New York City
time) on such Distribution Date, in the case of a Principal Deficit
Amount resulting from a Series 2002-4 Lease Payment Deficit, or prior
to 12:00 noon (New York City time) on the second Business Day prior to
such Distribution Date, in the case of any other Principal Deficit
Amount, to withdraw from the Series 2002-4 Reserve Account, an amount
equal to the lesser of (x) the Series 2002-4 Available Reserve Account
Amount and (y) such Principal Deficit Amount and deposit it in the
Series 2002-4 Distribution Account on such Distribution Date.
(ii) PRINCIPAL DRAWS ON SERIES 2002-4 LETTERS OF CREDIT. If
the Administrator determines on any Distribution Date during the
Series 2002-4 Amortization Period that there exists a Series 2002-4
Lease Principal Payment Deficit, the Administrator shall instruct the
Trustee in writing to draw on the Series 2002-4 Letters of Credit, if
any, as provided below. Upon receipt of a notice by the Trustee from
the Administrator in respect of a Series 2002-4 Lease Principal
Payment Deficit on or prior to 11:00 a.m. (New York City time) on a
Distribution Date, the Trustee shall, by 12:00 noon (New York City
time) on such Distribution Date draw an amount as set forth in such
notice equal to the least of (i) such Series 2002-4 Lease Principal
Payment Deficit, (ii) the amount by which the Principal Deficit Amount
on such Distribution Date exceeds the amount to be deposited in the
Series 2002-4 Distribution Account in accordance with clause (i) of
this Section 3.5(c) and (iii) the Series 2002-4 Letter of Credit
Amount, on the Series 2002-4 Letters of Credit by presenting to each
Series 2002-4 Letter of Credit Provider a draft accompanied by a
Certificate of Lease Deficit Demand and shall cause the Lease Deficit
Disbursements to be deposited in the Series 2002-4 Distribution
Account on such Distribution Date; PROVIDED, HOWEVER, that if the
Series 2002-4 Cash Collateral Account has been established and funded,
the Trustee shall withdraw from the Series 2002-4 Cash Collateral
Account and deposit in the Series 2002-4 Distribution Account an
amount equal to the lesser of (x) the Series 2002-4 Cash Collateral
Percentage on such Distribution Date of the least of the amounts
described in clauses (i), (ii) and (iii) above and (y) the Series
2002-4 Available Cash Collateral Account Amount on such Distribution
Date and draw an amount equal to the remainder of such amount on the
Series 2002-4 Letters of Credit.
(iii) DEMAND NOTE DRAW. If on any Determination Date, the
Administrator determines that the Principal Deficit Amount on the next
succeeding Distribution Date (after giving effect to any withdrawal
from the Series 2002-2 Reserve Account pursuant to Section 3.5(c)(i)
on such Distribution Date) will be greater than zero and there are any
Series 2002-4 Letters of Credit on such date, prior to 10:00 a.m. (New
York City time) on the second Business Day prior to such 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 lesser of (A) the Principal Deficit Amount
and (B) the Series 2002-4 Letter of Credit Amount. The Trustee shall,
prior to 12:00 noon (New York City time) on the second Business Day
preceding such Distribution
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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 such Demand Note Issuer. The
Trustee shall cause the proceeds of any demand on the Series 2002-4
Demand Notes to be deposited into the Series 2002-4 Distribution
Account.
(iv) LETTER OF CREDIT DRAW. 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 clause (ii) of this Section 3.5(d) any
Demand Note Issuer shall have failed to pay to the Trustee or deposit
into the Series 2002-4 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
any Demand Note Issuer on the second Business Day preceding the Series
2002-4 Termination Date, then, in the case of (x) or (y) the Trustee
shall draw on the Series 2002-4 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 2002-4 Demand Notes (or, the amount that the Trustee failed to
demand for payment thereunder) and (b) the Series 2002-4 Letter of
Credit Amount on such Business Day by presenting to each Series 2002-4
Letter of Credit Provider a draft accompanied by a Certificate of
Unpaid Demand Note Demand; PROVIDED, HOWEVER, that if the Series
2002-4 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2002-4 Cash Collateral Account
and deposit in the Series 2002-4 Distribution Account an amount equal
to the lesser of (x) the Series 2002-4 Cash Collateral Percentage on
such Business Day of the amount that the Demand Note Issuers failed to
pay under the Series 2002-4 Demand Notes (or, the amount that the
Trustee failed to demand for payment thereunder) and (y) the Series
2002-4 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 2002-4 Demand Notes
(or, the amount that the Trustee failed to demand for payment
thereunder) on the Series 2002-4 Letters of Credit. The Trustee shall
deposit, or cause the deposit of, the proceeds of any draw on the
Series 2002-4 Letters of Credit and the proceeds of any withdrawal
from the Series 2002-4 Cash Collateral Account to be deposited in the
Series 2002-4 Distribution Account.
(d) SERIES 2002-4 TERMINATION DATE. The entire Series 2002-4
Invested Amount shall be due and payable on the Series 2002-4 Termination Date.
In connection therewith:
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(i) RESERVE ACCOUNT WITHDRAWAL. If, after giving effect to
the deposit into the Series 2002-4 Distribution Account of the amount
to be deposited in accordance with Section 3.5(a), together with any
amounts to be deposited therein in accordance with Section 3.5(c) on
the Series 2002-4 Termination Date, the amount to be deposited in the
Series 2002-4 Distribution Account with respect to the Series 2002-4
Termination Date is or will be less than the Series 2002-4 Invested
Amount, then, prior to 12:00 noon (New York City time) on the second
Business Day prior to the Series 2002-4 Termination Date, the
Administrator shall instruct the Trustee in writing to withdraw from
the Series 2002-4 Reserve Account, an amount equal to the lesser of
the Series 2002-4 Available Reserve Account Amount and such
insufficiency and deposit it in the Series 2002-4 Distribution Account
on the Series 2002-4 Termination Date.
(ii) DEMAND NOTE DRAW. If the amount to be deposited in the
Series 2002-4 Distribution Account in accordance with Section 3.5(a)
together with any amounts to be deposited therein in accordance with
Section 3.5(c) and Section 3.5(d)(i) on the Series 2002-4 Termination
Date is less than the Series 2002-4 Invested Amount, and there are any
Series 2002-4 Letters of Credit on such date, then, prior to 10:00
a.m. (New York City time) on the second Business Day prior to the
Series 2002-4 Termination 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 2002-4 Demand Notes in an amount equal to
the lesser of (i) such insufficiency and (ii) the Series 2002-4 Letter
of Credit Amount. The Trustee shall, prior to 12:00 noon (New York
City time) on the second Business Day preceding the Series 2002-4
Termination 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
such Demand Note Issuer. The Trustee shall cause the proceeds of any
demand on the Series 2002-4 Demand Notes to be deposited into the
Series 2002-4 Distribution Account.
(iii) LETTER OF CREDIT DRAW. 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 Distribution Date, any Demand Note Issuer shall have failed to
pay to the Trustee or deposit in the Series 2002-4 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 any Demand Note Issuer on the second
Business Day preceding such Distribution Date, then, in the case of
(x) or (y) the Trustee shall on such Business Day draw on the Series
2002-4 Letters of Credit an amount equal to the lesser of (i) Series
2002-4 Letter of Credit Amount and (ii) the aggregate amount that the
Demand Note Issuers failed to pay under the Series 2002-4 Demand Notes
(or, the amount
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that the Trustee failed to demand for payment thereunder) by
presenting to each Series 2002-4 Letter of Credit Provider a draft
accompanied by a Certificate of Unpaid Demand Note Demand; PROVIDED,
HOWEVER, that if the Series 2002-4 Cash Collateral Account has been
established and funded, the Trustee shall withdraw from the Series
2002-4 Cash Collateral Account and deposit in the Series 2002-4
Distribution Account an amount equal to the lesser of (x) the Series
2002-4 Cash Collateral Percentage on such Business Day of the
aggregate amount that the Demand Note Issuers failed to pay under the
Series 2002-4 Demand Notes (or, the amount that the Trustee failed to
demand for payment thereunder) and (y) the Series 2002-4 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 2002-4 Demand Notes (or, the
amount that the Trustee failed to demand for payment thereunder) on
the Series 2002-4 Letters of Credit. The Trustee shall deposit into,
or cause the deposit of, the proceeds of any draw on the Series 2002-4
Letters of Credit and the proceeds of any withdrawal from the Series
2002-4 Cash Collateral Account to be deposited in the Series 2002-4
Distribution Account.
(e) DISTRIBUTION. On each Distribution Date occurring on or after
the date a withdrawal is made from the Series 2002-4 Collection Account pursuant
to Section 3.5(a) or amounts are deposited in the Series 2002-4 Distribution
Account pursuant to Section 3.5(c) and/or (d), the Paying Agent shall, in
accordance with Section 6.1 of the Base Indenture, pay to the Administrative
Agent for the accounts of the Purchaser Groups from the Series 2002-4
Distribution Account the amount deposited therein pursuant to Section 3.5(a),
(c), and/or (d).
(f) Upon the receipt of funds on account of a Decrease from the
Trustee, the Administrative Agent shall pay first, to each Funding Agent with
respect to a Non-Extending Purchaser Group a PRO RATA amount of the Decrease,
based on the Purchaser Group Invested Amounts with respect to such Non-Extending
Purchaser Group relative to the Purchaser Group Invested Amounts with respect to
all Non-Extending Purchaser Groups on the date of such Decrease and second, to
each Funding Agent with respect to a Purchaser Group, such Purchaser Group's Pro
Rata Share of the remaining amount of such Decrease. Each Purchaser Group's
share of the amount of any Decrease on any Business Day shall be allocated by
such Purchaser Group first to reduce the Available CP Funding Amount with
respect to such Purchaser Group and the Available APA Bank Funding Amount with
respect to such Purchaser Group on such Business Day and then to reduce the
portion of the Purchaser Group Invested Amount with respect to such Purchaser
Group allocated to CP Tranches and Eurodollar Tranches in such order as such
Purchaser Group may select in order to minimize costs payable pursuant to
Section 7.3. Upon the receipt of funds from the Trustee pursuant to Sections
3.5(a), (c) and/or (d) on any Distribution Date, the Administrative Agent shall
pay to each Funding Agent with respect to a Purchaser Group, such Purchaser
Group's Pro Rata Share of such funds.
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
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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 2002-4 RESERVE ACCOUNT. (a) ESTABLISHMENT OF
SERIES 2002-4 RESERVE ACCOUNT. AFC-II shall establish and maintain in the name
of the Series 2002-4 Agent for the benefit of the Series 2002-4 Noteholders, or
cause to be established and maintained, an account (the "SERIES 2002-4 RESERVE
ACCOUNT"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Series 2002-4 Noteholders. The Series
2002-4 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 2002-4 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 S&P or "Baa2"
by Moody's, then AFC-II shall, within 30 days of such reduction, establish a new
Series 2002-4 Reserve Account with a new Qualified Institution. If the Series
2002-4 Reserve Account is not maintained in accordance with the previous
sentence, AFC-II shall establish a new Series 2002-4 Reserve Account, within ten
(10) Business Days after obtaining knowledge of such fact, which complies with
such sentence, and shall instruct the Series 2002-4 Agent in writing to transfer
all cash and investments from the non-qualifying Series 2002-4 Reserve Account
into the new Series 2002-4 Reserve Account. Initially, the Series 2002-4 Reserve
Account will be established with The Bank of New York.
(b) ADMINISTRATION OF THE SERIES 2002-4 RESERVE ACCOUNT. The
Administrator may instruct the institution maintaining the Series 2002-4 Reserve
Account to invest funds on deposit in the Series 2002-4 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
Distribution Date following the date on which such funds were received, unless
any Permitted Investment held in the Series 2002-4 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 2002-4
Reserve 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 (as
defined in Section 8-106 of the New York UCC) 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.
(c) EARNINGS FROM SERIES 2002-4 RESERVE ACCOUNT. All interest and
earnings (net of losses and investment expenses) paid on funds on deposit in the
Series 2002-4 Reserve Account shall be deemed to be on deposit therein and
available for distribution.
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(d) SERIES 2002-4 RESERVE ACCOUNT CONSTITUTES ADDITIONAL COLLATERAL
FOR SERIES 2002-4 NOTES. In order to secure and provide for the repayment and
payment of the AFC-II Obligations with respect to the Series 2002-4 Notes,
AFC-II hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Series 2002-4 Agent, for the benefit of the
Series 2002-4 Noteholders, all of AFC-II's right, title and interest in and to
the following (whether now or hereafter existing or acquired): (i) the Series
2002-4 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 2002-4
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
2002-4 Reserve 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 2002-4 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
2002-4 RESERVE ACCOUNT COLLATERAL"). The Series 2002-4 Agent shall possess all
right, title and interest in and to all funds on deposit from time to time in
the Series 2002-4 Reserve Account and in all proceeds thereof, and shall be the
only person authorized to originate entitlement orders in respect of the Series
2002-4 Reserve Account. The Series 2002-4 Reserve Account Collateral shall be
under the sole dominion and control of the Series 2002-4 Agent for the benefit
of the Series 2002-4 Noteholders. The Series 2002-4 Agent hereby agrees (i) to
act as the securities intermediary (as defined in Section 8-102(a)(14) of the
New York UCC) with respect to the Series 2002-4 Reserve Account; (ii) that each
item of property (whether investment property, financial asset, security,
instrument or cash) credited to the Series 2002-4 Reserve Account shall be
treated as a financial asset (as defined in Section 8-102(a)(9) of the New York
UCC) and (iii) to comply with any entitlement order (as defined in Section
8-102(a)(8) of the New York UCC) issued by the Trustee.
(e) PREFERENCE AMOUNT WITHDRAWALS FROM THE SERIES 2002-4 RESERVE
ACCOUNT OR THE SERIES 2002-4 CASH COLLATERAL ACCOUNT. If a member of a Purchaser
Group notifies the Trustee in writing of the existence of a Preference Amount,
then, subject to the satisfaction of the conditions set forth in the next
succeeding sentence, on the Business Day on which those conditions are first
satisfied, the Trustee shall withdraw from either (x) prior to the Series 2002-4
Letter of Credit Termination Date, the Series 2002-4 Reserve Account or (y) on
or after the Series 2002-4 Letter of Credit Termination Date, the Series 2002-4
Cash Collateral Account and pay to the Funding Agent for such member an amount
equal to such Preference Amount. Prior to any withdrawal from the Series 2002-4
Reserve Account or the Series 2002-4 Cash Collateral Account pursuant to this
Section 3.7(e), the Trustee shall have received (i) a certified copy of the
order requiring the return of such Preference Amount; (ii) an opinion of counsel
satisfactory to the Trustee that such order is final and not subject to appeal;
and (iii) a release as to any claim against AFC-II by the Purchaser Group for
any amount paid in respect of such Preference Amount. On the Business Day after
the Series 2002-4 Letter of Credit Termination Date, the Trustee shall transfer
the amount on deposit in the Series 2002-4 Reserve Account to the Series 2002-4
Cash Collateral Account.
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(f) SERIES 2002-4 RESERVE ACCOUNT SURPLUS. In the event that the
Series 2002-4 Reserve Account Surplus on any Distribution Date, after giving
effect to all withdrawals from the Series 2002-4 Reserve Account, is greater
than zero, the Trustee, acting in accordance with the written instructions of
the Administrator pursuant to the Administration Agreement, shall withdraw from
the Series 2002-4 Reserve Account an amount equal to the Series 2002-4 Reserve
Account Surplus and shall pay such amount to AFC-II.
(g) TERMINATION OF SERIES 2002-4 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 2002-4
Noteholders and payable from the Series 2002-4 Reserve Account as provided
herein, shall withdraw from the Series 2002-4 Reserve Account all amounts on
deposit therein for payment to AFC-II.
Section 3.8. SERIES 2002-4 LETTERS OF CREDIT AND SERIES 2002-4 CASH
COLLATERAL ACCOUNT. (a) SERIES 2002-4 LETTERS OF CREDIT AND SERIES 2002-4 CASH
COLLATERAL ACCOUNT CONSTITUTE ADDITIONAL COLLATERAL FOR SERIES 2002-4 NOTES. In
order to secure and provide for the repayment and payment of the AFC-II
Obligations with respect to the Series 2002-4 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 2002-4 Noteholders, all of AFC-II's
right, title and interest in and to the following (whether now or hereafter
existing or acquired): (i) each Series 2002-4 Letter of Credit; (ii) the Series
2002-4 Cash Collateral Account, including any security entitlement thereto;
(iii) all funds on deposit in the Series 2002-4 Cash Collateral Account from
time to time; (iv) all certificates and instruments, if any, representing or
evidencing any or all of the Series 2002-4 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 2002-4 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 2002-4 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 2002-4
CASH COLLATERAL ACCOUNT COLLATERAL"). The Trustee shall, for the benefit of the
Series 2002-4 Noteholders, possess all right, title and interest in all funds on
deposit from time to time in the Series 2002-4 Cash Collateral Account and in
all proceeds thereof, and shall be the only person authorized to originate
entitlement orders in respect of the Series 2002-4 Cash Collateral Account. The
Series 2002-4 Cash Collateral Account shall be under the sole dominion and
control of the Trustee for the benefit of the Series 2002-4 Noteholders. The
Series 2002-4 Agent hereby agrees (i) to act as the securities intermediary (as
defined in Section 8-102(a)(14) of the New York UCC) with respect to the Series
2002-4 Cash Collateral Account; (ii) that each item of property (whether
investment property, financial asset, security, instrument or cash) credited to
the Series 2002-4 Cash Collateral Account shall be treated as a financial asset
(as defined in Section 8-102(a)(9) of the New York UCC) and (iii) to comply with
any entitlement order (as defined in Section 8-102(a)(8) of the New York UCC)
issued by the Trustee.
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(b) SERIES 2002-4 LETTER OF CREDIT EXPIRATION DATE. If prior to the
date which is ten (10) days prior to the then scheduled Series 2002-4 Letter of
Credit Expiration Date with respect to any Series 2002-4 Letter of Credit,
excluding the amount available to be drawn under such Series 2002-4 Letter of
Credit but taking into account each substitute Series 2002-4 Letter of Credit
which has been obtained from a Series 2002-4 Eligible Letter of Credit Provider
and is in full force and effect on such date, the Series 2002-4 Enhancement
Amount would be equal to or more than the Series 2002-4 Required Enhancement
Amount and the Series 2002-4 Liquidity Amount would be equal to or greater than
the Series 2002-4 Required Liquidity Amount, then the Administrator shall notify
the Trustee in writing no later than two Business Days prior to such Series
2002-4 Letter of Credit Expiration Date of such determination. If prior to the
date which is ten (10) days prior to the then scheduled Series 2002-4 Letter of
Credit Expiration Date with respect to any Series 2002-4 Letter of Credit,
excluding the amount available to be drawn under such Series 2002-4 Letter of
Credit but taking into account a substitute Series 2002-4 Letter of Credit which
has been obtained from a Series 2002-4 Eligible Letter of Credit Provider and is
in full force and effect on such date, the Series 2002-4 Enhancement Amount
would be less than the Series 2002-4 Required Enhancement Amount or the Series
2002-4 Liquidity Amount would be less than the Series 2002-4 Required Liquidity
Amount, then the Administrator shall notify the Trustee in writing no later than
two Business Days prior to such Series 2002-4 Letter of Credit Expiration Date
of (x) the greater of (A) the excess, if any, of the Series 2002-4 Required
Enhancement Amount over the Series 2002-4 Enhancement Amount, excluding the
available amount under such expiring Series 2002-4 Letter of Credit but taking
into account any substitute Series 2002-4 Letter of Credit which has been
obtained from a Series 2002-4 Eligible Letter of Credit Provider and is in full
force and effect, on such date, and (B) the excess, if any, of the Series 2002-4
Required Liquidity Amount over the Series 2002-4 Liquidity Amount, excluding the
available amount under such expiring Series 2002-4 Letter of Credit but taking
into account any substitute Series 2002-4 Letter of Credit which has been
obtained from a Series 2002-4 Eligible Letter of Credit Provider and is in full
force and effect, on such date, and (y) the amount available to be drawn on such
expiring Series 2002-4 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 expiring Series 2002-4 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 2002-4 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 2002-4 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 2002-4 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 2002-4 Cash
Collateral Account.
(c) SERIES 2002-4 LETTER OF CREDIT PROVIDERS. The Administrator
shall notify the Trustee in writing within one Business Day of becoming aware
that (i) the long-term senior unsecured debt credit rating of any Series 2002-4
Letter of Credit Provider has fallen below "A" as determined by Standard &
Poor's or "A2" as determined by Moody's or (ii) the short-term
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senior unsecured debt credit rating of any Series 2002-4 Letter of Credit
Provider has fallen below "A-1" as determined by Standard & Poor's or "P-1" as
determined by Moody's. At such time the Administrator shall also notify the
Trustee of (i) the greater of (A) the excess, if any, of the Series 2002-4
Required Enhancement Amount over the Series 2002-4 Enhancement Amount, excluding
the available amount under the Series 2002-4 Letter of Credit issued by such
Series 2002-4 Letter of Credit Provider, on such date, and (B) the excess, if
any, of the Series 2002-4 Required Liquidity Amount over the Series 2002-4
Liquidity Amount, excluding the available amount under such Series 2002-4 Letter
of Credit, on such date, and (ii) the amount available to be drawn on such
Series 2002-4 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 on such Series 2002-4 Letter of Credit in an amount equal to the lesser of
the amounts in clause (i) and 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 2002-4 Cash Collateral Account.
(d) DRAWS ON THE SERIES 2002-4 LETTERS OF CREDIT. If there is more
than one Series 2002-4 Letter of Credit on the date of any draw on the Series
2002-4 Letters of Credit pursuant to the terms of this Supplement, the
Administrator shall instruct the Trustee, in writing, to draw on each Series
2002-4 Letter of Credit in an amount equal to the LOC Pro Rata Share of the
Series 2002-4 Letter of Credit Provider issuing such Series 2002-4 Letter of
Credit of the amount of such draw on the Series 2002-4 Letters of Credit.
(e) ESTABLISHMENT OF SERIES 2002-4 CASH COLLATERAL ACCOUNT. On or
prior to the date of any drawing under a Series 2002-4 Letter of Credit pursuant
to Section 3.8(b) or (c) above, AFC-II shall establish and maintain in the name
of the Trustee for the benefit of the Series 2002-4 Noteholders, or cause to be
established and maintained, an account (the "SERIES 2002-4 CASH COLLATERAL
ACCOUNT"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Series 2002-4 Noteholders. The Series
2002-4 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 Series 2002-4 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 Moody's, then AFC-II shall, within 30 days of such
reduction, establish a new Series 2002-4 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 2002-4 Cash
Collateral Account. If a new Series 2002-4 Cash Collateral Account is
established, AFC-II shall instruct the Trustee in writing to transfer all cash
and investments from the non-qualifying Series 2002-4 Cash Collateral Account
into the new Series 2002-4 Cash Collateral Account.
(f) ADMINISTRATION OF THE SERIES 2002-4 CASH COLLATERAL ACCOUNT.
AFC-II may instruct (by standing instructions or otherwise) the institution
maintaining the Series 2002-4
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Cash Collateral Account to invest funds on deposit in the Series 2002-4 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 2002-4 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 2002-4 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 (as defined in Section
8-106 of the New York UCC) 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 2002-4 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 2002-4 Cash Collateral Account shall remain uninvested.
(g) EARNINGS FROM SERIES 2002-4 CASH COLLATERAL ACCOUNT. All
interest and earnings (net of losses and investment expenses) paid on funds on
deposit in the Series 2002-4 Cash Collateral Account shall be deemed to be on
deposit therein and available for distribution.
(h) SERIES 2002-4 CASH COLLATERAL ACCOUNT SURPLUS. In the event that
the Series 2002-4 Cash Collateral Account Surplus on any Distribution Date (or,
after the Series 2002-4 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 2002-4 Cash
Collateral Account an amount equal to the Series 2002-4 Cash Collateral Account
Surplus and shall pay such amount: FIRST, to the Series 2002-4 Letter of Credit
Providers to the extent of any unreimbursed drawings under the related Series
2002-4 Reimbursement Agreement, for application in accordance with the
provisions of the related Series 2002-4 Reimbursement Agreement, and, SECOND, to
AFC-II any remaining amount.
(i) TERMINATION OF SERIES 2002-4 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 2002-4 Noteholders and payable
from the Series 2002-4 Cash Collateral Account as provided herein, shall
withdraw from the Series 2002-4 Cash Collateral Account all amounts on deposit
therein (to the extent not withdrawn pursuant to Section 3.8(h) above) and shall
pay such amounts: FIRST, to the Series 2002-4 Letter of Credit Providers to the
extent of any unreimbursed drawings under the related Series 2002-4
Reimbursement Agreement, for application in accordance with the provisions of
the related Series 2002-4 Reimbursement Agreement, and, SECOND, to AFC-II any
remaining amount.
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(j) TERMINATION DATE DEMANDS ON THE SERIES 2002-4 LETTERS OF CREDIT.
Prior to 10:00 a.m. (New York City time) on the Business Day immediately
succeeding the Series 2002-4 Letter of Credit Termination Date, the
Administrator shall determine the Series 2002-4 Demand Note Payment Amount as of
the Series 2002-4 Letter of Credit Termination Date. If the Series 2002-4 Demand
Note Payment Amount is greater than zero, then the Administrator shall instruct
the Trustee in writing to draw on the Series 2002-4 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 excess
of the Series 2002-4 Demand Note Payment Amount over the Series 2002-4 Available
Reserve Account Amount (prior to giving effect to any transfer to the Series
2002-4 Cash Collateral Account pursuant to Section 3.7(e) on such date) and (ii)
the Series 2002-4 Letter of Credit Liquidity Amount on the Series 2002-4 Letters
of Credit by presenting to each Series 2002-4 Letter of Credit Provider a draft
accompanied by a Certificate of Termination Date Demand; PROVIDED, HOWEVER, that
if the Series 2002-4 Cash Collateral Account has been established and funded,
the Trustee shall draw an amount equal to the product of (a) 100% minus the
Series 2002-4 Cash Collateral Percentage and (b) the lesser of the amounts
referred to in clause (i) or (ii) on such Business Day on the Series 2002-4
Letters of Credit as calculated by the Administrator and provided in writing to
the Trustee. The Trustee shall cause the Termination Date Disbursement to be
deposited in the Series 2002-4 Cash Collateral Account.
Section 3.9. SERIES 2002-4 DISTRIBUTION ACCOUNT. (a) ESTABLISHMENT OF
SERIES 2002-4 DISTRIBUTION ACCOUNT. The Trustee shall establish and maintain in
the name of the Series 2002-4 Agent for the benefit of the Series 2002-4
Noteholders, or cause to be established and maintained, an account (the "SERIES
2002-4 DISTRIBUTION Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 2002-4
Noteholders. The Series 2002-4 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
2002-4 Distribution 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 S&P or "Baa3" by Moody's, then AFC-II shall, within
30 days of such reduction, establish a new Series 2002-4 Distribution Account
with a new Qualified Institution. If the Series 2002-4 Distribution Account is
not maintained in accordance with the previous sentence, AFC-II shall establish
a new Series 2002-4 Distribution Account, within ten (10) Business Days after
obtaining knowledge of such fact, which complies with such sentence, and shall
instruct the Series 2002-4 Agent in writing to transfer all cash and investments
from the non-qualifying Series 2002-4 Distribution Account into the new Series
2002-4 Distribution Account. Initially, the Series 2002-4 Distribution Account
will be established with The Bank of New York.
(b) ADMINISTRATION OF THE SERIES 2002-4 DISTRIBUTION ACCOUNT. The
Administrator may instruct the institution maintaining the Series 2002-4
Distribution Account to invest funds on deposit in the Series 2002-4
Distribution 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 2002-4 Distribution
Account is held
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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
2002-4 Distribution 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 (as defined in Section 8-106 of the New York UCC) 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.
(c) EARNINGS FROM SERIES 2002-4 DISTRIBUTION ACCOUNT. All interest
and earnings (net of losses and investment expenses) paid on funds on deposit in
the Series 2002-4 Distribution Account shall be deemed to be on deposit and
available for distribution.
(d) SERIES 2002-4 DISTRIBUTION ACCOUNT CONSTITUTES ADDITIONAL
COLLATERAL FOR SERIES 2002-4 NOTES. In order to secure and provide for the
repayment and payment of the AFC-II Obligations with respect to the Series
2002-4 Notes, AFC-II hereby grants a security interest in and assigns, pledges,
grants, transfers and sets over to the Series 2002-4 Agent, for the benefit of
the Series 2002-4 Noteholders, all of AFC-II's right, title and interest in and
to the following (whether now or hereafter existing or acquired): (i) the Series
2002-4 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 2002-4
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
2002-4 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 2002-4 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 2002-4 DISTRIBUTION ACCOUNT COLLATERAL"). The Series 2002-4 Agent shall
possess all right, title and interest in all funds on deposit from time to time
in the Series 2002-4 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 2002-4 Distribution Account. The Series 2002-4
Distribution Account Collateral shall be under the sole dominion and control of
the Series 2002-4 Agent for the benefit of the Series 2002-4 Noteholders. The
Series 2002-4 Agent hereby agrees (i) to act as the securities intermediary (as
defined in Section 8-102(a)(14) of the New York UCC) with respect to the Series
2002-4 Distribution Account; (ii) that each item of property (whether investment
property, financial asset, security, instrument or cash) credited to the Series
2002-4 Distribution Account shall be treated as a financial asset (as defined in
Section 8-102(a)(9) of the New York UCC) and (iii) to comply with any
entitlement order (as defined in Section 8-102(a)(8) of the New York UCC) issued
by the Trustee.
Section 3.10. SERIES 2002-4 DEMAND NOTES CONSTITUTE ADDITIONAL
COLLATERAL FOR SERIES 2002-4 NOTES. In order to secure and provide for the
repayment and payment of the obligations with respect to the Series 2002-4
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
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2002-4 Noteholders, all of AFC-II's right, title and interest in and to the
following (whether now or hereafter existing or acquired): (i) the Series 2002-4
Demand Notes; (ii) all certificates and instruments, if any, representing or
evidencing the Series 2002-4 Demand Notes; and (iii) all proceeds of any 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 2002-4
Noteholders, each Series 2002-4 Demand Note, endorsed in blank. The Trustee, for
the benefit of the Series 2002-4 Noteholders, shall be the only Person
authorized to make a demand for payments on the Series 2002-4 Demand Notes.
Section 3.11. PAYMENTS TO FUNDING AGENTS OR PURCHASER GROUPS.
Notwithstanding anything to the contrary herein or in the Base Indenture,
amounts distributable by AFC-II, the Trustee, the Paying Agent or the
Administrative Agent to a Funding Agent for the account of its related Purchaser
Group (or amounts distributable by any such Person directly to such Purchaser
Group) shall be paid by wire transfer of immediately available funds no later
than 3:00 p.m. (New York time) for credit to the account or accounts designated
by such Funding Agent. Notwithstanding the foregoing, the Administrative Agent
shall not be so obligated unless the Administrative Agent shall have received
the funds by 12:00 noon (New York City time).
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 2002-4 Notes and collectively shall constitute the Amortization
Events set forth in Section 9.1(n) of the Base Indenture with respect to the
Series 2002-4 Notes (without notice or other action on the part of the Trustee
or any holders of the Series 2002-4 Notes):
(a) a Series 2002-4 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 during such two (2)
Business Day period such Series 2002-4 Enhancement Deficiency shall have
been cured in accordance with the terms and conditions of the Indenture and
the Related Documents;
(b) either the Series 2002-4 Liquidity Amount shall be less than the
Series 2002-4 Required Liquidity Amount or the Series 2002-4 Available
Reserve Account Amount shall be less than the Series 2002-4 Required
Reserve Account Amount for at least two (2) Business Days; PROVIDED,
HOWEVER, that such event or condition shall not be an Amortization Event if
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) an AESOP I Operating Lease Vehicle Deficiency shall occur and
continue for at least two (2) Business Days;
(d) the Collection Account, the Series 2002-4 Collection Account,
the Series 2002-4 Excess Collection Account or the Series 2002-4 Reserve
Account shall be subject
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to an injunction, estoppel or other stay or a Lien (other than Liens
permitted under the Related Documents);
(e) all principal of and interest on the Series 2002-4 Notes is not
paid on the Series 2002-4 Expected Final Distribution Date;
(f) any Series 2002-4 Letter of Credit shall not be in full force
and effect for at least two (2) Business Days and (x) either a Series
2002-4 Enhancement Deficiency would result from excluding such Series
2002-4 Letter of Credit from the Series 2002-4 Enhancement Amount or (y)
the Series 2002-4 Liquidity Amount, excluding therefrom the available
amount under such Series 2002-4 Letter of Credit, would be less than the
Series 2002-4 Required Liquidity Amount;
(g) from and after the funding of the Series 2002-4 Cash Collateral
Account, the Series 2002-4 Cash Collateral Account shall be subject to an
injunction, estoppel or other stay or a Lien (other than Liens permitted
under the Related Documents) for at least two (2) Business Days and either
(x) a Series 2002-4 Enhancement Deficiency would result from excluding the
Series 2002-4 Available Cash Collateral Account Amount from the Series
2002-4 Enhancement Amount or (y) the Series 2002-4 Liquidity Amount,
excluding therefrom the Series 2002-4 Available Cash Collateral Amount,
would be less than the Series 2002-4 Required Liquidity Amount;
(h) an Event of Bankruptcy shall have occurred with respect to any
Series 2002-4 Letter of Credit Provider or any Series 2002-4 Letter of
Credit Provider repudiates its Series 2002-4 Letter of Credit or refuses to
honor a proper draw thereon and either (x) a Series 2002-4 Enhancement
Deficiency would result from excluding such Series 2002-4 Letter of Credit
from the Series 2002-4 Enhancement Amount or (y) the Series 2002-4
Liquidity Amount, excluding therefrom the available amount under such
Series 2002-4 Letter of Credit, would be less than the Series 2002-4
Required Liquidity Amount;
(i) the occurrence of an "Amortization Event" (as defined in the
Decar Base Indenture) with respect to the Decar Series 2002-2 Notes;
(j) the occurrence of an Event of Bankruptcy with respect to Cendant
or any Permitted Sublessee; and
(k) a Change in Control shall have occurred.
In the case of any event described in clause (k) above, an
Amortization Event shall have occurred with respect to the Series 2002-4 Notes
only if either the Trustee or the Requisite Noteholders declare that an
Amortization Event has occurred. In the case of an event described in (a), (b),
(c), (d), (e), (f), (g), (h), (i) or (j) an Amortization Event with respect to
the Series 2002-4 Notes shall have occurred without any notice or other action
on the part of the Trustee or any Series 2002-4 Noteholders, immediately upon
the occurrence of such event. Amortization Events with respect to the Series
2002-4 Notes described in (a), (b), (c), (d), (e), (f), (g), (h), (i) or (j) may
be waived with the written consent of the Purchaser Groups having Commitment
Percentages aggregating 100%. Amortization Events with respect to the Series
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2002-4 Notes described in (k) above may be waived in accordance with Section 9.5
of the Base Indenture.
ARTICLE V
RIGHT TO WAIVE PURCHASE RESTRICTIONS
Notwithstanding any provision to the contrary in the Indenture or the
Related Documents, upon the Trustee's receipt of notice from any Lessee, any
Borrower or AFC-II (i) to the effect that a Manufacturer Program is no longer an
Eligible Manufacturer Program and that, as a result, either the Series 2002-4
Maximum Non-Program Vehicle Amount is or will be exceeded or (ii) that the
Lessees, the Borrowers and AFC-II have determined to increase any Series 2002-4
Maximum Amount (such notice, a "WAIVER REQUEST"), each Series 2002-4 Noteholder
may, at its option, waive the Series 2002-4 Maximum Non-Program Vehicle Amount,
any other Series 2002-4 Maximum Amount (collectively, a "WAIVABLE AMOUNT") if
(i) no Amortization Event exists, (ii) the Requisite Noteholders consent to such
waiver and (iii) 60 days' prior written notice of such proposed waiver is
provided to the Rating Agencies by the Trustee.
Upon receipt by the Trustee of a Waiver Request (a copy of which the
Trustee shall promptly provide to the Rating Agencies), all amounts which would
otherwise be allocated to the Series 2002-4 Excess Collection Account
(collectively, the "DESIGNATED AMOUNTS") from the date the Trustee receives a
Waiver Request through the Consent Period Expiration Date will be held by the
Trustee in the Series 2002-4 Collection Account for ratable distribution as
described below.
Within ten (10) Business Days after the Trustee receives a Waiver
Request, the Trustee shall furnish notice thereof to the Administrative Agent,
which notice shall be accompanied by a form of consent (each a "CONSENT") in the
form of EXHIBIT C hereto by which the Series 2002-4 Noteholders may, on or
before the Consent Period Expiration Date, consent to waiver of the applicable
Waivable Amount. Upon receipt of notice of a Waiver Request, the Administrative
Agent shall forward a copy of such request together with the Consent to the
Funding Agent with respect to each Purchaser Group. If the Trustee receives the
Consents from the Requisite Noteholders agreeing to waiver of the applicable
Waivable Amount within forty-five (45) days after the Trustee notifies the
Administrative Agent of a Waiver Request (the day on which such forty-five (45)
day period expires, the "CONSENT PERIOD EXPIRATION DATE"), (i) the applicable
Waivable Amount shall be deemed waived by the consenting Series 2002-4
Noteholders, (ii) the Trustee will distribute the Designated Amounts as set
forth below and (iii) the Trustee shall promptly (but in any event within two
days) provide the Rating Agency with notice of such waiver. Any Purchaser Group
from whom the Trustee has not received a Consent on or before the Consent Period
Expiration Date will be deemed not to have consented to such waiver.
If the Trustee receives Consents from the Requisite Noteholders on or
before the Consent Period Expiration Date, then on the immediately following
Distribution Date, upon receipt of written direction from the Administrator the
Trustee will pay the Designated Amounts to the Administrative Agent for the
accounts of the non-consenting Purchaser Groups. Upon the
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receipt of funds from the Trustee pursuant to this Article V, the Administrative
Agent shall pay the Designated Amounts as follows:
(i) to each Funding Agent with respect to a non-consenting Purchaser
Group, such Purchaser Group's PRO RATA share based on the Purchaser Group
Invested Amount with respect to such Purchaser Group relative to the
Purchaser Group Invested Amount with respect to all non-consenting
Purchaser Groups of the Designated Amounts up to the amount required to
reduce to zero the Purchaser Group Invested Amounts with respect to all
non-consenting Purchaser Groups; and
(ii) any remaining Designated Amounts to the Series 2002-4 Excess
Collection Account.
If the amount distributed pursuant to clause (i) of the preceding
paragraph is not sufficient to reduce the Purchaser Group Invested Amount with
respect to each non-consenting Purchaser Group to zero on the date specified
therein, then on each day following such Distribution Date, the Administrator
will allocate to the Series 2002-4 Collection Account on a daily basis all
Designated Amounts collected on such day. On each following Distribution Date,
the Trustee will withdraw such Designated Amounts from the Series 2002-4
Collection Account and deposit the same in the Series 2002-4 Distribution
Account for distribution to the Administrative Agent for the accounts of the
non-consenting Purchaser Groups. Upon the receipt of funds from the Trustee
pursuant to this Article V, the Administrative Agent shall pay the Designated
Amounts as follows:
(a) to each Funding Agent with respect to a non-consenting Purchaser
Group, such Purchaser Group's PRO RATA share based on the Purchaser Group
Invested Amount with respect to such Purchaser Group relative to the
Purchaser Group Invested Amount with respect to all non-consenting
Purchaser Groups of the Designated Amounts in the Series 2002-4 Collection
Account as of the applicable Determination Date up to the amount required
to reduce to zero the Purchaser Group Invested Amounts with respect to all
non-consenting Purchaser Groups; and
(b) any remaining Designated Amounts to the Series 2002-4 Excess
Collection Account.
If the Requisite Noteholders do not timely consent to such waiver, the
Designated Amounts will be re-allocated to the Series 2002-4 Excess Collection
Account for allocation and distribution in accordance with the terms of the
Indenture and the Related Documents.
In the event that the Series 2002-4 Amortization Period shall commence
after receipt by the Trustee of a Waiver Request, all such Designated Amounts
will thereafter be considered Principal Collections allocated to the Series
2002-4 Noteholders.
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ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SUPPLEMENT. This
Supplement shall become effective on the date (the "EFFECTIVE DATE") on which
the following conditions precedent have been satisfied:
(a) DOCUMENTS. The Administrative Agent shall have received copies
for each CP Conduit Purchaser and the Funding Agent and the APA Banks with
respect to such CP Conduit Purchaser, each executed and delivered in form
and substance satisfactory to it of (i) the Base Indenture, executed by a
duly authorized officer of each of AFC-II and the Trustee, (ii) this
Supplement, executed by a duly authorized officer of each of AFC-II, the
Administrator, the Trustee, the Administrative Agent, the Funding Agents,
the CP Conduit Purchasers and the APA Banks, (iii) each Lease, executed by
a duly authorized officer of each of AGH, ARAC, as Lessee and Administrator
and the Lessor party thereto, (iv) each Loan Agreement, executed by a duly
authorized officer of each of AFC-II, the Lessor party thereto and the
Permitted Nominees party thereto, (v) each Vehicle Title and Lienholder
Nominee Agreement, executed by the duly authorized officer of each of the
Permitted Nominee party thereto, ARAC, AGH, the Lessor party thereto and
the Trustee, (vi) the Administration Agreement, executed by a duly
authorized officer of each of AFC-II and the Administrator, (vii) the
AESOP/Decar Intercreditor Agreement, executed by a duly authorized officer
of the Trustee and the Administrator and (viii) the Fee Letter, duly
executed by AFC-II and each of the Funding Agents, the CP Conduit
Purchasers and the APA Banks party thereto.
(b) CORPORATE DOCUMENTS; PROCEEDINGS OF AFC-II, THE ADMINISTRATOR,
AESOP LEASING, AESOP LEASING II, ORIGINAL AESOP, ARAC AND AGH. The
Administrative Agent shall have received, with a copy for each CP Conduit
Purchaser and the Funding Agent and the APA Banks with respect to such CP
Conduit Purchaser, from AFC-II, AESOP Leasing, AESOP Leasing II, Original
AESOP, Cherokee, ARAC and AGH true and complete copies of:
(i) to the extent applicable, the certificate of
incorporation or certificate of formation, including all amendments
thereto, of such Person, certified as of a recent date by the
Secretary of State or other appropriate authority of the state of
incorporation or organization, as the case may be, and a certificate
of compliance, of status or of good standing, as and to the extent
applicable, of each such Person as of a recent date, from the
Secretary of State or other appropriate authority of such
jurisdiction;
(ii) a certificate of the Secretary or an Assistant Secretary
of such Person, dated on or prior to the Effective Date and certifying
(A) that attached thereto is a true and complete copy of the bylaws,
limited liability company agreement or partnership agreement of such
Person, as the case may be, as in effect on the Series 2002-4 Closing
Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto
is a
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true and complete copy of the resolutions, in form and substance
reasonably satisfactory to each Funding Agent, of the Board of
Directors or Managers of such Person or committees thereof authorizing
the execution, delivery and performance of this Supplement and the
Related Documents to which it is a party and the transactions
contemplated thereby, and that such resolutions have not been amended,
modified, revoked or rescinded and are in full force and effect, (C)
that the certificate of incorporation or certificate of formation of
such Person has not been amended since the date of the last amendment
thereto shown on the certificate of good standing (or its equivalent)
furnished pursuant to clause (i) above and (D) as to the incumbency
and specimen signature of each officer or authorized signatory
executing this Supplement and the Related Documents or any other
document delivered in connection herewith or therewith on behalf of
such Person; and
(iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (ii) above.
(c) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of each of AFC-II, the Administrator, AESOP Leasing, AESOP Leasing
II, Original AESOP, each of the Permitted Nominees, Cherokee, ARAC and AGH
contained in each of the Related Documents shall be true and correct as of the
Series 2002-4 Closing Date.
(d) NO AMORTIZATION EVENT, POTENTIAL AMORTIZATION EVENT OR AESOP I
OPERATING LEASE VEHICLE DEFICIENCY. No Amortization Event or Potential
Amortization Event in respect of the Series 2002-4 Notes or any other Series of
Notes shall exist and no AESOP I Operating Lease Vehicle Deficiency shall exist.
(e) LIEN SEARCHES. The Administrative Agent shall have received a
written search report listing all effective financing statements that name each
of AFC-II, AESOP Leasing, AESOP Leasing II, Original AESOP the Permitted
Nominees or ARAC as debtor or assignor and that are filed in the State of New
York, the State of Delaware and in any other jurisdictions that the
Administrative Agent determines are necessary or appropriate, together with
copies of such financing statements, and tax and judgment lien searches showing
no such liens that are not permitted by the Base Indenture, this Supplement or
the Related Documents.
(f) LEGAL OPINIONS. The Administrative Agent shall have received,
with a counterpart addressed to each CP Conduit Purchaser and the Funding Agent,
the Program Support Provider and the APA Banks with respect to such CP Conduit
Purchaser and the Trustee, opinions of counsel required by Section 2.2(f) of the
Base Indenture and opinions of counsel with respect to such other matters as may
be reasonably requested by any Funding Agent, in form and substance reasonably
acceptable to the addressees thereof and their counsel.
(g) FEES AND EXPENSES. Each Funding Agent with respect to a CP
Conduit Purchaser shall have received payment of all fees, out-of-pocket
expenses and other
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amounts due and payable to such CP Conduit Purchaser or the APA Banks with
respect to such CP Conduit Purchaser on or before the Effective Date.
(h) ESTABLISHMENT OF ACCOUNTS. The Administrative Agent shall have
received evidence reasonably satisfactory to it that the Series 2002-4
Collection Account, the Series 2002-4 Reserve Account, the AESOP/Decar
Intercreditor Account and the Series 2002-4 Distribution Account shall have been
established in accordance with the terms and provisions of the Indenture.
(i) OPINION. The Administrative Agent shall have received, with a
counterpart addressed to each CP Conduit Purchaser and the Funding Agent, the
Program Support Provider and the APA Banks with respect such CP Conduit
Purchaser, an opinion of counsel to the Trustee as to the due authorization,
execution and delivery by the Trustee of this Supplement and the due execution,
authentication and delivery by the Trustee of the Series 2002-4 Notes.
(j) RATINGS LETTERS. The Administrative Agent shall have received a
letter, in form and substance satisfactory to the Administrative Agent, from
each of (i) Moody's stating that the long-term rating of "A2" has been assigned
by Moody's to the Series 2002-4 Notes and (ii) S&P stating that the long-term
rating of "A" has been assigned by S&P to the Series 2002-4 Notes.
(k) UCC FILINGS. The Administrative Agent shall have received (i)
executed originals of any documents (including, without limitation, financing
statements) required to be filed in each jurisdiction necessary to perfect the
security interest of the Trustee in the Series 2002-4 Collateral and (ii)
evidence reasonably satisfactory to it of each such filing and reasonably
satisfactory evidence of the payment of any necessary fee or tax relating
thereto.
(l) PROCEDURES LETTER. Each Funding Agent shall have received a
letter from Deloitte and Touche, LLP, addressed to the Funding Agents and dated
on or before the Effective Date, in form and substance satisfactory to the
Funding Agents, concerning the statistical information with respect to the
Vehicles subject to the Leases provided to the Funding Agents.
(m) COMMERCIAL PAPER RATINGS. The Administrative Agent shall have
received confirmation of the ratings of the Commercial Paper of each of the CP
Conduit Purchasers requiring such confirmation after giving effect to their
respective investments in the Series 2002-4 Notes.
(n) MANUFACTURER PROGRAMS. Each Funding Agent shall have received a
copy of (i) each Manufacturer Program being assigned to AESOP Leasing by Budget
Group, Inc., certified by the Secretary or an Assistant Secretary of the
Administrator, as being a true and complete copy thereof and (ii) each
Assignment Agreement pursuant to which each such Manufacturer Program is being
assigned, executed by a duly authorized officer of Budget Group, Inc., Team
Fleet Funding Corporation, Decar and the Trustee and acknowledged by a duly
authorized officer of the Manufacturer party thereto.
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(o) AMENDMENTS, SUBLEASE AND BANKRUPTCY ORDER. Each Funding Agent
shall have received a copy of each of the following documents, executed by duly
authorized officers of the parties listed below and such documents shall have
become effective as of the Series 2002-4 Closing Date:
(i) Supplemental Indenture No. 4, dated as of November 22,
2002, to the Base Indenture, between AFC-II and the Trustee;
(ii) First Amendment, dated as of November 22, 2002, to the
Amended and Restated Loan Agreement, dated as of September 15, 1998,
among AFC-II, AESOP Leasing, PV Holding Corp. ("PVHC") and Quartx
Fleet Management Inc.;
(iii) First Amendment to the Loan Agreement, dated as of
November 22, 2002, to the AESOP I Finance Lease Loan Agreement, dated
as of July 30, 1997, between AESOP Leasing, as Borrower and AFC-II, as
Lender;
(iv) First Amendment, dated as of November 22, 2002, to the
Amended and Restated Master Motor Vehicle Operating Lease Agreement,
dated as of September 15, 1998, among the Lessor and ARAC, as Lessee
and as Administrator and AGH, as Guarantor;
(v) The Amended and Restated Series 2002-2 Supplement to the
Base Indenture, dated as of November 22, 2002, among AFC-II, as Issuer
ARAC, as Administrator, JPMorgan Chase Bank, as Administrative Agent,
the CP Conduit Purchasers, the Funding Agents and the APA Banks named
therein, the Trustee and The Bank of New York, as Series 2002-2 Agent;
(vi) First Amendment, dated as of November 22, 2002, to the
Series 2002-3 Supplement to the Base Indenture, dated as of September
12, 2002, among AFC-II, as Issuer, ARAC, as Administrator, Park Avenue
Receivables Corporation, as APA Bank, JPMorgan Chase Bank, as CP
Conduit Purchaser and as Funding Agent, the Trustee and the Series
2002-3 Agent;
(vii) Vehicle Lien Nominee Agreement, dated as of November 22,
among Ford Motor Credit Company ("FMCC"), AESOP Leasing, ARAC and the
Trustee;
(viii) The Letter from FMCC and Ford Motor Company, dated
November 22, addressed to and acknowledged by AESOP Leasing, the
Trustee, AFC-II, ARAC, PVHC and Cherokee Acquisition Corporation; and
(ix) The Master Motor Vehicle Operating Sublease Agreement,
dated as of November 22, 2002, by and among ARAC, as Sublesssor and
Cherokee, as Sublessee.
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(x) A copy of the order of the bankruptcy court having
jurisdiction over the bankruptcy proceedings of Budget Group Inc.,
Budget Rent A Car Corporation and Budget Rent A Car Systems, Inc.
(p) PROCEEDINGS. All corporate and other proceedings and all other
documents and legal matters in connection with the transactions contemplated by
the Related Documents shall be satisfactory in form and substance to each
Funding Agent and its counsel.
ARTICLE VII
CHANGE IN CIRCUMSTANCES
Section 7.1. INCREASED COSTS. (a) If any Change in Law (except with
respect to Taxes which shall be governed by Section 7.2) shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Affected Party (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Affected Party or the London interbank market any
other condition affecting the Indenture or the Related Documents or the
funding of Eurodollar Tranches by such Affected Party;
and the result of any of the foregoing shall be to increase the cost to such
Affected Party of making, converting into, continuing or maintaining Eurodollar
Tranches (or maintaining its obligation to do so) or to reduce any amount
received or receivable by such Affected Party hereunder or in connection
herewith (whether principal, interest or otherwise), then AFC-II will pay to
such Affected Party such additional amount or amounts as will compensate such
Affected Party for such additional costs incurred or reduction suffered.
(b) If any Affected Party determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Affected Party's capital or the capital of any corporation
controlling such Affected Party as a consequence of its obligations hereunder to
a level below that which such Affected Party or such corporation could have
achieved but for such Change in Law (taking into consideration such Affected
Party's or such corporation's policies with respect to capital adequacy), then
from time to time, AFC-II shall pay to such Affected Party such additional
amount or amounts as will compensate such Affected Party for any such reduction
suffered.
(c) A certificate of an Affected Party setting forth the amount or
amounts necessary to compensate such Affected Party as specified in subsections
(a) and (b) of this Section 7.1 shall be delivered to AFC-II (with a copy to the
Administrative Agent and the Funding Agent with respect to such Affected Party)
and shall be conclusive absent manifest error. Any payments made by AFC-II
pursuant to this Section 7.1 shall be made solely from funds available in the
Series 2002-4 Distribution Account for the payment of Article VII Costs, shall
be non-recourse other than with respect to such funds, and shall not constitute
a claim
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against AFC-II to the extent that insufficient funds exist to make such payment.
The agreements in this Section shall survive the termination of this Supplement
and the Base Indenture and the payment of all amounts payable hereunder and
thereunder.
(d) Failure or delay on the part of an Affected Party to demand
compensation pursuant to this Section 7.1 shall not constitute a waiver of such
Affected Party's right to demand such compensation; PROVIDED that AFC-II shall
not be required to compensate any Affected Party pursuant to this Section 7.1
for any increased costs or reductions incurred more than 270 days prior to the
date that such Affected Party notifies AFC-II of the Change in Law giving rise
to such increased costs or reductions and of such Affected Party's intention to
claim compensation therefor; PROVIDED, FURTHER, that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
Section 7.2. TAXES. (a) Any and all payments by or on account of any
obligation of AFC-II hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if AFC-II
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) subject to Section 7.2(c) below, the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 7.2) the
recipient receives an amount equal to the sum that it would have received had no
such deductions been made, (ii) AFC-II shall make such deductions and (iii)
AFC-II shall pay the full amount deducted to the relevant Governmental Authority
in accordance with applicable law.
(b) In addition, AFC-II shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) AFC-II shall indemnify the Administrative Agent, each Funding
Agent, each Program Support Provider and each member of each Purchaser Group
within the later of 10 days after written demand therefor and the Distribution
Date next following such demand for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent, such Funding Agent, such Program
Support Provider or such member of such Purchaser Group on or with respect to
any payment by or on account of any obligation of AFC-II hereunder or under the
Indenture (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 7.2) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; PROVIDED that no
Person shall be indemnified pursuant to this Section 7.2(c) or entitled to
receive additional amounts under the proviso of Section 7.2(a) to the extent
that the reason for such indemnification results from the failure by such Person
to comply with the provisions of Section 7.2(e) or (g). A certificate as to the
amount of such payment or liability delivered to AFC-II by the Administrative
Agent, any Funding Agent, any Program Support Provider or any member of any
Purchaser Group shall be conclusive absent manifest error. Any payments made by
AFC-II pursuant to this Section 7.2 shall be made solely from funds available in
the Series 2002-4 Distribution Account for the payment of Article VII Costs,
shall be non-recourse other than with respect to such funds, and shall not
constitute a claim against AFC-II to the extent that insufficient funds exist to
make such payment. The agreements in this Section shall survive the
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termination of this Supplement and the Base Indenture and the payment of all
amounts payable hereunder and thereunder.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by AFC-II to a Governmental Authority, AFC-II shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) The Administrative Agent, each Funding Agent, each member of
each Purchaser Group and each Program Support Provider, if entitled to an
exemption from or reduction of an Indemnified Tax or Other Tax with respect to
payments made hereunder or under the Indenture shall (to the extent legally able
to do so) deliver to AFC-II (with a copy to the Administrative Agent) such
properly completed and executed documentation prescribed by applicable law and
reasonably requested by AFC-II on the later of (i) 30 Business Days after such
request is made and the applicable forms are provided to the Administrative
Agent, such Funding Agent, such member of such Purchaser Group or such Program
Support Provider or (ii) 30 Business Days before prescribed by applicable law as
will permit such payments to be made without withholding or with an exemption
from or reduction of Indemnified Taxes or Other Taxes.
(f) If the Administrative Agent, any Funding Agent, any Program
Support Provider or any member of any Purchaser Group receives a refund solely
in respect of Indemnified Taxes or Other Taxes, it shall pay over such refund to
AFC-II to the extent that it has already received indemnity payments or
additional amounts pursuant to this Section 7.2 with respect to such Indemnified
Taxes or Other Taxes giving rise to the refund, net of all out-of-pocket
expenses and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); PROVIDED, HOWEVER, that
AFC-II shall, upon request of the Administrative Agent, such Funding Agent, such
Program Support Provider or such member of such Purchaser Group, repay such
refund (plus interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Funding Agent, such Program Support
Provider or such member of such Purchaser Group if the Administrative Agent,
such Funding Agent, such Program Support Provider or such member of such
Purchaser Group is required to repay such refund to such Governmental Authority.
Nothing contained herein shall require the Administrative Agent, any Funding
Agent, any Program Support Provider or any member of any Purchaser Group to make
its tax returns (or any other information relating to its taxes which it deems
confidential) available to AFC-II or any other Person.
(g) The Administrative Agent, each Funding Agent, each Program
Support Provider and each member of each Purchaser Group (other than any such
entity which is a domestic corporation) shall:
(i) upon or prior to becoming a party hereto, deliver to AFC-II and
the Administrative Agent two (2) duly completed copies of IRS Form W-8BEN,
W-8ECI or W-9, or successor applicable forms, as the case may be,
establishing a complete exemption from withholding of United States federal
income taxes or backup
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withholding taxes with respect to payments under the Series 2002-4 Notes
and this Supplement;
(ii) deliver to AFC-II and the Administrative Agent two (2) further
copies of any such form or certification establishing a complete exemption
from withholding of United States federal income taxes or backup
withholding taxes with respect to payments under the Series 2002-4 Notes
and this Supplement on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously delivered by it
to AFC-II; and
(iii) obtain such extensions of time for filing and completing such
forms or certifications as may reasonably be requested by AFC-II and the
Administrative Agent;
unless, in any such case, any change in treaty, law or regulation has occurred
after the Series 2002-4 Closing Date (or, if later, the date the Administrative
Agent, such Funding Agent, such Program Support Provider or such member of such
Purchaser Group becomes an indemnified party hereunder) and prior to the date on
which any such delivery would otherwise be required which renders the relevant
form inapplicable or which would prevent the Administrative Agent, such Funding
Agent, such Program Support Provider or such member of such Purchaser Group from
duly completing and delivering the relevant form with respect to it, and the
Administrative Agent, such Funding Agent, such Program Support Provider or such
member of such Purchaser Group so advises AFC-II and the Administrative Agent.
(h) If a beneficial or equity owner of the Administrative Agent, a
Funding Agent, a Program Support Provider or a member of a Purchaser Group
(instead of the Administrative Agent, the Funding Agent, the Program Support
Provider or the member of the Purchaser Group itself) is required under United
States federal income tax law or the terms of a relevant treaty to provide IRS
Form W-8BEN, W-8ECI or W-9, or any successor applicable forms, as the case may
be, in order to claim an exemption from withholding of United States federal
income taxes or backup withholding taxes, then each such beneficial owner or
equity owner shall be considered to be the Administrative Agent, a Funding
Agent, a Program Support Provider or a member of a Purchaser Group for purposes
of Section 7.2(g).
Section 7.3. BREAK FUNDING PAYMENTS. AFC-II agrees to indemnify each
Purchaser Group and to hold each Purchaser Group harmless from any loss or
expense which such Purchaser Group may sustain or incur as a consequence of (a)
the failure by AFC-II to accept any Increase after AFC-II has given irrevocable
notice requesting the same in accordance with the provisions of this Supplement,
(b) the conversion into or continuation of a CP Tranche or a Eurodollar Tranche
that occurs other than on the last day of the applicable CP Rate Period or
Eurodollar Period, (c) default by AFC-II in making any prepayment in connection
with a Decrease after AFC-II has given irrevocable notice thereof in accordance
with the provisions of Section 2.5 or (d) the making of a prepayment of a CP
Tranche or a Eurodollar Tranche (including, without limitation, any Decrease)
prior to the termination of the CP Rate Period for such CP Tranche or the
Eurodollar Period for such Eurodollar Tranche, as the case may be, or the making
of a Decrease on a date other than as specified in any notice of a Decrease or
in a greater amount than contained in any notice of a Decrease. Such
indemnification shall include an amount determined by the Funding Agent with
respect to such Purchaser Group and shall
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equal (a) in the case of the losses or expenses associated with a CP Tranche or
a Eurodollar Tranche, either (x) the excess, if any, of (i) such Purchaser
Group's cost of funding the amount so prepaid or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the CP Rate Period or the
Eurodollar Period (or in the case of a failure to borrow, convert or continue,
the CP Rate Period or the Eurodollar Period that would have commenced on the
date of such prepayment or of such failure), as the case may be, over (ii) the
amount of interest earned by such Purchaser Group upon redeployment of an amount
of funds equal to the amount prepaid or not borrowed, converted or continued for
a comparable period or (y) if such Purchaser Group is able to terminate the
funding source before its scheduled maturity, any costs associated with such
termination and (b) in the case of the losses or expenses incurred by a Pooled
Funding CP Conduit Purchaser, the losses and expenses incurred by such Pooled
Funding CP Conduit Purchaser in connection with the liquidation or reemployment
of deposits or other funds acquired by such Pooled Funding CP Conduit Purchaser
as a result of the failure to accept an Increase, a default in the making of a
Decrease or the making of a Decrease in an amount or on a date not contained in
a notice of a Decrease. Notwithstanding the foregoing, any payments made by
AFC-II pursuant to this subsection shall be made solely from funds available in
the Series 2002-4 Distribution Account for the payment of Article VII Costs,
shall be non-recourse other than with respect to such funds, and shall not
constitute a claim against AFC-II to the extent that such funds are insufficient
to make such payment. This covenant shall survive the termination of this
Supplement and the Base Indenture and the payment of all amounts payable
hereunder and thereunder. A certificate as to any additional amounts payable
pursuant to the foregoing sentence submitted by any Funding Agent on behalf of a
Purchaser Group to AFC-II shall be conclusive absent manifest error.
Section 7.4. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Eurodollar Period:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Eurodollar
Period, or
(b) the Administrative Agent is advised by any APA Bank that the
Adjusted LIBO Rate for such Eurodollar Period will not adequately and
fairly reflect the cost to such APA Bank of making or maintaining the
Eurodollar Tranches during such Eurodollar Period,
then the Administrative Agent shall promptly give telecopy or telephonic notice
thereof to AFC-II and the Trustee, whereupon until the Administrative Agent
notifies AFC-II and the Trustee that the circumstances giving rise to such
notice no longer exist, the Available APA Bank Funding Amount with respect to
any Purchaser Group (in the case of clause (a) above) or with respect to the
related Purchaser Group (in the case of clause (b) above) shall not be allocated
to any Eurodollar Tranche.
Section 7.5. MITIGATION OBLIGATIONS. If an Affected Party requests
compensation under Section 7.1, or if AFC-II is required to pay any additional
amount to any Purchaser Group or any Governmental Authority for the account of
any Purchaser Group pursuant to Section 7.2,
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then, upon written notice from AFC-II, such Affected Party or Purchaser Group,
as the case may be, shall use commercially reasonable efforts to designate a
different lending office for funding or booking its obligations hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, which pays a price for such assignment which is acceptable to
such Purchaser Group and its assignee, in the judgment of such Affected Party or
Purchaser Group, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 7.1 or 7.2, as the case may be, in the
future and (ii) would not subject such Affected Party or Purchaser Group to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Affected Party or Purchaser Group. AFC-II hereby agrees to pay all reasonable
costs and expenses incurred by such Affected Party or Purchaser Group in
connection with any such designation or assignment.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES, COVENANTS
Section 8.1. REPRESENTATIONS AND WARRANTIES OF AFC-II AND THE
ADMINISTRATOR. (a) AFC-II and the Administrator each hereby represents and
warrants to the Trustee, the Administrative Agent, each Funding Agent, each CP
Conduit Purchaser and each APA Bank that:
(i) each and every of their respective representations and
warranties contained in the Related Documents is true and correct as of the
Series 2002-4 Closing Date and true and correct in all material respects as
of the Series 2002-4 Initial Funding Date and as of the date of each
Increase; and
(ii) as of the Series 2002-4 Closing Date, they have not engaged, in
connection with the offering of the Series 2002-4 Notes, in any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act.
(b) AFC-II hereby represents and warrants to the Trustee, the
Administrative Agent, each Funding Agent, each CP Conduit Purchaser and each APA
Bank that each of the Series 2002-4 Notes has been duly authorized and executed
by AFC-II and when duly authenticated by the Trustee and delivered to the
Funding Agents in accordance with the terms of this Supplement will constitute
legal, valid and binding obligations of AFC-II enforceable in accordance with
their terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, or other similar laws relating to or affecting generally the
enforcement of creditors' rights or by general equitable principles.
Section 8.2. COVENANTS OF AFC-II AND THE ADMINISTRATOR. AFC-II and the
Administrator hereby agree, in addition to their obligations hereunder, that:
(a) they shall observe in all material respects each and every of
their respective covenants (both affirmative and negative) contained in the
Base Indenture and all other Related Documents to which each is a party;
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(b) they shall afford each Funding Agent with respect to a Purchaser
Group, the Trustee or any representatives of any such Funding Agent or the
Trustee access to all records relating to the Leases, the Vehicles, the
Manufacturer Programs and the Loan Agreements at any reasonable time during
regular business hours, upon reasonable prior notice (and with one Business
Day's prior notice if an Amortization Event with respect to the Series
2002-4 Notes shall have been deemed to have occurred or shall have been
declared to have occurred), for purposes of inspection and shall permit
such Funding Agent, the Trustee or any representative of such Funding Agent
or the Trustee to visit any of AFC-II's or the Administrator's, as the case
may be, offices or properties during regular business hours and as often as
may reasonably be desired to discuss the business, operations, properties,
financial and other conditions of AFC-II or the Administrator with their
respective officers and employees and with their independent certified
public accountants;
(c) they shall promptly provide such additional financial and other
information with respect to the Related Documents, AFC-II, the Lessors, the
Permitted Nominees, the Lessees, the Guarantor, the Related Documents or
the Manufacturer Programs as the Administrative Agent may from time to time
reasonably request;
(d) they shall provide to the Administrative Agent simultaneously
with delivery to the Trustee copies of information furnished to the Trustee
or AFC-II pursuant to the Related Documents as such information relates to
all Series of Notes generally or specifically to the Series 2002-4 Notes or
the Series 2002-4 Collateral. The Administrative Agent shall distribute to
the Funding Agents copies of all information delivered to it pursuant to
this Section 8.2(d);
(e) AFC-II shall not, and the Administrator shall not permit AFC-II
to, make any Loan under the Loan Agreements to finance the purchase of any
Vehicle from Team Fleet Financing Corporation or any other Affiliate of
Budget Group, Inc. without the written consent of each Purchaser Group; and
(f) they shall not agree to any amendment to the Base Indenture or
any other Related Document, which amendment requires the consent of the
Requisite Investors, without having received the prior written consent of
the Requisite Noteholders.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1. APPOINTMENT. Each of the CP Conduit Purchasers, the APA
Banks and the Funding Agents hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Person under this Supplement and
irrevocably authorizes the Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Supplement and to exercise
such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Supplement, together with such other
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary elsewhere in this Supplement, the Administrative Agent shall not
have any duties or responsibilities except those
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expressly set forth herein, or any fiduciary relationship with any CP Conduit
Purchaser, any APA Bank or any Funding Agent, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Supplement or otherwise exist against the Administrative Agent.
Section 9.2. DELEGATION OF DUTIES. The Administrative Agent may
execute any of its duties under this Supplement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
Section 9.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with the Base Indenture, this
Supplement or any other Related Document (except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the CP Conduit Purchasers, the APA Banks or the Funding Agents for any recitals,
statements, representations or warranties made by AFC-II, the Lessors, the
Lessees, the Guarantor, the Administrator or any officer thereof contained in
this Supplement or any other Related Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Supplement or any other
Related Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Supplement, any other Related Document, or
for any failure of any of AFC-II, the Lessors, the Lessees, the Guarantor or the
Administrator to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any CP Conduit
Purchaser, any APA Bank or any Funding Agent to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Supplement, any other Related Document or to inspect the
properties, books or records of AFC-II, the Lessors, the Lessees, the Guarantor
or the Administrator.
Section 9.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to AFC-II or the
Administrator), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the registered
holder of any Series 2002-4 Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Supplement or any
other Related Document unless it shall first receive such advice or concurrence
of the Requisite Noteholders, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Funding Agents against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining
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from acting, under this Supplement and the other Related Documents in accordance
with a request of the Requisite Noteholders (unless, in the case of any action
relating to the giving of consent hereunder, the giving of such consent requires
the consent of all Series 2002-4 Noteholders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the CP
Conduit Purchasers, the APA Banks and the Funding Agents.
Section 9.5. NOTICE OF ADMINISTRATOR DEFAULT OR AMORTIZATION EVENT OR
POTENTIAL AMORTIZATION EVENT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Amortization Event or
Potential Amortization Event or any Administrator Default unless the
Administrative Agent has received written notice from a CP Conduit Purchaser, an
APA Bank, a Funding Agent, AFC-II or the Administrator referring to the
Indenture or this Supplement, describing such Amortization Event or Potential
Amortization Event, or Administrator Default and stating that such notice is a
"notice of an Amortization Event or Potential Amortization Event" or "notice of
an Administrator Default," as the case may be. In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Funding Agents, the Trustee, AFC-II and the Administrator.
The Administrative Agent shall take such action with respect to such event as
shall be reasonably directed by the Requisite Noteholders, PROVIDED that unless
and until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such event as it shall deem
advisable in the best interests of the Purchaser Groups.
Section 9.6. NON-RELIANCE ON THE ADMINISTRATIVE AGENT AND OTHER
PURCHASER GROUPS. Each of the CP Conduit Purchasers, the APA Banks and the
Funding Agents expressly acknowledges that neither the Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent hereinafter taken, including any review of the affairs
of AFC-II, the Lessors, the Lessees, the Guarantor or the Administrator shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any such Person. Each of the CP Conduit Purchasers, the APA Banks and the
Funding Agents represents to the Administrative Agent that it has, independently
and without reliance upon the Administrative Agent or any other CP Conduit
Purchaser, APA Bank or Funding Agent and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of AFC-II, the Lessors, the Lessees, the Guarantor and the
Administrator and made its own decision to enter into this Supplement. Each of
the CP Conduit Purchasers, the APA Banks and the Funding Agents also represents
that it will, independently and without reliance upon the Administrative Agent
or any other CP Conduit Purchaser, APA Bank or Funding Agent, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Supplement and the other Related Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
AFC-II, the Lessors, the Lessees, the Guarantor and the Administrator. Except
for notices, reports and other documents expressly required to be furnished to
the Funding Agents by the Administrative Agent hereunder, the Administrative
Agent shall have no duty or responsibility to provide any CP Conduit Purchaser,
any APA Bank or any Funding Agent with any credit or other information
concerning the business, operations, property, condition (financial or
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otherwise), prospects or creditworthiness of AFC-II, the Lessors, the Lessees,
the Guarantor or the Administrator which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
Section 9.7. INDEMNIFICATION. Each of the APA Banks in a Purchaser
Group agrees to indemnify the Administrative Agent in its capacity as such (to
the extent not reimbursed by AFC-II and the Administrator and without limiting
the obligation of AFC-II and the Administrator to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought under this Section 9.7 (or if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Purchaser Group Invested Amounts shall have been reduced to zero, ratably in
accordance with their Commitment Percentages immediately prior to such date of
payment) from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Supplement, any of the other Related Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no APA Bank or Funding Agent
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this Section shall survive
the payment of all amounts payable hereunder.
Section 9.8. THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with AFC-II, the Administrator or
any of their Affiliates as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to any Series 2002-4 Note held by
the Administrative Agent, the Administrative Agent shall have the same rights
and powers under this Supplement and the other Related Documents as any APA Bank
or Funding Agent and may exercise the same as though it were not the
Administrative Agent, and the terms "APA Bank," and "Funding Agent" shall
include the Administrative Agent in its individual capacity.
Section 9.9. RESIGNATION OF ADMINISTRATIVE AGENT; SUCCESSOR
ADMINISTRATIVE AGENT. The Administrative Agent may resign as Administrative
Agent at any time by giving 30 days' notice to the Funding Agents, the Trustee,
AFC-II and the Administrator. If JPMorgan Chase shall resign as Administrative
Agent under this Supplement, then the Requisite Noteholders shall appoint a
successor administrative agent from among the Funding Agents, which successor
administrative agent shall be approved by AFC-II and the Administrator (which
approval shall not be unreasonably withheld or delayed) whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Supplement. If no successor
administrative
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agent has accepted appointment as Administrative Agent by the date which is 10
days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and the Administrator shall assume and perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Requisite
Noteholders appoint a successor agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Article VIII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent under this Supplement.
ARTICLE X
THE FUNDING AGENTS
Section 10.1. APPOINTMENT. Each CP Conduit Purchaser and each APA Bank
with respect to such CP Conduit Purchaser hereby irrevocably designates and
appoints the Funding Agent set forth next to such CP Conduit Purchaser's name on
Schedule I as the agent of such Person under this Supplement and irrevocably
authorizes such Funding Agent, in such capacity, to take such action on its
behalf under the provisions of this Supplement and to exercise such powers and
perform such duties as are expressly delegated to such Funding Agent by the
terms of this Supplement, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Supplement, each Funding Agent shall not have any duties or
responsibilities except those expressly set forth herein, or any fiduciary
relationship with any CP Conduit Purchaser or APA Bank and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Supplement or otherwise exist against each Funding Agent.
Section 10.2. DELEGATION OF DUTIES. Each Funding Agent may execute any
of its duties under this Supplement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. Each Funding Agent shall not be responsible to the CP Conduit
Purchaser or any APA Bank in its Purchaser Group for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
Section 10.3. EXCULPATORY PROVISIONS. Each Funding Agent and any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall not be (i) liable for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with the Base Indenture, this
Supplement or any other Related Document (except to the extent that any of the
foregoing are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to any of
the CP Conduit Purchasers and/or APA Banks for any recitals, statements,
representations or warranties made by AFC-II, the Lessors, the Lessees, the
Guarantor, the Administrator, the Administrative Agent, or any officer thereof
contained in this Supplement or any other Related Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by such Funding Agent under or in connection with, this Supplement
or any other Related Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Supplement, any other Related
Document, or for any failure of any of AFC-II, the Lessors, the Lessees, the
Guarantor, the Administrative Agent, or the Administrator to perform its
obligations hereunder or
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thereunder. Each Funding Agent shall not be under any obligation to the CP
Conduit Purchaser or any APA Bank in its Purchaser Group to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Supplement, any other Related Document or to inspect
the properties, books or records of AFC-II, the Lessors, the Lessees, the
Guarantor, the Administrative Agent, or the Administrator.
Section 10.4. RELIANCE BY EACH FUNDING AGENT. Each Funding Agent shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to AFC-II or the Administrator), independent
accountants and other experts selected by such Funding Agent. Each Funding Agent
shall be fully justified in failing or refusing to take any action under this
Supplement or any other Related Document unless it shall first receive such
advice or concurrence of the Related Purchaser Group, as it deems appropriate or
it shall first be indemnified to its satisfaction by the Related Purchaser Group
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
Section 10.5. NOTICE OF ADMINISTRATOR DEFAULT OR AMORTIZATION EVENT OR
POTENTIAL AMORTIZATION EVENT. Each Funding Agent shall not be deemed to have
knowledge or notice of the occurrence of any Amortization Event or Potential
Amortization Event or any Administrator Default unless such Funding Agent has
received written notice from a CP Conduit Purchaser, an APA Bank, AFC-II, the
Administrative Agent or the Administrator referring to the Indenture or this
Supplement, describing such Amortization Event or Potential Amortization Event,
or Administrator Default and stating that such notice is a "notice of an
Amortization Event or Potential Amortization Event" or "notice of an
Administrator Default," as the case may be. In the event that any Funding Agent
receives such a notice, such Funding Agent shall give notice thereof to the CP
Conduit Purchaser and APA Banks in its Purchaser Group. Such Funding Agent shall
take such action with respect to such event as shall be reasonably directed by
the CP Conduit Purchaser and APA Banks in its Purchaser Group, PROVIDED that
unless and until such Funding Agent shall have received such directions, such
Funding Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such event as it shall deem advisable
in the best interests of the CP Conduit Purchaser and APA Banks in its Purchaser
Group.
Section 10.6. NON-RELIANCE ON EACH FUNDING AGENT AND OTHER PURCHASER
GROUPS. Each CP Conduit Purchaser and each of the related APA Banks expressly
acknowledge that neither its Funding Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by such Funding Agent hereinafter taken,
including any review of the affairs of AFC-II, the Lessors, the Lessees, the
Guarantor, the Administrative Agent, or the Administrator shall be deemed to
constitute any representation or warranty by such Funding Agent to any such
Person. Each CP Conduit Purchaser and each of the related APA Banks represents
to its Funding Agent that it has, independently and without reliance upon such
Funding Agent and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
AFC-II, the
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Lessors, the Lessees, the Guarantor, the Administrative Agent, and the
Administrator and made its own decision to enter into this Supplement. Each CP
Conduit Purchaser and each of the related APA Banks also represents that it
will, independently and without reliance upon its Funding Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Supplement and the other Related Documents, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other conditions and
creditworthiness of AFC-II, the Lessors, the Lessees, the Guarantor, the
Administrative Agent, and the Administrator.
Section 10.7. INDEMNIFICATION. Each APA Bank in a Purchaser Group
agrees to indemnify its Funding Agent in its capacity as such (to the extent not
reimbursed by AFC-II and the Administrator and without limiting the obligation
of AFC-II and the Administrator to do so), ratably according to its respective
APA Bank Percentage in effect on the date on which indemnification is sought
under this Section 10.7 (or if indemnification is sought after the date upon
which the Commitments shall have been terminated, ratably in accordance with its
APA Bank Percentage at the time of termination) from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against such Funding Agent in any way
relating to or arising out of this Supplement, any of the other Related
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Funding Agent under or in connection with any of the foregoing; PROVIDED
that no APA Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such related
Funding Agent's gross negligence or willful misconduct. The agreements in this
Section shall survive the payment of all amounts payable hereunder.
ARTICLE XI
GENERAL
Section 11.1. SUCCESSORS AND ASSIGNS. (a) This Supplement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that AFC-II may not assign or transfer any of its
rights under this Supplement without the prior written consent of all of the
Series 2002-4 Noteholders, no CP Conduit Purchaser may assign or transfer any of
its rights under this Supplement other than in accordance with the Asset
Purchase Agreement with respect to such CP Conduit Purchaser or otherwise to the
APA Bank with respect to such CP Conduit Purchaser or a Program Support Provider
with respect to such CP Conduit Purchaser or pursuant to clause (b) or (e) below
of this Section 11.1 and no APA Bank may assign or transfer any of its rights or
obligations under this Supplement except to a Program Support Provider or
pursuant to clause (c), (d) or (e) below of this Section 11.1.
(b) Without limiting the foregoing, each CP Conduit Purchaser may
assign all or a portion of the Purchaser Group Invested Amount with respect to
such CP Conduit Purchaser and its rights and obligations under this Supplement
and any other Related Documents to which
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it is a party to a Conduit Assignee with respect to such CP Conduit Purchaser.
Prior to or concurrently with the effectiveness of any such assignment (or if
impracticable, immediately thereafter), the assigning CP Conduit Purchaser shall
notify the Administrative Agent, AFC-II, the Trustee and the Administrator
thereof. Upon such assignment by a CP Conduit Purchaser to a Conduit Assignee,
(A) such Conduit Assignee shall be the owner of the Purchaser Group Invested
Amount or such portion thereof with respect to such CP Conduit Purchaser, (B)
the related administrative or managing agent for such Conduit Assignee will act
as the administrative agent for such Conduit Assignee hereunder, with all
corresponding rights and powers, express or implied, granted to the Funding
Agent hereunder or under the other Related Documents, (C) such Conduit Assignee
and its liquidity support provider(s) and credit support provider(s) and other
related parties shall have the benefit of all the rights and protections
provided to such CP Conduit Purchaser herein and in the other Related Documents
(including, without limitation, any limitation on recourse against such Conduit
Assignee as provided in this paragraph), (D) such Conduit Assignee shall assume
all of such CP Conduit Purchaser's obligations, if any, hereunder or under the
Base Indenture or under any other Related Document with respect to such portion
of the Purchaser Group Invested Amount and such CP Conduit Purchaser shall be
released from such obligations, (E) all distributions in respect of the
Purchaser Group Invested Amount or such portion thereof with respect to such CP
Conduit Purchaser shall be made to the applicable agent or administrative agent,
as applicable, on behalf of such Conduit Assignee, (F) the definitions of the
terms "Monthly Funding Costs" and "Discount" shall be determined in the manner
set forth in the definition of "Monthly Funding Costs" and "Discount" applicable
to such CP Conduit Purchaser on the basis of the interest rate or discount
applicable to commercial paper issued by such Conduit Assignee (rather than such
CP Conduit Purchaser), (G) the defined terms and other terms and provisions of
this Supplement, the Base Indenture and the other Related Documents shall be
interpreted in accordance with the foregoing, and (H) if requested by the
Administrative Agent or the agent or administrative agent with respect to the
Conduit Assignee, the parties will execute and deliver such further agreements
and documents and take such other actions as the Administrative Agent or such
agent or administrative agent may reasonably request to evidence and give effect
to the foregoing. No assignment by any CP Conduit Purchaser to a Conduit
Assignee of the Purchaser Group Invested Amount with respect to such CP Conduit
Purchaser shall in any way diminish the obligations of the APA Bank with respect
to such CP Conduit Purchaser under Section 2.3 to fund any Increase.
(c) Any APA Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell all or any part of its rights
and obligations under this Supplement and the Series 2002-4 Notes, with the
prior written consent of the Administrative Agent, AFC-II and the Administrator
(in each case, which consent shall not be unreasonably withheld), to one or more
banks (an "ACQUIRING APA BANK") pursuant to a transfer supplement, substantially
in the form of EXHIBIT H (the "TRANSFER SUPPLEMENT"), executed by such Acquiring
APA Bank, such assigning APA Bank, the Funding Agent with respect to such APA
Bank, the Administrative Agent, AFC-II and the Administrator and delivered to
the Administrative Agent. Notwithstanding the foregoing, no APA Bank shall so
sell its rights hereunder if such Acquiring APA Bank is not an Eligible
Assignee.
(d) Any APA Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more financial
institutions or other entities ("PARTICIPANTS") participations in its APA Bank
Percentage of the Commitment Amount with
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respect to it and the other APA Banks included in the related Purchaser Group,
its Series 2002-4 Note and its rights hereunder pursuant to documentation in
form and substance satisfactory to such APA Bank and the Participant; PROVIDED,
HOWEVER, that (i) in the event of any such sale by an APA Bank to a Participant,
(A) such APA Bank's obligations under this Supplement shall remain unchanged,
(B) such APA Bank shall remain solely responsible for the performance thereof
and (C) AFC-II and the Administrative Agent shall continue to deal solely and
directly with such APA Bank in connection with its rights and obligations under
this Supplement and (ii) no APA Bank shall sell any participating interest under
which the Participant shall have rights to approve any amendment to, or any
consent or waiver with respect to, this Supplement, the Base Indenture or any
Related Document, except to the extent that the approval of such amendment,
consent or waiver otherwise would require the unanimous consent of all APA Banks
hereunder. A Participant shall have the right to receive Article VII Costs but
only to the extent that the related selling APA Bank would have had such right
absent the sale of the related participation and, with respect to amounts due
pursuant to Section 7.2, only to the extent such Participant shall have complied
with the provisions of Section 7.2(e) and (g) as if such Participant were the
Administrative Agent, a Funding Agent, a Program Support Provider or a member of
a Purchaser Group.
(e) Any CP Conduit Purchaser and the APA Bank with respect to such
CP Conduit Purchaser may at any time sell all or any part of their respective
rights and obligations under this Supplement and the Series 2002-4 Notes, with
the prior written consent of the Administrative Agent, AFC-II and the
Administrator (in each case, which consent shall not be unreasonably withheld),
to a multi-seller commercial paper conduit and one or more banks providing
support to such multi-seller commercial paper conduit (an "ACQUIRING PURCHASER
GROUP") pursuant to a transfer supplement, substantially in the form of EXHIBIT
I (the "PURCHASER GROUP SUPPLEMENT"), executed by such Acquiring Purchaser
Group, the Funding Agent with respect to such Acquiring Purchaser Group
(including the CP Conduit Purchaser and the APA Banks with respect to such
Purchaser Group), such assigning CP Conduit Purchaser and the APA Banks with
respect to such CP Conduit Purchaser, the Funding Agent with respect to such
assigning CP Conduit Purchaser and APA Banks, the Administrative Agent, AFC-II
and the Administrator and delivered to the Administrative Agent.
(f) AFC-II authorizes each APA Bank to disclose to any Participant
or Acquiring APA Bank (each, a "Transferee") and any prospective Transferee any
and all financial information in such APA Bank's possession concerning AFC-II,
the Collateral, the Administrator and the Related Documents which has been
delivered to such APA Bank by AFC-II or the Administrator in connection with
such APA Bank's credit evaluation of AFC-II, the Collateral and the
Administrator.
Section 11.2. SECURITIES LAW. Each CP Conduit Purchaser and APA Bank
hereby represents and warrants to AFC-II that it is an "accredited investor" as
such term is defined in Rule 501(a) of Regulation D under the Securities Act and
has sufficient assets to bear the economic risk of, and sufficient knowledge and
experience in financial and business matters to evaluate the merits and risks
of, its investment in a Series 2002-4 Note. Each CP Conduit Purchaser and APA
Bank agrees that its Series 2002-4 Note will be acquired for investment only and
not with a view to any public distribution thereof, and that such CP Conduit
Purchaser and APA Bank will not offer to sell or otherwise dispose of its Series
2002-4 Note (or any interest
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therein) in violation of any of the registration requirements of the Securities
Act, or any applicable state or other securities laws. Each CP Conduit Purchaser
and APA Bank acknowledges that it has no right to require AFC-II to register its
Series 2002-4 Note under the Securities Act or any other securities law. Each CP
Conduit Purchaser and APA Bank hereby confirms and agrees that in connection
with any transfer by it of an interest in the Series 2002-4 Note, such CP
Conduit Purchaser or APA Bank has not engaged and will not engage in a general
solicitation or general advertising including advertisements, articles, notices
or other communications published in any newspaper, magazine or similar media or
broadcast over radio or television, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
Section 11.3. ADJUSTMENTS; SET-OFF. (a) If any CP Conduit Purchaser or
APA Bank in a Purchaser Group (a "BENEFITTED PURCHASER GROUP") shall at any time
receive in respect of its Purchaser Group Invested Amount any distribution of
principal, interest, Commitment Fees or any interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off
or otherwise) in a greater proportion than any such distribution received by any
other Purchaser Group, if any, in respect of such other Purchaser Group's
Purchaser Group Invested Amount, or interest thereon, the APA Banks in such
Benefitted Purchaser Group shall purchase for cash from the CP Conduit Purchaser
or APA Banks in the other Purchaser Group such portion of such other CP Conduit
Purchaser's or APA Banks' interest in the Series 2002-4 Notes, or shall provide
such other CP Conduit Purchaser or APA Bank with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Purchaser Group to share the excess payment or benefits of such
collateral or proceeds ratably with the other Purchaser Group; PROVIDED,
HOWEVER, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Purchaser Group, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest. AFC-II agrees that any CP Conduit Purchaser
or APA Bank so purchasing a portion of another Purchaser Group's Purchaser Group
Invested Amount may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
CP Conduit Purchaser or APA Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Purchaser Groups
provided by law, each CP Conduit Purchaser and APA Bank shall have the right,
without prior notice to AFC-II, any such notice being expressly waived by AFC-II
to the extent permitted by applicable law, upon any amount becoming due and
payable by AFC-II hereunder or under the Series 2002-4 Notes to set-off and
appropriate and apply against any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Purchaser Group to or for the credit or the account of AFC-II.
Each CP Conduit Purchaser and APA Bank agrees promptly to notify AFC-II, the
Administrator and the Administrative Agent after any such set-off and
application made by such CP Conduit Purchaser or APA Bank; PROVIDED that the
failure to give such notice shall not affect the validity of such set-off and
application.
Section 11.4. NO BANKRUPTCY PETITION. (a) Each of the Administrative
Agent, the CP Conduit Purchasers, the APA Banks and the Funding Agents hereby
covenants and agrees that, prior to the date which is one year and one day after
the later of payment in full of all Series
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of Notes, it will not institute against, or join any other Person in instituting
against, AFC-II any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other similar proceedings under any federal or state
bankruptcy or similar law.
(b) AFC-II, the Trustee, the Administrative Agent, each Funding
Agent and each APA Bank hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of all outstanding
Commercial Paper issued by, or for the benefit of, a CP Conduit Purchaser, it
will not institute against, or join any other Person in instituting against,
such CP Conduit Purchaser (or the Person issuing Commercial Paper for the
benefit of such CP Conduit Purchaser) any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other similar proceedings
under any federal or state bankruptcy or similar law.
(c) This covenant shall survive the termination of this Supplement
and the Base Indenture and the payment of all amounts payable hereunder and
thereunder.
Section 11.5. LIMITED RECOURSE. (a) Notwithstanding anything to the
contrary contained herein, any obligations of each CP Conduit Purchaser
hereunder to any party hereto are solely the corporate obligations of such CP
Conduit Purchaser and shall be payable at such time as funds are received by or
are available to such CP Conduit Purchaser in excess of funds necessary to pay
in full all of its outstanding Commercial Paper and, to the extent funds are not
available to pay such obligations, the claims relating thereto shall not
constitute a claim against such CP Conduit Purchaser but shall continue to
accrue. Each party hereto agrees that the payment of any claim (as defined in
Section 101 of Title 11 of the Bankruptcy Code) of any such party against a CP
Conduit Purchaser shall be subordinated to the payment in full of all of its
Commercial Paper.
(b) No recourse under any obligation, covenant or agreement of any
CP Conduit Purchaser contained herein shall be had against any incorporator,
stockholder, officer, director, employee or agent of such CP Conduit Purchaser,
its administrative agent, the Funding Agent with respect to such CP Conduit
Purchaser or any of their Affiliates by the enforcement of any assessment or by
any legal or equitable proceeding, by virtue of any statute or otherwise; it
being expressly agreed and understood that this Supplement is solely a corporate
obligation of such CP Conduit Purchaser individually, and that no personal
liability whatever shall attach to or be incurred by any incorporator,
stockholder, officer, director, employee or agent of such CP Conduit Purchaser,
its administrative agent, the Funding Agent with respect to such CP Conduit
Purchaser or any of its Affiliates (solely by virtue of such capacity) or any of
them under or by reason of any of the obligations, covenants or agreements of
such CP Conduit Purchaser contained in this Agreement, or implied therefrom, and
that any and all personal liability for breaches by such CP Conduit Purchaser of
any of such obligations, covenants or agreements, either at common law or at
equity, or by statute, rule or regulation, of every such incorporator,
stockholder, officer, director, employee or agent is hereby expressly waived as
a condition of and in consideration for the execution of this Supplement;
PROVIDED that the foregoing shall not relieve any such Person from any liability
it might otherwise have as a result of fraudulent actions taken or omissions
made by them. The provisions of this Section 11.5 shall survive termination of
this Supplement.
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Section 11.6. COSTS AND EXPENSES. AFC-II agrees to pay on demand (x)
all reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, reasonable fees and disbursements of counsel to
the Administrative Agent) and of each Purchaser Group (including in connection
with the preparation, execution and delivery of this Supplement the reasonable
fees and disbursements of one counsel, other than counsel to the Administrative
Agent, for all such Purchaser Groups) in connection with (i) the preparation,
execution and delivery of this Supplement and the other Related Documents and
any amendments or waivers of, or consents under, any such documents and (ii) the
enforcement by the Administrative Agent or any Funding Agent of the obligations
and liabilities of AFC-II, the Lessors, the Lessees, the Guarantor and the
Administrator under the Indenture, this Supplement, the other Related Documents
or any related document and all costs and expenses, if any (including reasonable
counsel fees and expenses), in connection with the enforcement of this Agreement
and the other Related Documents, (y) all reasonable out of pocket costs and
expenses of the Administrative Agent (including, without limitation, reasonable
fees and disbursements of counsel to the Administrative Agent) in connection
with the administration of this Supplement and the other Related Documents and
(z) the rating agency fees and expenses incurred by each CP Conduit Purchaser in
connection with its investment in the Series 2002-4 Notes. Any payments made by
AFC-II pursuant to this Section 11.6 shall be made solely from funds available
in the Series 2002-4 Distribution Account for the payment of Article VII Costs,
shall be non-recourse other than with respect to such funds, and shall not
constitute a claim against AFC-II to the extent that insufficient funds exist to
make such payment. The agreements in this Section shall survive the termination
of this Supplement and the Base Indenture and the payment of all amounts payable
hereunder and thereunder.
Section 11.7. EXHIBITS. The following exhibits attached hereto
supplement the exhibits included in the Indenture.
EXHIBIT A: Form of Variable Funding Note
EXHIBIT B: Form of Increase Notice
EXHIBIT C: Form of Consent
EXHIBIT D: Form of Series 2002-4 Demand Note
EXHIBIT E: Form of Series 2002-4 Letter of Credit
EXHIBIT F: Form of Lease Payment Deficit Notice
EXHIBIT G: Form of Demand Notice
EXHIBIT H: Form of Transfer Supplement
EXHIBIT I: Form of Purchaser Group Supplement
Section 11.8. 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 11.9. 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.
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Section 11.10. GOVERNING LAW. This Supplement shall be construed in
accordance with the law of the State of New York, and the obligations, rights
and remedies of the parties hereto shall be determined in accordance with such
law.
Section 11.11. AMENDMENTS. This Supplement may be modified or amended
from time to time 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 Requisite Noteholders.
Section 11.12. 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
2002-4 Notes without the consent of the Requisite Noteholders.
Section 11.13. CAPITALIZATION OF AFC-II. AFC-II agrees that on the
Series 2002-4 Closing Date and on the date of any increase in the Series 2002-4
Maximum Invested Amount it will have capitalization in an amount equal to or
greater than 3% of the sum of (x) the Series 2002-4 Maximum Invested Amount and
(y) the invested amount of the Series 1997-1 Notes, Series 1998-1 Notes, Series
2000-1 Notes, Series 2000-2 Notes, Series 2000-3 Notes, the Series 2000-4 Notes,
the Series 2001-1 Notes, the Series 2001-2 Notes, the Series 2002-1 Notes, the
Series 2002-2 Notes and the Series 2002-3 Notes.
Section 11.14. SERIES 2002-4 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 2002-4 Required Non-Program Enhancement
Percentage would exceed 33%.
Section 11.15. SERIES 2002-4 DEMAND NOTES. 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 2002-4 Demand Notes or forgive amounts payable
thereunder so that the outstanding principal amount of the Series 2002-4 Demand
Notes after such reduction or forgiveness is less than the Series 2002-4 Letter
of Credit Liquidity Amount. AFC-II shall not agree to any amendment of the
Series 2002-4 Demand Notes without first satisfying the Rating Agency
Confirmation Condition and the Rating Agency Consent Condition.
Section 11.16. TERMINATION OF SUPPLEMENT. This Supplement shall cease
to be of further effect when all outstanding Series 2002-4 Notes theretofore
authenticated and issued have been delivered (other than destroyed, lost, or
stolen Series 2002-4 Notes which have been replaced or paid) to the Trustee for
cancellation and AFC-II has paid all sums payable hereunder and, if the Series
2002-4 Demand Note Payment Amount on the Series 2002-4 Letter of Credit
Termination Date was greater than zero, the Series 2002-4 Cash Collateral
Account Surplus shall equal zero, the Demand Note Preference Payment Amount
shall have been reduced to zero and
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all amounts have been withdrawn from the Series 2002-4 Cash Collateral Account
in accordance with Section 3.8(h) of this Supplement.
Section 11.17. COLLATERAL REPRESENTATIONS AND WARRANTIES OF AFC-II.
AFC-II hereby represents and warrants to the Trustee, the Administrative Agent,
each Funding Agent and each Purchaser Group that:
(a) the Base Indenture creates a valid and continuing security
interest (as defined in the applicable UCC) in the Collateral in favor of
the Trustee for the benefit of the Noteholders, which security interest is
prior to all other liens, and is enforceable as such as against creditors
of and purchasers from AFC-II. This Supplement will create a valid and
continuing security interest (as defined in the applicable UCC) in the
Series 2002-4 Collateral in favor of the Trustee for the benefit of the
Series 2002-4 Noteholders, which security interest is prior to all other
liens, and is enforceable as such as against creditors of and purchasers
from AFC-II.
(b) The Collateral and the Series 2002-4 Collateral (in each case,
other than the Vehicles) consist of "instruments," "general intangibles"
and "deposit accounts" within the meaning of the applicable UCC.
(c) AFC-II owns and has good and marketable title to the Collateral
and the Series 2002-4 Collateral free and clear of any lien, claim or
encumbrance of any Person.
(d) With respect to the portion of the Collateral that consists of
instruments, all original executed copies of each instrument that
constitute or evidence part of the Collateral have been delivered to the
Trustee. None of the instruments that constitute or evidence the Collateral
have any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Trustee.
(e) With respect to the portion of the Collateral that consists of
general intangibles, AFC-II has caused the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security
interest in the Collateral granted to the Trustee under the Base Indenture.
(f) With respect to the portion of the Collateral and the Series
2002-4 Collateral that consists of deposit or securities accounts
maintained with a bank other than the Trustee (collectively, the "BANK
ACCOUNTS"), AFC-II has delivered to the Trustee a fully executed agreement
pursuant to which the bank maintaining the Bank Accounts has agreed to
comply with all instructions originated by the Trustee directing
disposition of the funds in the Bank Accounts without further consent by
AFC-II. The Bank Accounts are not in the name of any person other than
AFC-II or the Trustee. AFC-II has not consented to the bank maintaining the
Bank Accounts to comply with instructions of any person other than the
Trustee.
(g) Other than the security interest granted to the Trustee under
the Base Indenture and this Supplement, AFC-II has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Collateral or the Series 2002-4 Collateral.
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AFC-II has not authorized the filing of and is not aware of any financing
statements against AFC-II that includes a description of collateral
covering the Collateral other than any financing statement under the Base
Indenture or that has been terminated. AFC-II is not aware of any judgment
or tax lien filings against AFC-II.
(h) AFC-II has not authorized the filing of and is not aware of any
financing statements against AFC-II that include a description of
collateral covering the Collateral other than any financing statements (i)
relating to the security interest granted to the Trustee in the Base
Indenture or (ii) that has been terminated.
Section 11.18. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Trustee, the Administrative
Agent, any Funding Agent, any CP Conduit Purchaser or any APA Bank, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 11.19. WAIVER OF SETOFF. Notwithstanding any other provision
of this Supplement or any other agreement to the contrary, all payments to the
Administrative Agent, the Funding Agents, the CP Conduit Purchasers and the APA
Banks hereunder shall be made without set-off or counterclaim.
Section 11.20. NOTICES. All notices, requests, instructions and
demands to or upon any party hereto to be effective shall be given (i) in the
case of AFC-II, the Administrator and the Trustee, in the manner set forth in
Section 13.1 of the Base Indenture and (ii) in the case of the Administrative
Agent, the CP Conduit Purchasers, the APA Banks and the Funding Agents, in
writing, and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand or three days after being
deposited in the mail, postage prepaid, in the case of facsimile notice, when
received, or in the case of overnight air courier, one Business Day after the
date such notice is delivered to such overnight courier, addressed as follows in
the case of the Administrative Agent and to the addresses therefor set forth in
Schedule I, in the case of the CP Conduit Purchasers, the APA Banks and the
Funding Agents; or to such other address as may be hereafter notified by the
respective parties hereto:
Administrative
Agent: JPMorgan Chase Bank
Conduit Administration
4 New York Plaza
6th Floor
New York, NY 10004
Attention: Lara Graff
Fax: (212) 623-5980
-82-
<Page>
IN WITNESS WHEREOF, each of the parties hereto 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.,
as Issuer
By:
-------------------------------------
Name:
Title:
AVIS RENT A CAR SYSTEM, INC.,
as Administrator
By:
-------------------------------------
Name:
Title:
<Page>
JPMORGAN CHASE BANK,
as Administrative Agent
By:
-------------------------------------
Name:
Title:
<Page>
PARK AVENUE RECEIVABLES CORPORATION,
as a CP Conduit Purchaser
By:
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as a Funding Agent
By:
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, as an APA Bank
By:
-------------------------------------
Name:
Title:
<Page>
SHEFFIELD RECEIVABLES CORPORATION,
as a CP Conduit Purchaser
By: BARCLAYS BANK PLC,
as Attorney-in-fact
By:
-------------------------------------
Name:
Title:
BARCLAYS BANK PLC, as a Funding Agent
and an APA Bank
By:
-------------------------------------
Name:
Title:
<Page>
JUPITER SECURITIZATION CORPORATION,
as a CP Conduit Purchaser
By:
-------------------------------------
Name:
Title:
BANK ONE, NA, as a Funding Agent and an
APA Bank
By:
-------------------------------------
Name:
Title:
<Page>
LIBERTY STREET FUNDING CORPORATION,
as a CP Conduit Purchaser
By:
-------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Funding
Agent and an APA Bank
By:
-------------------------------------
Name:
Title:
<Page>
QUINCY CAPITAL CORPORATION, as a CP
Conduit Purchaser
By:
-------------------------------------
Name:
Title:
BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Funding Agent and an APA Bank
By:
-------------------------------------
Name:
Title:
<Page>
PARADIGM FUNDING LLC, as a CP Conduit
Purchaser
By:
-------------------------------------
Name:
Title:
WESTLB AG, New York Branch, as a
Funding Agent and an APA Bank
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
<Page>
CHARTA CORPORATION,
as a CP Conduit Purchaser
By: Citicorp North America, Inc., as
Attorney-in-fact
By:
-------------------------------------
Name:
Title:
CITIBANK, N.A.,
as an APA Bank
By:
-------------------------------------
Name:
Title:
CITICORP NORTH AMERICA, INC.,
as a Funding Agent
By:
-------------------------------------
Name:
Title:.
<Page>
MMP-3 FUNDING, LLC,
as a CP Conduit Purchaser
By:
-------------------------------------
Name:
Title:
LEHMAN BROTHERS HOLDINGS INC.,
as an APA Bank
By:
-------------------------------------
Name:
Title:
IBEX CAPTIAL MARKETS, INC.,
as a Funding Agent
By:
-------------------------------------
Name:
Title:
<Page>
THE BANK OF NEW YORK (as successor in
interest to the corporate trust
administration of Harris Trust and
Savings Bank), as Trustee
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Series 2002-4
Agent
By:
-------------------------------------
Name:
Title:
<Page>
SCHEDULE I TO SERIES 2002-4 SUPPLEMENT
<Table>
<Caption>
Maximum Purchaser
APA Bank Group Invested Match
CP Conduit APA Banks Funding Agent Percentage Amount(1) Funding
---------- --------- ------------- ---------- ----------------- -------
1. Jupiter Securitization Bank One, NA Bank One, NA 100% $ 225,000,000 No
Corporation
2. Liberty Street Funding The Bank of Nova Scotia The Bank of Nova Scotia 100% $ 100,000,000 No
Corporation
3. Quincy Capital Bank of America, National Bank of America, National 100% $ 150,000,000 No
Corporation Association. Association
4. Paradigm Funding LLC WestLB AG, New York Branch WestLB AG, New York Branch 100% $ 150,000,000 No
5. Charta Corporation Citibank, N.A. Citicorp North America, Inc. 100% $ 150,000,000 No
6. MMP-3 Funding, LLC Lehman Brothers Holdings Inc. IBEX Capital Markets, Inc. 100% $ 200,000,000 No
7. Sheffield Receivables Barclays Bank PLC Barclays Bank PLC 100% $ 100,000,000 Yes
Corporation
8. Park Avenue Receivables JPMorgan Chase Bank JPMorgan Chase Bank 100% $ 225,000,000 No
Corporation
</Table>
- ----------
(1) Without giving effect to the Matched Purchaser Group Invested Amount for
the related Purchaser Group.