ARTICLE II PURCHASE AND SALE OF SERIES 2004-1 NOTES; DELIVERY OF SERIES 2004-1 NOTES, CLASS A-1 INCREASES AND OPTIONAL CLASS A-1 DECREASES OF CLASS A-1 INVESTED AMOUNT 26 Section 2.1. Purchases of Series 2004-1 Notes 26 Section 2.2. Delivery 27...
Exhibit 10.3
CENDANT
RENTAL CAR FUNDING (AESOP) LLC,
as
Issuer
CENDANT
CAR RENTAL GROUP, INC.,
as
Administrator
MIZUHO
CORPORATE BANK, LTD.,
as
Administrative Agent
BAYERISCHE
LANDESBANK NEW YORK BRANCH,
as
Syndication Agent,
CALYON
CAYMAN ISLANDS BRANCH.,
as
Documentation Agent,
CERTAIN
FINANCIAL INSTITUTIONS,
as
Purchasers
and
THE BANK
OF NEW YORK,
as
Trustee and Series 2004-1 Agent
_____________________
AMENDED
AND RESTATED SERIES 2004-1 SUPPLEMENT
dated as
of March 29, 2005
to
SECOND
AMENDED AND RESTATED BASE INDENTURE
dated as
of June 3, 2004
_____________________
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ARTICLE
I DEFINITIONS
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2
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ARTICLE
II PURCHASE AND SALE OF SERIES 2004-1 NOTES; DELIVERY OF SERIES 2004-1
NOTES, CLASS A-1 INCREASES AND OPTIONAL CLASS A-1 DECREASES OF CLASS A-1
INVESTED AMOUNT
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26
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Section
2.1. Purchases of Series 2004-1 Notes
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26
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Section
2.2. Delivery
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27
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Section
2.3. Procedure for Initial Issuance and for Increasing the Class A-1
Invested Amount
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27
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Section
2.4. Procedure for Decreasing the Series 2004-1 Invested
Amount
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29
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Section
2.5. Reductions of the Class A-1 Maximum Invested Amount
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30
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Section
2.6. Interest; Fees
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30
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Section
2.7. Indemnification by CRCF
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31
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ARTICLE
III SERIES 2004-1 ALLOCATIONS
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||
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Section
3.1. Establishment of Series 2004-1 Collection Account, Series 2004-1
Excess Collection Account and Series 2004-1 Accrued Interest
Account
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32
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Section
3.2. Allocations with Respect to the Series 2004-1 Notes
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32
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Section
3.3. Payments to Noteholders and Each Series 2004-1 Interest Rate Hedge
Counterparty
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37
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Section
3.4. Payment of Note Interest and Commitment Fees
|
40
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Section
3.5. Payment of Note Principal
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40
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Section
3.6. Administrator’s Failure to Instruct the Trustee to Make a Deposit or
Payment
|
46
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|
Section
3.7. Series 2004-1 Reserve Account
|
46
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|
Section
3.8. Series 2004-1 Letters of Credit and Series 2004-1 Cash Collateral
Account
|
48
| |
|
Section
3.9. Series 2004-1 Distribution Account
|
52
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|
Section
3.10. Series 2004-1 Interest Rate Xxxxxx
|
54
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|
Section
3.11. Series 2004-1 Demand Notes Constitute Additional Collateral for
Series 2004-1 Notes
|
55
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|
Section
3.12. Payments to Purchasers
|
55
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Section
3.13. Appointment of Series 2004-1 Agent
|
55
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ARTICLE
IV AMORTIZATION EVENTS
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56
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ARTICLE
V RIGHT TO WAIVE PURCHASE RESTRICTIONS
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57
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ARTICLE
VI CONDITIONS PRECEDENT
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59
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Section
6.1. Conditions Precedent to Effectiveness of Supplement
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59
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(i)
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ARTICLE
VII CHANGE IN CIRCUMSTANCES
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61
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Section
7.1. Increased Costs
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61
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Section
7.2. Taxes
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62
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Section
7.3. Break Funding Payments
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64
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Section
7.4. Alternate Rate of Interest
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65
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Section
7.5. Mitigation Obligations
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65
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ARTICLE
VIII REPRESENTATIONS AND WARRANTIES, COVENANTS
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66
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Section
8.1. Representations and Warranties of CRCF and the
Administrator
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66
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Section
8.2. Covenants of CRCF and the Administrator
|
66
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ARTICLE
IX THE ADMINISTRATIVE AGENT
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68
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Section
9.1. Appointment
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68
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Section
9.2. Delegation of Duties
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68
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Section
9.3. Exculpatory Provisions
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68
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Section
9.4. Reliance by Administrative Agent
|
69
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|
Section
9.5. Notice of Administrator Default or Amortization Event or Potential
Amortization Event
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69
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|
Section
9.6. Non-Reliance on the Administrative Agent and Other
Purchasers
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70
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Section
9.7. Indemnification
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70
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Section
9.8. The Administrative Agent in Its Individual Capacity
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70
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Section
9.9. Resignation of Administrative Agent; Successor Administrative
Agent
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71
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ARTICLE
X GENERAL
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71
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|
Section
10.1. Successors and Assigns
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71
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Section
10.2. Securities Law
|
72
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Section
10.3. Adjustments; Set-off
|
73
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|
Section
10.4. No Bankruptcy Petition
|
73
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Section
10.5.
Costs and Expenses
|
73
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|
Section
10.6. Exhibits
|
74
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|
Section
10.7. Ratification of Base Indenture
|
74
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|
Section
10.8. Counterparts
|
74
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|
Section
10.9. Governing Law
|
74
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|
Section
10.10. Amendments
|
74
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Section
10.11. Discharge of Indenture
|
75
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Section
10.12. Capitalization of CRCF
|
75
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|
Section
10.13. Series 2004-1 Required Non-Program Enhancement
Percentage
|
75
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|
Section
10.14. Series 2004-1 Demand Notes; Series 2004-1 Letter of
Credit
|
75
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|
Section
10.15. Termination of Supplement
|
75
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|
Section
10.16. Collateral Representations and Warranties of CRCF
|
76
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Section
10.17. No Waiver; Cumulative Remedies
|
77
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Section
10.18.
Waiver of Setoff
|
77
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Section
10.19. Notices
|
77
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Section
10.20. Confidential Information
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77
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Section
10.21. USA Patriot Action Notice
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79
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(ii)
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Section
10.22. Notice to Moodys'
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79
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(iii)
AMENDED
AND RESTATED SERIES 2004-1 SUPPLEMENT, dated as of March 29, 2005 (this
“Supplement”), among
CENDANT RENTAL CAR FUNDING (AESOP) LLC (formerly known as AESOP Funding II
L.L.C.), a special purpose limited liability company estab-lished under the laws
of Delaware (“CRCF”),
CENDANT CAR RENTAL GROUP, INC. (as assignee of Avis Rent A Car System, Inc.), a
Delaware corporation, as administrator (the “Administrator”),
MIZUHO CORPORATE BANK, LTD. (“Mizuho”), in
its capacity as admin-istrative agent for the Purchasers (the “Administrative
Agent”),
BAYERISCHE
LANDESBANK NEW YORK BRANCH, as
Syndication Agent, CALYON
CAYMAN ISLANDS BRANCH, as
Documentation Agent, the Purchasers (as defined herein), THE BANK OF NEW YORK, a
New York banking corporation, as trustee (together with its successors in
trust thereunder as provided in the Base Indenture referred to below, the
“Trustee”) and
THE BANK OF NEW YORK, a New York banking corporation, as agent for the
benefit of the Series 2004-1 Noteholders and each Series 2004-1 Interest Rate
Hedge Counterparty (in such capacity, the “Series
2004-1 Agent”), to
the Second Amended and Restated Base Indenture, dated as of June 3, 2004,
between CRCF and the Trustee (as amended, modi-fied or supplemented from time to
time, exclusive of Supplements creating a new Series of Notes, the “Base Indenture”).
PRELIMINARY
STATEMENT
WHEREAS,
on January 20, 2004, CRCF, Mizuho Corporate Bank, Ltd., certain financials
institutions as purchasers and The Bank of New York, as Trustee and Series
2004-1 Agent entered in the Series 2004-1 Supplement (as amended, the
“Original
Series 2004-1 Supplement”);
WHEREAS,
the purchasers (the “Original
Purchasers”) under
the Original Series 2004-1 Supplement as in effect immediately prior to this
Agreement have agreed to amend and restate the Original Series 2004-1 Supplement
in its entirety;
NOW,
THEREFORE, the parties hereto agree as follows:
DESIGNATION
Pursuant
to the Original Series 2004-1 Supplement, there was created a Series of Notes to
be issued pursuant to the Base Inden-ture and this Supplement and such Series of
Notes shall be designated generally as the Series 2004-1 Rental Car Asset Backed
Notes.
Pursuant
to this Supplement the Series 2004-1 Notes will be divided into two classes: one
of which shall be designated as the Floating Rate Series 2004-1 Rental Car Asset
Backed Notes, Class A-1 and one of which shall be designated as the Floating
Rate Series 2004-1 Rental Car Asset Backed Notes, Class A-2.
The
proceeds from the increase of the Series 2004-1 Notes shall be deposited in the
Collection Account and shall be paid to CRCF and used to make Loans under the
Loan Agreements to the extent that the Borrowers have requested Loans thereunder
and Eligible
-1-
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 2004-1 Notes are a non-Segregated Series of Notes (as more fully
described in the Base Indenture). Accordingly, all references in this Supplement
to “all” Series of Notes (and all references in this Supplement to terms defined
in the Base Indenture that contain references to “all” Series of Notes) shall
refer to all Series of Notes other than Segregated Series of Notes.
ARTICLE
I
DEFINITIONS
(a) All
capitalized terms not otherwise defined herein are defined in the Definitions
List attached to the Base Indenture as Schedule I thereto. All Article, Section,
Subsection, Exhibit or Schedule references herein shall refer to Articles,
Sections, Subsections, Exhibits or Schedules of this Supplement, except as
otherwise provided herein. Unless other-wise stated herein, as the context
other-wise 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
2004-1 Notes and not to any other Series of Notes issued by CRCF.
(b) The
following words and phrases shall have the following meanings with respect to
the Series 2004-1 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
Purchaser” is
defined in Section 10.1(b).
“Additional
Cendant Credit Document” means
in the event the Cendant Credit Agreement is no longer in effect, (i) any credit
agreement which replaces the Cendant Credit Agreement on substantially similar
terms, or (ii) in the event the Cendant Credit Agreement is not replaced, any
document evidencing indebtedness of Cendant where the aggregate amount of such
indebtedness under such document exceeds $25,000,000.
“Adjusted
LIBO Rate” means,
with respect to each Eurodollar Period, pertaining to a portion of the Purchaser
Invested Amount allocated to a Eurodollar Tranche, an interest rate per annum
(rounded upwards, if necessary, to the nearest 1/16th of 1%)
equal to LIBO Rate for such Eurodollar Period multiplied by the Statutory
Reserve Rate.
“Administrative
Agent” is
defined in the first paragraph hereto.
“Administrator” is
defined in the first paragraph hereto.
“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 ½ of 1%. Any change in the Alternate Base Rate due to a change in the
Prime
-2-
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.
“Alternate
Base Rate Tranche” means,
with respect to any Class A-1 Purchaser or any Class A-2 Purchaser, the portion
of the Class A-1 Purchaser Invested Amount or Class A-2 Purchaser Invested
Amount, as the case may be, with respect to such Class A-1 Purchaser or Class
A-2 Purchaser, as the case may be, not allocated to a Eurodollar
Tranche.
“Applicable
Law” means
all applicable laws, statutes, treaties, rules, codes, ordinances, regulations,
certificates, orders, interpretations, licenses and permits of any Governmental
Authority from time to time in effect, and judgments, decrees, injunctions,
writs, orders or like action of any court, arbitrator or other administrative,
judicial or quasi-judicial tribunal or agency of competent jurisdiction
(including laws specifically mandating compliance by property
owners).
“Applicable
Margin” is
defined in the Fee Letter.
“Article
VII Costs” means
any amounts due pursuant to Article VII.
“Bank
Accounts” is
defined in Section 10.16(f).
“Benefitted
Purchaser” is
defined in Section 10.3.
“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 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.
“Cendant” means
Cendant Corporation, a Delaware corporation.
“Cendant
Credit Agreement” means
the Five Year Competitive Advance and Revolving Credit Agreement, dated as of
November 22, 2004 among Cendant, the Lenders referred to therein, Bank of
America, N.A., as syndication agent, The Bank of Nova Scotia, Barclay's Bank
PLC, Calyon New York Branch and Citibank, N.A., as co-documentation agents, and
JPMorgan Chase Bank, N.A., as administrative agent, as in effect on the date
hereof, as further amended, modified or supplemented from time to time, and any
successor or replacement Cendant facility.
“Certificate
of Lease Deficit Demand” means a
certificate in the form of Annex A to any Series 2004-1 Letters of
Credit.
“Certificate
of Termination Date Demand” means a
certificate in the form of Annex D to any Series 2004-1 Letter of
Credit.
“Certificate
of Termination Demand” means a
certificate in the form of Annex C to any Series 2004-1 Letter of
Credit.
-3-
“Certificate
of Unpaid Demand Note Demand” means a
certificate in the form of Annex B to any Series 2004-1 Letter 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 CCRG, ARAC or BRAC or (b) either CRCF or
AESOP Leasing is no longer indirectly wholly-owned by CCRG.
“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 date hereof 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, 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 date
hereof.
“Claim” is
defined in Section 2.7.
“Class” means a
class of the Series 2004-1 Notes, which may be the Class A-1 Notes or the Class
A-2 Notes.
“Class
A-1 Alternate Base Rate Tranche” means,
with respect to any Class A-1 Purchaser, the portion of the Class A-1 Purchaser
Invested Amount with respect to such Class A-1 Purchaser not allocated to a
Class A-1 Eurodollar Tranche.
“Class
A-1 Carryover Controlled Amortization Amount” means,
with respect to any Related Month during the Controlled Amorti-zation Period,
the amount, if any, by which the portion of the Monthly Total Principal
Allocation paid to the Class A-1 Noteholders pursuant to Section 3.5(g) for the
previous Related Month was less than the Class A-1 Controlled Distribution
Amount for the previous Related Month; provided,
however, that
for the first Related Month in the Controlled Amortization Period, the Class A-1
Carryover Con-trolled Amortization Amount shall be zero.
“Class
A-1 Commitment Percentage” means,
on any date of determination, with respect to any Class A-1 Purchaser, the
ratio, expressed as a percentage, which such Class A-1 Purchaser’s Class A-1
Maximum Purchaser Invested Amount bears to the Class A-1 Maximum Invested Amount
on such date.
“Class
A-1 Controlled Amortization Amount” means
(i) with respect to any Related Month other than the last Related Month during
the Series 2004-1 Controlled Amortization Period, an amount (rounded down to the
nearest xxxxx) equal to the Class A-1 Invested Amount as of the end of the
Series 2004-1 Revolving Period divided
by 6 and
(ii) with respect to the last Related Month during the Series 2004-1 Controlled
Amortization Period, any remaining outstanding Class A-1 Invested
Amount.
“Class
A-1 Controlled Distribution Amount” means,
with respect to any Related Month during the Controlled Amortization Period, an
amount equal to the sum of the Class A-1
-4-
Controlled
Amortization Amount and any Class A-1 Carryover Controlled Amortization Amount
for such Related Month.
“Class
A-1 Decrease” is
defined in Section 2.4(a).
“Class
A-1 Eurodollar Tranche” means,
with respect to any Class A-1 Purchaser, any portion of the Class A-1 Purchaser
Invested Amount with respect to such Class A-1 Purchaser allocated to a
particular Eurodollar Period and an Adjusted LIBO Rate determined by reference
thereto.
“Class
A-1 Increase” is
defined in Section 2.3(a).
“Class
A-1 Increase Amount” is
defined in Section 2.3(a).
“Class
A-1 Increase Date” is
defined in Section 2.3(a).
"Class
A-1 Increase Expiry Date" means
the earliest of (a) the Early Controlled Amortization Date, (b) the date on
which an Amortization Event (other than of (i) the type specified in clause
(j) of Article IV that has been waived by Class A-1 Purchasers having in the
aggregate more than 50% of the aggregate amount of the Class A-1 Commitment
Percentages for all Class A-1 Purchasers or (ii) the type specified in clause
(a) through (i) of Article IV that has been waived by 100% of the Series 2004-1
Noteholders) shall have occurred with respect to the Series 2004-1 Notes
and (c) November 30, 2007.
“Class
A-1 Initial Invested Amount” means
the aggregate initial principal amount of the Class A-1 Notes, which is
$95,000,000.
“Class
A-1 Invested Amount” means,
when used with respect to any date, an amount equal to the Class A-1 Outstanding
Principal Amount plus the
amount of any principal payments made to Class A-1 Noteholders that have been
rescinded or otherwise returned by the Class A-1 Noteholders for any
reason.
“Class
A-1 Maximum Invested Amount” means,
on any date of determination, the sum of the Class A-1 Maximum Purchaser
Invested Amounts with respect to each of the Class A-1 Purchasers on such
date.
“Class
A-1 Maximum
Purchaser Invested Amount” means,
with respect to any Purchaser, the amount set forth opposite its name on
Schedule I hereto, as such amount may be increased or decreased from time
to time in accordance with the terms hereof.
“Class
A-1 Monthly Interest” means,
with respect to any Series 2004-1 Interest Period, an amount equal to the sum of
(i) the product of (a) the average daily Class A-1 Invested Amount allocated to
Class A-1 Eurodollar Tranches as of the first day of such Series 2004-1 Interest
Period, (b) the Adjusted LIBO Rate for the Eurodollar Period plus the Applicable
Margin on the first day of such Series 2004-1 Interest Period and (c) the number
of days in such Series 2004-1 Interest Period divided by 360 and (ii) the sum,
for each day in such Series 2004-1 Interest Period, of the product of (a) the
Class A-1 Invested Amount allocated to a Class X-0
-0-
Xxxxxxxxx
Xxxx Rate Tranche for such day, (b) the Alternate Base Rate for such day
plus the
Applicable Margin for such day divided
by 365.
“Class
A-1 Noteholder” means
the Person in whose name a Class A-1 Note is registered in the Note
Register.
“Class
A-1 Notes” means
any one of the Series 2004-1 Floating Rate Rental Car Asset Backed Notes, Class
A-1, executed by CRCF and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-1. Definitive Class A-1 Notes shall have
such insertions and deletions as are necessary to give effect to the provisions
of Section 2.18 of the Base Indenture.
“Class
A-1 Outstanding Principal Amount” means,
when used with respect to any date, an amount equal to (a) the Class A-1 Initial
Invested Amount plus (b) the
sum of the amount of each Class A-1 Increase minus (c) the
aggregate amount of principal payments made to Class A-1 Noteholders on or prior
to such date.
“Class
A-1 Pro Rata Share” means,
with respect to any Class A-1 Purchaser, on any date, the ratio, expressed as a
percentage, of such Class A-1 Purchaser’s Purchaser Invested Amount to the Class
A-1 Invested Amount.
“Class
A-1 Purchaser” means
each of the several financial institutions designated on Schedule I hereof as
purchasers of Class A-1 Notes and its permitted successors and
assigns.
“Class
A-1 Purchaser Increase Amount” means,
with respect to any Class A-1 Purchaser, for any Business Day, such Purchaser’s
Class A-1 Commitment Percentage of the Class A-1 Increase Amount, if any, on
such Business Day.
“Class
A-1 Purchaser Invested Amount” means,
with respect to any Class A-1 Purchaser, (a) when used with respect to the date
hereof, such Class A-1 Purchaser’s Class A-1 Commitment Percentage of the Class
A-1 Initial Invested Amount and (b) when used with respect to any other date, an
amount equal to (i) the Class A-1 Purchaser Invested Amount with respect to such
Class A-1 Purchaser on the immediately preceding Business Day plus (ii) the
Class A-1 Purchaser Increase Amount with respect to such Class A-1 Purchaser on
such date minus
(iii) the amount of principal payments made on the Class A-1 Notes to such
Class A-1 Purchaser pursuant to Section 3.5(f) on such date plus (iv) the
amount of principal payments on the Class A-1 Notes recovered from such Class
A-1 Purchaser by a trustee as a preference payment in a bankruptcy proceeding of
a Demand Note Issuer or otherwise.
“Class
A-2 Carryover Controlled Amortization Amount” means,
with respect to any Related Month during the Controlled Amortization Period, the
amount, if any, by which the portion of the Monthly Total Principal Allocation
paid to the Class A-2 Noteholders pursuant to Section 3.5(g) for the previous
Related Month was less than the Class A-2 Controlled Distribution Amount for the
previous Related Month; provided,
however, that
for the first Related Month in the Controlled Amortization Period, the Class A-2
Carryover Controlled Amortization Amount shall be zero.
-6-
“Class
A-2 Controlled Amortization Amount” means
with respect to each Related Month during the Series 2004-1 Controlled
Amortization Period, $50,000,000.
“Class
A-2 Controlled Distribution Amount” means,
with respect to any Related Month during the Controlled Amortization Period, an
amount equal to the sum of the Class A-2 Controlled Amortization Amount and any
Class A-2 Carryover Controlled Amortization Amount for such Related
Month.
“Class
A-2 Initial Invested Amount” means
the aggregate initial principal amount of the Class A-2 Notes, which is
$300,000,000.
“Class
A-2 Invested Amount” means,
when used with respect to any date, an amount equal to the Class A-2 Outstanding
Principal Amount plus the amount of any principal payments made to Class A-2
Noteholders that have been rescinded or otherwise returned by the Class A-2
Noteholders for any reason.
“Class
A-2 Monthly Interest” means,
with respect to any Series 2004-1 Interest Period, an amount equal to the sum of
(i) the product of (a) the average daily Class A-2 Invested Amount allocated to
Class A-2 Eurodollar Tranches as of the first day of such Series 2004-1 Interest
Period, (b) the Adjusted LIBO Rate for the Eurodollar Period plus the Applicable
Margin on the first day of such Series 2004-1 Interest Period and (c) the number
of days in such Series 2004-1 Interest Period divided
by 360 and
(ii) the sum, for each day in such Series 2004-1 Interest Period, of the product
of (a) the Class A-2 Invested Amount allocated to a Class A-2 Alternate Base
Rate Tranche for such day, (b) the Alternate Base Rate for such day
plus the
Applicable Margin for such day divided
by 365.
“Class
A-2 Noteholder” means
the Person in whose name a Class A-2 Note is registered in the Note
Register.
“Class
A-2 Notes” means
any one of the Series 2004-1 Floating Rate Rental Car Asset Backed Notes, Class
A-2, executed by CRCF and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-2. Definitive Class A-2 Notes shall have
such insertions and deletions as are necessary to give effect to the provisions
of Section 2.18 of the Base Indenture.
“Class
A-2 Outstanding Principal Amount” means,
when used with respect to any date, an amount equal to (a) the Class A-2 Initial
Invested Amount minus (b) the amount of principal payments made to Class A-2
Noteholders on or prior to such date.
“Class
A-2 Pro Rata Share” means,
with respect to any Class A-2 Purchaser, on any date, the ratio, expressed as a
percentage, of such Class A-2 Purchaser’s Purchaser Invested Amount to the Class
A-2 Invested Amount.
“Class
A-2 Purchaser” means
each of the several financial institutions designated on Schedule 1 hereof as
purchasers of Class A-2 Notes and its permitted successors and
assigns.
“Class
A-2 Purchaser Invested Amount” means,
with respect to each Class A-2 Purchaser, (a) when used with respect to the
Effective Date, the amount set forth on Schedule
1
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next to
such Class A-2 Purchaser’s name and (b) when used with respect to any other
date, an amount equal to (i) the Class A-2 Purchaser Invested Amount with
respect to such Class A-2 Purchaser on the immediately preceding Business Day
minus (ii) the
amount of principal payments made on the Class A-2 Notes to such Class A-2
Purchaser pursuant to Section 3.5(f) on or prior to such date plus (iii)
the amount of principal payments on the Class A-2 Notes recovered from such
Class A-2 Purchaser by a trustee as a preference payment in a bankruptcy
preceding of a Demand Note Issuer or otherwise.
“Commitment” means,
with respect to any Class A-1 Purchaser, the obligation of such Class A-1
Purchaser to purchase a Class A-1 Note on the date hereof and, thereafter, to
maintain and, subject to certain conditions, increase the Class A-1 Purchaser
Invested Amount with respect to such Class A-1 Purchaser, in each case, in an
amount up to the Class A-1 Maximum Purchaser Invested Amount with respect to
such Purchaser.
“Commitment
Fee” is
defined in Section 2.6(c).
“Commitment
Fee Rate” is
defined in the Fee Letter.
“Company
indemnified person” is
defined in Section 2.7.
“Consent” is
defined in Article V.
“Consent
Period Expiration Date” is
defined in Article V.
“Demand
Note Issuer” means
each issuer of a Series 2004-1 Demand Note.
“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
2004-1 Letter of Credit, or any combination thereof, as the context may
require.
“Early
Controlled Amortization Date” means
the first day of the month following (1) the occurrence of an “Event of Default”
(as defined in the Cendant Credit Agreement or any Additional Cendant Credit
Document, as applicable) and (2) as a result of such “Event of Default” (as
defined in the Cendant Credit Agreement or any Additional Cendant Credit
Document, as applicable), the acceleration of any or all debt outstanding under
the Cendant Credit Agreement or the acceleration of a total of $50,000,000 of
debt outstanding under one or more Additional Cendant Credit
Documents.
“Effective
Date” is
defined in Section 6.1.
“Eurodollar
Period” means,
(i) with
respect to any Class A-1 Eurodollar Tranche and any Class A-1
Purchaser:
(a) initially,
the period commencing on the date hereof, any Class A-1 Increase Date or a
conversion date, as the case may be, with respect to such Class A-1
-8-
Eurodollar
Tranche and ending on the first Distribution Date thereafter (or such other
period which is acceptable to the Class A-1 Purchaser and which in no event will
be less than 7 days); and
(b) thereafter,
each period commencing on the last day of the immediately preced-ing Eurodollar
Period applicable to such Class A-1 Eurodollar Tranche and ending on the next
succeeding Distribution Date (or such other period which is acceptable to the
Class A-1 Purchaser and which in no event will be less than 7 days); and
(ii) with
respect to any Class A-2 Eurodollar Tranche and any Purchaser:
(a) initially,
the period commencing on the date hereof or a conversion date, as the case may
be, with respect to such Class A-2 Eurodollar Tranche and ending on the first
Distribution Date thereafter (or such other period which is acceptable to the
Class A-2 Purchaser 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 Class A-2 Eurodollar Tranche and ending on the next
succeeding Distribution Date (or such other period which is acceptable to the
Class A-2 Purchaser and which in no event will be less than 7
days).
“Eurodollar
Tranche” means
any Class A-1 Eurodollar Tranche and any Class A-2 Eurodollar
Tranche.
“Excess
Collections” is
defined in Section 3.3(e)(i).
“Excluded
Taxes” means,
with respect to the Administrative Agent, any Purchaser or any other recipient
of any payment to be made by or on account of any obligation of CRCF here-under,
(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 Governmental Authority imposing such tax, as
the case may be, and the Administrative Agent, such Purchaser or any other such
recipient (except a connection arising solely from the Administra-tive Agent’s,
such Purchaser’s or such recipient’s having executed, delivered or performed its
obligations hereunder, receiving a payment hereunder or enforcing the Series
2004-1 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 CRCF 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 Purchaser’s
or such recipient’s having executed, delivered or performed its obligations
hereunder, receiving a payment hereunder or enforcing the Series 2004-1
Notes).
“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
-9-
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 letters dated the date hereof, from CRCF addressed to the Administrative
Agent and each of the Purchasers setting forth certain fees payable from time to
time to the Purchasers, as such letter may be amended or replaced from time to
time.
“Finance
Lease Series Invested Amount” means
the sum of the Invested Amounts for each Finance Lease Series
Notes.
“Finance
Lease Series Notes” means
each Series of Notes, which will continue to receive collections from the
Finance Lease pursuant to the Base Indenture and the related Series Supplement
following the occurrence of an Event of Bankruptcy with respect to CCRG, ARAC,
BRAC, any other Permitted Sublessee or the Administrator.
“Fixed
Rate Payment” means,
for any Distribution Date, the amount, if any, payable by CRCF as the “Fixed
Amount” under any Series 2005-2 Interest Rate Hedge after the netting of
payments due to CRCF as the “Floating Amount” from the Series 2005-2 Interest
Rate Hedge Counterparty under such Series 2005-2 Interest Rate Hedge on such
Distribution Date.
“Indemnified
Taxes” means
Taxes other than Excluded Taxes.
“Lease
Deficit Disbursement” means
an amount drawn under a Series 2004-1 Letter of Credit pursuant to a Certificate
of Lease Deficit Demand.
“LIBO
Rate” means,
with respect to each Eurodollar Period, a rate per annum to be determined by the
Administrative Agent as follows:
(i) On each
LIBO Rate Determination Date, the Administrative Agent will determine the London
interbank offered rate for U.S. dollar deposits for a period equal to, or if not
equal to, most closely approximating, such Eurodollar Period that appears on
Telerate Page 3750 as it relates to U.S. dollars as of 11:00 a.m., London time,
on such LIBO Rate Determination Date;
(ii) If, on
any LIBO Rate Determination Date, such rate does not appear on Telerate Page
3750, the Administrative Agent will request that the principal London offices of
each of four major banks in the London interbank market selected by the
Administrative Agent provide the Administrative Agent with offered quotations
for deposits in U.S. dollars for a period equal to such Eurodollar Period,
commencing on the first day of such Eurodollar Period, to prime banks in the
London interbank market at approximately 11:00 a.m., London time, on such LIBO
Rate Determination Date and in a prin-cipal amount equal to the amount of the
related Eurodollar Tranche that is representa-tive of a single transaction in
such market at such time. If at least two such quotations are provided, “LIBO
Rate” for such Eurodollar Period will be the arithmetic mean of such quotations;
or
-10-
(iii) If fewer
than two such quotations are provided pursuant to clause (ii), “LIBO
Rate” for
such Eurodollar Period will be the arithmetic mean of rates quoted by three
major banks in the City of New York selected by the Administrative Agent at
approxi-mately 11:00 a.m., New York City time, on such LIBO Rate
Determination Date for loans in U.S. dollars to leading European banks, for a
period equal to such Eurodollar Period, commencing on the first day of such
Eurodollar Period, and in a principal amount equal to the amount of the related
Eurodollar Tranche; provided,
however, that if
the banks selected as aforesaid by the Administrative Agent are not quoting
rates as mentioned in this sentence, “LIBO Rate” for such Eurodollar Period will
be the same as “LIBO Rate” for the immediately preceding Eurodollar
Period.
“LIBO
Rate Determination Date” means,
with respect to any Eurodollar Period, the second London Banking Day preceding
the first day of such Eurodollar Period.
“LOC
Pro Rata Share” means,
with respect to any Series 2004-1 Letter of Credit Provider as of any date, the
fraction (expressed as a percentage) obtained by dividing (A) the available
amount under such Series 2004-1 Letter of Credit Provider’s Series 2004-1 Letter
of Credit as of such date by (B) an amount equal to the aggregate available
amount under all Series 2004-1 Letters of Credit as of such date; provided that
only for purposes of calculating the LOC Pro Rata Share with respect to any
Series 2004-1 Letter of Credit Provider as of any date, if such Series 2004-1
Letter of Credit Provider has not complied with its obligation to pay the
Trustee the amount of any draw under its Series 2004-1 Letter of Credit made
prior to such date, the avail-able amount under such Series 2004-1 Letter of
Credit Provider’s Series 2004-1 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 2004-1 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 2004-1
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.
“Monthly
Total Principal Allocation” means
for any Related Month the sum of all Series 2004-1 Principal Allocations with
respect to such Related Month.
“Original
Purchasers” is
defined in the Preliminary Statements.
“Original
Series 2004-1 Notes” means
each of the Series 2004-1 Notes issued pursuant to the Original Series 2004-1
Supplement that is outstanding immediately prior to the Effective
Date.
“Original
Series 2004-1 Supplement” is
defined in the Preliminary Statements.
“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
-11-
or
enforcement of, or otherwise with respect to, this Supplement, the Base
Indenture or any Related Document.
“Outstanding” means,
with respect to the Series 2004-1 Notes, the Series 2004-1 Invested Amount shall
not have been reduced to zero and all accrued interest and other amounts owing
on the Series 2004-1 Notes and to the Administrative Agent and the Purchasers
hereunder shall not have been paid in full.
“Participants” is
defined in Section 10.1(c).
“Past
Due Rent Payment” is
defined in Section 3.2(g).
“Preference
Amount” means
any amount previously distributed to a Purchaser on or relating to a Series
2004-1 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 States 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 deter-mination, the aggregate amount of all proceeds of
demands made on the Series 2004-1 Demand Notes included in the Series 2004-1
Demand Note Payment Amount as of the Series 2004-1 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
includ-ing the conclusion or dismissal of the proceedings giving rise to such
Event of Bankruptcy without contin-uing 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 proceed-ings shall
equal the Series 2004-1 Demand Note Payment Amount as of the date of the
conclusion or dismissal of such proceedings.
“Prime
Rate” means
the rate of interest per annum identified as the “Prime Rate” in the “Money
Rates” section of The
Wall Street Journal; each
change in the Prime Rate shall be effective from and including the date such
change is published as being effective.
“Principal
Deficit Amount” means,
on any date of determination, the excess, if any, of (i) the Series 2004-1
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 sum of the Series 2004-1 AESOP I Operating
Lease Loan Agreement Borrowing Base and the Series 2004-1 AESOP I Finance Lease
Loan Agreement Borrowing Base on such date.
“Pro
Rata Share” means,
with respect to any Purchaser, on any date, the ratio, expressed as a
percentage, which the Purchaser Invested Amount with respect to such Purchaser
bears to the Series 2004-1 Invested Amount on such date.
-12-
“Purchaser” means
any Class A-1 Noteholder and any Class A-2 Noteholders.
“Purchaser
Invested Amount” means
(i) with respect to a Class A-1 Purchaser, its Class A-1 Purchaser Invested
Amount and (ii) with respect to a Class A-2 Purchaser, its Class A-2 Purchaser
Invested Amount.
“Purchaser
Percentage” means
(i) with respect to each Class A-1 Purchaser (a) prior to the Class A-1 Increase
Expiry Date, such Class A-1 Purchaser’s Class A-1 Commitment Percentage and (b)
on or after the Class A-1 Increase Expiry Date, such Class A-1 Purchaser’s Class
A-1 Pro Rata Share and (ii) with respect to each Class A-2 Purchaser, such Class
A-2 Purchaser’s Class A-2 Pro Rata Share.
“Qualified
Interest Rate Hedge Provider” means a
bank, corporation or other financial institution having (i) a short-term senior
unsecured debt, deposit, claims paying or other similar rating of at least “A-1”
from S&P or a long-term senior unsecured debt, deposit, claims paying or
other similar rating of at least “BBB+” from S&P and (i) a short-term senior
unsecured debt, deposit, claims paying or other similar rating of “P-1” from
Xxxxx’x or a long-term senior unsecured debt, deposit, claims paying or other
similar rating of at least “Baa3” from Xxxxx’x.
“Record
Date” means,
with respect to each Distribution Date, the immediately preceding Business
Day.
“Requisite
Noteholders” means
Purchasers having in the aggregate more than 50% of the aggregate amount of the
Purchaser Percentages for all Purchasers.
“Series
1998-1 Notes” means
the Series of Notes designated as the Series 1998-1 Notes.
“Series
2000-2 Notes” means
the Series of Notes designated as the Series 2000-2 Notes.
“Series
2000-4 Notes” means
the Series of Notes designated as the Series 2000-4 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.
“Series
2002-3 Notes” means
the Series of Notes designated as the Series 2002-3 Notes.
“Series
2003-1 Notes” means
the Series of Notes designated as the Series 2003-1 Notes.
-13-
“Series
2003-2 Notes” means
the Series of Notes designated as the Series 2003-2 Notes.
“Series
2003-3 Notes” means
the Series of Notes designated as the Series 2003-3 Notes.
“Series
2003-4 Notes” means
the Series of Notes designated as the Series 2003-4 Notes.
“Series
2003-5 Notes” means
the Series of Notes designated as the Series 2003-5 Notes.
“Series
2004-1 Accrued Interest Account” is
defined in Section 3.1(b).
“Series
2004-1 AESOP I Finance Lease Loan Agreement Borrowing Base” means,
as of any date of determination, the product of (a) the Series 2004-1 Finance
Lease Vehicle Percentage as of such date and (b) the AESOP I Finance Lease Loan
Agreement Borrowing Base as of such date.
“Series
2004-1 AESOP I Operating Lease Loan Agreement Borrowing Base” means,
as of any date of determination, the product of (a) the Series 2004-1 AESOP
Operating Lease Vehicle Percentage as of such date and (b) the AESOP I Operating
Lease Loan Agreement Borrowing Base as of such date.
“Series
2004-1 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 2004-1
Required AESOP I Operating Lease Vehicle Amount as of such date and the
denomina-tor of which is the sum of the Required AESOP I Operating Lease Vehicle
Amounts for all Series of Notes as of such date.
“Series
2004-1 Agent” is
defined in the recitals hereto.
“Series
2004-1 Available Cash Collateral Account Amount” means,
as of any date of determination, the amount on deposit in the Series 2004-1 Cash
Collateral Account (after giving effect to any deposits thereto and withdrawals
and releases therefrom on such date).
“Series-2004-1
Available Reserve Account Amount” means,
as of any date of determination, the amount on deposit in the Series 2004-1
Reserve Account (after giving effect to any deposits thereto and with-drawals
and releases therefrom on such date).
“Series
2004-1 Carryover Controlled Amortization Amount” means
the sum of the the Class A-1 Carryover Controlled Amortization Amount and the
Class A-2 Controlled Amortization Amount.
“Series
2004-1 Cash Collateral Account” is
defined in Section 3.8(e).
“Series
2004-1 Cash Collateral Account Collateral” is
defined in Section 3.8(a).
-14-
“Series
2004-1 Cash Collateral Account Surplus” means,
with respect to any Distribution Date, the lesser of (a) the Series 2004-1
Available Cash Collateral Account Amount and (b) the excess, if any, of the
Series 2004-1 Enhancement Amount (after giving effect to any withdrawal from the
Series 2004-1 Reserve Account on such Distribution Date) over the Series 2004-1
Required Enhancement Amount on such Distribution Date; provided,
however, that,
on any date after the Series 2004-1 Letter of Credit Termination Date, the
Series 2004-1 Cash Collateral Account Surplus shall mean the excess, if any, of
(x) the Series 2004-1 Available Cash Collateral Account Amount over (y) the
Series 2004-1 Demand Note Payment Amount minus the
Pre-Preference Period Demand Note Payments as of such date.
“Series
2004-1 Cash Collateral Percentage” means,
as of any date of determina-tion, the percentage equivalent of a fraction, the
numerator of which is the Series 2004-1 Available Cash Collateral Amount as of
such date and the denominator of which is the Series 2004-1 Letter of Credit
Liquidity Amount as of such date.
“Series
2004-1 Collateral” means
the Collater-al, each Series 2004-1 Letter of Credit, each Series 2004-1 Demand
Note, the Series 2004-1 Interest Rate Hedge Collateral, the Series 2004-1
Distribution Account Collateral, the Series 2004-1 Cash Collateral Account
Collateral and the Series 2004-1 Reserve Account Collateral.
“Series
2004-1 Collection Account” is
defined in Section 3.1(b).
“Series
2004-1 Controlled Amortization Amount” means
the sum of the Class A-1 Controlled Amortization Amount and the Class A-2
Controlled Amortization Amount.
“Series
2004-1 Controlled Amortization Period” means
the period commencing at the opening of business on the earlier of the Early
Controlled Amortization Date and December 1, 2007 (or, in each case, if such day
is not a Business Day, the Business Day immediately preceding such day) and
continuing to the earliest of (i) the commencement of the Series 2004-1 Rapid
Amortization Period, (ii) the date on which the Series 2004-1 Notes are fully
paid and (iii) the termination of the Indenture.
“Series
2004-1 Controlled Distribution Amount” means,
with respect to any Related Month during the Series 2004-1 Controlled
Amortization Period, an amount equal to the sum of the Series 2004-1 Controlled
Amortization Amount for such Related Month and any Series 2004-1 Carryover
Controlled Amortization Amount for such Related Month.
“Series
2004-1 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
2004-1 Demand Note Payment Amount” means,
as of the Series 2004-1 Letter of Credit Termination Date, the aggregate amount
of all proceeds of demands made on the Series 2004-1 Demand Notes pursuant to
Section 3.5(c)(iii), 3.5(d)(ii) or 3.5(e)(ii) that were deposited into the
Series 2004-1 Distribution Account and paid to the Series 2004-1 Noteholders
during the one-year period ending on the Series 2004-1 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
-15-
respect to
a Demand Note Issuer shall have occurred during such one-year period, the Series
2004-1 Demand Note Payment Amount as of the Series 2004-1 Letter of Credit
Termination Date shall equal the Series 2004-1 Demand Note Payment Amount as if
it were calculated as of the date of such occurrence.
“Series
2004-1 Deposit Date” is
defined in Section 3.2.
“Series
2004-1 Distribution Account” is
defined in Section 3.9(a).
“Series
2004-1 Distribution Account Collateral” is
defined in Section 3.9(d) of this Supplement.
“Series
2004-1 Eligible Letter of Credit Provider” means a
person satisfactory to CCRG and the Demand Note Issuers and having, at the time
of the issuance of the related Series 2004-1 Letter of Credit, a long-term
senior unsecured debt rating of at least “A+” from Standard & Poor’s and a
short-term senior unsecured debt rating of at least “A-1” from Standard &
Poor’s and a long-term senior unsecured debt rating of at least “A1” from
Xxxxx’x and a short-term senior unsecured debt rating of “P-1” from Xxxxx’x that
is a commercial bank having total assets in excess of $500,000,000; provided that if
a person is not a Series 2004-1 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 2004-1 Eligible Letter of Credit Provider until CRCF has
provided 10 days’ prior notice to the Administrative Agent that such person has
been proposed as a Series 2004-1 Letter of Credit Provider.
“Series
2004-1 Enhancement” means
the Series 2004-1 Cash Collateral Account Collateral, the Series 2004-1 Letters
of Credit, the Series 2004-1 Demand Notes and the Series 2004-1 Reserve Account
Amount.
“Series
2004-1 Enhancement Amount” means,
as of any date of determination, the sum of (i) the Series 2004-1 Letter of
Credit Amount as of such date, (ii) the Series 2004-1 Avail-able Reserve Account
Amount as of such date and (iii)
the amount of cash and Permitted Investments on deposit in the Series 2004-1
Collection Account (not including amounts allocable to the Series 2004-1 Accrued
Interest Account) and the Series 2004-1 Excess Collection Account as of such
date.
“Series
2004-1 Enhancement Deficiency” means,
on any date of determination, the amount by which the Series 2004-1 Enhancement
Amount is less than the Series 2004-1 Required Enhancement Amount as of such
date.
“Series
2004-1 Excess Collection Account” is
defined in Section 3.1(b).
“Series
2004-1 Expected Final Distribution Date” means
the earlier of (i) the sixth Distribution Date in the Series 2004-1
Controlled Amortization Period and (ii) the June 2008 Distribution
Date.
“Series
2004-1 Finance Lease Vehicle Percentage” means,
as of any date, the percentage equivalent of a fraction the numerator of which
is the Series 2004-1 Invested Amount as of such date and the denominator of
which is the Finance Lease Series Invested Amount.
-16-
“Series
2004-1 Initial Invested Amount” is
defined in Section 2.3(a).
“Series
2004-1 Interest Period” means a
period commencing on and including a Distribution Date and ending on and
including the day preceding the next succeeding Distribu-tion Date; provided,
however, that
the initial Series 2004-1 Interest Period shall com-mence on and include the
date hereof.
“Series
2004-1 Interest Rate Hedge” is
defined in Section 3.10(a).
“Series
2004-1 Interest Rate Hedge Collateral” is
defined in Section 3.10(b).
“Series
2004-1 Interest Rate Hedge Counterparty” means
CRCF’s counterparty under any Series 2004-1 Interest Rate
Hedge.
“Series
2004-1 Interest Rate Hedge Proceeds” means
the amounts received by the Trustee from a Series 2004-1 Interest Rate Hedge
Counterparty from time to time in respect of any Series 2004-1 Interest
Rate Hedge (including amounts received from a guarantor or from
collateral).
“Series
2004-1 Invested Amount” means,
on any date of determination, the sum of (i) the Class A-1 Invested Amounts and
(ii) the Class A-2 Invested Amount on such date.
“Series
2004-1 Invested Percentage” means
as of any date of determination:
(a) when used
with respect to Principal Collections, the percentage equivalent (which
percent-age shall never exceed 100%) of a fraction the nu-merator of which shall
be equal to the Series 2004-1 Invested Amount, determined during the Series
2004-1 Revolving Period as of the end of the Related Month or, until the end of
the initial Related Month, as of the date hereof, or, during the Series 2004-1
Controlled Amortization Period and the Series 2004-1 Rapid Amortization Period,
as of the end of the Series 2004-1 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 as of the end of the Related Month or,
until the end of the initial Related Month, as of the date hereof and (II) as of
the same date in clause (I), the sum of the numerators used to deter-mine (i)
invested percentages for allocations with respect to Principal Collections (for
all Series of Notes and all classes of such Series of Notes) and (ii)
overcollateralization percentages for alloca-tions 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
percent-age shall never exceed 100%) of a fraction the nu-merator of which shall
be the Accrued Amounts with respect to the Series 2004-1 Notes on such date of
determina-tion, and the denominator of which shall be the aggregate Accrued
Amounts with respect to all Series of Notes on such date of
determination.
“Series
2004-1 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
-17-
pursuant
to Section 3.2(a), (b) or (c) would have been allocated to the Series 2004-1
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 2004-1 Accrued Interest Account (excluding any
amounts paid into the Series 2004-1 Accrued Interest Account pursuant to the
proviso in Sections 3.2(c)(ii) and 3.2(d)(ii)) from and excluding the preceding
Distribution Date to and including such Distribution Date.
“Series
2004-1 Lease Payment Deficit” means
either a Series 2004-1 Lease Interest Payment Deficit or a Series 2004-1 Lease
Principal Payment Deficit.
“Series
2004-1 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 2004-1 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 2004-1 Lease Principal
Payment Deficit.
“Series
2004-1 Lease Principal Payment Deficit” means
on any Distribution Date the sum of (a) the Series 2004-1 Monthly Lease
Principal Payment Deficit for such Distribution Date and (b) the Series 2004-1
Lease Principal Payment Carryover Deficit for such Distribution
Date.
“Series
2004-1 Letter of Credit” means
an irrevocable letter of credit, if any, substan-tially in the form of
Exhibit
E to this
Supplement issued by a Series 2004-1 Eligible Letter of Credit Provider in favor
of the Trustee for the benefit of the Series 2004-1 Noteholders and each Series
2004-1 Interest Rate Hedge Counterparty.
“Series
2004-1 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 2004-1
Letter of Credit, as specified therein (which amount shall include any
reinstatement of the available amount only to the extent actually given effect
by such Series 2004-1 Letter of Credit Provider), and (ii) if the Series
2004-1 Cash Collateral Account has been established and funded pursuant to
Section 3.8, the Series 2004-1 Available Cash Collateral Account Amount on
such date and (b) the aggregate outstanding principal amount of the Series
2004-1 Demand Notes on such date.
“Series
2004-1 Letter of Credit Expiration Date” means,
with respect to any Series 2004-1 Letter of Credit, the expiration date set
forth in such Series 2004-1 Letter of Credit, as such date may be extended in
accordance with the terms of such Series 2004-1 Letter of Credit.
“Series
2004-1 Letter of Credit Liquidity Amount” means,
as of any date of determination (subject to Section 10.14(b)), the sum of (a)
the aggregate amount available to be drawn on such date under each Series 2004-1
Letter of Credit, as specified therein, and (b) if the
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Series
2004-1 Cash Collateral Account has been established and funded pursuant to
Section 3.8 of this Supplement, the Series 2004-1 Available Cash Collateral
Account Amount on such date.
“Series
2004-1 Letter of Credit Provider” means
the issuer of a Series 2004-1 Letter of Credit.
“Series
2004-1 Letter of Credit Termination Date” means
the first to occur of (a) the date on which the Series 2004-1 Notes are
fully paid and (b) the Series 2004-1 Termination Date.
“Series
2004-1 Limited Liquidation Event of Default” means,
so long as such event or condition contin-ues, any event or condition of the
type specified in clauses (a) through (j) of Article IV; provided,
however, that
any event or condition of the type specified in clauses (a) through (j) of
Article IV shall not constitute a Series 2004-1 Limited Liquidation Event of
Default if (i) within such thirty (30) day period, such Amortization Event shall
have been cured or (ii) the Trustee shall have received the written consent of
each of the Series 2004-1 Noteholders waiv-ing the occurrence of such Series
2004-1 Limited Liquidation Event of Default.
“Series
2004-1 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
2004-1 Maximum Amount” means
any of the Series 2004-1 Maximum Manufacturer Amounts, the Series 2004-1 Maximum
Non-Eligible Manufacturer Amount, the Series 2004-1 Maximum Non-Program Vehicle
Amount or the Series 2004-1 Maximum Specified States Amount.
“Series
2004-1 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.
“Series
2004-1 Maximum Manufacturer Amount” means,
as of any day, any of the Series 2004-1 Maximum Mitsubishi Amount, the Series
2004-1 Maximum Nissan Amount, the Series 2004-1 Maximum Individual
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount or the Series 2004-1 Maximum Aggregate
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount.
“Series
2004-1 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
2004-1 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.
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“Series
2004-1 Maximum Non-Eligible Manufactur-er 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
2004-1 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
2004-1 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
2004-1 Monthly Interest” means
the sum of the Class A-1 Monthly Interest and the Class A-2 Monthly
Interest.
“Series
2004-1 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 2004-1 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 2004-1 Collection
Account (without giving effect to any amounts paid into the Series 2004-1
Accrued Interest Account pursuant to the proviso in Sections 3.2(c)(ii) and/or
3.2(d)(ii)) from and excluding the preceding Distribution Date to and including
such Distribution Date.
“Series
2004-1 Non-Program Vehicle Percentage” means,
as of any date of deter-min-ation, the higher of (a) a fraction, expressed as a
percentage, the numerator of which is the sum of (i) the Series 2004-1 Finance
Lease Vehicle Percentage of the aggregate Net Book Value of all Non-Program
Vehicles leased under the Finance Lease on such date and (ii) the Series
2004-1 AESOP I Operating Lease Vehicle Percentage of the aggregate Net Book
Value of all Non-Program Vehicles leased under the AESOP I Operating Lease on
such date and the denominator of which is the sum of (x) the aggregate Net Book
Value of all Vehicles leased under the Finance Lease and (y) the Series 2004-1
AESOP I Operating Lease Vehicle Percentage of the aggregate Net Book Value of
all Vehicles leased under the AESOP I Operating Lease and (b) a fraction,
expressed as a percentage, the numerator of which is the aggregate Net Book
Value of all Non-Program Vehicles leased under the Leases on such date and the
denominator of which is the aggregate Net Book Value of all Vehicles leased
under the Leases on such date.
“Series
2004-1 Note” means
either or both, as the context may require, of the Class A-1 Notes and the Class
A-2 Notes.
“Series
2004-1 Noteholder” means a
Person in whose name a Series 2004-1 Note is registered in the Note
Register.
“Series
2004-1 Past Due Rent Payment” is
defined in Section 3.2(g).
-20-
“Series
2004-1 Percentage” means,
as of any date of determination, a fraction, expressed as a percentage, the
numerator of which is the Series 2004-1 Invested Amount as of such date and the
denominator of which is the sum of the Invested Amount of each Series of Notes
outstanding as of such date.
“Series
2004-1 Principal Allocation” is
defined in Section 3.2(a)(ii).
“Series
2004-1 Program Vehicle Percentage” means,
as of any date of determina-tion, 100% minus the Series 2004-1 Non-Program
Vehicle Percentage as of such date.
“Series
2004-1 Rapid Amortization Period” means
the period beginning at the close of business on the Business Day immediately
preceding the day on which an Amortization Event is deemed to have occurred with
respect to the Series 2004-1 Notes and ending upon the earliest to occur of (i)
the date on which the Series 2004-1 Notes are fully paid and the Series 2004-1
Interest Rate Xxxxxx have been terminated and there are no amounts due and owing
thereunder and (ii) the termination of the Indenture.
“Series
2004-1 Reimbursement Agreement” means
any and each agreement provid-ing for the reimbursement of a Series 2004-1
Letter of Credit Provider for draws under its Series 2004-1 Letter of Credit as
the same may be amended, supplemented, restated or otherwise modified from time
to time.
“Series
2004-1 Required AESOP I Operating Lease Vehicle Amount” means,
as of any date of determination, the excess, if any, of (x) the Series 2004-1
Invested Amount as of such date over (y) the Series 2004-1 AESOP I Finance
Lease Loan Agreement Borrowing Base as of such date.
“Series
2004-1 Required Enhancement Amount” means,
as of any date of deter-mi-nation, the sum of:
(i) the
product of the Series 2004-1 Required Enhancement Percentage as of such date and
the Series 2004-1 Invested Amount as of such date;
(ii) the
greater of (x) the Series 2004-1 Percent-age of the excess, if any, of the
Non-Program Vehicle Amount as of the immediately preceding Business Day over the
Series 2004-1 Maximum Non-Program Vehicle Amount as of the immediately preceding
Business Day and (y) the excess, if any, of (A) the sum of (1) the Series 2004-1
Finance Lease Vehicle Percentage of the Net Book Value of all Non-Program
Vehicles leased under the AESOP I Finance Lease as of the immediately preceding
Business Day and (2) the Series 2004-1 AESOP I Operating Lease Vehicle
Percentage of the Net Book Value of all Non-Program Vehicles leased under the
AESOP I Operating Lease as of the immediately preceding Business Day over (B)
25% of the sum of (1) the Series 2004-1 Finance Lease Vehicle Percentage of the
Net Book Value of all Vehicles leased under the AESOP I Finance Lease as of the
immediately preceding Business Day and (2) the Series 2004-1 AESOP I Operating
Lease Vehicle Percentage of the Net Book Value of all Vehicles leased under the
AESOP I Operating Lease as of the immediately preceding Business
Day;
-21-
(iii) the
greater of (x) the Series 2004-1 Percent-age of the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Mitsubishi and leased
under the Leases as of the immediately preceding Business Day over the Series
2004-1 Maximum Mitsubishi Amount as of the immediately preceding Business Day
and (y) the excess, if any, of (A) the sum of (1) the Series 2004-1 Finance
Lease Vehicle Percentage of the aggregate Net Book Value of all Vehicles
manufactured by Mitsubishi and leased under the AESOP I Finance Lease as of the
immediately preceding Business Day and (2) the Series 2004-1 AESOP I Operating
Lease Vehicle Percentage of the Net Book Value of all Vehicles manufactured by
Mitsubishi and leased under the AESOP I Operating Lease as of the immediately
preceding Business Day over (B) 5% of the sum of (1) the Series 2004-1 Finance
Lease Vehicle Percentage of the Net Book Value of all Vehicles leased under the
AESOP I Finance Lease as of the immediately preceding Business Day and
(2) the Series 2004-1 AESOP I Operating Lease Vehicle Percentage of the Net
Book Value of all Vehicles leased under the AESOP I Operating Lease as of the
immediately preceding Business Day;
(iv) the
greater of (x) the Series 2004-1 Percentage of the excess, if any, of the
aggre-gate Net Book Value of all Vehicles manufac-tured by Kia, Isuzu, Subaru,
Hyundai or Suzuki, indi-vidu-ally, and leased under the Leases as of the
immediately preceding Busi-ness Day over the Series 2004-1 Maximum Individual
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount as of the immediately preceding Business
Day and (y) the excess, if any, of (A) the sum of (1) the Series 2004-1
Finance Lease Vehicle Percentage of the aggregate Net Book Value of all Vehicles
manufac-tured by Kia, Isuzu, Subaru, Hyundai or Suzuki, indi-vidu-ally, and
leased under the AESOP I Finance Lease as of the immediately preceding Business
Day and (2) the Series 2004-1 AESOP I Operating Lease Vehicle Percentage of the
Net Book Value of all Vehicles manufac-tured by Kia, Isuzu, Subaru, Hyundai or
Suzuki, indi-vidu-ally, and leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 5% of the sum of (1) the Series
2004-1 Finance Lease Vehicle Percentage of the Net Book Value of all Vehicles
leased under the AESOP I Finance Lease as of the immediately preceding Business
Day and (2) the Series 2004-1 AESOP I Operating Lease Vehicle Percentage of
the Net Book Value of all Vehicles leased under the AESOP I Operating Lease as
of the immediately preceding Business Day;
(v) the
greater of (x) the Series 2004-1 Percentage 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 the
immediately preceding Business Day over the Series 2004-1 Maximum Aggre-gate
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount as of the immediately preceding Business
Day and (y) the excess, if any, of (A) the sum of (1) the Series 2004-1 Finance
Lease Vehicle Percentage of the aggregate Net Book Value of all Vehicles
manufactured by Kia, Isuzu, Subaru, Hyundai or Suzuki, in the aggregate, and
leased under the AESOP I Finance Lease as of the immediately preceding Business
Day and (2) the Series 2004-1 AESOP I Operating Lease Vehicle Percentage of the
Net Book Value of all Vehicles manufactured by Kia, Isuzu, Subaru, Hyundai or
Suzuki, in the aggregate, and leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 15% of the sum of (1) the Series
2004-1 Finance Lease Vehicle Percentage of the Net
-22-
Book
Value of all Vehicles leased under the AESOP I Finance Lease as of the
immediately preceding Business Day and (2) the Series 2004-1 AESOP I Operating
Lease Vehicle Percentage of the Net Book Value of all Vehicles leased under the
AESOP I Operating Lease as of the immediately preceding Business
Day;
(vi) the
greater of the Series 2004-1 Percentage of the excess, if any, of the Specified
States Amount as of the immediately preceding Business Day over the Series
2004-1 Maximum Specified States Amount as of the immediately preceding Business
Day;
(vii) the
greater of (x) the Series 2004-1 Per-cent-age of the excess, if any, of the
Non-Eligible Manufacturer Amount as of the immediately preceding Business Day
over the Series 2004-1 Maximum Non-Eligible Manufacturer Amount as of the
immediately preceding Business Day and (y) the excess, if any, of (A) the sum of
(1) the Series 2004-1 Finance Lease Vehicle Percentage of the aggregate Net Book
Value of all Vehicles manufactured by Manufacturers other than Eligible
Non-Program Manufacturers and leased under the AESOP I Finance Lease as of the
immediately preceding Business Day and (2) the Series 2004-1 AESOP I Operating
Lease Vehicle Percentage of the Net Book Value of all Vehicles manufactured by
Manufacturers other than Eligible Non-Program Manufacturers and leased under the
AESOP I Operating Lease as of the immediately preceding Business Day over (B) 3%
of the sum of (1) the Series 2004-1 Finance Lease Vehicle Percentage of the Net
Book Value of all Vehicles leased under the AESOP I Finance Lease as of the
immediately preceding Business Day and (2) the Series 2004-1 AESOP I Operating
Lease Vehicle Percentage of the Net Book Value of all Vehicles leased under the
AESOP I Operating Lease as of the immediately preceding Business Day;
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 Xxxxx’x, 0 and in all
other cases the greater of (x) the Series 2004-1 Percent-age of the excess, if
any, of the aggregate Net Book Value of all Vehicles manufactured by Nissan and
leased under the Leases as of the immediately preceding Business Day over the
Series 2004-1 Maximum Nissan Amount as of the immediately preceding Business Day
and (y) the excess, if any, of (A) the sum of (1) the Series 2004-1 Finance
Lease Vehicle Percentage of the aggregate Net Book Value of all Vehicles
manufactured by Nissan and leased under the AESOP I Finance Lease as of the
immediately preceding Business Day and (2) the Series 2004-1 AESOP I Operating
Lease Vehicle Percentage of the Net Book Value of all Vehicles manufactured by
Nissan and leased under the AESOP I Operating Lease as of the immediately
preceding Business Day over (B) 5% of the sum of (1) the Series 2004-1 Finance
Lease Vehicle Percentage of the Net Book Value of all Vehicles leased under the
AESOP I Finance Lease as of the immediately preceding Business Day and (2) the
Series 2004-1 AESOP I Operating Lease Vehicle Percentage of the Net Book Value
of all Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day.
“Series
2004-1 Required Enhancement Percentage” means,
as of any date of deter-mination, the sum of (i) the product of (A) 14.0% and
(B) the Series 2004-1 Program
-23-
Vehicle
Percentage as of the immediately preceding Business Day and (ii) the product of
(A) the Series 2004-1 Required Non-Program Enhancement Percentage as of such
date and (B) the Series 2004-1 Non-Program Vehicle Percentage as of the
immediately preceding Business Day.
“Series
2004-1 Required Non-Program Enhancement Percentage” means,
as of any date of determination, the greater of (a) 19.5% and (b) the sum of (i)
19.5% 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 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
2004-1 Required Reserve Account Amount” means,
with respect to any Distribution Date, an amount equal to the excess, if any, of
the Series 2004-1 Required Enhancement Amount over the Series 2004-1 Enhancement
Amount (excluding therefrom the Series 2004-1 Available Reserve Account Amount
and calculated after giving effect to any payments of principal to be made on
the Series 2004-1 Notes) on such Distribution Date.
“Series
2004-1 Reserve Account” is
defined in Section 3.7(a).
“Series
2004-1 Reserve Account Collateral” is
defined in Section 3.7(d).
“Series
2004-1 Reserve Account Surplus” means,
with respect to any Distribution Date, the excess, if any, of the Series 2004-1
Available Reserve Account Amount over the Series 2004-1 Required Reserve Account
Amount on such Distribution Date.
“Series
2004-1 Revolving Period” means
the period from and including, the Effective Date to the earlier of (i) the
commencement of the Series 2004-1 Controlled Amortization Period and (ii) the
commencement of the Series 2004-1 Rapid Amortization Period.
“Series
2004-1 Shortfall” is
defined in Section 3.3(f).
“Series
2004-1 Termination Date” means
the Distribution Date falling in the sixth calendar month after an Amortization
Event occurs and is continuing; provided that if
an Amortization Event occurs after the 15th day of a
month, then such Amortization Event shall be deemed, for purposes of this
definition, to have occurred on the first day of the following
month.
“Series
2004-1 Unpaid Demand Amount” means,
with respect to any single draw pursuant to Section 3.5(c), (d) or (e) on the
Series 2004-1 Letters of Credit, the aggregate amount drawn by the Trustee on
all Series 2004-1 Letters of Credit.
“Series
2004-2 Notes” means
the Series of Notes designated as the Series 2004-2 Notes.
“Series
2004-3 Notes” means
the Series of Notes designated as the Series 2004-3 Notes.
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“Series
2004-4 Notes” means
the Series of Notes designated as the Series 2004-4 Notes.
“Series
2004-5 Notes” means
the Series of Notes designated as the Series 2004-5 Notes.
“Series
2005-1 Notes” means
the Series of Notes designated as the Series 2005-1 Notes.
“Special
Enhancement Draw Date” means
the first Distribution Date upon which a Lease Event of Default or an
Amortization Event under Article IV (d) or (e) has occurred or is continuing and
each Distribution Date thereafter.
“Statutory
Reserve Rate” means a
fraction (expressed as a decimal), the numer-ator 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%) estab-lished 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 percent-ages 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 with-out 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 2004-1 Letter of Credit pursuant to a Certificate
of Termination Date Demand.
“Termination
Disbursement” means
an amount drawn under a Series 2004-1 Letter of Credit pursuant to a Certificate
of Termination Demand.
“Transfer
Supplement” is
defined in Section 10.1(b).
“Transferee” is
defined in Section 10.1(d).
“Trustee” is
defined in the recitals hereto.
“Unpaid
Demand Note Disbursement” means
an amount drawn under a Series 2004-1 Letter of Credit pursuant to a Certificate
of Unpaid Demand Note Demand.
“Voting
Stock” means,
with respect to any Person, the common stock or membership interests of such
Person and any other security of, or ownership interest in, such
-25-
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 2004-1 Maximum Amount.
“Waiver
Request” is
defined in Article V.
ARTICLE
II
PURCHASE
AND SALE OF SERIES 2004-1 NOTES; DELIVERY OF SERIES 2004-1
NOTES,
CLASS A-1 INCREASES AND OPTIONAL CLASS A-1 DECREASES OF
CLASS
A-1 INVESTED AMOUNT
Section
2.1. Purchases
of Series 2004-1 Notes. (a) Surrender
of the Original Series 2004-1 Notes. Each of
the Original Series 2004-1 Purchasers has surrendered its Original Series 2004-1
Note in consideration of either the payment in full of the amount outstanding
thereunder or the issuance or a Class A-1 Note or a Class A-2 Note, as
applicable, on or prior to the date hereof.
(b) Initial
Purchases of Class A-1 Notes and Class A-2 Notes. Subject
to the terms and conditions of this Supplement (i) each Class A-1 Purchaser
shall advance funds under its Class A-1 Note in an amount equal to its Class A-1
Commitment Percentage of the Class A-1 Initial Invested Amount on any Business
Day during the period from the Effective Date to and including the Class A-1
Increase Expiry Date and (ii) thereafter, each Class A-1 Purchaser shall
maintain its Class A-1 Note in accordance with the provisions of this
Supplement. On the Effective Date, subject to the terms and conditions of this
Supplement, each Class A-2 Purchaser shall purchase a Class A-2 Note in an
amount set forth on Schedule
1 next to
its name.
(c) Payments
for Series 2004-1 Notes.
Payments by each Purchaser for a Series 2004-1 Note shall be made in immediately
available funds on the Effective Date and, in the case of each Class A-1
Purchaser, on each Class A-1 Increase Date to the Trustee for deposit into the
Series 2004-1 Collection Account. The obligation of each Class A-1 Purchaser and
each Class A-2 Purchaser to make advances on its Class A-1 Note or to purchase a
Class A-2 Note is several and no Class A-1 Purchaser or Class A-2 Purchaser
shall be responsible for the failure of any other Class A-1 Purchaser or Class
A-2 Purchaser, as the case may be, to make its advance or purchase. On the
Effective Date, for any Purchaser who is also an Original Purchaser, the
aggregate amount payable by such Purchaser for any Class A-1 Note and/or Class
A-2 shall be reduced by aggregate outstanding principal amount of its Series
2004-1 Note immediately prior to the Effective Date.
(d) Class
A-1 Maximum Purchaser Invested Amounts.
Notwithstanding anything to the contrary contained in this Supplement, at no
time shall the Class A-1 Purchaser Invested Amount with respect to any Class A-1
Purchaser exceed the Class A-1 Maximum Purchaser Invested Amount with respect to
such Class A-1 Purchaser at such time.
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(e) Form
of Series 2004-1 Notes. The
Class A-1 Notes shall be issued in fully registered form without interest
coupons, substantially in the form set forth in Exhibit
A-1 hereto.
The Class A-2 Notes shall be issued in fully registered form without interest
coupons, substantially in the form set forth in Exhibit
A-2
hereto.
Section
2.2. Delivery. (a) On
the Effective Date, CRCF shall sign and shall direct the Trustee in writing to
duly authenticate, and the Trustee, upon receiving such direction, shall so (x)
authenticate (i) a Class A-1 Note in the name of each Class A-1 Purchaser in an
amount equal to the Class A-1 Maximum Purchaser Invested Amount with respect to
such Class A-1 Purchaser and (ii) a Class A-2 Note in the name of each Class A-2
Purchaser in the amount set forth on Schedule
1 next to
such Class A-2 Purchaser’s name and (y) deliver such Class A-1 Note to the
Administrative Agent on behalf of such Class A-1 Purchaser and such Class A-2
Note to the Administrative Agent on behalf of such Class A-2
Purchaser.
(b) The
Administrative Agent shall maintain a record of the actual Purchaser Invested
Amount outstanding with respect to each Purchaser and the actual Class A-1
Invested Amount and Class A-2 Invested Amount outstanding on any date of
determination, which, absent manifest error, shall constitute prima facie
evidence of the outstanding Class A-1 Purchaser Invested Amounts, the
outstanding Class A-1 Invested Amount, the outstanding Class A-2 Purchaser
Invested Amounts and the outstanding Class A-2 Invested Amount from time to
time. Upon a written request from the Trustee, the Administrative Agent shall
provide in writing the identity of the Class A-1 Purchaser and the Class A-1
Commitment Percentage and/or Class A-1 Pro Rata Share with respect to such Class
A-1 Purchaser to the Trustee. Upon a written request from the Trustee the
Administrative Agent shall provide in writing the identity of the Class A-2
Purchasers and the Class A-2 Pro Rata Share with respect to such Class A-2
Purchaser to the Trustee.
Section
2.3. Procedure
for Initial Issuance and for Increasing the Class A-1 Invested
Amount.
(a) Subject
to Section 2.3(b), (i) on the Effective Date, each Class A-1 Purchaser
shall purchase a Class A-1 Note in accordance with Section 2.1 and (ii) on any
Business Day during the period from the Effective Date to (but excluding) the
Class A-1 Increase Expiry Date such Class A-1 Purchaser hereby agrees that the
Class A-1 Purchaser Invested Amount with respect to such Class A-1 Purchaser may
be increased by an amount equal to its Class A-1 Commitment Percentage of the
Class A-1 Increase Amount (an “Class
A-1 Increase”), upon
the request of CRCF (each date on which an increase in the Class A-1 Invested
Amount occurs hereunder being herein referred to as the “Class
A-1 Increase Date”
applicable to such Class A-1 Increase); provided,
however, that
CRCF 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 1:00 p.m. (New York City time) on the third
Business Day prior to the Effective Date or such Class A-1 Increase Date, as the
case may be. Such notice shall (x) notify the Administrative Agent of the
Effective Date or the Class A-1 Increase Date, as the case may be, and
(y) state the initial invested amount (the “Class
A-1 Initial Invested Amount”) or the
proposed amount of the increase in the Class A-1 Invested Amount (an
“Class
A-1 Increase Amount”), as
the case may be. The obligations of each Class A-1 Purchaser to fund a Class A-1
Increase Amount is several and no Class A-1 Purchaser shall be responsible for
the failure of another Class A-1 Purchaser to fund its Class A-1 Increase.
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(b) No
Purchaser shall be required to make the initial purchase of a Series 2004-1 Note
on the Effective Date or, in the case of a Class A-1 Purchaser, to increase its
Class A-1 Purchaser Invested Amount on any Class A-1 Increase Date hereunder
unless:
(i) (1) in
the case of a Class A-1 Purchaser, such Class A-1 Purchaser’s Class A-1
Commitment Percentage of the Class A-1 Initial Invested Amount or such Class A-1
Increase Amount is equal to (A) $5,000,000 or an integral multiple of $100,000
in excess thereof (except as set forth in clause (iv)) or (B) if less, the
excess of the Class A-1 Maximum Purchaser Invested Amount with respect to such
Class A-1 Purchaser over the Class A-1 Purchaser Invested Amount with respect to
such Class A-1 Purchaser and (2) in the case of a Class A-2 Purchaser, the
initial purchase shall be equal to the such Class A-2 Purchaser’s Class A-2
Purchaser Invested Amount as of the Effective Date;
(ii) in the
case of a Class A-1 Purchaser, after giving effect to the Class A-1 Initial
Invested Amount or such Class A-1 Increase Amount, the Class A-1 Purchaser
Invested Amount with respect to such Class A-1 Purchaser would not exceed the
Class A-1 Maximum Purchaser Invested Amount with respect to such Class A-1
Purchaser;
(iii) after
giving effect thereto, no AESOP I Operating Lease Vehicle Deficiency would occur
and be continuing;
(iv) no
Amortization Event or Potential Amortization Event would occur and be continuing
prior to or after giving effect thereto;
(v) all of
the representations and warranties made by each of CRCF, 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 Effective Date or such Class A-1 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 in which
case such representations and warranties shall be true and correct in all
material respects as of such other date); and
(vi) the Class
A-1 Increase Date shall occur prior to the Class A-1 Increase Expiry
Date;
(vii) all
conditions precedent to the making of any Loan under the applicable Loan
Agreements would be satisfied.
CRCF’s
acceptance of funds in connection with (x) the initial purchase of Series 2004-1
Notes on the Effective Date and (y) each Class A-1 Increase occurring on any
Class A-1 Increase Date shall constitute a representation and warranty by CRCF
to the Purchasers as of the Effective Date or, in the case of the Class A-1
Purchasers, such Class A-1 Increase Date (except to the extent such
representations and war-ran-ties are expressly made as of another date), as the
case may be, that all of the conditions con-tained in this Section 2.3(b) have
been satisfied.
(c) Upon
receipt of any notice required by Section 2.3(a) from CRCF, the
Administrative Agent shall forward (by telecopy or electronic messaging system)
a copy of such notice to each Class A-1 Purchaser, no later than 5:00 p.m.
(New York City time) on the day
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received.
After receipt by any Class A-1 Purchaser of such notice from the Administrative
Agent, such Class A-1 Purchaser shall, so long as the condi-tions set forth in
Sections 2.3(a) and (b) are satisfied, pay in immediately available funds its
Class A-1 Commitment Percentage (or any portion thereof) of the amount of such
Class A-1 Increase on the related Class A-1 Increase Date to the Trustee for
deposit into the Series 2004-1 Collection Account.
(d) Unless
the Administrative Agent shall have received notice from a Class A-1 Purchaser
prior to the proposed date of any Class A-1 Increase that such Class A-1
Purchaser will not make available to the Administrative Agent such Class A-1
Purchaser’s Class A-1 Commitment Percentage of such Class A-1 Increase, the
Administrative Agent may assume that such Class A-1 Purchaser has made its Class
A-1 Commitment Percentage of such Class A-1 Increase available on such date in
accordance with Section 2.3(a) and may, in reliance upon such assumption, make
available to CRCF a corresponding amount. In such event, if a Class A-1
Purchaser has not in fact made its Class A-1 Commitment Percentage of such Class
A-1 Increase available to the Administrative Agent, then the applicable Class
A-1 Purchaser and CRCF severally agree to pay the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest
thereon, for each day from an including the date such amount is made available
to CRCF to but excluding the date of payment to the Administrative Agent, at (i)
in the case of a payment to be made by such Class A-1 Purchaser, the greater for
the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation and (ii) in the
case of a payment to be made by CRCF, the interest rate applicable to the
Alternate Base Rate Tranche. If CRCF and such Class A-1 Purchaser shall pay such
interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to CRCF the amount of such interest
paid by CRCF for such period. If such Class A-1 Purchaser pays its share of the
applicable Class A-1 Increase, then the amount so paid shall constitute such
Class A-1 Purchaser’s Class A-1 Commitment Percentage included in such Class A-1
Increase. A notice of the Administrative Agent to any Class A-1 Purchaser or
CRCF with respect to any amount owing under this Section 2.3(d) shall be
conclusive, absent manifest error.
(e) On the
Effective Date, each Class A-2 Purchaser shall, so long as the condi-tions to
the occurrence of the Effective Date have been satisfied, pay in immediately
available funds an amount equal to the amount specified on Schedule
1 next to
such Class A-2 Purchaser’s name to the Trustee for deposit into the Series
2004-1 Collection Account.
Section
2.4. Procedure
for Decreasing the Series 2004-1 Invested Amount. (a) Class
A-1 Invested Amount. On any
Distribution Date prior to the occurrence of an Amortization Event, upon the
written request of CRCF or the Administrator on behalf of CRCF, the Class A-1
Invested Amount may be reduced (a “Class
A-1 Decrease”) by the
Trustee’s withdrawing from the Series 2004-1 Excess Collection Account,
depositing into the Series 2004-1 Distribution Account and dis-trib-uting to the
Administrative Agent funds on deposit in the Series 2004-1 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
CRCF shall have given the Adminis-trative Agent (with a copy to the Trustee)
irrevocable written notice (effective upon receipt) of the amount of such Class
A-1 Decrease prior to 9:30 a.m. (New York City time) on the third Business
Day prior to such Class A-1 Decrease; provided, that
any such Class A-1 Decrease shall be in an amount equal to $5,000,000 and
integral multiples of $100,000
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in excess
thereof. Upon each Class A-1 Decrease, the Administrative Agent shall indicate
in its records such Class A-1 Decrease and the Class A-1 Purchaser Invested
Amount outstanding with respect to each Class A-1 Purchaser after giving effect
to such Class A-1 Decrease.
(b) Class
A-2 Invested Amount.On any
Distribution Date prior to the occurrence of an Amortization Event, upon the
written request of CRCF or the Administrator on behalf of CRCF, the Class A-2
Invested Amount may be reduced (a “Class
A-2 Decrease”) by the
Trustee’s withdrawing from the Series 2004-1 Excess Collection Account,
depositing into the Series 2004-1 Distribution Account and dis-trib-uting to the
Administrative Agent funds on deposit in the Series 2004-1 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
CRCF shall have given the Adminis-trative Agent (with a copy to the Trustee)
irrevocable written notice (effective upon receipt) of the amount of such Class
A-2 Decrease prior to 9:30 a.m. (New York City time) on the third Business
Day prior to such Class A-2 Decrease; provided, that
any such Class A-2 Decrease shall be in an amount equal to $10,000,000 and
integral multiples of $500,000 in excess thereof. Upon each Class A-2 Decrease,
the Administrative Agent shall indicate in its records such Class A-2 Decrease
and the Class A-2 Purchaser Invested Amount outstanding with respect to each
Class A-2 Purchaser after giving effect to such Class A-2 Decrease. Once
reduced, the Class A-2 Purchaser Invested Amounts may not be subsequently
increased.
Section
2.5. Reductions
of the Class A-1 Maximum
Invested Amount.
(a)
On any Business Day prior to the Class A-1 Increase Expiry Date, CRCF may, upon
two (2) Business Days’ prior written notice to the Administrative Agent
(effec-tive upon receipt) (with copies to the Administrator and the Trustee)
reduce the Class A-1 Maximum Invested Amount in an amount equal to $5,000,000 or
a whole multi-ple of $1,000,000 in excess thereof; provided that no
such termination or reduction shall be per-mitted if, after giving effect
thereto and to any reduction in the Class A-1 Invested Amount on such date, (x)
the Class A-1 Purchaser Invested Amount with respect to any Class A-1 Purchaser
would exceed the Class A-1 Maximum Purchaser Invested Amount with respect to
such Class A-1 Purchaser then in effect or (y) the Class A-1 Invested Amount
would exceed the Class A-1 Maximum Invested Amount. Any reduc-tion in the Class
A-1 Maximum Invested Amount shall be made on a pro
rata basis to
the Class A-1 Maximum Purchaser Invested Amounts with respect to the Class A-1
Purchasers, based on the Class A-1 Maximum Purchaser Invested Amount with
respect to each Class A-1 Purchaser. Once reduced, the Class A-1 Maximum
Purchaser Invested Amounts may not be subsequently reinstated without each such
Class A-1 Purchaser’s prior written consent, which consent shall be granted or
not in the sole discretion of such Class A-1 Purchaser.
Section
2.6. Interest;
Fees. (a) Interest
shall be payable on the Series 2004-1 Notes on each Distribution Date pursuant
to Section 3.3. Unless otherwise provided for herein or otherwise specified
in writing by CRCF, any Class A-1 Increase Amount shall be allocated to an
Alternate Base Rate Tranche and shall be reallocated to a Class A-1 Eurodollar
Tranche on the first Distribution Date following the applicable Class A-1
Increase Date. Unless otherwise provided for herein or otherwise specified in
writing by CRCF, the proceeds of the Class A-2 Notes shall be allocated to a
Class A-2 Eurodollar Tranche.
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(b) On not
less than three Business Days notice, the Administrator may, on CRCF’s behalf,
convert any Eurodollar Tranche into any Alternate Base Rate Tranche on the last
day of the Eurodollar Period for such Eurodollar Tranche. On not less than three
Business Days notice, the Administrator may, on CRCF’s behalf, convert on any
Business Day any Alternative Base Rate Tranche to a Eurodollar
Tranche.
(c) CRCF
shall pay with funds available pursuant to Section 3.3(a) to the Administra-tive
Agent, for the account of each Class A-1 Purchaser, on each Distribution Date, a
commitment fee with respect to the Series 2004-1 Interest Period ending on the
day preceding such Distribution Date (the “Commitment
Fee”) during
the period from the Effective Date to and including the Class A-1 Increase
Expiry Date at the Commitment Fee Rate of the average daily Class A-1 Maximum
Purchaser Invested Amount with respect to such Class A-1 Purchaser during such
Series 2004-1 Interest Period less the sum of the aver-age daily Class A-1
Purchaser Invested Amount with respect to such Class A-1 Purchaser. The
Commitment Fees shall be payable monthly in arrears on each Distribution Date.
(d) 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 an Alternate Base Rate Tranche) day
year. Calculations of Commitment Fees shall be made on the basis of a 360-day
year. Each determination of the Adjusted LIBO Rate by the Administrative Agent
shall be conclusive and binding upon each of the parties hereto in the absence
of manifest error.
(e) In no
event shall the interest charged with respect to a Series 2004-1 Note exceed the
maximum amount permitted by Applicable Law. If at any time the interest rate
charged with respect to the Series 2004-1 Notes exceeds the maximum rate
permitted by Applicable Law, the rate of interest to accrue pursuant to this
Supplement and such Series 2004-1 Note shall be limited to the maximum rate
permitted by Applicable Law, but any subsequent reductions in LIBO Rate shall
not reduce the interest to accrue on such Series 2004-1 Note below the maximum
amount permitted by Applicable Law until the total amount of interest accrued on
such Series 2004-1 Note equals the amount of interest that would have accrued if
a varying rate per annum equal to the interest rate had at all times been in
effect. If the total amount of interest paid or accrued on the Series 2004-1
Note under the foregoing provisions is less than the total amount of interest
that would have accrued if the interest rate had at all times been in effect,
CRCF agrees to pay to the Series 2004-1 Noteholders an amount equal to the
difference between (a) the lesser of (i) the amount of interest that would
have accrued if the maximum rate permitted by Applicable Law had at all times
been in effect, or (ii) the amount of interest that would have accrued if the
Adjusted LIBO Rate had at all times been in effect, and (b) the amount of
interest accrued in accordance with the other provisions of this
Supplement.
Section
2.7. Indemnification
by CRCF.
CRCF
agrees to indemnify and hold harmless the Trustee, the Administrative Agent,
each Purchaser and each of their respective officers, directors, agents and
employees (each, a “Company
indemnified person”) from
and against any loss, liabil-ity, expense, damage or injury suffered or
sustained by (a “Claim”) such
Company indem-nified person by reason of (i) any acts, omissions or alleged acts
or omissions arising out of, or relating to, activities of CRCF 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 CRCF (or any of its
officers) in the Indenture or other Related Document or (iii) a
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failure
by CRCF to comply with any applicable law or regulation or to perform its
covenants, agreements, duties or obliga-tions required to be performed or
observed by it in accordance with the provisions of the Indenture or the other
Related Documents, including, but not limited to, any judgment, award,
settlement, reasonable attorneys’ fees and other reason-able costs or expenses
incurred in connec-tion 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, princi-pals,
employees or employers or includes any Excluded Taxes; provided that any
payments made by CRCF pursuant to this Section 2.7 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 CRCF to the
extent that such funds are insufficient to make such payment.
ARTICLE
III
SERIES
2004-1 ALLOCATIONS
With
respect to the Series 2004-1 Notes, the following shall apply:
Section
3.1. Establishment
of Series 2004-1 Collection Account, Series 2004-1 Excess Collection Account and
Series 2004-1 Accrued Interest Account.
(a) All
Collections allocable to the Series 2004-1 Notes shall be allocated to the
Collection Account.
(b) The
Trustee will create three administra-tive subaccounts within the Collection
Account for the benefit of the Series 2004-1 Noteholders and each Series 2004-1
Interest Rate Hedge Counterparty: the Series 2004-1 Collection Account (such
sub-account, the “Series
2004-1 Collection Account”), the
Series 2004-1 Excess Collection Account (such sub-account, the “Series
2004-1 Excess Collection Account”) and
the Series 2004-1 Accrued Interest Account (such sub-account, the “Series
2004-1 Accrued Interest Account”). Each
of the parties hereto acknowledges and agrees that the accounts established
pursuant to this paragraph are for the benefit of the Series 2004-1 Noteholders
and each Series 2004-1 Interest Rate Hedge Counterparty, and no other Series of
Noteholders shall have any interest in the accounts established pursuant to this
paragraph or the Collections therein.
Section
3.2. Allocations
with Respect to the Series 2004-1 Notes. On each
Business Day on which Collections are deposited into the Collection Account
(each such date, a “Series
2004-1 Deposit Date”), the
Adminis-trator will direct the Trustee in writing pursu-ant 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 2004-1 Revolving Period. During
the Series 2004-1 Revolving Period, the Administrator will direct the Trustee in
writing pursuant to the Administration Agree-ment to allocate, prior to 11:00
a.m. (New York City time) on each Series 2004-1 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
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(i) allocate
to the Series 2004-1 Collection Account an amount equal to the sum of (A) the
Series 2004-1 Invest-ed Percentage (as determined pursuant to clause (b) of such
definition and measured as of such day) of the Interest Collections on such day
and (B) any amounts received by the Trustee on such day in respect of the Series
2004-1 Interest Rate Xxxxxx. All such amounts allocated to the Series 2004-1
Collection Account shall be further allocated to the Series 2004-1 Accrued
Interest Account; and
(ii) allocate
to the Series 2004-1 Excess Collection Account the sum of (A) the Series 2004-1
Invested Percentage (as determined pursuant to clause (a) of such definition and
measured as of such day) of the aggregate amount of Principal Collections on
such day (for any such day, the “Series
2004-1 Principal Allocation”) and
(B) the proceeds from the initial issuance of the Series 2004-1 Notes and from
any Class A-1 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 2004-1 Controlled Amortiza-tion
Period. With
respect to the Series 2004-1 Controlled Amortization Period, 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 2004-1 Deposit
Date, all amounts deposited into the Collection Account as set forth
below:
(i) allocate
to the Series 2004-1 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 2004-1 Accrued Interest Account; and
(ii) allocate
to the Series 2004-1 Collection Account an amount equal to the Series 2004-1
Principal Allocation for such day, which amount shall be used to make principal
payments in respect of the Series 2004-1 Notes; provided,
however, that if
the Monthly Total Principal Allocation exceeds the Series 2004-1 Controlled
Distribution Amount, then the amount of such excess shall be allo-cated to the
Series 2004-1 Excess Collection Account; and provided, further, that if a Waiver
Event shall have occurred, then such allocation shall be modified as provided in
Article V.
(c) Allocations
of Collections During the Series 2004-1 Rapid Amortization
Period. With
respect to the Series 2004-1 Rapid Amortization Period, other than after the
occurrence of an Event of Bankruptcy with respect to CCRG, any other Lessee or
any Permitted Sublessee, the Adminis-trator will direct the Trustee in writing
pursuant to the Administration Agree-ment to allocate, prior to 11:00 a.m.
(New York City time) on any Series 2004-1 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2004-1 Collection Account an amount deter-mined as set forth in
Section 3.2(a)(i) above for such day, which amount shall be further allocated to
the Series 2004-1 Accrued Interest Account; and
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(ii) allocate
to the Series 2004-1 Collection Account an amount equal to the Series 2004-1
Princi-pal Allocation for such day, which amount shall be used to make principal
payments on each Distribution Date in respect of the Series 2004-1 Notes,
ratably, without preference or priority of any kind, until the Series 2004-1
Invested Amount is 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
2004-1 Notes, any amounts received by the Trustee on such day in respect of the
Series 2004-1 Interest Rate Xxxxxx and other amounts available pursuant to
Section 3.3 to pay Series 2004-1 Monthly Interest, any Fixed Rate Payments and
the Commitment Fees on the next succeeding Distribution Date will be less than
the sum of the Series 2004-1 Monthly Interest, any Fixed Rate Payments and the
Commitment Fees for such Distribution Date and (B) the Series 2004-1 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 2004-1 Notes during the Related Month equal to the lesser of such
insufficiency and the Series 2004-1 Enhancement Amount to the Series 2004-1
Accrued Interest Account to be treated as Interest Collections on such
Distribution Date.
(d) Allocations
of Collections after the Occurrence of an Event of Bankruptcy. After
the occur-rence of an Event of Bankruptcy with respect to CCRG, ARAC, BRAC, or
any other Permitted Sublessee, the Administrator will direct the Trustee in
writing pursuant to the Administra-tion Agreement to allocate, prior to 11:00
a.m. (New York City time) on any Series 2004-1 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2004-1 Collection Account an amount equal to the sum of (A) the
Series 2004-1 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, (B) the
Series 2004-1 Finance 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 Finance Lease Loan Agreement and (C) any amounts received by
the Trustee on such day in respect of the Series 2004-1 Interest Rate Xxxxxx on
such day. All such amounts allocated to the Series 2004-1 Collection Account
shall be further allocated to the Series 2004-1 Accrued Interest Account;
and
(ii) allocate
to the Series 2004-1 Collection Account an amount equal to the sum of (A) the
Series 2004-1 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 and (B) the
Series 2004-1 Finance 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 Finance Lease Loan Agreement, which amount shall be used
to make principal payments on each Payment Date in respect of the Class A-1
Notes and the Class A-2 Notes, ratably,
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without
preference or priority of any kind, until the Series 2004-1 Invested Amount has
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
2004-1 Notes, any amounts received by the Trustee on such day in respect of the
Series 2004-1 Interest Rate Xxxxxx and other amounts available pursuant to
Section 3.3 to pay Series 2004-1 Monthly Interest, any Fixed Rate Payments and
the Commitment Fees on the next succeeding Distribution Date will be less than
the Series 2004-1 Monthly Interest, Fixed Rate Payments and Commitment Fees for
the Series 2004-1 Interest Period ending on the day preceding such Distribution
Date and (B) the Series 2004-1 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 2004-1 Notes during the Related
Month equal to the lesser of such insufficiency and the Series 2004-1
Enhancement Amount to the Series 2004-1 Accrued Interest Account to be treated
as Interest Collections on such Distribution Date.
(e) Allocations
From Other Series. Amounts
allocated to other Series of Notes that have been reallocated by CRCF to the
Series 2004-1 Notes (i) during the Series 2004-1 Revolving Period shall be
allocated to the Series 2004-1 Excess Collection Account and applied in
accordance with Section 3.2(f) and (ii) during the Series 2004-1 Controlled
Amortization Period or the Series 2004-1 Rapid Amortization Period shall be
allocated to the Series 2004-1 Collection Account and applied in accordance with
Section 3.2(b), 3.2(c) or 3.2(d), as applicable, to make principal payments in
respect of the Series 2004-1 Notes.
(f) Series
2004-1 Excess Collection Account. Amounts
allocated to the Series 2004-1 Excess Collection Account on any Series 2004-1
Deposit Date will be (i) first, deposited in the Series 2004-1 Reserve
Account in an amount up to the excess, if any, of the Series 2004-1 Required
Reserve Account Amount for such date, after giving effect to any Class A-1
Increase, Class A-1 Decrease or Class A-2 Decrease on such date, over the Series
2004-1 Available Reserve Account Amount for such date, (ii) second, to the
extent directed by CRCF used to pay the principal amount of other Series of
Notes that are then required to be paid, (iii) third, to the extent directed in
writing by the Administrator, used to make a voluntary Class A-1 Decrease in the
Class A-1 Invested Amount or a voluntary Class A-2 Decrease in the Class A-2
Invested Amount, (iv) fourth, 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,
(v) fifth, 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 (vi) sixth, paid to CRCF
for any use permitted by the Related Documents including to make Loans under the
Loan Agreements to the extent the Borrowers have requested Loans thereunder and
Eligible Vehicles are avail-able for financing thereunder; provided, in the case
of clauses (ii), (v) and (vi), that no AESOP I Operating Lease Vehicle
Deficiency would result therefrom or
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exist
immediately thereafter. Upon the occurrence of an Amortization Event, funds on
deposit in the Series 2004-1 Excess Collection Account will be with-drawn by the
Trustee, deposited in the Series 2004-1 Collection Account and allocated as
Principal Collections to reduce the Series 2004-1 Invested Amount on the
immediately succeeding Distribution Date.
(g) Past
Due Rent Payments.
Notwithstanding the foregoing, if in the case of Section 3.2(a), if after the
occurrence of a Series 2004-1 Lease Payment Deficit, the Lessees shall make
pay-ments 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
2004-1 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 2004-1 Collection Account an amount equal to
the Series 2004-1 Invested Percentage as of the date of the occurrence of such
Series 2004-1 Lease Payment Deficit of the Collections attributable to such Past
Due Rent Payment (the “Series
2004-1 Past Due Rent Payment”). The
Administrator shall instruct the Trustee in writing pursuant to the
Administration Agreement to withdraw from the Series 2004-1 Collection Account
and apply the Series 2004-1 Past Due Rent Payment in the following
order:
(i) if the
occurrence of such Series 2004-1 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2004-1 Reserve Account pursuant to Section 3.3(d),
deposit in the Series 2004-1 Reserve Account an amount equal to the lesser of
(x) the Series 2004-1 Past Due Rent Payment and (y) the excess, if any, of the
Series 2004-1 Required Reserve Account Amount over the Series 2004-1 Available
Reserve Account Amount on such day;
(ii) if the
occurrence of the related Series 2004-1 Lease Payment Deficit resulted in one or
more Lease Deficit Disbursements being made under the Series 2004-1 Letters of
Credit, pay to each Series 2004-1 Letter of Credit Provider who made such a
Lease Deficit Disbursement for application in accor-dance with the provisions of
the applicable Series 2004-1 Reimbursement Agreement an amount equal to the
lesser of (x) the unreimbursed amount of such Series 2004-1 Letter of
Credit Provider’s Lease Deficit Disbursement and (y) such Series 2004-1 Letter
of Credit Provider’s pro rata share, calculated on the basis of the unreimbursed
amount of each Series 2004-1 Letter of Credit Provider’s Lease Deficit
Disbursement, of the amount of the Series 2004-1 Past Due Rent Payment remaining
after Payment pursuant to clause (i) above;
(iii) if the
occurrence of such Series 2004-1 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2004-1 Cash Collateral Account, deposit in the Series
2004-1 Cash Collateral Account an amount equal to the lesser of (x) the amount
of the Series 2004-1 Past Due Rent Payment remaining after any payment pursuant
to clauses (i) and (ii) above and (y) the amount withdrawn from the Series
2004-1 Cash Collateral Account on account of such Series 2004-1 Lease Payment
Deficit;
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(iv) allocate
to the Series 2004-1 Accrued Interest Account the amount, if any, by which the
Series 2004-1 Lease Interest Payment Deficit, if any, relating to such Series
2004-1 Lease Payment Deficit exceeds the amount of the Series 2004-1 Past Due
Rent Payment applied pursuant to clauses (i), (ii) and (iii) above; and
(v) treat the
remaining amount of the Series 2004-1 Past Due Rent Payment as Principal
Collections allocated to the Series 2004-1 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 and
Each Series 2004-1 Interest Rate Hedge Counterparty. On the
second London Banking Day prior to the start of each Eurodollar Period, the
Administrative Agent shall determine the Adjusted LIBO Rate for the Eurodollar
Period and shall provide written notice of the Adjusted LIBO Rate to the Trustee
and the Administrator. On each Determination Date, as provided below, the
Administrator shall instruct the Paying Agent in writing pursuant to the
Administra-tion Agreement to with-draw, and on the following Distribution Date
the Paying Agent, acting in accor-dance with such instruc-tions, shall withdraw
the amounts required to be withdrawn from the Collection Account pursu-ant to
Sections 3.3(a) below in respect of all funds available from Interest
Collections and Series 2004-1 Interest Rate Hedge Proceeds processed since the
preceding Distribution Date and allocated to the holders of the Series 2004-1
Notes.
(a) Note
Interest with respect to the Series 2004-1 Notes. On each
Determina-tion Date, the Adminis-trator 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 2004-1
Accrued Interest Account to the extent funds are anticipated to be available
from Interest Collections allo-cable to the Series 2004-1 Notes and the Series
2004-1 Interest Rate Hedge Proceeds pro-cessed from, but not including, the
preceding Distribu-tion Date through the succeeding Dis-tribution Date in
respect of (w) first, an amount equal to the Series 2004-1 Monthly Interest for
the Series 2004-1 Interest Period ending on the day preceding such related
Distribution Date, (x) second, an amount equal to the Commitment Fees for each
Class A-1 Purchaser for the Series 2004-1 Interest Period ending on the day
preceding the related Distribution Date, (y) third, an amount equal to all Fixed
Rate Payments for the next succeeding Distribution Date, and (z) fourth, an
amount equal to the amount of any unpaid Series 2004-1 Shortfall as of the
preceding Distribu-tion Date (together with any accrued interest on such Series
2004-1 Shortfall). On the following Distribution Date, the Trustee shall
withdraw the amounts described in the first sentence of this Sec-tion
3.3(a) from the Series 2004-1 Accrued Interest Account and deposit such
amounts in the Series 2004-1 Distribution Account.
(b) Withdrawals
from Series 2004-1 Reserve Account. If the
Administrator determines on any Distribution Date that the amounts available
from the Series 2004-1 Accrued Interest Account are insufficient to pay the sum
of the amounts described in clauses (w), (x), (y) and (z) of Section 3.3(a)
above on such Distribution Date, the Administrator shall instruct the Trustee in
writing to withdraw from the Series 2004-1 Reserve Account and deposit in the
Series 2004-1 Distribution Account on such
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Distribution
Date an amount equal to the lesser of the Series 2004-1 Available Reserve
Account Amount and such insufficiency. The Trustee shall withdraw such amount
from the Series 2004-1 Reserve Account and deposit such amount in the Series
2004-1 Distribution Account.
(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 2004-1 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 2004-1 Letters of Credit For Series 2004-1 Lease Interest Payment
Deficits. If the
Administrator determines on any Distribution Date that there exists a Series
2004-1 Lease Interest Payment Deficit, the Administrator shall instruct the
Trustee in writing to draw on the Series 2004-1 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 2004-1 Lease Interest Payment Deficit, (ii) the excess, if any, of
the sum of the amounts described in clauses (w), (x), (y) and (z) of Section
3.3(a) above on such Distribution Date over the amounts available from the
Series 2004-1 Accrued Interest Account, on such Distribution Date plus the
amount withdrawn from the Series 2004-1 Reserve Account pursuant to Section
3.3(b) and (iii) the Series 2004-1 Letter of Credit Liquidity Amount on the
Series 2004-1 Letters of Credit, by presenting to each Series 2004-1 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 2004-1
Distribution Account on such Distribution Date for distribution in accordance
with Section 3.4; provided,
however, that if
the Series 2004-1 Cash Collateral Account has been estab-lished and funded, the
Trustee shall withdraw from the Series 2004-1 Cash Collateral Account and
deposit in the Series 2004-1 Distribution Account an amount equal to the lesser
of (x) the Series 2004-1 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 2004-1 Available Cash Collateral Account Amount on such Distribu-tion
Date and draw an amount equal to the remainder of such amount on the Series
2004-1 Letters of Credit.
(e) Balance. On or
prior to the second Busi-ness Day preceding each Distribution Date, the
Adminis-trator 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 Sec-tion 3.3(a)), if any, of the amounts available from the
Series 2004-1 Accrued Interest Account as follows:
(i) on each
Distribution Date during the Series 2004-1 Revolving Period or the Series 2004-1
Controlled Amortization Period, (1) first, to each Series 2004-1 Interest Rate
Hedge Counterparty, an amount equal to the Fixed Rate Payment for such
Distribution Date due and owing to such Series 2004-1 Interest Rate Hedge
Counterparty, (2) second, to the Administrator, an amount equal to the Series
2004-1 Percentage as of the beginning of such Series 2004-1 Interest Period of
the por-tion of the Monthly Administration Fee pay-able by CRCF (as specified in
clause (iii) of the definition thereof) for such Series 2004-1
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Interest
Period, (3) third, to the Trustee, an amount equal to the Series 2004-1
Percentage as of the beginning of such Series 2004-1 Interest Period of the
Trustee’s fees for such Series 2004-1 Interest Period, (4) fourth, to the Series
2004-1 Distribution Account to pay any Article VII Costs, (5) fifth, to pay any
Carrying Charges (other than Carrying Charges provided for above) to the Persons
to whom such amounts are owed, an amount equal to the Series 2004-1 Percentage
as of the beginning of such Series 2004-1 Interest Period of such Carrying
Charges (other than Carrying Charges provided for above) for such Series 2004-1
Interest Period, (6) sixth, to each Series 2004-1 Interest Rate Hedge
Counterparty, any amounts due and owing under the applicable Series 2004-1
Interest Rate Hedge (other than any Fixed Rate Payment) and (7) seventh, the
balance, if any (“Excess
Collections”), shall
be withdrawn by the Paying Agent from the Series 2004-1 Collection Account and
deposited in the Series 2004-1 Excess Collection Account; and
(ii) on each
Distribution Date during the Series 2004-1 Rapid Amorti-zation Period, (1)
first, to each Series 2004-1 Interest Rate Hedge Counterparty, an amount equal
to the Fixed Rate Payment for such Distribution Date due and owing to such
Series 2004-1 Interest Rate Hedge Counterparty, (2) second, to the Trustee, an
amount equal to the Series 2004-1 Percentage as of the beginning of such Series
2004-1 Interest Period of the Trustee’s fees for such Series 2004-1 Interest
Peri-od, (3) third, to the Adminis-tra-tor, an amount equal to the Series 2004-1
Percentage as of the beginning of such Series 2004-1 Interest Period of the
portion of the Monthly Administration Fee (as specified in clause (iii) of the
definition thereof) payable by CRCF for such Series 2004-1 Interest Period, (4)
fourth, to the Series 2004-1 Distribution Account to pay any Article VII Costs,
(5) fifth, to pay any Carrying Charges (other than Carrying Charges provided for
above) to the Persons to whom such amounts are owed, an amount equal to the
Series 2004-1 Percentage as of the beginning of such Series 2004-1 Interest
Period of such Carrying Charges (other than Carrying Charges provided for above)
for such Series 2004-1 Interest Period, (6) sixth, so long as the Series 2004-1
Invested Amount is greater than the Monthly Total Principal Allocations for the
Related Month, an amount equal to the excess of the Series 2004-1 Invested
Amount over the Monthly Total Principal Allocations for the Related Month shall
be treated as Principal Collections and (7) seventh, to each Series 2004-1
Interest Rate Hedge Counterparty, any amounts due and owing under the applicable
Series 2004-1 Interest Rate Hedge (other than any Fixed Rate
Payment).
(f) Shortfalls. If the
amounts described in Section 3.3 are insuffi-cient to pay the Series 2004-1
Monthly Interest and the Commitment Fees of the Class A-1 Purchasers on any
Dis-tribution Date, payments of interest to the Series 2004-1 Noteholders and
payments of Commitment Fees to the Class A-1 Purchasers will be reduced on a pro
rata basis by the amount of such defici-ency. The aggregate amount, if any, of
such deficiency on any Distribution Date shall be referred to as the “Series
2004-1 Shortfall.” Interest shall accrue on the Series 2004-1 Shortfall at the
Alternate Base Rate plus 2% per annum.
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Section
3.4. Payment
of Note Interest and Commitment Fees. On each
Distribution Date, subject to Sec-tion 9.8 of the Base Indenture, the Paying
Agent shall, in accordance with Section 6.1 of the Base Indenture, pay to the
Adminis-trative Agent for the accounts of the Purchasers from the Series 2004-1
Distribution Account the amounts deposited in the Series 2004-1 Distribution
Account pursuant to Section 3.3. Upon the receipt of funds from the Paying Agent
on each Distribution Date on account of Series 2004-1 Monthly Interest, the
Administrative Agent shall pay to each Purchaser its Class A-1 Pro Rata Share or
Class A-2 Pro Rata Share, as the case may be, of the Series 2004-1 Monthly
Interest with respect to the Series 2004-1 Interest Period ending on the day
preceding such Distribution Date plus the amount of any unpaid Series 2004-1
Shortfalls relating to unpaid Series 2004-1 Monthly Interest payable as of the
preceding Distribution Date, together with any interest thereon at the Alternate
Base Rate plus 2% per annum. 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 Class A-1 Purchaser an amount equal to the Commitment Fee
payable to such Class A-1 Purchaser with respect to the Series 2004-1 Interest
Period ending on the day preceding such Distribution Date plus the amount of any
unpaid Series 2004-1 Shortfalls relating to unpaid Commitment Fees payable to
such Class A-1 Purchaser 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 Class A-1 Purchasers, on a pro
rata basis,
based on the Commitment Fee payable to each Class A-1 Purchaser 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 Purchaser 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 Purchasers owed such amounts, on a
pro
rata basis,
based on the Article VII Costs owing to such Purchasers. Due and
unpaid Article VII Costs owing to a Purchaser 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 CRCF and the Administrator of such Article VII
Costs.
Section
3.5. Payment
of Note Principal
.
(a) Monthly
Payments During Controlled Amortization Period or Rapid Amortization
Period.
Commencing on the second Determination Date during the Series 2004-1 Controlled
Amortization Period, or the first Determina-tion Date after the commence-ment of
the Series 2004-1 Rapid Amortization Period, the Administrator shall in-struct
the Trustee and the Paying Agent in writing pursu-ant to the Administration
Agreement and in accordance with this Section 3.5 as to (i) the amount allocated
to the Series 2004-1 Notes during the Related Month pursuant to Section
3.2(b)(ii), (c)(ii) or (d)(ii), as the case may be, (ii) any amounts to be drawn
on the Series 2004-1 Demand Notes and/or on the Series 2004-1 Letters of Credit
(or withdrawn from the Series 2004-1 Cash Collateral Account) and (iii) any
amounts to be withdrawn from the Series 2004-1 Reserve Account and deposited
into the Series 2004-1 Distribution Account.
(b) Decreases. On any
Business Day during the Series 2004-1 Revolving Period on which a Class A-1
Decrease is to be made pursuant to Section 2.4(a), the Trustee shall
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withdraw
from the Series 2004-1 Excess Collection Account in accordance with the written
instructions of the Admin-istrator an amount equal to the lesser of (i) the
funds then allocated to the Series 2004-1 Excess Collection Account and (ii) the
amount of such Class A-1 Decrease, and deposit such amount in the Series 2004-1
Distribution Account, to be paid to the Administrative Agent for distribution in
accordance with Section 3.5(g). On any Business Day during the Series 2004-1
Revolving Period on which a Class A-2 Decrease is to be made pursuant to Section
2.4(b), the Trustee shall withdraw from the Series 2004-1 Excess Collection
Account in accordance with the written instructions of the Admin-istrator an
amount equal to the lesser of (i) the funds then allocated to the Series 2004-1
Excess Collection Account and (ii) the amount of such Class A-2 Decrease, and
deposit such amount in the Series 2004-1 Distribution Account, to be paid to the
Administrative Agent for distribution in accordance with Section
3.5(g)
(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 2004-1 Distribution Account as
follows:
(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 2004-1 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 2004-1 Reserve Account, an amount equal to the lesser
of (x) the Series 2004-1 Available Reserve Account Amount and (y) such Principal
Deficit Amount and deposit it in the Series 2004-1 Distribution Account on such
Distribution Date.
(ii) Principal
Draws on Series 2004-1 Letters of Credit. If the
Administrator determines on any Distribution Date during the Series 2004-1
Amortization Period that there exists a Series 2004-1 Lease Principal Payment
Deficit, the Administrator shall instruct the Trustee in writing to draw on the
Series 2004-1 Letters of Credit, if any, as provided below. Upon
receipt of a notice by the Trustee from the Administra-tor in respect of a
Series 2004-1 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 equal to
the least of (i) such Series 2004-1 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 2004-1 Distribution Account in
accordance with clause (i) of this Section 3.5(c) and (iii) the Series 2004-1
Letter of Credit Liquidity Amount (such amount to be determined after giving
effect to any draw made on such Distribution Date pursuant to Section 3.3(d)) on
the Series 2004-1 Letters of Credit, by presenting to each Series 2004-1 Letter
of Credit Provider a draft accom-panied by a Certificate of Lease Deficit Demand
and shall cause the Lease Deficit Disbursements to be deposited in the Series
2004-1 Distribution Account on such Distribution Date; provided,
however, that if
the Series 2004-1 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2004-1 Cash Collateral Account and
deposit in the Series 2004-1 Distribution Account an amount equal to the lesser
of (x) the Series 2004-1 Cash Collat-eral Percentage on such Distribution Date
of the least of the amounts described in
-41-
clauses
(i), (ii) and (iii) above and (y) the Series 2004-1 Available Cash Collateral
Account Amount on such Distribution Date and draw an amount equal to the
remainder of such amount on the Series 2004-1 Letters of Credit.
(iii) Demand
Note Draw. If on
any Determination Date, the Adminis-trator determines that the Principal Deficit
Amount on the next succeeding Distribution Date (after giving effect to any
withdrawal from the Series 2004-1 Reserve Account pursuant to Section 3.5(c)(i)
and any draws on the Series 2004-1 Letter of Credit pursuant to Section 3.5
(c)(ii) on such Distribution Date) will be greater than zero and there are any
Series 2004-1 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 2004-1 Letter of Credit
Amount. The Trustee shall, prior to 12:00 noon (New York City time) on the
second Business Day preceding such Distribution Date, deliver such Demand Notice
to the Demand Note Issuers; provided,
however, that if
an Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the defini-tion 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 2004-1
Demand Notes to be deposited into the Series 2004-1 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 prior to such Distribution Date, any Demand Note Issuer shall have
failed to pay to the Trustee or deposit in the Series 2004-1 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 conse-cutive 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 2004-1 Letters
of Credit an amount equal to the lesser of (i) Series 2004-1 Letter of
Credit Amount and (ii) the aggregate amount that the Demand Note Issuers
failed to pay under the Series 2004-1 Demand Notes (or, the amount that the
Trustee failed to demand for payment thereunder) by presenting to each Series
2004-1 Letter of Credit Provider a draft accompanied by a Certificate of Unpaid
Demand Note Demand; provided,
however, that if
the Series 2004-1 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2004-1 Cash Collateral Account and
deposit in the
Series 2004-1 Distribution Account an amount equal to the lesser of (x) the
Series 2004-1 Cash Collateral Percentage on such Business Day of the aggregate
amount that the Demand Note Issuers failed to pay under the Series 2004-1 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (y) the Series 2004-1 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 2004-1 Demand Notes
(or, the amount that the Trustee failed to demand for payment thereunder) on the
Series 2004-
-42-
1 Letters
of Credit. The Trustee shall deposit into, or cause the deposit of, the proceeds
of any draw on the Series 2004-1 Letters of Credit and the proceeds of any
withdrawal from the Series 2004-1 Cash Collateral Account to be deposited in the
Series 2004-1 Distribution Account.
(d) Series
2004-1 Termination Date. The
entire Series 2004-1 Invested Amount shall be due and payable on the Series
2004-1 Termination Date. In connection therewith:
(i) Reserve
Account Withdrawal. If,
after giving effect to the deposit into the Series 2004-1 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 2004-1 Termination Date, the amount to be deposited in the Series
2004-1 Distribution Account with respect to the Series 2004-1 Termination Date
is or will be less than the Series 2004-1 Invested Amount, then, prior to 12:00
noon (New York City time) on the second Business Day prior to the Series
2004-1 Termination Date, the Administrator shall instruct the Trustee in writing
to withdraw from the Series 2004-1 Reserve Account, an amount equal to the
lesser of the Series 2004-1 Available Reserve Account Amount and such
insufficiency and deposit it in the Series 2004-1 Distribution Account on the
Series 2004-1 Termination Date.
(ii) Demand
Note Draw. If the
amount to be deposited in the Series 2004-1 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 2004-1
Termination Date is less than the Series 2004-1 Invested Amount, and there are
any Series 2004-1 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 2004-1
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 2004-1 Demand Notes in an
amount equal to the lesser of (i) such insuf-fici-ency and (ii) the Series
2004-1 Letter of Credit Amount. The Trustee shall, prior to 12:00 noon
(New York City time) on the second Business Day preceding the Series 2004-1
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 consecu-tive days)
with respect to a Demand Note Issuer shall have occurred and be contin-uing, 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 2004-1
Demand Notes to be deposited into the Series 2004-1 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 immediately preceding any Distribution Date for 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 2004-1 Distribution
Account the amount specified in such Demand Notice in whole or in part or (y)
due to the occurrence
-43-
of
an Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the defini-tion 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 2004-1 Termination Date, then, in the case of
(x) or (y) the Trustee shall draw on the Series 2004-1 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 2004-1 Demand Notes (or, the amount that the Trustee failed to demand for
payment thereunder) and (b) the Series 2004-1 Letter of Credit Amount on
such Business Day by presenting to each Series 2004-1 Letter of Credit Provider
a draft accompanied by a Certificate of Unpaid Demand Note Demand; provided,
however, that if
the Series 2004-1 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2004-1 Cash Collateral Account and
deposit in the Series 2004-1 Distribution Account an amount equal to the lesser
of (x) the Series 2004-1 Cash Collateral Percentage on such Business Day of the
amount that the Demand Note Issuers failed to pay under the Series 2004-1 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (y) the Series 2004-1 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 2004-1 Demand Notes (or, the
amount that the Trustee failed to demand for payment thereunder) on the Series
2004-1 Letters of Credit. The Trustee shall deposit, or cause the deposit of,
the proceeds of any draw on the Series 2004-1 Letters of Credit and the proceeds
of any withdrawal from the Series 2004-1 Cash Collateral Account to be deposited
in the Series 2004-1 Distribution Account.
(e) Special
Enhancement Draw Date. In
addition to the other rights to draw upon the Series 2004-1 Reserve Account, the
Series 2004-1 Demand Note and the Series 2004-1 Letter of Credit, the Trustee
and the Administrative Agent shall have the following rights on any Special
Enhancement Draw Date:
(i) Reserve
Account Withdrawal. On the
second Business Day prior to a Special Enhancement Draw Date, the Administrative
Agent may at its option instruct the Trustee in writing to withdraw from the
Series 2004-1 Reserve Account any amount not to exceed the Series 2004-1
Available Reserve Account Amount and deposit it in the Series 2004-1
Distribution Account on the Special Enhancement Draw Date.
(ii) Demand
Note Draw. On or
prior to 10:00 a.m. on the second Business Day prior to any Special Enhancement
Draw Date, the Administrative Agent may at its option instruct the Trustee in
writing to make a Demand Notice on the Demand Note Issuers for payment under the
Series 2004-1 Demand Notes in any amount not to exceed the Series 2004-1 Letter
of Credit Amount. If the Trustee receives such instruction prior to 10:00 a.m.
on such date, then the Trustee shall, prior to 12:00 noon (New York City
time) on the second Business Day preceding the Special Enhancement Draw 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 consecu-tive days)
with respect to a Demand Note Issuer shall have occurred and be contin-uing, the
Trustee shall not be
-44-
required
to deliver such Demand Notice to such Demand Note Issuer. The Trustee shall
cause the proceeds of any demand on the Series 2004-1 Demand Notes to be
deposited into the Series 2004-1 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 immediately preceding any Distribution Date for which a Demand
Notice has been transmitted by the Trustee to the Demand Note Issuers pursuant
to clause (ii) of this Section 3.5(e) any Demand Note Issuer shall have
failed to pay to the Trustee or deposit into the Series 2004-1 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 defini-tion 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 Special Enhancement Draw
Date, then, in the case of (x) or (y) the Trustee shall draw on the Series
2004-1 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 2004-1 Demand Notes (or, the amount
that the Trustee failed to demand for payment thereunder) and (b) the
Series 2004-1 Letter of Credit Amount on such Business Day by presenting to each
Series 2004-1 Letter of Credit Provider a draft accompanied by a Certificate of
Unpaid Demand Note Demand; provided,
however, that if
the Series 2004-1 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2004-1 Cash Collateral Account and
deposit in the Series 2004-1 Distribution Account an amount equal to the lesser
of (x) the Series 2004-1 Cash Collateral Percentage on such Business Day of the
amount that the Demand Note Issuers failed to pay under the Series 2004-1 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (y) the Series 2004-1 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 2004-1 Demand Notes (or, the
amount that the Trustee failed to demand for payment thereunder) on the Series
2004-1 Letters of Credit. The Trustee shall deposit, or cause the deposit of,
the proceeds of any draw on the Series 2004-1 Letters of Credit and the proceeds
of any withdrawal from the Series 2004-1 Cash Collateral Account to be deposited
in the Series 2004-1 Distribution Account.
(f) Distribution
by Paying Agent. On each
Distribution Date occurring on or after the date a withdrawal is made from the
Series 2004-1 Collection Account pursuant to Section 3.5(a) or amounts are
deposited in the Series 2004-1 Distribution Account pursuant to Section 3.5(b),
(c), (d) and/or (e) the Paying Agent shall, in accordance with Section 6.1 of
the Base Indenture, pay to the Administrative Agent for the accounts of the
Purchasers from the Series 2004-1 Distribution Account the amount deposited
therein pursuant to Sec-tion 3.5(a), (b), (c), (d) and/or (e).
(g) Distribution
by Administrative Agent. Upon
the receipt of funds on account of a Class A-1 Decrease from the Trustee, the
Administrative Agent shall pay to each Class A-1 Purchaser, such Class A-1
Purchaser’s Class A-1 Pro Rata Share of the amount of such Class A-1 Decrease,
and upon the receipt of funds on account of a Class A-2 Decrease from
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the
Trustee, the Administrative Agent shall pay to each Class A-2 Purchaser, such
Class A-2 Purchaser’s Class A-2 Pro Rata Share of the amount of such Class A-2
Decrease. Upon the receipt of funds from the Trustee pursuant to Sections
3.5(a), (c), (d) and/or (e) on any Distribution Date, the Administrative Agent
shall pay to each Purchaser, such Purchaser’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 (i) any payment from
or deposit into the Collection Account (including the administrative subaccounts
therein established for the benefit of the Series 2004-1 Noteholders and each
Series 2004-1 Interest Rate Hedge Counterparty), the Series 2004-1 Reserve
Account or the Series 2004-1 Cash Collateral Account or (ii) drawn upon the
Series 2004-1 Letters of Credit, required to be given by the Adminis-trator, at
the time speci-fied in the Administration Agreement or any other Related
Document (including appli-cable grace periods), the Trustee shall make such
payment or deposit into or from the Collection Account (including the
administrative subaccounts therein established for the benefit of the Series
2004-1 Noteholders and each Series 2004-1 Interest Rate Hedge Counterparty), the
Series 2004-1 Reserve Account or the Series 2004-1 Cash Collateral Account, as
applicable, without such notice or instruction from the Administrator,
provided that the
Adminis-tra-tor, upon request of the Trustee or, with respect to the Series
2004-1 Reserve Account, or the Series Cash Collateral Account or Series 2004-1
Letters of Credit, the Administrative Agent upon request of the Trustee,
promptly provides the Trustee with all information necessary to allow the
Trustee to make such payment, deposit or draw, as the case may be. 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
2004-1 Reserve Account.
(a) Establishment
of Series 2004-1 Reserve Account. CRCF
shall establish and maintain in the name of the Trustee, for the benefit of the
Series 2004-1 Noteholders and each Series 2004-1 Interest Rate Hedge
Counterparty, or cause to be established and maintained, an account (the
“Series
2004-1 Reserve Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2004-1 Noteholders and each Series 2004-1
Interest Rate Hedge Counterparty. The Series 2004-1 Reserve Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segre-gated trust
account with the corporate trust depart-ment of a depository institution or
trust com-pany having corporate trust powers and acting as trustee for funds
deposited in the Series 2004-1 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 depository institution or
trust com-pany shall be reduced to below “BBB-” by Standard & Poor’s or
“Baa3” by Xxxxx’x, then CRCF shall, within 30 days of such reduction, establish
a new Series 2004-1 Reserve Account with a new Qualified Institution. If the
Series 2004-1 Reserve Account is not maintained in accordance with the pre-vious
sentence, CRCF shall establish a new Series 2004-1 Reserve Account, within ten
(10) Business Days after obtaining knowledge of such fact, which complies with
such sentence, and shall instruct the Trustee in writing to transfer all cash
and investments from the non-qualifying Series 2004-1 Reserve Account into the
new Series 2004-1 Reserve Account. Initially, the Series 2004-1 Reserve Account
will be established with The Bank of New York.
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(b) Administration
of the Series 2004-1 Reserve Account. The
Administrator may instruct the institution maintaining the Series 2004-1 Reserve
Account to invest funds on deposit in the Series 2004-1 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 2004-1 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 2004-1
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. The Trustee shall, at the expense of CRCF, take such action as is
required to maintain the Trustee’s security interest in the Permitted
Investments credited to the Series 2004-1 Reserve Account. CRCF 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
purchase price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2004-1 Reserve
Account shall remain uninvested.
(c) Earnings
from Series 2004-1 Reserve Account. All
interest and earnings (net of losses and investment expenses) paid on funds on
deposit in the Series 2004-1 Reserve Account shall be deemed to be on deposit
therein and available for distribution.
(d) Series
2004-1 Reserve Account Constitutes Additional Collateral for Series 2004-1
Notes. In
order to secure and provide for the repayment and payment of the CRCF
Obligations with respect to the Series 2004-1 Notes, CRCF hereby grants a
security interest in and assigns, pledges, grants, transfers and sets over to
the Trustee, for the benefit of the Series 2004-1 Noteholders and each Series
2004-1 Interest Rate Hedge Counterparty, all of CRCF’s right, title and interest
in and to the following (whether now or hereafter existing or acquired): (i) the
Series 2004-1 Reserve Account, includ-ing 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 2004-1
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
2004-1 Reserve Account, whether consti-tuting 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 2004-1 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
2004-1 Reserve Account Collateral”). The
Trustee shall possess all right, title and interest in and to all funds on
deposit from time to time in the Series 2004-1 Reserve Account and in all
proceeds thereof, and shall be the only person authorized to originate
entitle-ment orders in respect of the Series 2004-1 Reserve Account. The Series
2004-1 Reserve Account Collateral shall be under the sole dominion and
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control
of the Trustee for the benefit of the Series 2004-1 Noteholders and each Series
2004-1 Interest Rate Hedge Counterparty. The Series 2004-1 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 2004-1 Reserve Account; (ii)
that its jurisdiction as securities intermediary is New York, (iii) that each
item of property (whether investment property, financial asset, security,
instrument or cash) credited to the Series 2004-1 Reserve Account shall be
treated as a financial asset (as defined in Section 8-102(a)(9) of the
New York UCC) and (iv) to comply with any entitlement order (as defined in
Section 8-102(a)(8) of the New York UCC) issued by the Trustee without
further consent by CRCF or any other entitlement holder.
(e) Preference
Amount Withdrawals from the Series 2004-1 Reserve Account or the Series 2004-1
Cash Collateral Account. If a
Purchaser 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 the Series 2004-1 Cash
Collateral Account and pay to the Purchaser an amount equal to such Preference
Amount. Prior to any withdrawal from the Series 2004-1 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 CRCF by the
Purchaser for any amount paid in respect of such Preference Amount. On the
Business Day after Series 2004-1 Letter of Credit Termination Date, the Trustee
shall transfer the amount on deposit in the Series 2004-1 Reserve Account to the
Series 2004-1 Cash Collateral Account.
(f) Series
2004-1 Reserve Account Surplus. In the
event that the Series 2004-1 Reserve Account Surplus on any Distribution Date on
which no Amortization Event is continuing, after giving effect to all
withdrawals from the Series 2004-1 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 2004-1
Reserve Account an amount equal to the Series 2004-1 Reserve Account Surplus and
shall pay such amount to CRCF; provided that if
the Distribution Date is the Series 2004-1 Letter of Credit Termination Date and
the Series 2004-1 Demand Note Payment Amount is greater than zero, the Trustee
shall transfer the Series 2004-1 Available Reserve Account Amount to the Series
2004-1 Cash Collateral Account.
(g) Termination
of Series 2004-1 Reserve Account. Upon
the termination of this Supplement pursuant to Section 10.15, the Trustee,
acting in accordance with the written instructions of the Administrator, after
the prior payment of all amounts owing to the Series 2004-1 Noteholders and
payable from the Series 2004-1 Reserve Account as provided herein, shall
withdraw from the Series 2004-1 Reserve Account all amounts on deposit therein
for payment to CRCF.
Section
3.8. Series
2004-1 Letters of Credit and Series 2004-1 Cash Collateral
Account.
(a) Series
2004-1 Letters of Credit and Series 2004-1 Cash Collateral Account Constitute
Additional Collateral for Series 2004-1 Notes. In
order to secure and provide for the repayment and payment of CRCF’s obligations
with respect to the Series 2004-1 Notes, CRCF hereby grants a security interest
in and assigns, pledges, grants, transfers and sets over to the
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Trustee,
for the benefit of the Series 2004-1 Noteholders and each Series 2004-1 Interest
Rate Hedge Counterparty, all of CRCF’s right, title and interest in and to the
following (whether now or hereafter existing or acquired): (i) each Series
2004-1 Letter of Credit; (ii) the Series 2004-1 Cash Collateral Account,
including any security entitle-ment thereto; (iii) all funds on deposit in
the Series 2004-1 Cash Collateral Account from time to time; (iv) all
certificates and instruments, if any, representing or evidencing any or all of
the Series 2004-1 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 2004-1 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 2004-1 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
2004-1 Cash Collateral Account Collateral”). The
Trustee shall, for the benefit of the Series 2004-1 Noteholders and each Series
2004-1 Interest Rate Hedge Counterparty, possess all right, title and interest
in all funds on deposit from time to time in the Series 2004-1 Cash Collateral
Account and in all
proceeds thereof, and shall be the only person authorized to originate
entitlement orders in respect
of the Series 2004-1 Cash Collateral Account. The Series 2004-1 Cash Collateral
Account shall be under the sole dominion and control of the Trustee for the
benefit of the Series 2004-1 Noteholders and each Series 2004-1 Interest Rate
Hedge Counterparty. The Series 2004-1 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 2004-1 Cash Collateral Account; (ii) that its
jurisdiction as securities intermediary is New York; (iii) that each item of
property (whether investment property, financial asset, security, instrument or
cash) credited to the Series 2004-1 Cash Collateral Account shall be treated as
a financial asset (as defined in Section 8-102(a)(9) of the New York UCC)
and (iv) to comply with any entitlement order (as defined in Section 8-102(a)(8)
of the New York UCC) issued by the Trustee without further consent by CRCF
or any other entitlement holder.
(b) Series
2004-1 Letter of Credit Expiration Date. If
prior to the date which is ten (10) days prior to the then scheduled Series
2004-1 Letter of Credit Expiration Date with respect to any Series 2004-1 Letter
of Credit, excluding the amount available to be drawn under such Series 2004-1
Letter of Credit but taking into account each substitute Series 2004-1 Letter of
Credit which has been obtained from a Series 2004-1 Eligible Letter of Credit
Provider and is in full force and effect on such date, the Series 2004-1
Enhancement Amount would be equal to or more than the Series 2004-1 Required
Enhancement Amount, then the Administrator shall notify the Trustee in writing
no later than two Business Days prior to such Series 2004-1 Letter of Credit
Expiration Date of such determination. If prior to the date which is ten (10)
days prior to the then scheduled Series 2004-1 Letter of Credit Expiration Date
with respect to any Series 2004-1 Letter of Credit, excluding the amount
available to be drawn under such Series 2004-1 Letter of Credit but taking into
account a substitute Series 2004-1 Letter of Credit which has been obtained from
a Series 2004-1 Eligible Letter of Credit Provider and is in full force and
effect on such date, the Series 2004-1 Enhancement Amount would be less than the
Series 2004-1 Required Enhancement Amount, then the Administrator or the
Administrative Agent shall notify the Trustee in writing no later than two
Business Days prior to such Series 2004-1 Letter of Credit Expiration Date of
(x) the excess, if any, of the Series 2004-1 Required Enhancement
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Amount
over the Series 2004-1 Enhancement Amount, excluding the available amount under
such expiring Series 2004-1 Letter of Credit but taking into account any
substitute Series 2004-1 Letter of Credit which has been obtained from a Series
2004-1 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
2004-1 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 2004-1 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 2004-1 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 2004-1 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 2004-1 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 2004-1 Cash Collateral
Account.
(c) Series
2004-1 Letter of Credit Providers. The
Administrator or the Administrative Agent shall notify the Trustee in writing
within one Business Day (provided that the Administrative Agent will not have
any liability for the failure to provide such notice) of becoming aware that (i)
the long-term senior unsecured debt credit rating of any Series 2004-1 Letter of
Credit Provider has fallen below “A+” as determined by Standard & Poor’s or
“A1” as determined by Xxxxx’x or (ii) the short-term senior unsecured debt
credit rating of any Series 2004-1 Letter of Credit Provider has fallen below
“A-1” as determined by Standard & Poor’s or “P-1” as determined by Xxxxx’x.
At such time the Administrator or the Administrative Agent shall also notify the
Trustee of (i) the excess, if any, of the Series 2004-1 Required
Enhancement Amount over the Series 2004-1 Enhancement Amount, excluding the
available amount under the Series 2004-1 Letter of Credit issued by such Series
2004-1 Letter of Credit Provider, on such date and (ii) the amount
available to be drawn on such Series 2004-1 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 2004-1
Letter of Credit in an amount equal to the lesser of the amounts in clause
(i) and clause (ii) of the immediately preceding sen-tence 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 2004-1 Cash Collateral Account.
(d) Draws
on the Series 2004-1 Letters of Credit. If
there is more than one Series 2004-1 Letter of Credit on the date of any draw on
the Series 2004-1 Letters of Credit pursuant to the terms of this Supplement,
the Administrator or the Administrative Agent shall instruct the Trustee, in
writing, to draw on each Series 2004-1 Letter of Credit in an amount equal to
the LOC Pro Rata Share of the Series 2004-1 Letter of Credit Provider issuing
such Series 2004-1 Letter of Credit of the amount of such draw on the Series
2004-1 Letters of Credit.
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(e) Establishment
of Series 2004-1 Cash Collateral Account. On or
prior to the date of any drawing under a Series 2004-1 Letter of Credit pursuant
to Section 3.8(b) or (c) above, CRCF shall establish and maintain in the
name of the Trustee for the benefit of the Series 2004-1 Noteholders and each
Series 2004-1 Interest Rate Hedge Counterparty, or cause to be estab-lished and
maintained, an account (the “Series
2004-1 Cash Collateral Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2004-1 Noteholders and each Series 2004-1
Interest Rate Hedge Counterparty. The Series 2004-1 Cash Collateral Account
shall be maintained (i) with a Qualified Institution, or (ii) as a
segre-gated trust account with the corporate trust depart-ment of a depository
institution or trust company having corporate trust powers and act-ing as
trustee for funds deposited in the Series 2004-1 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
Standard & Poor’s or “Baa3” by Xxxxx’x, then CRCF shall, within 30 days of
such reduction, establish a new Series 2004-1 Cash Collateral Account with a new
Qualified Institution or a new segre-gated 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 2004-1 Cash
Collateral Account. If a new Series 2004-1 Cash Collateral Account is
established, CRCF shall instruct the Trustee in writing to transfer all cash and
invest-ments from the non-qualifying Series 2004-1 Cash Collateral Account into
the new Series 2004-1 Cash Collateral Account.
(f) Administration
of the Series 2004-1 Cash Collateral Account. CRCF
may instruct (by standing instructions or otherwise) the institution maintaining
the Series 2004-1 Cash Collateral Account to invest funds on deposit in the
Series 2004-1 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 2004-1 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 2004-1 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 CRCF, take such action as is required to
maintain the Trustee’s security interest in the Permitted Investments credited
to the Series 2004-1 Cash Collateral Account. CRCF 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
purchase price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2004-1 Cash
Collateral Account shall remain uninvested.
(g) Earnings
from Series 2004-1 Cash Collateral Account. All
interest and earnings (net of losses and investment expenses) paid on funds on
deposit in the Series 2004-1 Cash Collateral Account shall be deemed to be on
deposit therein and available for distribution.
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(h) Series
2004-1 Cash Collateral Account Surplus. In the
event that the Series 2004-1 Cash Collateral Account Surplus on any Distribution
Date (or, after the Series 2004-1 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 with-draw from the Series 2004-1 Cash
Collateral Account an amount equal to the Series 2004-1 Cash Collateral Account
Surplus and shall pay such amount: first, to the Series 2004-1 Letter of Credit
Providers to the extent of any unreimbursed drawings under the related Series
0000-0 Xxxxxxxxxxxxx Agreement, for application in accordance with the
provisions of the related Series 0000-0 Xxxxxxxxxxxxx Agreement, and, second, to
CRCF any remaining amount.
(i) Termination
of Series 2004-1 Cash Collateral Account. Upon
the termina-tion 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 2004-1 Noteholders and
payable from the Series 2004-1 Cash Collateral Account as provided herein, shall
withdraw from the Series 2004-1 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 2004-1 Letter of Credit Providers
to the extent of any unreimbursed drawings under the related Series 0000-0
Xxxxxxxxxxxxx Agreement, for application in accordance with the provisions of
the related Series 0000-0 Xxxxxxxxxxxxx Agreement, and, second, to CRCF any
remaining amount.
(j) Termination
Date Demands on the Series 2004-1 Letters of Credit. Prior
to 10:00 a.m. (New York City time) on the Business Day immediately
succeeding the Series 2004-1 Letter of Credit Termination Date, the
Administrator shall determine the Series 2004-1 Demand Note Payment Amount as of
the Series 2004-1 Letter of Credit Termination Date. If the Series 2004-1 Demand
Note Payment Amount is greater than zero, then the Administrator shall instruct
the Trustee in writing to draw on the Series 2004-1 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 2004-1 Demand Note Payment Amount
over the Series 2004-1 Available Reserve Account Amount and (ii) the Series
2004-1 Letter of Credit Liquidity Amount on the affected Series 2004-1 Letters
of Credit by presenting to each Series 2004-1 Letter of Credit Provider a draft
accompanied by a Certificate of Termination Date Demand; provided, however, that
if the Series 2004-1 Cash Collateral Account has been established and funded,
the Trustee shall draw an amount equal to the product of (a) 100% minus the
Series 2004-1 Cash Collateral Percentage and (b) the lesser of the amounts
referred to in clause (i) or (ii) on such Business Day on the Series 2004-1
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 2004-1 Cash Collateral Account.
Section
3.9. Series
2004-1 Distribution Account.
(a) Establishment
of Series 2004-1 Distribu-tion Account. CRCF shall establish and maintain in the
name of the Trustee for the benefit of the Series 2004-1 Noteholders and each
Series 2004-1 Interest Rate Hedge Counterparty, or cause to be established and
maintained, an account (the “Series 2004-1 Distribution Account”), bearing a
designa-tion clearly indicating that the funds deposited therein are held for
the benefit of the Series 2004-1 Noteholders and each Series 2004-1 Interest
Rate Hedge Counterparty. The Series 2004-1 Distribution Account shall be
maintained (i) with a
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Qualified
Institu-tion, 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 2004-1
Distri-bution Account; provided that, if at any time such Quali-fied Institution
is no longer a Qualified Institution or the credit rating of any securities
issued by such depos-itory institution or trust company shall be reduced to
below “BBB-” by Standard & Poor’s or “Baa3” by Xxxxx’x, then CRCF shall,
within 30 days of such reduction, establish a new Series 2004-1 Distribution
Account with a new Qualified Institu-tion. If the Series 2004-1 Distribution
Account is not maintained in accordance with the previous sen-tence, CRCF shall
establish a new Series 2004-1 Distribution Account, within ten (10) Business
Days after obtaining knowledge of such fact, which complies with such sentence,
and shall instruct the Trustee in writing to transfer all cash and investments
from the non-qualify-ing Series 2004-1 Distribution Account into the new
Series 2004-1 Distribution Account. Initially, the Series 2004-1 Distribu-tion
Account will be established with The Bank of New York.
(b) Administration
of the Series 2004-1 Dis-tribution Account. The
Administrator may instruct the institution maintaining the Series 2004-1
Distribution Account to invest funds on deposit in the Series 2004-1
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 2004-1 Distribution Account is held
with the Paying Agent, then such investment may mature on such Distribution Date
and such funds shall be available for withdrawal on or prior to such
Distribution Date. All such Permitted Investments will be credited to the Series
2004-1 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. The Trustee shall, at the expense of CRCF, take such action as is
required to maintain the Trustee’s security interest in the Permitted
Investments credited to the Series 2004-1 Distribution Account. CRCF 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
purchase price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2004-1
Distribution Account shall remain uninvested.
(c) Earnings
from Series 2004-1 Distribution Account. All
interest and earn-ings (net of losses and investment expenses) paid on funds on
deposit in the Series 2004-1 Distribution Account shall be deemed to be on
deposit and available for distribution.
(d) Series
2004-1 Distribution Account Constitutes Additional Collateral for Series 2004-1
Notes. In
order to secure and provide for the repayment and payment of the CRCF
Obligations with respect to the Series 2004-1 Notes, CRCF hereby grants a
security interest in and assigns, pledges, grants, transfers and sets over to
the Trustee, for the benefit of the Series 2004-1 Noteholders and each Series
2004-1 Interest Rate Hedge Counterparty, all of CRCF’s right, title and interest
in and to the following (whether now or hereafter existing or acquired): (i) the
Series 2004-1 Distri-bution Account, including any security entitlement thereto;
(ii) all
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funds on
deposit therein from time to time; (iii) all certificates and instruments,
if any, representing or evidencing any or all of the Series 2004-1 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 2004-1
Distribution Account, whether constituting securities, instruments, general
intangibles, invest-ment 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 2004-1 Distribution Account, the funds on deposit therein from time
to time or the invest-ments made with such funds; and (vi) all proceeds of any
and all of the fore-going, including, without limitation, cash (the items in the
foregoing clauses (i) through (vi) are referred to, collec-tively, as the
“Series
2004-1 Distribution Account Collateral”). The
Trustee shall possess all right, title and interest in all funds on deposit from
time to time in the Series 2004-1 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 2004-1 Distribution Account. The
Series 2004-1 Distribution Account Collateral shall be under the sole dominion
and control of the Trustee for the benefit of the Series 2004-1 Noteholders and
each Series 2004-1 Interest Rate Hedge Counterparty. The Series 2004-1 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 2004-1
Distribution Account; (ii) that its jurisdiction as securities intermediary
is New York, (iii) that each item of property (whether investment property,
financial asset, security, instrument or cash) credited to the Series 2004-1
Distribution Account shall be treated as a financial asset (as defined in
Section 8-102(a)(9) of the New York UCC) and (iv) to comply with any
entitlement order (as defined in Section 8-102(a)(8) of the New York UCC)
issued by the Trustee without further consent by CRCF or any other entitlement
holder.
Section
3.10. Series
2004-1 Interest Rate Xxxxxx.
(a) CRCF may
from time to time enter into one or more interest rate swaps or interest rate
caps (each a “Series
2004-1 Interest Rate Hedge”) with a
Qualified Interest Rate Hedge Counterparty in order to hedge its floating rate
interest rate exposure. Each Series 2004-1 Interest Rate Hedge shall limit the
right of the related Qualified Interest Rate Hedge Counterparty to receive
payments from CRCF only to the extent of funds available for such purpose in
accordance with the provisions of this Supplement.
(b) To secure
payment of all CRCF Obligations with respect to the Series 2004-1 Notes,
CRCF grants a security interest in, and assigns, pledges, grants, transfers and
sets over to the Trustee, for the benefit of the Series 2004-1
Noteholders, all of CRCF’s right, title and interest in the Series 2004-1 Interest
Rate Xxxxxx and all proceeds thereof (the “Series
2004-1 Interest Rate Hedge Collateral”). CRCF
shall require all Series 2004-1 Interest Rate Hedge Proceeds to be paid to,
and the Trustee shall allocate all Series 2004-1 Interest Rate Hedge Proceeds
to, the Series 2004-1 Accrued Interest Account of the Series 2004-1
Collection Account.
(c) If at any
time the Series 2004-1 Interest Rate Hedge Counterparty to a Series 2004-1
Interest Rate Hedge is no longer a Qualified Interest Rate Hedge Counterparty,
then CRCF shall take one of the following actions within 30 days from the date
it ceases to be a Qualified Interest Rate Hedge Counterparty: (i) cause the
Series 2004-1 Interest Rate Hedge Counterparty to post collateral in an amount
and in a manner acceptable to the Administrative
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Agent;
(ii) cause the Series 2004-1 Interest Rate Hedge Counterparty to provide at the
Series 2004-1 Interest Rate Hedge Counterparty’s cost a guarantee of its
obligations under each Series 2004-1 Interest Rate Hedge to which it is a party
from a person who would qualify as a Qualified Interest Rate Hedge Counterparty
or (iii) with the consent of the Administrative Agent, terminate the Series
2004-1 Interest Rate Hedge with such Series 2004-1 Interest Rate Hedge
Counterparty.
(d) If at any
time (i) a Series 2004-1 Interest Rate Hedge Counterparty fails to make a
payment on a Series 2004-1 Interest Rate Hedge or (ii) a Series 2004-1 Interest
Rate Hedge Counterparty is no longer a Qualified Interest Rate Hedge
Counterparty and fails to take one of the actions within the timeframe set forth
in Section 3.10(c) hereof, CRCF shall, at the Administrative Agent’s direction,
terminate such Series 2004-1 Interest Rate Hedge.
(e) CRCF
shall, promptly following the execution of a Series 2004-1 Interest Rate Hedge,
deliver to the Trustee such Series 2004-1 Interest Rate Hedge.
Section
3.11. Series
2004-1 Demand Notes Constitute Additional Collateral for Series 2004-1
Notes. In
order to secure and provide for the repayment and payment of the obligations
with respect to the Series 2004-1 Notes, CRCF hereby grants a security interest
in and assigns, pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 2004-1 Noteholders and each Series 2004-1 Interest Rate
Hedge Counterparty, all of CRCF’s right, title and interest in and to the
follow-ing (whether now or hereafter existing or acquired): (i) the Series
2004-1 Demand Notes; (ii) all certificates and instruments, if any,
representing or evidencing the Series 2004-1 Demand Notes; and (iii) all
proceeds of any and all of the foregoing, including, without limitation, cash.
On the date hereof, CRCF shall deliver to the Trustee, for the benefit of the
Series 2004-1 Noteholders and each Series 2004-1 Interest Rate Hedge
Counterparty, each Series 2004-1 Demand Note, endorsed in blank. The Trustee,
for the benefit of the Series 2004-1 Noteholders and each Series 2004-1 Interest
Rate Hedge Counterparty, shall be the only Person authorized to make a demand
for payments on the Series 2004-1 Demand Notes.
Section
3.12. Payments
to Purchasers.
Notwithstanding anything to the contrary herein or in the Base Indenture,
amounts distributable by CRCF, the Trustee, the Paying Agent or the
Administrative Agent to Purchaser shall be paid by wire transfer of immediately
available funds no later than 4:00 p.m. (New York time) for credit to the
account or accounts designated by the Administrative Agent. Notwithstanding the
foregoing, the Administrative Agent shall not be so obligated unless the
Administrative Agent shall have received the funds by 10:00 a.m. (New York
City time).
Section
3.13. Appointment
of Series 2004-1 Agent. Each of
the Purchasers hereby irrevocably designates and appoints the Series 2004-1
Agent as the agent of such Person with respect to the Series 2004-1 Collateral
under this Supplement and irrevocably authorizes the Series 2004-1 Agent, in
such capacity, to take such action on its behalf with respect to the Series
2004-1 Collateral (other than the Collateral) under the provisions of this
Supplement and to exercise such powers and perform such duties as are expressly
delegated to the Series 2004-1 Agent by the terms of this Supplement, together
with such other powers as are reasonably incidental thereto.
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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 2004-1 Notes and collectively shall constitute the Amortization
Events set forth in Section 9.1(n) of the Base Indenture with respect to the
Series 2004-1 Notes (without notice or other action on the part of the Trustee
or any holders of the Series 2004-1 Notes):
(a) a Series
2004-1 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 2004-1 Enhancement Deficiency shall have
been cured in accordance with the terms and condi-tions of the Indenture and the
Related Documents;
(b) an AESOP
I Operating Lease Vehicle Deficiency shall occur and continue for at least two
(2) Business Days;
(c) the
Collection Account, the Series 2004-1 Collection Account, the Series 2004-1
Excess Collection Account, the Series 2004-1 Distribution Account or the Series
2004-1 Reserve Account shall be subject to an injunction, estoppel or other stay
or a Lien (other than Liens permitted under the Related
Docu-ments);
(d) all
principal of, and interest and Commitment fees on, the Series 2004-1 Notes is
not paid on the Series 2004-1 Expected Final Distribution Date;
(e) the
Series 2004-1 Carryover Controlled Amortization Account Amount is greater than
zero on two consecutive Distribution Dates (after giving effect to all the
distribution of the Monthly Total Principal Allocation on such Distribution
Dates);
(f) any
Series 2004-1 Letter of Credit shall not be in full force and effect for at
least two (2) Business Days and a Series 2004-1 Enhancement Deficiency would
result from excluding such Series 2004-1 Letter of Credit from the Series 2004-1
Enhancement Amount;
(g) from and
after the funding of the Series 2004-1 Cash Collateral Account, the Series
2004-1 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 a Series 2004-1 Enhancement Deficiency
would result from excluding the Series 2004-1 Available Cash Collateral Account
Amount from the Series 2004-1 Enhancement Amount;
(h) an Event
of Bankruptcy shall have occurred with respect to any Series 2004-1 Letter of
Credit Provider or any Series 2004-1 Letter of Credit Provider xxxxxx-xxxx its
Series 2004-1 Letter of Credit or refuses to honor a proper draw thereon and a
Series 2004-1 Enhancement Deficiency would result from excluding such Series
2004-1 Letter of Credit from the Series 2004-1 Enhancement Amount;
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(i) the
occurrence of an Event of Bankruptcy (including, without limitation, the
appointment of a receiver or liquidator) with respect to Cendant or any
Permitted Sublessee; and
(j) a Change
in Control shall have occurred.
In the
case of any event described in clause (j) above, an Amortization Event shall
have occurred with respect to the Series 2004-1 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) or (i),
an Amortization Event with respect to the Series 2004-1 Notes shall have
occurred without any notice or other action on the part of the Trustee or any
Series 2004-1 Noteholders, immediately upon the occurrence of such event.
Amortization Events with respect to the Series 2004-1 Notes described in (a),
(b), (c), (d), (e), (f), (g), (h) or (i) may be waived with the written consent
of the Purchasers having Commitment Percentages aggregating 100%. Amortization
Events with respect to the Series 2004-1 Notes described in clause (j) 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 Docu-ments, upon
the Trustee’s receipt of notice from any Lessee, any Borrower or CRCF (i) to the
effect that a Manufacturer Program is no longer an Eligible Manufacturer Program
and that, as a result, either (a) the Series 2004-1 Maximum Non-Program Vehi-cle
Amount is or will be exceeded or (b) an excess will exist under clause (y) of
paragraph (ii) of the definition of Series 2004-1 Required Enhancement Amount or
(ii) that the Les-sees, the Borrowers and CRCF have determined to in-crease any
Series 2004-1 Maximum Amount or the percentage set forth in clause (y) of any of
paragraphs (ii), (iii), (iv), (v), (vii) or (viii) of the definition of Series
2004-1 Required Enhancement Amount, (such notice, a “Waiver
Request”), each
Series 2004-1 Note-holder may, at its option, waive the Series 2004-1 Maximum
Non-Program Vehicle Amount, any other Series 2004-1 Maximum Amount or any
increase in the Series 2004-1 Required Enhancement Amount based upon clause (y)
of any of paragraphs (ii), (iii), (iv), (v), (vii) or (viii) of the definition
of the Series 2004-1 Required Enhancement 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 Administrative Agent 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 2004-1 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 Trust-ee in the
Series 2004-1 Collection Account for ratable distribution as described
below.
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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 2004-1 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 each Purchaser. 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
2004-1 Noteholders, (ii) the Trus-tee 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 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 Dis-tribution
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 Purchasers. Upon the receipt of funds from the Trustee pursuant
to this Article V, the Administrative Agent shall pay the Designated Amounts as
follows:
(i) to each
non-consenting Purchaser, such Purchaser’s pro rata share based on the Purchaser
Invested Amount with respect to such Purchaser relative to the Purchaser
Invested Amount with respect to all non-consenting Purchasers of the Designated
Amounts up to the amount required to reduce to zero the Purchaser Invested
Amounts with respect to all non-consenting Purchasers; and
(ii) any
remaining Designated Amounts to the Series 2004-1 Excess Collection
Account.
If the
amount distributed pursuant to clause (i) of the preceding paragraph is not
sufficient to reduce the Purchaser Invested Amount with respect to each
non-consenting Purchaser to zero on the date specified therein, then on each day
following such Dis-tribution Date, the Admin-istrator will allocate to the
Series 2004-1 Collection Account on a daily basis all Designated Amounts
collected on such day. On each fol-lowing Distribution Date, the Trustee will
withdraw such Designated Amounts from the Series 2004-1 Collection Account and
deposit the same in the Series 2004-1 Distribution Account for distribution to
the Administrative Agent for the accounts of the non-consenting Purchasers. 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
non-consenting Purchaser, such Purchaser’s pro rata share based on the Purchaser
Invested Amount with respect to such Purchaser relative to the Purchaser
Invested Amount with respect to all non-consenting Purchasers of the Designated
Amounts in the Series 2004-1 Collection Account as of the applicable
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Determination
Date up to the amount required to reduce to zero the Purchaser Invested Amounts
with respect to all non-consenting Purchasers; and
(b) any
remaining Designated Amounts to the Series 2004-1 Excess Collection
Account.
If the
Requisite Noteholders do not timely consent to such waiver, the Desig-nated
Amounts will be re-allocated to the Series 2004-1 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 2004-1 Amor-tization Period shall commence after receipt
by the Trustee of a Waiver Request, all such Designated Amounts will thereafter
be considered Principal Collections allo-cated to the Series 2004-1
Noteholders.
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 a copy, executed and delivered in form
and substance satisfactory to it of (i) the Base Indenture, executed by a
duly authorized officer of each of CRCF and the Trustee, (ii) each Lease,
executed by a duly authorized officer of each of CCRG, as Lessee, Permitted
Sublessees, the Intermediary and
Administrator, and the Lessor party thereto, (iii) each Loan Agreement, executed
by a duly authorized officer of each of CRCF, the Lessor party thereto and the
Permitted Nominees party thereto, (iv) each Vehicle Title and Lienholder Nominee
Agreement, executed by the duly authorized officer of each of the Permitted
Nominee party thereto, CCRG, the Lessor party thereto and the Trustee and (v)
the Administration Agreement, executed by a duly authorized officer of each of
CRCF and the Administrator.
(b) Corporate
Documents; Proceedings of CRCF and CCRG. The
Adminis-trative Agent shall have received from CRCF, the Administrator, and CCRG
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;
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(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 such
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 true and complete
copy of the resolutions, in form and substance reasonably satisfac-tory to the
Administrative 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 executed in connection therewith to which
it is a party and the transactions contemplated thereby, and that such
resolutions have not been amended, modi-fied, 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 CRCF, the Administrator, AESOP
Leasing, AESOP Leasing II, Original AESOP, each of the Permitted Nominees and
CCRG contained in each of the Related Documents shall be true and correct as of
such 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
2004-1 Notes or any other Series of Notes shall exist on the date hereof and no
AESOP I Operating Lease Vehicle Deficiency shall exist on the date
hereof.
(e) Lien
Searches. The
Administrative Agent shall have received a written search report listing all
effective financing statements filed since execution of the Original Series
2004-1 Supplement, in each case that name CRCF, AESOP Leasing, AESOP Leasing II,
Original AESOP, each of the Permitted Nominees or CCRG 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, addressed to each Purchaser and the
Trustee, opinions of counsel with respect to such other matters
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as may be
reasonably requested by the Administrative Agent, in form and substance
reasonably acceptable to the addressees thereof and their counsel.
(g) Fees
and Expenses. Each
Purchaser shall have received payment of all fees, out-of-pocket expenses and
other amounts due and payable to such 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 2004-1 Collection Account, the Series 2004-1 Reserve Account and
the Series 2004-1 Distribution Account shall have been established in accordance
with the terms and provisions of the Indenture.
(i) Opinion. The
Administrative Agent shall have received, addressed to each 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 2004-1 Notes.
(j) 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 the Administrative Agent and its
counsel.
(k) Use of
Proceeds. CRCF
shall use the net cash proceeds of the Class A-1 Notes and the Class A-2 Notes
to repay in full the Series 2004-5 Notes.
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 Purchaser (except any such reserve requirement reflected in the Adjusted
LIBO Rate); or
(ii) impose on
any Purchaser (or its holding company) or the London interbank market any other
condition affecting the Indenture or the Related Documents or the funding of
Eurodollar Tranches by such Purchaser;
and the
result of any of the foregoing shall be to increase the cost to such Purchaser
of mak-ing, converting into, continuing or maintaining Eurodollar Tranches (or
maintaining its obliga-tion to do so) or to reduce any amount received or
receivable by such Purchaser hereunder or in connection herewith (whether
principal, interest or otherwise), then CRCF will pay to such Purchaser such
additional amount or amounts as will compensate such Purchaser for such
additional costs incurred or reduction suffered.
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(b) If any
Purchaser determines that any Change in Law regarding capital requirements has
or would have the effect of reducing the rate of return on such Purchaser’s
capital or the capital of any corporation controlling such Purchaser as a
consequence of its obligations hereunder to a level below that which such
Purchaser or such corporation could have achieved but for such Change in Law
(taking into consideration such Purchaser’s or such corporation’s policies with
respect to capital adequacy), then from time to time, CRCF shall pay to such
Purchaser such additional amount or amounts as will compensate such Purchaser
for any such reduction suffered.
(c) A
certificate of a Purchaser setting forth the amount or amounts necessary to
compensate such Purchaser as specified in subsections (a) and (b) of this
Section 7.1 shall be delivered to CRCF (with a copy to the Administrative
Agent) and shall be conclusive absent manifest error. Any payments made by CRCF
pursuant to this Section 7.1 shall be made solely from funds available in the
Series 2004-1 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 CRCF 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 a Purchaser to demand compensation pursuant to this
Section 7.1 shall not constitute a waiver of such Purchaser’s right to
demand such compensation; provided that
CRCF shall not be required to compensate any Purchaser pursuant to this
Section 7.1 for any increased costs or reductions incurred more than 270
days prior to the date that such Purchaser notifies CRCF of the Change in Law
giving rise to such increased costs or reductions and of such Purchaser’s
intention to claim compensation therefor; provided, further, that, if the Change
in Law giving rise to such increased costs or reduc-tions 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 CRCF here-under shall be made
free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if
CRCF 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) CRCF shall make such deduc-tions and
(iii) CRCF shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In
addition, CRCF shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) CRCF
shall indemnify the Administrative Agent and each Purchaser 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 or such Purchaser on or with respect to any payment by
or on account of any obligation of CRCF hereunder or under the Indenture
(including Indemnified Taxes or Other
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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 CRCF by the Administrative
Agent or any Purchaser shall be conclusive absent manifest error. Any payments
made by CRCF pursuant to this Section 7.2 shall be made solely from funds
available in the Series 2004-1 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 CRCF 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) As soon
as practicable after any payment of Indemnified Taxes or Other Taxes by CRCF to
a Governmental Authority, CRCF shall deliver to the Administrative Agent the
original or a certified copy of a receipt, if any, issued by such Governmental
Authority evidencing such payment, a copy of the return, if any, reporting such
payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent and reasonably available to CRCF.
(e) The
Administrative Agent and each Purchaser, 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 CRCF (with a copy to the Administrative Agent) such properly
completed and executed documentation prescribed by applicable law and
reason-ably requested by CRCF on the later of (i) 30 Business Days after such
request is made and the applicable forms are provided to the Administrative
Agent or such Purchaser 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 or any Purchaser receives a refund solely in respect of
Indemnified Taxes or Other Taxes, it shall pay over such refund to CRCF 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
CRCF shall, upon request of the Administrative Agent or such Purchaser, repay
such refund (plus interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Purchaser if the Administrative
Agent or such Purchaser is required to repay such refund to such Governmental
Authority. Nothing contained herein shall require the Administrative Agent or
any Purchaser to make its tax returns (or any other information relating to its
taxes which it deems confidential) available to CRCF or any other
Person.
(g) The
Administrative Agent and each Purchaser (other than any such entity which is a
domestic corporation) shall:
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(i) upon or
prior to becoming a party hereto, deliver to CRCF and the Administrative Agent
two (2) duly completed copies of IRS Form X-0XXX, X-0XXX 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 withholding taxes
with respect to payments under the Series 2004-1 Notes and this
Supplement;
(ii) deliver
to CRCF 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 2004-1 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 CRCF; and
(iii) obtain
such extensions of time for filing and completing such forms or certifications
as may reasonably be requested by CRCF and the Administrative
Agent;
unless,
in any such case, any change in treaty, law or regulation has occurred after the
Effective Date (or, if later, the date the Administrative Agent or such
Purchaser 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 or such Purchaser
from duly completing and delivering the relevant form with respect to it, and
the Administrative Agent or such Purchaser so advises CRCF and the
Administrative Agent.
(h) If a
beneficial or equity owner of the Administrative Agent or Purchaser (instead of
the Administrative Agent or a Purchaser itself) is required under United States
federal income tax law or the terms of a relevant treaty to provide IRS Form
X-0XXX, X-0XXX 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 or such Purchaser for
purposes of Section 7.2(g).
Section
7.3. Break
Funding Payments. CRCF
agrees to indemnify each Purchaser and to hold each Purchaser harmless from any
loss or expense which such Purchaser may sustain or incur as a consequence of
(a) the failure by CRCF to accept any Class A-1 Increase after CRCF has given
irrevocable notice requesting the same in accordance with the provisions of this
Supplement, (b) default by CRCF in making any prepay-ment in connection with a
Class A-1 Decrease and/or Class A-2 Decrease after CRCF has given irrevocable
notice thereof in accordance with the provisions of Section 2.5, (c) the making
of any prepayment of a Eurodollar Tranche, or the conversion of any Alternate
Base Rate Tranche into a Eurodollar Tranche prior to the termination of the
Eurodollar Period for such Eurodollar Tranche or (d) the failure of CRCF to
convert any Eurodollar Tranche or Alternate Base Rate Tranche after notice of
such conversion has been given pursuant to Section 2.6(d) hereof. Such
indemnification shall include an amount determined by such Purchaser equal to
either (x) the excess, if any, of (i) such Purchaser’s cost of funding the
amount so prepaid or not so bor-rowed for the period from the date of such
prepayment or, in the case of a Class A-1 Purchaser, of such failure to borrow
to the last day of the Eurodollar Period (or in the case of a failure to borrow
the Eurodollar Period that
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would
have com-menced 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 upon
redeployment of an amount of funds equal to the amount prepaid or, in the case
of a Class A-1 Purchaser, not borrowed for a com-parable period or (y) if such
Purchaser is able to terminate the funding source before its sched-uled
maturity, any costs associated with such termination. Notwithstanding the
foregoing, any payments made by CRCF pursuant to this subsection shall be made
solely from funds available in the Series 2004-1 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 CRCF 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 pay-ment of
all amounts payable hereunder and thereunder. A certificate as to any additional
amounts payable pursuant to the foregoing sentence submitted by any Purchaser to
CRCF 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 Purchaser that the Adjusted LIBO Rate for
such Eurodollar Period will not adequately and fairly reflect the cost to such
Purchaser of making or maintaining the Eurodollar Tranches during such
Eurodollar Period,
then the
Administrative Agent shall promptly give telecopy or telephonic notice thereof
to CRCF and the Trustee, whereupon until the Administrative Agent notifies CRCF
and the Trustee that the circumstances giving rise to such notice no longer
exist, the Purchaser Invested Amount with respect to any Purchaser shall not be
allocated to any Eurodollar Tranche.
Section
7.5. Mitigation
Obligations. If a
Purchaser requests compensation under Section 7.1, or if CRCF is required to pay
any additional amount to any Purchaser or any Governmental Authority for the
account of any Purchaser pursuant to Section 7.2, then, upon written notice from
CRCF, such Purchaser 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 and its assignee, in the judgment of such Purchaser, 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 Purchaser to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Purchaser. CRCF hereby agrees to pay all
reasonable costs and expenses incurred by such Purchaser in connection with any
such designation or assignment.
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ARTICLE
VIII
REPRESENTATIONS
AND WARRANTIES, COVENANTS
Section
8.1. Representations
and Warranties of CRCF and the Administrator.
(a) CRCF and the Administrator each hereby represents and warrants to
the Trustee, the Administrative Agent and each Purchaser that:
(i) each and
every of their respective representations and warranties contained in the
Related Documents is true and correct as of the Effective Date and true and
correct in all material respects as of the Series 2004-1 Initial Funding Date
and as of the date of each Class A-1 Increase; and
(ii) as of the
Effective Date, they have not engaged, in connection with the offering of the
Series 2004-1 Notes, in any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act.
(b) CRCF
hereby represents and warrants to the Trustee, the Administrative Agent and each
Purchaser that each of the Series 2004-1 Notes has been duly authorized and
executed by CRCF and when duly authenticated by the Trustee and delivered to the
Purchasers in accordance with the terms of this Supplement will constitute
legal, valid and binding obligations of CRCF 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.
(c) CRCF
hereby represents and warrants to the Trustee, the Administrative Agent and each
Purchaser that the documentation for each Series of Notes contains a provision
similar in all material respects to the provision contained in Section 3.2
(f)(ii).
(d) CRCF
hereby represents and warrants to the Trustee, the Administrative Agent and each
Purchaser that it is has delivered to each of the Trustee, the Administrative
Agent and each Purchaser a complete copy of the Base Indenture, including all
amendments thereto as in effect on the date hereof.
(e) CRCF
hereby represents and warrants to the Trustee, the Administrative Agent and each
Purchaser that none of CRCF, any of its members or any other person has agreed
to elect to treat CRCF as an
association taxable as a corporation for United States federal tax, or New York
State income or franchise tax purposes.
Section
8.2. Covenants
of CRCF and the Administrator. (a) CRCF and
the Administrator hereby agree, in addition to their obligations hereunder,
that:
(i) 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;
(ii) they
shall afford each Purchaser, the Trustee or any representatives of any such
Purchaser or the Trustee access to all records relating to the Leases, the
Subleases,
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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
2004-1 Notes shall have been deemed to have occurred or shall have been declared
to have occurred), for purposes of inspection and shall permit such Purchaser,
the Trustee or any representative of such Purchaser or the Trustee to visit any
of CRCF’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
CRCF or the Administrator with their respective officers and employees and with
their independent certified public accountants;
(iii) they
shall promptly provide such additional financial and other information with
respect to the Related Documents, CRCF, the Lessors, the Permitted Nominees, the
Lessees, the Permitted Sublessees, the Related Documents or the Manufacturer
Programs as the Administrative Agent may from time to time reasonably request;
(iv) they
shall provide to the Administrative Agent simultaneously with delivery to the
Trustee copies of information furnished to the Trustee or CRCF pursuant to the
Related Documents as such information relates to all Series of Notes generally
or specifically to the Series 2004-1 Notes or the Series 2004-1 Collateral. The
Administrative Agent shall distribute to the Purchasers copies of all
information delivered to it pursuant to this Section 8.2(d);
(v) 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;
provided that,
for the avoidance of doubt, CRCF and the Administrator acknowledge that any
amendment to the Base Indenture or any Related Document requiring the consent of
100% of the Noteholders shall require the consent of each Series 2004-1
Noteholder;
(vi) on or
prior to the Distribution Date in each month, the Administrator agrees to
deliver a report to the Administrative Agent setting forth the Net Book Value of
Vehicles leased under the Finance Lease and the Net Book Value of Vehicles
leased under the Finance Lease by state of registration for the five states with
the largest Net Book Value of Vehicles registered therein;
(vii) they
shall not agree to any amendment, modification, waiver or other action of any
kind under the Base Indenture or any other Related Document, in each case that
requires satisfaction of the Rating Agency Consent Condition, without having
received the prior written consent of the Requisite Noteholders;
and
(viii) if,
following the Restatement Effective Date, the adoption or effectiveness of any
applicable law, rule or regulation regarding the tax treatment of the LKE
Programs could materially and adversely affect the holders of the 2004-1 Notes,
then the Administrator shall cause AESOP Leasing, ARAC, BRAC and CCRG to cease
delivering vehicles to the Intermediary under the LKE Programs.
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(b) If any
portion of the Series 2004-1 Enhancement Amount is in the form of Series 2004-1
Letters of Credit on the Series 2004-1 Letter of Credit Termination Date, then
CRCF hereby agrees to maintain such Series 2004-1 Letters of Credit in full
force and effect until the Business Day following the Series 2004-1 Letter of
Credit Termination Date.
(c) The
Administrator agrees that it shall not acquire, directly or indirectly, or
otherwise merge with Budget Rent A Car System, Inc. without the prior written
consent of each Purchaser.
(d) CRCF
agrees not to
elect to be treated as an
association taxable as a corporation for United
States federal tax, or New York
State
income or franchise tax purposes.
(e) The
Administrator agrees that it shall promptly notify the Administrative Agent of
(i) any Amortization Event of which it has knowledge, (ii) any refusal or
failure of a Series 2004-1 Letter of Credit Provider to reinstate all or any
portion of a Series 2004-1 Letter of Credit Amount, and (iii) the occurrence of
any Early Controlled Amortization Date.
ARTICLE
IX
THE
ADMINISTRATIVE AGENT
Section
9.1. Appointment. Each of
the Purchasers 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 expressly set forth herein, or any fiduciary
relationship with any Purchaser, and no implied covenants, functions,
responsibilities, duties, obliga-tions 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 Purchasers for any recitals, statements,
representations or warranties made by CRCF, the Lessors, the Lessees, the
Permitted Sublessees, the Intermediary, the Administrator or any officer thereof
contained in this Supple-
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ment or
any other Related Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administra-tive
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 CRCF, the Lessors, the Lessees, the Permitted Sublessees, the
Intermediary or the Administrator to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Purchaser 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 CRCF, the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary 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 (includ-ing, without limitation, counsel to CRCF 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 2004-1 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 Purchasers 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 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 2004-1
Noteholders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Purchasers.
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 Purchaser, CRCF or the Administrator referring to the Indenture or
this Supplement, describing such Amortization Event or Potential Amortization
Event, or Adminis-tra-tor 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 Purchasers, the Trustee, CRCF 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
Adminis-trative 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 Purchasers.
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Section
9.6. Non-Reliance
on the Administrative Agent and Other Purchasers. Each of
the Purchasers 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 CRCF, the Lessors, the Lessees, the Permitted Sublessees, the Intermediary or
the Administrator shall be deemed to constitute any representation or warranty
by the Administrative Agent to any such Person. Each of the Purchasers
repre-sents to the Administrative Agent that it has, independently and without
reliance upon the Administra-tive Agent or any other Purchaser and based on such
documents and information as it has deemed appropriate, made its own apprai-xxx
of and investi-ga-tion into the business, operations, property, financial and
other condi-tion and creditworthiness of CRCF, the Lessors, the Lessees, the
Permitted Sublessees, the Intermediary and the Administrator and made its own
decision to enter into this Supplement. Each of the Purchasers also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Purchaser and based on such docu-ments and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and deci-sions 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, opera-tions, property, financial
and other condition and creditworthiness of CRCF, the Lessors, the Lessees, the
Permitted Sublessees, the Intermediary and the Adminis-trator. Except for
notices, reports and other documents expressly required to be furnished to the
Purchasers by the Administrative Agent hereunder, the Administrative Agent shall
have no duty or responsibility to provide any Purchaser with any credit or other
information concerning the busi-ness, operations, property, condi-tion
(financial or otherwise), prospects or creditworthiness of CRCF, the Lessors,
the Lessees, the Permitted Sublessees, the Intermediary 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 Purchasers agrees to indemnify the Administrative Agent in its capacity as
such (to the extent not xxxx-bursed by CRCF and the Administrator and without
limiting the obligation of CRCF and the Administrator to do so), ratably
according to their respective Pro Rata Shares in effect on the date on which
indemnification is sought under this Section 9.7 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 connec-tion with any of the foregoing;
provided that no Purchaser 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 CRCF, the Administrator or any
of their Affiliates as though
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the
Administrative Agent were not the Administrative Agent hereunder. With respect
to any Series 2004-1 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 Purchaser and may exercise the same as though it were
not the Administrative Agent, and the term “Purchaser” 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 Purchasers, the Trustee, CRCF and the Administrator. If
Mizuho shall resign as Administrative Agent under this Supplement, then the
Requisite Noteholders shall appoint a successor administrative agent from among
the Purchasers, which successor administrative agent shall be approved by CRCF
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 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 Purchaser with the greatest
Purchaser Invested Amount (or, if such Person is the retiring Administrative
Agent, the Person with the next highest Purchaser Invested Amount) 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
GENERAL
Section
10.1. 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 CRCF may not assign or
transfer any of its rights under this Supplement without the prior written
consent of all of the Series 2004-1 Noteholders, and no Purchaser may assign or
transfer any of its rights under this Supplement other than in accordance with
clauses (b) and/or (c) below of this Section 10.1.
(b) Any
Purchaser may, in the ordinary course of its business and in accor-dance with
applicable law, at any time sell all or any part of its rights and obligations
under this Supplement and the Series 2004-1 Notes (including its Commitment),
with the prior written consent of the Administrative Agent and, prior to the
occurrence and continuance of an Amortization Event CRCF and the Administrator
(in each case, which consent shall not be unreasonably withheld), to one or more
banks (an “Acquiring
Purchaser”)
pursuant to a transfer supplement, substantially in the form of Exhibit
H (the
“Transfer
Supplement”),
executed by
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such
Acquiring Purchaser, such assigning Purchaser, the Administrative Agent, CRCF
and the Administrator and delivered to the Administrative Agent; provided that
no prior written consent of CRCF or the Administrator shall be required by a
Purchaser to assign its Series 2004-1 Note to an Affiliate that directly or
indirectly owns 100% of such Purchaser or is directly or indirectly 100% owned
by such Purchaser.
(c) Any
Purchaser may, in the ordinary course of its business and in accor-dance with
applicable law, at any time sell to one or more financial institutions or other
entities (“Participants”)
participations in its Series 2004-1 Note, its Commitment and its rights
hereunder pur-suant to documentation in form and substance satisfactory to such
Purchaser and the Participant; provided, however, that (i) in the event of any
such sale by a Purchaser to a Participant, (A) such Purchaser’s obligations
under this Supplement shall remain unchanged, (B) such Purchaser shall
remain solely responsible for the performance thereof and (C) CRCF and the
Administrative Agent shall continue to deal solely and directly with such
Purchaser in connection with its rights and obligations under this Supplement
and (ii) no Purchaser shall sell any participating interest under which the
Participant shall have rights to approve any amend-ment 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 Purchasers
hereunder. A Participant shall have the right to receive Article VII Costs but
only to the extent that the related selling Purchaser 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 or a Purchaser.
(d) CRCF
authorizes each Purchaser to disclose to any Participant or Acquiring Purchaser
(each, a “Transferee”) and
any prospective Transferee any and all financial information in such Purchaser’s
possession concerning CRCF, the Collateral, the Administrator and the Related
Documents which has been delivered to such Purchaser by CRCF or the
Administrator in connection with such Purchaser’s credit evaluation of CRCF, the
Collateral and the Administrator; provided that
each Transferee or Potential Transferee has agreed to comply with the
confidentiality provisions of Section 10.20 hereof.
Section
10.2. Securities
Law. Each
Purchaser hereby represents and warrants to CRCF 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 experi-ence in financial and business matters to
evaluate the merits and risks of, its investment in a Series 2004-1 Note. Each
Purchaser agrees that its Series 2004-1 Note will be acquired for invest-ment
only and not with a view to any public distribution thereof, and that such
Purchaser will not offer to sell or otherwise dispose of its Series 2004-1 Note
(or any interest therein) in violation of any of the registration requirements
of the Securities Act, or any appli-cable state or other securities laws. Each
Purchaser acknowledges that it has no right to require CRCF to register its
Series 2004-1 Note under the Securities Act or any other securities law. Each
Purchaser hereby confirms and agrees that in connection with any transfer by it
of an interest in the Series 2004-1 Note, such Purchaser has not engaged and
will not engage in a general soli-ci-ta-tion or general advertising including
advertisements, articles, notices or other communi-cations published in any
newspaper, magazine or similar media or broadcast over radio
-72-
or
television, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
Section
10.3. Adjustments;
Set-off.
(a) If
any Purchaser (a “Benefitted
Purchaser”) shall
at any time receive in respect of its Purchaser Invested Amount any distribution
of principal, interest or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off or otherwise) in a greater propor-tion
than any such distribution received by any other Purchaser, if any, in respect
of such other Purchaser’s Purchaser Invested Amount, or interest thereon, such
Benefitted Purchaser shall purchase for cash from the other Purchaser such
portion of such other Purchaser’s interest in the Series 2004-1 Notes, or shall
provide such other Purchaser with the benefits of any such collateral, or the
proceeds thereof, as shall be neces-sary to cause such Benefitted Purchaser to
share the excess payment or benefits of such collateral or proceeds ratably with
the other Purchaser; provided,
however, that if
all or any por-tion of such excess payment or benefits is thereafter recovered
from such Benefitted Purchaser, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest. CRCF agrees that any Purchaser so purchasing a portion of
another Purchaser’s Purchaser 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 Purchaser were the direct holder of such
portion.
(b) In
addition to any rights and remedies of the Purchaser provided by law, each
Purchaser shall have the right, without prior notice to CRCF, any such notice
being expressly waived by CRCF to the extent permitted by applicable law, upon
any amount becom-ing due and payable by CRCF hereunder or under the Series
2004-1 Notes to set-off and appro-priate and apply against any and all deposits
(general or special, time or demand, provi-sional 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 to or for the credit or the account of
CRCF. Each Purchaser agrees promptly to notify CRCF, the Administrator and the
Administrative Agent after any such set-off and appli-ca-tion made by such
Purchaser; provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
Section
10.4. No
Bankruptcy Petition.
(a) Each
of the Administrative Agent and the Purchasers 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 of Notes, it will not institute against, or join any other
Person in instituting against, CRCF any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other similar proceedings under any
federal or state bankruptcy or similar law.
(b) This
covenant shall survive the termination of this Supplement and the Base Indenture
and the payment of all amounts payable hereunder and thereunder.
Section
10.5. Costs
and Expenses. CRCF
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
(including in connection with the preparation, execution and delivery of this
Supplement the reasonable fees and disbursements of one counsel to the
Administrative Agent
-73-
and the
Purchaser) 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 Purchaser
of the
obligations and liabilities of CRCF, the Lessors, the Lessees, the Permitted
Sublessees, the Intermediary 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 and (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. Any
payments made by CRCF pursuant to this Section 10.5 shall be made solely from
funds available in the Series 2004-1 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 CRCF 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
10.6. Exhibits. The
following exhibits attached hereto supplement the exhibits included in the
Indenture.
|
Exhibit
A-1: |
Form
of Series 2004-1 Note, Class X-0 |
|
Xxxxxxx
X-0 |
Form
of Series 2004-1 Note, Class A-2 |
|
Exhibit
B: |
Form
of Class A-1 Increase Notice |
|
Exhibit
C: |
Form
of Consent |
|
Exhibit
D: |
Form
of Series 2004-1 Demand Note |
|
Exhibit
E: |
Form
of Series 2004-1 Letter of Credit |
|
Exhibit
F: |
Form
of Lease Payment Deficit Notice |
|
Exhibit
G: |
Form
of Demand Notice |
|
Exhibit
H: |
Form
of Transfer Supplement |
Section
10.7. 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 supple-mented by this Supplement
shall be read, taken, and construed as one and the same
instru-ment.
Section
10.8. Counterparts. This
Supplement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute but one and the same instrument.
Section
10.9. 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
10.10. 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, pur-suant to the terms of the Base Indenture or this Supplement, the consent
of the Required Note-holders is required for an amendment or modifi-ca-tion of
this Supplement, such requirement
-74-
shall be
satisfied if such amendment or modification is consented to by the Requisite
Noteholders; provided,
further, that
the definition of "Class A-1 Increase Expiry Date" and the resulting date may
only be amended or waived with the consent of Class A-1 Purchasers having in the
aggregate 100% of the aggregate amount of the Class A-1 Commitment Percentages
for all Class A-1 Purchasers.
Section
10.11. Discharge
of Indenture.
Notwith-standing 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 2004-1 Notes without the consent of the
Requisite Noteholders.
Section
10.12. Capitalization
of CRCF. CRCF
agrees that on the Effective Date and on the date of any increase in the Class
A-1 Maximum Invested Amount it will have capitali-zation in an amount equal to
or greater than 3% of the sum of (x) the Series 2004-1 Maximum Invested Amount
and (y) the invested amount of the Series 1998-1 Notes, Series 2000-2 Notes, the
Series 2000-4 Notes, the Series 2001-2 Notes, the Series 2002-1 Notes, Series
2002-2 Notes, Series 2002-3 Notes, Series 2003-1 Notes, Series 2003-2 Notes,
Series 2003-3 Notes, Series 2003-4 Notes, Series 2003-5 Notes, Series 2004-1
Notes, Series 2004-2 Notes, Series 2004-4 Notes, the Series 2004-5 Notes and the
Series 2005-1 Notes.
Section
10.13. Series
2004-1 Required Non-Program Enhancement Percentage. CRCF
agrees that it will not make any Loan under any Loan Agreement to finance the
acquisi-tion of any Vehicle by AESOP Leasing, AESOP Leas-ing II or CCRG, 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 2004-1 Required Non-Program Enhancement Percentage would exceed
33.0%.
Section
10.14. Series
2004-1 Demand Notes;
Series 2004-1 Letter of Credit. (a)
Other than pursuant to a demand thereon pursuant to Section 3.5 of this
Supplement, CRCF shall not reduce the amount of the Series 2004-1 Demand Notes
or forgive amounts payable thereunder so that the outstanding principal amount
of the Series 2004-1 Demand Notes after such reduction or forgiveness is less
than the Series 2004-1 Letter of Credit Liquidity Amount.
(b) At no
time (i) while an Amortization Event has occurred and is continuing or (ii)
within two years prior to the Series 2004-1 Termination Date shall CRCF reduce
the Series 2004-1 Letter of Credit Liquidity Amount below the excess of (x) the
sum of the Series 2004-1 Required Enhancement Amount plus the Pre-Preference
Period Demand Note Payment Amount over (y) the Series 2004-1 Available Reserve
Account Amount.
Section
10.15. Termination
of Supplement. This
Supplement shall cease to be of further effect on the date which is the later of
(x) the date when all outstanding Series 2004-1 Notes theretofore authenticated
and issued have been delivered (other than destroyed, lost, or stolen Series
2004-1 Notes which have been replaced or paid) to the Trustee for cancellation
and CRCF has paid all sums payable hereunder and (y) the date which is the day
after one year (or such longer maximum preference period then in effect) from
the last day on which any amount was called and paid pursuant to a Series 2004-1
Demand Note.
-75-
Section
10.16. Collateral
Representations and Warranties of CRCF. CRCF
hereby represents and warrants to the Trustee, the Administrative Agent and each
Purchaser 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 CRCF. This
Supplement will create a valid and continuing security interest (as defined in
the applicable UCC) in the Series 2004-1 Collateral in favor of the Trustee for
the benefit of the Series 2004-1 Noteholders and each Series 2004-1 Interest
Rate Hedge Counterparty, which security interest is prior to all other liens,
and is enforceable as such as against creditors of and purchasers from CRCF.
(b) The
Collateral and the Series 2004-1 Collateral (in each case, other than the
Vehicles) consist of “investment property,” “securities accounts,”
“instruments,” “general intangibles,” “deposit accounts” and “chattel paper”
within the meaning of the applicable UCC.
(c) CRCF owns
and has good and marketable title to the Collateral and the Series 2004-1
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,
CRCF 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 2004-1 Collateral that
consists of deposit or securities accounts maintained with a bank other than the
Trustee (collectively, the “Bank
Accounts”), CRCF
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 CRCF. The Bank Accounts are not in the name
of any person other than CRCF or the Trustee. CRCF 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, CRCF has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Collateral or the Series 2004-1
Collateral. CRCF has not authorized the filing of and is not aware of any
financing statements
-76-
against
CRCF that includes a description of collateral covering the Collateral other
than any financing statement under the Base Indenture or that has been
terminated. CRCF is not aware of any judgment or tax lien filings against
CRCF.
(h) CRCF has
not authorized the filing of and is not aware of any financing statements
against CRCF 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
10.17. No
Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising, on the part of the Trustee, the
Administrative Agent or any Purchaser, 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
10.18. Waiver
of Setoff.
Notwithstanding any other provision of this Supplement or any other agreement to
the contrary, all payments to the Administrative Agent and the Purchasers
hereunder shall be made without set-off or counterclaim.
Section
10.19. Notices. All
notices, requests, instructions and demands to or upon any party hereto to be
effective shall be given (i) in the case of CRCF, 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 and the Purchasers, in writing, and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, 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 Purchasers; or to such other address as may be
hereafter notified by the respective parties hereto:
Administrative
Agent: Mizuho
Corporate Bank, Ltd.
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000
Attention:
Department Head - Syndications
Fax:
(000) 000-0000
with a
copy to: Department Head - Legal
Fax:
(000) 000-0000
Section
10.20. Confidential
Information. (a) The
Trustee and each Purchaser will maintain the confidentiality of all Confidential
Information in accordance with procedures adopted by the Trustee or such
Purchaser in good faith to protect Confidential Information of third parties
delivered to such Person; provided, that
such Person may deliver or disclose Confidential Information to: (i) such
Person’s directors, trustees, officers, employees, agents, attorneys,
independent or internal auditors and affiliates who agree to hold confidential
the
-77-
Confidential
Information substantially in accordance with the terms of this Section 10.20;
(ii) such Person’s financial advisors and other professional advisors who agree
to hold confidential the Confidential Information substantially in accordance
with the terms of this Section 10.20; (iii) any other Purchaser; (iv) any Person
of the type that would be, to such Person’s knowledge, permitted to acquire
Series 2004-1 Notes in accordance with the requirements of the Indenture to
which such Person sells or offers to sell any such Series 2004-1 Note or any
part thereof or any participation therein and that agrees to hold confidential
the Confidential Information substantially in accordance with this Section 10.20
(or in accordance with such other confidentiality procedures as are acceptable
to CRCF); (v) any federal or state or other regulatory, governmental or judicial
authority having jurisdiction over such Person; (vi) the National Association of
Insurance Commissioners or any similar organiza-tion, or any nationally
recognized rating agency that requires access to information about the
investment portfolio of such Person, (vii) any reinsurers or liquidity or credit
providers that agree to hold confidential the Confidential Information
substantially in accordance with this Section 10.20 (or in accordance with such
other confidentiality procedures as are acceptable to CRCF); (viii) any Person
acting as a placement agent or dealer with respect to any commercial paper
(provided that any Confidential Information provided to any such placement agent
or dealer does not reveal the identity of Cendant or any of its Affiliates);
(ix) any other Person with the consent of CRCF; or (x) any other Person to which
such delivery or disclosure may be necessary or appropriate (A) to effect
compliance with any law, rule, regulation, statute or order applicable to such
Person, (B) in response to any subpoena or other legal process upon prior notice
to CRCF (unless prohibited by appli-cable law, rule, order or decree or other
requirement having the force of law), (C) in connec-tion with any litigation to
which such Person is a party upon prior notice to CRCF (unless prohi-bited by
applicable law, rule, order or decree or other requirement having the force of
law) or (D) if an Amortization Event with respect to the Series 2004-1
Notes has occurred and is continuing, to the extent such Person may reason-ably
determine such delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under the Series
2004-1 Notes, the Indenture or any other Related Document; and provided,
further,
however, that
delivery to any Purchaser of any report or information required by the terms of
the Indenture to be provided to such Purchaser shall not be a xxxxx-tion of this
Section 10.20. Each Purchaser agrees, except as set forth in clauses (v), (vi)
and (x) above, that it shall use the Confidential Information for the sole
purpose of making an investment in the Series 2004-1 Notes or administering its
investment in the Series 2004-1 Notes. In the event of any required disclosure
of the Confidential Information by such Purchaser, such Purchaser agrees to use
reasonable efforts to protect the confiden-tiality of the Confidential
Information. Each Purchaser, by its acceptance of a Series 2004-1 Note, will be
deemed to have agreed to be bound by and to be entitled to the benefits of this
Section 10.20; provided, that in
no event shall any Purchaser or any Affiliate thereof be obligated or required
to return any materials furnished by CRCF.
(b) For the
purposes of this Section 10.20, “Confidential
Information” means
information delivered to the Trustee or any Purchaser by or on behalf of CRCF in
connection with and relating to the transactions contemplated by or otherwise
pursuant to the Indenture and the Related Documents; provided, that
such term does not include information that: (i) was publicly known or otherwise
known to the Trustee or such Purchaser prior to the time of such disclosure;
(ii) subsequently becomes publicly known through no act or omission by the
Trustee, any Purchaser or any person acting on behalf of the Trustee or any
Purchaser; (iii) otherwise is
-78-
known or
becomes known to the Trustee or any Purchaser other than (x) through disclosure
by CRCF or (y) as a result of the breach of a fiduciary duty to CRCF or a
contractual duty to CRCF; or (iv) is allowed to be treated as non-confidential
by consent of CRCF.
(c) Notwithstanding
anything to the contrary herein, each of the parties hereto (and each of its
employees, representatives or other agents) may disclose to any and all Persons,
without limitation of any kind, the tax treatment and tax structure (as defined
in Section 1.6011-4 of the Treasury Regulations) of the transactions
contemplated by the Indenture or the Related Documents and all materials of any
kind (including opinions or other tax analyses) that are provided to such Person
in connection therewith relating to such tax treatment and tax
structure.
Section
10.21. USA
Patriot Action Notice. The
Purchasers hereby notify CRCF that pursuant to the requirements of the USA
Patriot Act (Title III of Pub.L. 107.56 (signed into law October 26, 2001)) (the
“Patriot
Act”), the
Purchasers are required to obtain, verify and record information that identifies
CRCF, which information includes the name and address of CRCF and other
information that will allow the Purchasers to identify CRCF in accordance with
the Patriot Act.
Section 10.22.
Role
of Syndication Agent and Documentation Agent. The
parties hereto agree that neither Syndication Agent nor the Documentation Agent
shall have any duties or obligations under this Supplement beyond its respective
duties and/or obligations as a Purchaser.
Section
10.23. Notice
to Xxxxx’x. CRCF or
the Administrator shall provide Xxxxx’x with (i) notice of any waiver of the
type described in clause (b) of the definition of “Class
A-1 Increase Expiry Date” and
(ii) notice of the occurrence of any of the events described in Section 3.10(c),
(d) or (e) hereof.
-79-
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.
|
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
as
Issuer
By:
/s/ Xxxx Xxxxxx | |
|
Name:
Xxxx Xxxxxx
Title:
Vice President | |
|
CENDANT
CAR RENTAL GROUP, INC.,
as
Administrator
By:
/s/ Xxxxxxxxx X. Xxxxx | |
|
Name:
Xxxxxxxxx X. Xxxxx
Title:
Vice President & Assistant Treasurer | |
|
MIZUHO
CORPORATE BANK, LTD
as
Administrative Agent and a Purchaser
By:
/s/ Xxxxxx Xxxxxxxxx | |
|
Name:
Xxxxxx Xxxxxxxxx
Title:
Senior Vice President & Team Leade |
|
CALYON
CAYMAN ISLANDS BRANCH,
as Documentation Agent and a Purchaser
By:
/s/ Xxxxx Xxxxxx | |
|
Name:
Xxxxx Xxxxxx
Title:
Managing Director | |
|
By:
/s/ Xxx Xxxxx | |
|
Name:
Xxx Xxxxx
Title:
Director |
|
LANDESBANK
HESSEN THÜXXXXXX GIROZENTRALE,
as a Purchaser
By:
/s/ Xxxxxxx X. Xxxxxx | |
|
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President Corporate Finance
Division
Structured Finance Dept. | |
|
By:
/s/ Xxxxx Xxxx | |
|
Name:
Xxxxx Xxxx
Title:
Vice President Corporate Financ
Division
Structured Finance Depte |
|
CREDIT
INDUSTRIEL ET COMMERCIAL,
as a Purchaser
By:
/s/ Xxxx Xxxxx | |
|
Name:
Xxxx Xxxxx
Title:
Vice President | |
|
By:
/s/ Xxxxxx X. Xxxx | |
|
Name:
Xxxxxx X. Xxxx
Title:
Vice President |
|
RZB
FINANCE LLC,
as a Purchaser
By:
/s/ Xxxx X. Naliska | |
|
Name:
Xxxx X. Xxxxxxx
Title:
First Vice President | |
|
By:
/s/ Xxxxxxxxx Xxxxx | |
|
Name:
Xxxxxxxxx Xxxxx
Title:
Group Vice President |
|
STATE
BANK OF INDIA,
as a Purchaser
By:
/s/ Xxxxxx Xxxxxxx | |
|
Name:
Xxxxxx Xxxxxxx
Title:
Vice President & Head (Credit) |
|
BANK
HAPOALIM
B.M., as a Purchaser
By:
/s/ Xxxxx X. Xxxxxxx | |
|
Name:
Xxxxx Xxxxxxx
Title:
Vice President | |
|
By:
/s/ Xxxxxx Xxxxxxx | |
|
Name:
Xxxxxx Xxxxxx
Title:
First Vice President |
|
BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH,
as a Purchaser
By:
/s/ Xxx Xxxxxxxx | |
|
Name:
Xxx Xxxxxxxx
Title:
Director | |
|
By:
/s/ Xxxxxxx Xxxxxxxx | |
|
Name:
Xxxxxxx Xxxxxxxx
Title:
Director |
|
BAYERISCHE
LANDESBANK NEW YORK BRANCH,
as a Purchaser and as Syndication Agent
By:
/s/ Xxxxxxxxx Xxxxxxxxx | |
|
Name:
Xxxxxxxxx Xxxxxxxxx
Title:
Vice President | |
|
By:
/s/ Xxxxxx XxXxxxx | |
|
Name:
Xxxxxx XxXxxxx
Title:
First Vice President |
|
PEOPLE’S
BANK,
as a Purchaser
By:
/s/ Xxxxxxx X. XxXxxx | |
|
Name:
Xxxxxxx X. XxXxxx
Title:
Vice President |
|
THE
BANK OF NEW YORK, as Trustee
By:
/s/ Xxxx Xxxxx | |
|
Name:
Xxxx Xxxxx
Title:
Assistant Vice President | |
|
THE
BANK OF NEW YORK, as Series 2004-1 Agent
By:
/s/ Xxxx Xxxxx | |
|
Name:
Xxxx Xxxxx
Title:
Assistant Vice President |
SCHEDULE
I TO AMENDED AND RESTATED SERIES 2004-1 SUPPLEMENT
|
Class
A-1 Purchaser
|
Class
A-1 Maximum Purchaser Invested Amount
|
Address
| |
|
1. |
Mizuho
Corporate Bank, Ltd. |
$35,000,000.00 |
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000 |
|
2. |
Crédit
Industriel et Commercial |
14,736,842.11 |
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000 |
|
3. |
RZB
Finance
LLC |
5,526,315.79 |
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000 |
|
4. |
Bank
Hapoalim B.M. |
7,368,421.05 |
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000 |
|
5. |
State
Bank of India |
5,526,315.79 |
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000 |
|
6. |
Bayerische
Landesbank New York Branch |
31,315,789.47 |
000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 |
|
7. |
Bayerische
Hypo- und Vereinsbank AG,
New
York Branch |
18,421,052.63 |
000
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX 00000 |
|
8. |
People’s
Bank |
7,368,421.05 |
000
Xxxx Xxxxxx
Xxxxxxxxxx, XX
00000 |
|
9. |
Landesbank
Hessen Thüringen Girozentrale |
18,421,052.63 |
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000 |
|
10. |
Calyon
Cayman Islands Branch |
31,315,789.47 |
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000 |
|
Total: |
$175,000,000 |
|
Class
A-2 Purchaser
|
Class
A-2 Maximum Purchaser Invested Amount
|
Address
| |
|
1. |
Mizuho
Corporate Bank, Ltd. |
$60,000,000.00 |
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000 |
|
2. |
Crédit
Industriel et Commercial |
25,263,157.89 |
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000 |
|
3. |
RZB
Finance
LLC |
9,473,684.21 |
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000 |
|
4. |
Bank
Hapoalim B.M. |
12,631,578.95 |
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000 |
|
5. |
State
Bank of India |
9,473,684.21 |
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000 |
|
6. |
Bayerische
Landesbank New York Branch |
53,684,210.53 |
000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 |
|
7. |
Bayerische
Hypo- und Vereinsbank AG,
New
York Branch |
31,578,947.37 |
000
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX 00000 |
|
8. |
People’s
Bank |
12,631,578.95 |
000
Xxxx Xxxxxx
Xxxxxxxxxx, XX
00000 |
|
9. |
Landesbank
Hessen Thüringen Girozentrale |
31,578,947.37 |
000
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000 |
|
10. |
Calyon
Cayman Islands Branch |
53,684,210.53 |
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000 |
|
Total: |
$300,000,000 |
|
EXHIBIT
A-1
to
Series
2004-1
Supplement |
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
FORM OF
SERIES 2004-1
FLOATING
RATE RENTAL CAR ASSET
BACKED
NOTES SERIES 2004-1, CLASS A-1
CENDANT
RENTAL CAR FUNDING (AESOP) LLC, a Delaware limited liability company (herein
referred to as the “Company”), for
value received, hereby promises to pay to [______________________], as the Class
A-1 Purchaser, or registered assigns, the principal sum of [_________________]
MILLION DOLLARS, or, if less, the aggregate unpaid principal amount hereof shown
on the records of the Administrative Agent pursuant to Section
2.2(b) of the
Series 2004-1 Supplement, which amount shall be payable in the amounts and at
the times set forth in the Indenture, provided, however, that the entire unpaid
principal amount of this Class A-1 Note shall be due on the Series 2004-1
Termination Date. The Company will pay interest on this Class A-1 Note as
provided in Sections
3.3 and
3.4 of the
Series 2004-1 Supplement. Such interest shall be payable on each
Distribution Date until the principal of this Class A-1 Note is paid or made
available for payment, to the extent funds will be available from Interest
Collections allocable to the Class A-1 Notes processed from but not including
the preceding Distribution Date through each such Distribution Date. The
principal amount of this Class A-1 Note shall be subject to Decreases and Class
A-1 Increases as permitted by the Series 2004-1 Supplement on any Business Day,
and accordingly, such principal amount is subject to prepayment at any time.
Notwithstanding the foregoing, prior to the Series 2004-1 Termination Date, a
Distribution Date on which the Principal Deficit Amount is greater than zero or
the commencement of the Series 2004-1 Controlled Amortization Period, and unless
an Amortization Event shall have occurred, only interest payments on the
outstanding principal amount of the Class A-1 Note are required to be made to
the holder hereof. Beginning on the first Distribution Date following the
occurrence of an Amortization Event or the commencement of the Series 2004-1
Controlled Amortization Period, subject to Decreases on any Business Day, the
principal of this Class A-1 Note shall be paid in installments on each
subsequent Distribution Date to the extent of funds available for payment
therefor pursuant to the Indenture. Such principal of and interest on this Class
A-1 Note shall be paid in the manner specified on the reverse
hereof.
The
principal of and interest on this Class A-1 Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Company
with respect to this Class A-1 Note shall be applied first to interest due and
payable on this Class A-1 Note as provided above and then to the unpaid
principal of this Class A-1 Note. This Class A-1 Note does not represent an
interest in, or an obligation of, Original AESOP, AESOP Leasing, AESOP Leasing
II, ARAC, BRAC, CCRG, or any affiliate of Original AESOP, AESOP Leasing, AESOP
Leasing II, ARAC, BRAC or CCRG other than the Company.
|
EXHIBIT
A-1
Page
2 |
Reference
is made to the further provisions of this Class A-1 Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Class A-1 Note. Although a summary of certain provisions of the
Indenture are set forth below and on the reverse hereof and made a part hereof,
this Class A-1 Note does not purport to summarize the Indenture and reference is
made to the Indenture for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of AESOP Leasing, AESOP Leasing II and the Trustee. A
copy of the Indenture may be requested from the Trustee by writing to the
Trustee at: The Bank of New York, c/o BNY Midwest Trust Company, 0 Xxxxx XxXxxxx
Xxxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to them in the Indenture.
Unless
the certificate of authentication hereon has been executed by the Trustee whose
name appears below by manual signature, this Class A-1 Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be signed, manually
or in facsimile, by its Authorized Officer.
Date: __________
|
CENDANT
RENTAL CAR FUNDING
(AESOP)
LLC
By: ________________________ | |
|
Name:
Title: |
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Class A-1 Notes of a series issued under the within-mentioned
Indenture.
|
THE
BANK OF NEW YORK, as Trustee
By: ________________________ | |
|
Authorized
Signature |
|
EXHIBIT
A-1
Page
3 |
REVERSE
OF FLOATING RATE NOTE
This
Class A-1 Note is one of a duly authorized issue of Class A-1 Notes of the
Company, designated as its Series 2004-1 Floating Rate Rental Car Asset Backed
Notes, Class A-1 (herein called the “Class
A-1 Notes”), all
issued under (i) a Second Amended and Restated Base Indenture, dated as of June
3, 2004 (such Base Indenture, as amended, supplemented or modified in accordance
with its terms exclusive of any Supplements thereto creating a new Series of
Notes, is herein called the “Base
Indenture”),
between the Company and The Bank of New York, as trustee (the “Trustee”, which
term includes any successor Trustee under the Base Indenture) and (ii) an
Amended and Restated Series 2004-1 Supplement, dated as of March 29, 2004 (such
supplement, as may be amended, supplemented or modified in accordance with its
terms, is herein called the “Series
2004-1 Supplement”), among
the Company, as Issuer, Cendant Car Rental Group, Inc., as Administrator, Mizuho
Corporate Bank, Ltd., as Administrative Agent, Bayerische Landesbank New York
Branch, as Syndication Agent, Calyon Cayman Islands Branch, as Documentation
Agent, the Purchasers named therein, the Trustee and The Bank of New York, as
Series 2004-1 Agent. The Base Indenture as supplemented by the Series 2004-1
Supplement is referred to herein as the “Indenture”. The
Class A-1 Notes are subject to all terms of the Indenture. All terms used in
this Class A-1 Note that are defined in the Indenture, shall have the meanings
assigned to them in or pursuant to the Indenture.
The Class
A-1 Notes are and will be equally and ratably secured by the Collateral pledged
as security therefor as provided in the Indenture and the Series 2004-1
Supplement.
“Distribution
Date” means
the 20th day of each month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing April 20, 2005.
As
described above, principal of this Class A-1 Note shall be payable in the
amounts and at the times set forth in the Indenture, provided, however, the
entire unpaid principal amount of this Class A-1 Note shall be due and payable
on the Series 2004-1 Termination Date. Notwithstanding the foregoing, if an
Amortization Event, Liquidation Event of Default, Waiver Event, the Series
2004-1 Controlled Amortization Period shall have commenced or a Series 2004-1
Limited Liquidation Event of Default shall have occurred and be continuing or
the Principal Deficit Amount is greater than zero then, in certain
circumstances, principal on the Class A-1 Notes may be paid earlier, as
described in the Indenture. All principal payments on the Class A-1 Notes shall
be made pro rata to the Noteholders entitled thereto.
Payments
of interest on this Class A-1 Note due and payable on each Distribution Date,
together with the installment of principal then due, if any, and any payments of
principal made on any Business Day in respect of any Decreases, to the extent
not in full payment of this Class A-1 Note, shall be made by wire transfer to
the Administrative Agent for the accounts of the Purchasers. Any reduction in
the principal amount of this Class A-1 Note (or any one or more predecessor
Class A-1 Notes) effected by any payments made in accordance with the terms
hereof and of the Indenture shall be binding upon all future Holders of this
Class A-1 Note and of any Class A-1 Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
thereon.
The
Company shall pay interest on overdue installments of interest at a rate per
|
EXHIBIT
A-1
Page
4 |
annum
equal to the Alternate Base Rate, plus 2% per annum, to the extent
lawful.
This
Class A-1 Note is nontransferable except in accordance with the Series 2004-1
Supplement.
Each
Noteholder, by acceptance of a Class A-1 Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Company, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC, BRAC,
CCRG or the Trustee on the Class A-1 Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against (i) the
Trustee, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC, BRAC or CCRG, in
its individual capacity, (ii) any owner of a beneficial interest in the Company
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Trustee, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC, BRAC or
CCRG, in its individual capacity, any holder of a beneficial interest in the
Company, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC, BRAC, CCRG or
the Trustee or of any successor or assign of Original AESOP, AESOP Leasing,
AESOP Leasing II, ARAC, BRAC, CCRG or the Trustee, in its individual capacity,
except (a) as any such Person may have expressly agreed and (b) any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity;
provided,
however, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Company for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Class A-1 Note, subject to
Section
13.18 of the
Base Indenture.
Each
Noteholder, by acceptance of a Note, covenants and agrees that by accepting the
benefits of the Indenture that such Noteholder will not, for a period of one
year and one day following payment in full of all Notes institute against the
Company, or join in any institution against the Company of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the Related
Documents.
Prior to
the due presentment for registration of transfer of this Class A-1 Note, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Class A-1 Note (as of the day of determination or as
of such other date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Class A-1 Note be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
It is the
intent of the Company and each Noteholder that, for federal, state and local
income and franchise tax purposes, the Class A-1 Notes will evidence
indebtedness of the Company secured by the Series 2004-1 Collateral. Each
Noteholder, by the acceptance of this Class A-1 Note, agrees to treat this Class
A-1 Note for federal, state and local income and franchise tax purposes as
indebtedness of the Company.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Series 2004-1 Notes under the Indenture at any
time by the Company
|
EXHIBIT
A-1
Page
5 |
with the
consent of Holders of Series 2004-1 Notes representing more than 50% in
principal and/or commitment amount of the aggregate outstanding principal and/or
commitment amount of the Series 2004-1 Notes. The Indenture also contains
provisions permitting the Holders of Series 2004-1 Notes representing specified
percentages of the aggregate outstanding principal and/or commitment amount of
the Series 2004-1 Notes, on behalf of the Holders of all the Series 2004-1
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class A-1 Note (or any one or
more predecessor Class A-1 Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-1 Note and of any Class A-1
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class A-1 Note. The Indenture also permits the Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Series 2004-1 Notes issued thereunder.
The term
“Company” as used
in this Class A-1 Note includes any successor to the Company under the
Indenture.
The Class
A-1 Notes are issuable only in registered form in denominations as provided in
the Indenture, subject to certain limitations set forth therein.
This
Class A-1 Note and the Indenture shall be construed in accordance with the law
of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
law.
No
reference herein to the Indenture and no provision of this Class A-1 Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Class
A-1 Note at the times, place, and rate, and in the coin or currency herein
prescribed, subject to any duty of the Company to deduct or withhold any amounts
as required by law, in-cluding any applicable U.S. withholding
taxes.
ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee
_________________________________
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and
address of assignee)
the
within Class A-1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said Class
A-1 Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________________ ________________________________*
Signature
Guaranteed:
______________________________________ ________________________________
* NOTE: The
signature to this assignment must correspond with the name of the registered
owner as it appears on the face of the within Note in every particular, without
alteration, enlargement or any change whatsoever.
|
EXHIBIT
A-2
to
Series
2004-1
Supplement |
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
FORM OF
SERIES 2004-1
FLOATING
RATE RENTAL CAR ASSET
BACKED
NOTES SERIES 2004-1, CLASS A-2
CENDANT
RENTAL CAR FUNDING (AESOP) LLC, a Delaware limited liability company (herein
referred to as the “Company”), for
value received, hereby promises to pay to [______________________], as the Class
A-2 Purchaser, or registered assigns, the principal sum of [_________________]
MILLION DOLLARS, which amount shall be payable in the amounts and at the times
set forth in the Indenture, provided, however, that the entire unpaid principal
amount of this Class A-2 Note shall be due on the Series 2004-1 Termination
Date. The Company will pay interest on this Class A-2 Note as provided in
Sections
3.3 and
3.4 of the
Series 2004-1 Supplement. Such interest shall be payable on each
Distribution Date until the principal of this Class A-2 Note is paid or made
available for payment, to the extent funds will be available from Interest
Collections allocable to the Class A-2 Notes processed from but not including
the preceding Distribution Date through each such Distribution Date.
Notwithstanding the foregoing, prior to the Series 2004-1 Termination Date, a
Distribution Date on which the Principal Deficit Amount is greater than zero or
the commencement of the Series 2004-1 Controlled Amortization Period, and unless
an Amortization Event shall have occurred, only interest payments on the
outstanding principal amount of the Class A-2 Note are required to be made to
the holder hereof. Beginning on the first Distribution Date following the
occurrence of an Amortization Event or the commencement of the Series 2004-1
Controlled Amortization Period, the principal of this Class A-2 Note shall be
paid in installments on each subsequent Distribution Date to the extent of funds
available for payment therefor pursuant to the Indenture. Such principal of and
interest on this Class A-2 Note shall be paid in the manner specified on the
reverse hereof.
The
principal of and interest on this Class A-2 Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Company
with respect to this Class A-2 Note shall be applied first to interest due and
payable on this Class A-2 Note as provided above and then to the unpaid
principal of this Class A-2 Note. This Class A-2 Note does not represent an
interest in, or an obligation of, Original AESOP, AESOP Leasing, AESOP Leasing
II, ARAC, BRAC, CCRG, or any affiliate of Original AESOP, AESOP Leasing, AESOP
Leasing II, ARAC, BRAC or CCRG other than the Company.
|
EXHIBIT
A-2
Page
2 |
Reference
is made to the further provisions of this Class A-2 Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Class A-2 Note. Although a summary of certain provisions of the
Indenture are set forth below and on the reverse hereof and made a part hereof,
this Class A-2 Note does not purport to summarize the Indenture and reference is
made to the Indenture for information with respect to the interests, rights,
benefits, obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of AESOP Leasing, AESOP Leasing II and the Trustee. A
copy of the Indenture may be requested from the Trustee by writing to the
Trustee at: The Bank of New York, c/o BNY Midwest Trust Company, 0 Xxxxx XxXxxxx
Xxxxxx, 00xx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to them in the Indenture.
Unless
the certificate of authentication hereon has been executed by the Trustee whose
name appears below by manual signature, this Class A-2 Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be signed, manually
or in facsimile, by its Authorized Officer.
Date: __________
|
CENDANT
RENTAL CAR FUNDING
(AESOP)
LLC
By: ________________________ | |
|
Name:
Title: |
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Class A-2 Notes of a series issued under the within-mentioned
Indenture.
|
THE
BANK OF NEW YORK, as Trustee
By: ________________________ | |
|
Authorized
Signature |
|
EXHIBIT
A-2
Page
3 |
REVERSE
OF FLOATING RATE NOTE
This
Class A-2 Note is one of a duly authorized issue of Class A-2 Notes of the
Company, designated as its Series 2004-1 Floating Rate Rental Car Asset Backed
Notes, Class A-2 (herein called the “Class
A-2 Notes”), all
issued under (i) a Second Amended and Restated Base Indenture, dated as of June
3, 2004 (such Base Indenture, as amended, supplemented or modified in accordance
with its terms exclusive of any Supplements thereto creating a new Series of
Notes, is herein called the “Base
Indenture”),
between the Company and The Bank of New York, as trustee (the “Trustee”, which
term includes any successor Trustee under the Base Indenture) and (ii) an
Amended and Restated Series 2004-1 Supplement, dated as of March 29, 2004 (such
supplement, as may be amended, supplemented or modified in accordance with its
terms, is herein called the “Series
2004-1 Supplement”), among
the Company, as Issuer, Cendant Car Rental Group, Inc., as Administrator, Mizuho
Corporate Bank, Ltd., as Administrative Agent, Bayerische Landesbank New York
Branch, as Syndication Agent, Calyon Cayman Islands Branch, as Documentation
Agent, the Purchasers named therein, the Trustee and The Bank of New York, as
Series 2004-1 Agent. The Base Indenture as supplemented by the Series 2004-1
Supplement is referred to herein as the “Indenture”. The
Class A-2 Notes are subject to all terms of the Indenture. All terms used in
this Class A-2 Note that are defined in the Indenture, shall have the meanings
assigned to them in or pursuant to the Indenture.
The Class
A-2 Notes are and will be equally and ratably secured by the Collateral pledged
as security therefor as provided in the Indenture and the Series 2004-1
Supplement.
“Distribution
Date” means
the 20th day of each month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing April 20, 2005.
As
described above, principal of this Class A-2 Note shall be payable in the
amounts and at the times set forth in the Indenture, provided, however, the
entire unpaid principal amount of this Class A-2 Note shall be due and payable
on the Series 2004-1 Termination Date. Notwithstanding the foregoing, if an
Amortization Event, Liquidation Event of Default, Waiver Event, the Series
2004-1 Controlled Amortization Period shall have commenced or a Series 2004-1
Limited Liquidation Event of Default shall have occurred and be continuing or
the Principal Deficit Amount is greater than zero then, in certain
circumstances, principal on the Class A-2 Notes may be paid earlier, as
described in the Indenture. All principal payments on the Class A-2 Notes shall
be made pro rata to the Noteholders entitled thereto.
Payments
of interest on this Class A-2 Note due and payable on each Distribution Date,
together with the installment of principal then due, if any, and any payments of
principal made on any Business Day in respect of any Decreases, to the extent
not in full payment of this Class A-2 Note, shall be made by wire transfer to
the Administrative Agent for the accounts of the Purchasers. Any reduction in
the principal amount of this Class A-2 Note (or any one or more predecessor
Class A-2 Notes) effected by any payments made in accordance with the terms
hereof and of the Indenture shall be binding upon all future Holders of this
Class A-2 Note and of any Class A-2 Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
thereon.
The
Company shall pay interest on overdue installments of interest at a rate per
|
EXHIBIT
A-2
Page
4 |
annum
equal to the Alternate Base Rate, plus 2% per annum, to the extent
lawful.
This
Class A-2 Note is nontransferable except in accordance with the Series 2004-1
Supplement.
Each
Noteholder, by acceptance of a Class A-2 Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Company, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC, BRAC,
CCRG or the Trustee on the Class A-2 Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against (i) the
Trustee, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC, BRAC or CCRG, in
its individual capacity, (ii) any owner of a beneficial interest in the Company
or (iii) any partner, owner, beneficiary, agent, officer, director or employee
of the Trustee, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC, BRAC or
CCRG, in its individual capacity, any holder of a beneficial interest in the
Company, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC, BRAC, CCRG or
the Trustee or of any successor or assign of Original AESOP, AESOP Leasing,
AESOP Leasing II, ARAC, BRAC, CCRG or the Trustee, in its individual capacity,
except (a) as any such Person may have expressly agreed and (b) any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity;
provided,
however, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Company for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Class A-2 Note, subject to
Section
13.18 of the
Base Indenture.
Each
Noteholder, by acceptance of a Note, covenants and agrees that by accepting the
benefits of the Indenture that such Noteholder will not, for a period of one
year and one day following payment in full of all Notes institute against the
Company, or join in any institution against the Company of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the Related
Documents.
Prior to
the due presentment for registration of transfer of this Class A-2 Note, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Class A-2 Note (as of the day of determination or as
of such other date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Class A-2 Note be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
It is the
intent of the Company and each Noteholder that, for federal, state and local
income and franchise tax purposes, the Class A-2 Notes will evidence
indebtedness of the Company secured by the Series 2004-1 Collateral. Each
Noteholder, by the acceptance of this Class A-2 Note, agrees to treat this Class
A-2 Note for federal, state and local income and franchise tax purposes as
indebtedness of the Company.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Series 2004-1 Notes under the Indenture at any
time by the Company
|
EXHIBIT
A-2
Page
5 |
with the
consent of Holders of Series 2004-1 Notes representing more than 50% in
principal and/or commitment amount of the aggregate outstanding principal and/or
commitment amount of the Series 2004-1 Notes. The Indenture also contains
provisions permitting the Holders of Series 2004-1 Notes representing specified
percentages of the aggregate outstanding principal and/or commitment amount of
the Series 2004-1 Notes, on behalf of the Holders of all the Series 2004-1
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class A-2 Note (or any one or
more predecessor Class A-2 Notes) shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-2 Note and of any Class A-2
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Class A-2 Note. The Indenture also permits the Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Series 2004-1 Notes issued thereunder.
The term
“Company” as used
in this Class A-2 Note includes any successor to the Company under the
Indenture.
The Class
A-2 Notes are issuable only in registered form in denominations as provided in
the Indenture, subject to certain limitations set forth therein.
This
Class A-2 Note and the Indenture shall be construed in accordance with the law
of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
law.
No
reference herein to the Indenture and no provision of this Class A-2 Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Class
A-2 Note at the times, place, and rate, and in the coin or currency herein
prescribed, subject to any duty of the Company to deduct or withhold any amounts
as required by law, in-cluding any applicable U.S. withholding
taxes.
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EXHIBIT
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ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee
_________________________________
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
(name and address of assignee)
the
within Class A-2 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said Class
A-2 Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________________ ________________________________*
Signature
Guaranteed:
______________________________________ ________________________________
* NOTE: The
signature to this assignment must correspond with the name of the registered
owner as it appears on the face of the within Note in every particular, without
alteration, enlargement or any change whatsoever.
|
EXHIBIT
B
to
Series
2004-1
Supplement |
FORM OF
NOTICE OF CLASS A-1 INCREASE
Mizuho
Corporate Bank, Ltd.,
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000
Attention:
[ ]
Fax: [
]:
Ladies
and Gentlemen:
Reference
is hereby made to the Amended and Restated Series 2004-1 Supplement, dated as of
March 29, 2005 (as may be amended, supplemented or modified from time to time in
accordance with its terms, the “Series
2004-1 Supplement”), among
Cendant Rental Car Funding (AESOP) LLC (“CRCF”), as
Issuer, Cendant Car Rental Group, Inc., as Administrator, Mizuho Corporate Bank.
Ltd., as Administrative Agent, Bayerische Landesbank New York Branch, as
Syndication Agent, Calyon Cayman Islands Branch, as Documentation Agent, the
Purchasers named therein, and The Bank of New York, as Trustee (in such
capacity, the “Trustee”) and as
Series 2004-1 Agent, to the Second Amended and Restated Base Indenture, dated as
of June 3, 2004, between CRCF and the Trustee. Capitalized terms used in this
Notice of Class A-1 Increase and not otherwise defined herein shall have the
meanings assigned thereto in the Series 2004-1 Supplement.
This
letter constitutes the notice required in connection with any Class A-1 Increase
pursuant to Section
2.3(a) of the
Series 2004-1 Supplement.
CRCF
hereby requests that a Class A-1 Increase be made by each Class A-1 Purchaser on
________ ___ in the aggregate amount equal to its Class A-1 Commitment
Percentage of $__________. The Class A-1 Invested Amount will equal $________
after giving effect thereto. CRCF hereby represents and warrants as of the date
of such Class A-1 Increase after giving effect thereto, the conditions set forth
in Sections
2.3(a) and
(b) of the
Series 2004-1 Supplement with respect to such Class A-1 Increase have been
satisfied.
IN
WITNESS WHEREOF, the undersigned has caused this Increase Notice to be executed
by its duly authorized officer as of the date first above written.
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
By:
________________________________
Name:
Title:
|
EXHIBIT
C
to
Series
2004-1
Supplement |
FORM OF
CONSENT
The Bank
of New York, as Trustee
c/o BNY
Midwest Trust Company
0 Xxxxx
XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attn: Indenture
Trust Administration
Cendant
Rental Car Funding (AESOP) LLC
c/o Lord
Securities Corporation
00 Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx Xxxxxxx
This
Consent is delivered pursuant to the Waiver Request dated ____________, __ (the
“Notice”) and
the Amended and Restated Series 2004-1 Supplement, dated as of March 29, 2005
(as may be amended, supplemented or modified from time to time in accordance
with its terms, the “Series
2004-1 Supplement”), among
Cendant Rental Car Funding (AESOP) LLC (“CRCF”), as
Issuer, Cendant Car Rental Group, Inc., as Administrator, Mizuho Corporate Bank.
Ltd., as Administrative Agent, Bayerische Landesbank New York Branch, as
Syndication Agent, Calyon Cayman Islands Branch, as Documentation Agent, the
Purchasers named therein, and The Bank of New York, as Trustee (in such
capacity, the “Trustee”) and as
Series 2004-1 Agent, to the Second Amended and Restated Base Indenture, dated as
of June 3, 2004 (as may be amended, supplemented or modified from time to time
in accordance with its terms, the “Base
Indenture” and, as
supplemented by the Series 2004-1 Supplement, the “Indenture”),
between CRCF and the Trustee. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in the Series 2004-1
Supplement.
Pursuant
to Article
V of the
Series 2004-1 Supplement, the Trustee has delivered a Notice indicating that
[choose
which applies] [(i)
the Manufacturer Pro-gram[s] of [name of Manufacturer] [is/are] no longer [an]
Eligible Manufacturer Program[s] and that, as a result, the Series 2004-1
Maximum Non-Program Vehicle Amount [and/or] the Series 2004-1 Maximum
Non-Eligible Manufac-turer Amount is or will be exceeded [and/or] [an excess
will exist under clause (y) of paragraph (ii) of the definition of Series 2004-1
Required Enhancement Amount] or (ii) that the Lessees, the Borrower and CRCF
have determined to increase [the Series 2004-1 Maximum Non-Program Vehicle
Amount] [the Series 2004-1 Maximum Manufacturer Amount] [any Series 2004-1
Maximum Specified States Amount] [the Series 2004-1 Maximum Non-Eligible
Manufacturer Amount] [the percentage set forth in clause (y) of any of
paragraphs (ii), (iii), (iv), (v), (vii) or (viii) of the definition of the
Series 2004-1 Required Enhancement Amount.] The undersigned hereby disregards
any excess occurring in the [Series 2004-1 Maximum Non-Program Vehicle Amount]
[Series 2004-1 Maximum Manufacturer Amount] [any Series 2004-1 Maximum Specified
States Amount] [Series 2004-1 Maximum Non-Eligible Manufacturer Amount] [and/or]
[in clause (y) of any of paragraphs (ii), (iii), (iv), (v), (vii) or
|
EXHIBIT
C
|
(viii) of
the definition of the Series 2004-1 Required Enhancement Amount.]. The
undersigned understands that this Consent will only be effective if the Trustee
receives Consents from the Requisite Noteholders on or before ____________,
20__. The rights of each non-consenting Purchaser shall be as set forth in
Article V of the Series 2004-1 Supplement.
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The
undersigned hereby represents and warrants that it is the beneficial owner of
$___________ in principal amount of Series-1 Notes.
|
[Name]
By: ________________________ | |
|
Name:
Title: |
|
EXHIBIT
D
to
Series
2004
Supplement |
Cendant
Rental Car Funding (AESOP) LLC
Demand
Note
DEMAND
NOTE
(Series
0000-0)
Xxx Xxxx,
Xxx Xxxx
$[___________________][_____________]
FOR VALUE
RECEIVED, the undersigned, [________________], a [Delaware] corporation (the
“Demand
Note Issuer”),
promises to pay to the order of Cendant Rental Car Funding (AESOP) LLC, a
Delaware limited liability company (“CRCF”), or
its permitted assigns (“Holder”) on any
date of demand (each, a “Demand
Date”) the
principal sum of $[_________], together with interest thereon at a rate per
annum (the “Interest
Rate”) equal
to LIBOR plus [___]%, computed on the basis of a 360-day year for the actual
number of days elapsed (including the first day but excluding the last day).
Definitions.
Capitalized terms used, but not defined, in this Demand Note shall have the
respective meanings assigned to them in the Second Amended and Restated Base
Indenture, dated as of June 3, 2004 (as may be amended, restated, supplemented
or modified from time to time in accordance with its terms, exclusive of
supplements thereto creating a new series of notes, the “Base
Indenture”),
between CRCF, as Issuer and The Bank of New York, a New York banking
corporation, as trustee (in such capacity, the “Trustee”), as
supplemented by the Amended and Restated Series 2004-1 Supplement, dated as of
March 29, 2005 (as may be amended, restated, supplemented or modified from time
to time in accordance with its terms, the “Series
2004-1 Supplement”), among
CRCF, as Issuer, Cendant Car Rental Group, Inc., as Administrator, Mizuho
Corporate Bank, Ltd., as Administrative Agent, Bayerische Landesbank New York
Branch, as Syndication Agent, Calyon
Cayman Islands Branch, as
Documentation Agent,
the
Purchasers named therein, the Trustee and The Bank of New York, as Series 2004-1
Agent.
Principal. The
outstanding principal balance (or any portion thereof) of this Demand Note shall
be due and payable on each Demand Date to the extent demand is made therefor by
Holder. No portion of the outstanding principal amount of this Demand Note may
be voluntarily prepaid.
Interest.
Interest shall be paid monthly on the 20th day (or
the first Business Day thereafter) of each calendar month commencing [_______,
____]. In addition, interest shall be paid on each Demand Date to the extent
demand is made therefor.
Calculation
of Principal and Interest. The
interest shall be computed on a monthly basis by applying the Interest Rate
effective for the Series 2004-1 Interest Period to the outstanding principal
balance for such Series 2004-1 Interest Period. The outstanding principal
balance as of
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EXHIBIT
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any day
shall be the outstanding principal balance as of the beginning of such day, less
any payments of principal credited to the Demand Note Issuer’s account on that
day. The records of
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EXHIBIT
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Holder with respect to amounts due and payments received hereunder shall be presumed to be correct evidence thereof.
Maturity
Date. On the
Demand Date on which payment of the remaining principal balance of this Demand
Note is to be made, or such earlier date as payment of the indebtedness
evidenced hereby shall be due, whether by mandatory prepayment, acceleration or
otherwise (the “Maturity
Date”), the
entire outstanding principal balance of this Demand Note, together with accrued
interest and any other sums then outstanding under this Demand Note, shall be
due and payable.
Payments. All
payments shall be made in lawful money of the United States of America by wire
transfer in immediately available funds and shall be applied first to fees and
costs, including collection costs, if any, next to interest and then to
principal. Payments shall be made to the account designated in the written
demand for payment.
Collection
Costs. The
Demand Note Issuer agrees to pay all costs of collection of this Demand Note,
including, without limitation, reasonable attorney’s fees, paralegal’s fees and
other legal costs (including court costs) incurred in connection with
consultation, arbitration and litigation (including trial, appellate,
administrative and bankruptcy proceedings) regardless of whether or not suit is
brought, and all other costs and expenses incurred by Holder exercising its
rights and remedies hereunder. Such costs of collection shall bear interest at
the Default Rate until paid.
Default. (a) If
the Demand Note Issuer shall fail to pay any principal, interest or other
amounts on the date of written demand for payment; provided that such demand is
made prior to 2:00 p.m. (New York City time) on a Business Day, or on the next
Business Day if written demand is made on or after 2:00 p.m. (New York City
time) on a Business Day, or (b) upon the occurrence of an Event of Bankruptcy
with respect to the Demand Note Issuer (each, an “Event
of Default”), the
entire outstanding principal balance of this Demand Note, together with all
accrued and unpaid interest, shall (x) in the case of an Event of Default under
clause (a) above, at the option of Holder and without further notice (any notice
of such event being hereby waived by the Demand Note Issuer), or (y) in the case
of an Event of Default under clause (b) above, automatically without notice (any
notice of any such event being waived by the Demand Note Issuer), become
immediately due and payable and may be collected forthwith, and Holder may
exercise any and all rights and remedies provided herein, in law or in
equity.
Default
Interest. After
the Maturity Date or the occurrence of an Event of Default, the outstanding
principal balance of this Demand Note and, to the extent permitted by applicable
law, accrued and unpaid interest, shall bear interest (the “Default
Rate”) at the
Interest Rate plus two percent (2%) until paid in full, provided, however, in no
event shall such rate exceed the highest rate permissible under applicable
law.
Waivers. The
Demand Note Issuer waives all applicable exemption rights and also waives
valuation and appraisement, demand, presentment, protest and demand, and notice
of protest, demand and dishonor, and nonpayment of this Demand Note, and agrees
that Holder shall have the right, without notice, to grant any extension or
extensions of time for payment of any of said indebtedness or any other
indulgences or forbearances whatsoever.
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No
Waiver. No
delay or omission on the part of Holder in exercising its rights under this
Demand Note, or delay or omission on the part of Holder in exercising its rights
hereunder, or course of conduct relating thereto, shall operate as a waiver of
such rights or any other right of Holder, nor shall any waiver by Holder of any
such right or rights on any one occasion be deemed a bar to, or waiver of, the
same right or rights on any future occasion. Acceptance by Holder of any payment
after its due date shall not be deemed a waiver of the right to require prompt
payment when due of all other sums, and acceptance of any payment after Holder
has declared the indebtedness evidenced by this Demand Note due and payable
shall not cure any Event of Default or operate as a waiver of any right of
Holder.
Modifications. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Demand Note shall in any event be effective unless (a) the same shall be
in writing and signed and delivered by each of Holder and the Demand Note
Issuer, and (b) all consents required for such actions under the Base Indenture
and the Related Documents shall have been received by the appropriate
Persons.
Binding
Effect. This
Demand Note shall be binding upon the Demand Note Issuer and its successors and
assigns, and shall inure to the benefit of Holder and its successors and
assigns.
Governing
Law. THIS
DEMAND NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK.
No
Negotiation. This
Demand Note is not negotiable other than to the Trustee for the benefit of the
secured parties under the Series 2004-1 Supplement. The parties intend that this
Demand Note will be pledged by the initial Holder to the Trustee for the benefit
of the secured parties under the Series 2004-1 Supplement and the Demand Note
Issuer consents and agrees thereto. Upon such pledge, this Demand Note shall be
subject to all of the rights and remedies of the Trustee in the Base Indenture,
the Series 2004-1 Supplement and the other Related Documents, and payments
hereunder shall be made only to said Trustee.
Reduction
of Principal. The
principal amount of this Demand Note may be reduced only in accordance with the
provisions of the Series 2004-1 Supplement.
Acknowledgment. The
Demand Note Issuer hereby acknowledges receipt of capital contribution on the
date of the issuance of this Demand Note in the principal amount of $[_____].
Captions.
Paragraph captions used in this Demand Note are provided solely for convenience
of reference only and shall not affect the meaning or interpretation of any
provision of this Demand Note.
[Remainder
of Page Intentionally Left Blank]
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EXHIBIT
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IN
WITNESS WHEREOF, the undersigned has executed this Demand Note or caused this
Demand Note to be duly executed by its officer thereunto duly authorized as of
the day and year first above written.
|
[DEMAND
NOTE ISSUER]
By: ________________________ | |
|
Name:
Title: |
ENDORSEMENT
Pay to
the Order of ________________________________________, without
recourse
|
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
By: ________________________ | |
|
Name:
Title: |
|
EXHIBIT
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Page
5 |
PAYMENT
GRID
|
Date
|
Principal
Amount
|
Amount
of Principal
Payment
|
Outstanding
Principal
Balance
|
Notation
Made
By
|
|
EXHIBIT
E
to
Series
2004
Supplement |
FORM OF
IRREVOCABLE SERIES 2004-1 LETTER OF CREDIT
No.[
]
March
[__], 2005
The Bank
of New York, as Trustee
c/o BNY
Midwest Trust Company
0 Xxxxx
XxXxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention:
Dear Sir
or Madam:
The
undersigned (“Series
2004-1 Letter of Credit Provider”) hereby
establishes, at the request and for the account of Cendant Corporation, a
Delaware corporation (“Cendant”),
pursuant to, and in accordance with, that certain Five Year Competitive Advance
and Revolving Credit Agreement, dated as of November 22, 2004 (as amended,
supple-mented, restated or otherwise modified from time to time in accordance
with the terms thereof, the “Credit
Agreement”), among
Cendant and the financial institutions party thereto (collectively, the
“Series
2004-1 Letter of Credit Providers”), in
accordance with the terms of such Credit Agreement (i) in your favor in respect
of Lease Deficit Demands (as defined below), (ii) in your favor in respect of
Unpaid Demand Note Demands (as defined below), (iii) in your favor in respect of
Termination Demands (as defined below) and (iv) in your favor in respect of
Termination Date Demands (as defined below), this Irrevocable Letter of Credit
No. [ ], in an
aggregate maximum amount of [___________________________] DOLLARS ($[________])
(such amount, as the same may be reduced and reinstated from time to time as
provided herein, being the “Letter
of Credit Amount”),
effective immediately and expiring at 4:00 p.m. (New York time) at our
[ ] office
located at [ ]
Attention: [ ],
Telephone No.: [__________], Facsimile No.: [ ] (such
office or any other office which may be designated by the Series 2004-1 Letter
of Credit Provider by written notice delivered to you, being the “Series
2004-1 Letter of Credit Provider’s Office”) on the
date (the “Expiration
Date”) that
is the earlier of (i) ___________ 200_ or such later date to which the term of
this Series 2004-1 Letter of Credit is extended (or, if such date is not a
Business Day, the immediately succeeding Business Day) (the “Scheduled
Expiration Date”) and
(ii) the date on which we receive written notice from you that the Series 2004-1
Letter of Credit Termination Date shall have occurred. You are the trustee under
that certain Second Amended and Restated Base Indenture (the “Base
Indenture”), dated
as of June 3, 2004, between you, as Trustee (in such capacity, the “Trustee”) and
Cendant Rental Car Funding (AESOP) LLC (formerly known as AESOP Funding II
L.L.C.) (“CRCF”), as
the same may be amended, supplemented or otherwise modified from time to time.
“Series
2004-1 Supplement” means
the Amended and Restated Series 2004-1 Supplement, dated as of March 29, 2005,
among CRCF, as Issuer, Cendant Car Rental Group, Inc., as Administrator (in such
capacity, the “Administrator”),
Mizuho Corporate Bank, Ltd., as Administrative Agent, Bayerische Landesbank New
York Branch, as Syndication
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Agent,
Calyon Cayman Islands Branch., as Documentation Agent, the Purchasers named
therein, the Trustee and The Bank of New York, as Series 2004-1 Agent, to the
Base Indenture, as the same may be amended, supplemented, restated or other-wise
modified from time to time. Capitalized terms used herein and in the Annexes
hereto and not otherwise defined herein shall have the meaning set forth in the
Series 2004-1 Supplement and the Base Indenture.
The
Series 2004-1 Letter of Credit Provider irrevocably authorizes you to draw on
it, in accordance with the terms and conditions and subject to the reductions in
amount as herein-after set forth, (1) in one or more drawings by the Trustee
pursuant to the Trustee’s written and completed certificate signed by the
Trustee in the form of Annex
A attached
hereto (any such certificate being a “Lease
Deficit Demand”), each
presented to the Series 2004-1 Letter of Credit Provider at the Series 2004-1
Letter of Credit Provider’s Office, payable at sight on a Business Day (as
defined below), in each case, in an amount equal to the amount set forth in such
Lease Deficit Demand but in the aggregate amount not exceeding the Letter of
Credit Amount as in effect on such Business Day, (2) in one or more drawings by
the Trustee pursuant to the Trustee’s written and completed certificate signed
by the Trustee in the form of Annex
B attached
hereto (such certificate being an “Unpaid
Demand Note Demand”), each
presented to the Series 2004-1 Letter of Credit Provider at the Series 2004-1
Letter of Credit Provider’s Office, payable at sight on a Business Day, in each
case, in an amount equal to the amount set forth in such Unpaid Demand Note
Demand but in the aggregate amount not exceeding the Letter of Credit Amount as
in effect on such Business Day, (3) in a single drawing by the Trustee pursuant
to the Trustee’s written and completed certificate signed by the Trustee in the
form of Annex
C attached
hereto (such certificate being a “Termination
Demand”),
presented to the Series 2004-1 Letter of Credit Provider at the Series 2004-1
Letter of Credit Provider’s Office, payable at sight on a Business Day, in an
amount equal to the amount set forth in such Termination Demand but not
exceeding the Letter of Credit Amount as in effect on such Business Day,
provided that
only one such Termination Demand may be made hereunder and (4) in a single
drawing by the Trustee pursuant to the Trustee’s written and completed
certificate signed by the Trustee in the form of Annex
D attached
hereto (such certificate being a “Termination
Date Demand”),
presented to the Series 2004-1 Letter of Credit Provider at the Series 2004-1
Letter of Credit Provider’s Office, payable at sight on a Business Day, in an
amount equal to the amount set forth in such Termination Date Demand but not
exceeding the Letter of Credit Amount as in effect on such Business Day,
provided that
only one such Termination Date Demand may be made hereunder. In the event that
there is more than one draw request payable on the same Business Day, the draw
requests shall be honored in the following order: (1) the Lease Deficit Demand;
(2) the Unpaid Demand Note Demand; (3) the Termination Demand and (4) the
Termination Date Demand; provided that in no event shall the Series 2004-1
Letter of Credit Provider be required to honor any draw request to the extent
such draw request is in an amount greater than the Letter of Credit Amount at
such time after giving effect to all other draw requests honored on such day.
Upon the honoring of a Termination Date Demand in full, the Series 2004-1 Letter
of Credit Provider shall have no obligation to honor any other draw request. Any
payments made by the Series 2004-1 Letter of Credit Provider shall be paid from
funds of the Series 2004-1 Letter of Credit Provider. Any Lease Deficit Demand,
Unpaid Demand Note Demand, Termination Demand or Termination Date Demand may be
delivered by facsimile transmission to the Series 2004-1 Letter of Credit
Provider’s Office as
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EXHIBIT
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herein
provided. “Business
Day” means
any day other than a Saturday, Sunday or other day on which banks are required
or authorized by law to close in New York City, New York or Chicago, Illinois.
Upon the Series 2004-1 Letter of Credit Provider’s honoring any Lease Deficit
Demand, Unpaid Demand Note Demand, Termination Demand or Termination Date Demand
presented hereunder, the Letter of Credit Amount shall automatically be
decreased by an amount equal to the amount of the Lease Deficit Demand, Unpaid
Demand Note Demand, Termination Demand or Termination Date Demand paid by the
Series 2004-1 Letter of Credit Provider to the Trustee. In addition to the
fore-going reduction, upon the Series 2004-1 Letter of Credit Provider’s
honoring any Termination Date Demand presented to it hereunder in full, the
Letter of Credit Amount shall automatically be reduced to zero and this Series
2004-1 Letter of Credit shall be terminated.
The
Letter of Credit Amount shall be automatically reinstated when and to the
extent, but only when and to the extent, that (i) the Series 2004-1 Letter of
Credit Provider has not received notice from the Administrative Agent under the
Credit Agreement as of the date of receipt of written notice from Cendant
referred to in clause (iii) below that an Event of Default (as defined in Annex
E attached hereto) has occurred and is continuing under the Credit Agreement,
(ii) the Series 2004-1 Letter of Credit Provider receives notice from the
Administrative Agent under the Credit Agreement that the amount requested for
reinstatement, as specified in the written notice from Cendant referred to in
clause (iii) below, together with all L/C Exposure (as defined in Annex E
attached hereto) as of the date of receipt of Annex E, does
not exceed the maximum amount permitted under Section 2.25 of the Credit
Agreement, (iii) the Series 2004-1 Letter of Credit Provider is reimbursed by
CRCF, a Lessee, CCRG or Cendant for any amount drawn hereunder as a Lease
Deficit Demand or Unpaid Demand Note Demand, (iv) the Series 2004-1 Letter of
Credit Provider receives written notice from Cendant in the form of Annex
E hereto
that the Letter of Credit Amount should be reinstated in an amount set forth
therein (which shall equal the amount reimbursed pursuant to clause (iii)) and
that no Event of Bankruptcy (as defined in Annex
E attached
hereto) with respect to Cendant or any Permitted Sublessee has occurred and is
continuing and (v) this Series 2004-1 Letter of Credit has not been terminated
in accordance with the terms hereof.
Each
Lease Deficit Demand, Unpaid Demand Note Demand, Termination Demand and
Termination Date Demand shall be dated the date of its presentation, shall have
a cover letter clearly marked “PAYMENT DEMAND-IMMEDIATE ACTION REQUIRED” and
shall be presented to the Series 2004-1 Letter of Credit Provider at the Series
2004-1 Letter of Credit Provider’s Office. If the Series 2004-1 Letter of Credit
Provider receives any Lease Deficit Demand, Unpaid Demand Note Demand,
Termination Demand or Termination Date Demand at such office on or prior to the
Scheduled Expiration Date, all in conformity with the terms and conditions of
this Series 2004-1 Letter of Credit, not later than 12:00 noon (New York City
time) on a Business Day, the Series 2004-1 Letter of Credit Provider will make
such funds available by 4:00 p.m. (New York City time) on the same day in
accordance with your payment instructions. If the Series 2004-1 Letter of Credit
Provider receives any Lease Deficit Demand, Unpaid Demand Note Demand,
Termination Demand or Termination Date Demand at such office on or prior to the
termination hereof, all in conformity with the terms and conditions of this
Letter of Credit, after 12:00 noon (New York City time) on a Business Day, the
Series 2004-
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EXHIBIT
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1 Letter
of Credit Provider will make the funds available by 4:00 p.m. (New York City
time) on the next succeeding Business Day in accordance with your payment
instructions. If you so request the Series 2004-1 Letter of Credit Provider,
payment under this Letter of Credit may be made by wire transfer of Federal
Reserve Bank of New York funds to your account in a bank on the Federal Reserve
wire system or by deposit of same day funds into a designated
account.
Upon the
earliest of (i) the date on which the Series 2004-1 Letter of Credit Provider
honors a Termination Date Demand presented hereunder, (ii) the date on
which the Series 2004-1 Letter of Credit Provider receives written notice from
you that this Series 2004-1 Letter of Credit has been replaced by an alternate
letter of credit and such alternate letter of credit has been received by you,
(iii) the date on which the Series 2004-1 Letter of Credit Provider receives
written notice from you in the form attached hereto as Annex
F, and
(iv) the Scheduled Expiration Date, this Series 2004-1 Letter of Credit shall
automatically terminate and you shall surrender this Series 2004-1 Letter of
Credit to the undersigned Series 2004-1 Letter of Credit Provider on such
day.
For
purposes of the certificates to be delivered by you in the form attached hereto
as Annexes
A
,B and
D:
“Pro
Rata Share” means,
with respect to any Series 2004-1 Letter of Credit Provider as of any date, the
fraction (expressed as a percentage) obtained by dividing (A) such Series 2004-1
Letter of Credit Provider’s Letter of Credit Amount as of such date by (B) an
amount equal to the aggregate amount of the Letter of Credit Amounts of all the
Series 2004-1 Letter of Credit Providers under their respective Series 2004-1
Letters of Credit as of such date; provided, that
only for purposes of calculating the Pro Rata Share with respect to any Series
2004-1 Letter of Credit Provider as of any date, if such Series 2004-1 Letter of
Credit Provider has not complied with its obligation to pay the Trustee the
amount of any Lease Deficit Demand, Unpaid Demand Note Demand, Termination
Demand or Termination Date Demand (as defined in the related Series 2004-1
Letter of Credit) made prior to such date, such Series 2004-1 Letter of Credit
Provider’s Letter of Credit Amount, as of such date shall be treated as reduced
(for calculation purposes only) by the amount of such unpaid Lease Deficit
Demand, Unpaid Demand Note Demand, Termination Demand or Termination Date
Demand, as the case may be, and shall not be reinstated for purposes of such
calculation unless and until the date as of which such Series 2004-1 Letter of
Credit Provider has paid such amount to the Trustee and been reimbursed by CRCF,
the Lessee, CCRG or Cendant, as the case may be, for such amount (provided that the
forego-ing calculation shall not in any manner reduce the undersigned’s actual
liability in respect of any failure to pay any Lease Deficit Demand, Unpaid
Demand Note Demand, Termination Demand or Termination Date Demand).
This
Letter of Credit is transferable in its entirety to any transferee(s) who you
certify to the Series 2004-1 Letter of Credit Provider has succeeded you, as
Trustee, and may be successively transferred. Transfer of this 2004-1 Letter of
Credit to such transferee shall be effected by the presentation to the Series
2004-1 Letter of Credit Provider of this Series 2004-1 Letter of Credit
accompanied by a certificate in the form of Annex
G attached
hereto. Upon such presentation the Series 2004-1 Letter of Credit Provider shall
forthwith transfer this 2004-1 Letter of Credit to the transferee.
|
EXHIBIT
E
Page
5 |
This
Series 2004-1 Letter of Credit sets forth in full the undertaking of the Series
2004-1 Letter of Credit Provider, and such undertaking shall not in any way be
modified, amended, amplified or limited by reference to any document, instrument
or agreement referred to herein, except only the certificates referred to
herein; and any such reference shall not be deemed to incorporate herein by
reference any document, instrument or agreement except for such certificates. In
furtherance of the foregoing, with regard to any conflict between the terms
hereof and those contained in the Credit Agreement, the terms hereof shall
govern.
On the
Business Day immediately following any Business Day on which the Series 2004-1
Invested Amount shall have been reduced (each a “Decrease
Day”), the
Letter of Credit Amount may be reduced upon prior written notice (which may be
by facsimile transmission with telephone confirmation of receipt as herein
provided) delivered to the Series 2004-1 Letter of Credit Provider on or before
such Decrease Day purportedly signed by the Administrator by an amount (which
will be expressed in United States Dollars in such notice) set forth in such
notice equal to the lesser of the Pro Rata Share of (1) the excess, if any, of
the Series 2004-1 Enhancement Amount over the Series 2004-1 Required
Enhancement Amount and (2) the excess, if any, of the Series 2004-1
Liquidity Amount over the Series 2004-1 Required Liquidity Amount, in the
case of (1) and (2) calculated as of such Decrease Day after giving effect to
all payments of principal on such Decrease Day with respect to the Series 2004-1
Notes.
Making a
non-complying drawing, withdrawing a drawing or failing to make any drawing does
not waive or otherwise prejudice the right to make another timely drawing or a
timely redrawing. Article 41 of the Uniform Customs (as defined below) shall not
apply to this Series 2004-1 Letter of Credit.
This
Series 2004-1 Letter of Credit is subject to the Uniform Customs and Practice
for Documentary Credits, 1993 Revision, ICC Publication No. 500 (the
“Uniform
Customs”),
except as otherwise provided above and except that notwithstanding any
provisions of Article 17 of the Uniform Customs which contains provisions to the
contrary, if this Letter of Credit expires during an interruption of business
(as described in Article 17), we agree to effect payment under this Letter of
Credit, if a drawing which conforms to the terms and conditions of this Letter
of Credit is made within twenty (20) days after the resumption of business, and,
as to matters not covered by the Uniform Customs, shall be governed by the law
of the State of New York, including the Uniform Commercial Code as in effect in
the State of New York. Communications
with respect to this Series 2004-1 Letter of Credit shall be in writing and
shall be addressed to the Series 2004-1 Letter of Credit Provider at the Series
2004-1 Letter of Credit Provider’s Office, specifically referring to the number
of this Series 2004-1 Letter of Credit.
|
Very
truly yours, |
|
EXHIBIT
E
Page
6 |
|
[____________________],
as Series 2004-1 Letter of
Credit Provider
By: ________________________ | |
|
Name:
Title: |
ANNEX
A
CERTIFICATE
OF LEASE DEFICIT DEMAND
[Series
2004-1 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Lease Deficit Demand under the Irrevocable Letter of Credit No.
[ ] (the “Series
2004-1 Letter of Credit”; the
terms defined therein and not otherwise defined herein being used herein as
therein defined), dated _______ __, 200_, issued by _______________, as the
Series 2004-1 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Amended and Restated Series 2004-1
Supplement thereto (the “Series
2004-1 Supplement”), dated
as of March 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Mizuho Corporate Bank, Ltd., as Administrative Agent, Bayerische
Landesbank New York Branch, as Syndication Agent, Calyon Cayman Islands Branch,
as Documentation Agent, the Purchasers named therein, the Trustee and The Bank
of New York, as Series 2004-1 Agent (the “Indenture”).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Series 2004-1 Letter of Credit Provider as follows:
1. [ ] is the
Trustee under the Indenture.
2. [The
Trustee is making a drawing under the Series 2004-1 Letter of Credit as required
by Section
3.3(d) of the
Series 2004-1 Supplement in an amount equal to $________ (the “Interest
Lease Deficit Disbursement”), which
amount is equal to the lesser of (i) the product of the Series 2004-1 Letter of
Credit Provider’s Pro Rata Share as of the date hereof and the Series 2004-1
Lease Interest Payment Deficit and (ii) the Letter of Credit Amount as in effect
on the date of this certificate.] [The Trustee is making a drawing under the
Series 2004-1 Letter of Credit as required by Section
3.5(c)(ii) of the
Series 2004-1 Supplement in an amount equal to $_________ (the “Principal
Lease Deficit Disbursement”), which
amount is equal to the lesser of (i) the product of the Series 2004-1 Letter of
Credit Provider’s Pro Rata Share as of the date hereof and the Series 2004-1
Lease Principal Payment Deficit and (ii) the Letter of Credit Amount as in
effect on the date of this certificate. The “Lease
Deficit Disbursement” on any
day shall be the sum of the Interest Lease Deficit Disbursement and the
Principal Lease Deficit Disbursement.
3. Concurrently
with the draw being demanded hereby, the undersigned is making a draw under each
of the other Series 2004-1 Letters of Credit in an amount equal to the
|
ANNEX
A
Page
2 |
related
other Series 2004-1 Letter of Credit Providers’ Pro Rata Share of the amount to
be drawn on the Series 2004-1 Letters of Credit pursuant to Section
3.3(d) and/or
Section
3.5(c)(ii) of the
Series 2004-1 Supplement on the date hereof.
4. The
Series 2004-1 Lease Payment Deficit is attributable to the Lessee’s failure to
pay amounts due under the Leases.
5. You are
requested to deliver an amount equal to the Lease Deficit Disbursement pursuant
to the following instructions:
[insert
payment instructions for wire to the
Trustee
and payment date]
6. The
Trustee acknowledges that, pursuant to the terms of the Series 2004-1 Letter of
Credit, upon the Series 2004-1 Letter of Credit Provider’s honoring in full the
draw amount set forth in this certificate, the Letter of Credit Amount shall be
automatically reduced by an amount equal to the amount paid by the Series 2004-1
Letter of Credit Provider in respect of such draft.
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of_________________, ____.
|
[____________________],
as Trustee
By: ________________________ | |
|
Name:
Title: |
|
By: ________________________ | |
|
Name:
Title: |
ANNEX
B
CERTIFICATE
OF UNPAID DEMAND NOTE DEMAND
[Series
2004-1 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Unpaid Demand Note Demand under the Irrevocable Letter of Credit No.
[ ] (the “Series
2004-1 Letter of Credit”; the
terms defined therein and not other-wise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by _____________, as
the Series 2004-1 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Amended and Restated Series 2004-1
Supplement thereto (the “Series
2004-1 Supplement”), dated
as of March 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Mizuho Corporate Bank, Ltd., as Administrative Agent, Bayerische
Landesbank New York Branch, as Syndication Agent, Calyon Cayman Islands Branch,
as Documentation Agent, the Purchasers named therein, the Trustee and The Bank
of New York, as Series 2004-1 Agent (the “Indenture”).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Series 2004-1 Letter of Credit Provider as follows:
1. [ ] is the
Trustee under the Indenture.
2. The
Trustee is making a drawing under the Series 2004-1 Letter of Credit as required
by Sections
3.5[(c)(iv)],
[(d)(iii)] and
[(e)(iii)] of the Series 2004-1 Supplement in an amount equal to $_________ (the
“Unpaid
Demand Note Disbursement”), which
amount is equal to the lesser of (i) the product of the Series 2004-1 Letter of
Credit Provider’s Pro Rata Share as of the date hereof and the Series 2004-1
Unpaid Demand Amount and (ii) the Letter of Credit Amount as in effect on the
date of this certificate.
3. Concurrently
with the draw being demanded hereby, the undersigned is making a draw under each
of the other Series 2004-1 Letters of Credit in an amount equal to the related
other Series 2004-1 Letter of Credit Providers’ Pro Rata
Share of the Series 2004-1 Unpaid Demand Amount.
4. You are
requested to deliver an amount equal to the Unpaid Demand Note Disbursement
pursuant to the following instructions:
[Insert
payment instructions for wire to the
Trustee
and payment date]
|
ANNEX
B
Page
2 |
5. The
Trustee acknowledges that, pursuant to the terms of the Series 2004-1 Letter of
Credit, upon the Series 2004-1 Letter of Credit Provider’s honoring in full the
draw amount set forth in this certificate, the Letter of Credit Amount shall be
automatically reduced by an amount equal to the amount paid by the Series 2004-1
Letter of Credit Provider in respect of such draw.
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of ___________________, ________.
|
[____________________],
as Trustee
By: ________________________ | |
|
Name:
Title: |
|
By: ________________________ | |
|
Name:
Title: |
ANNEX
C
CERTIFICATE
OF TERMINATION DEMAND
[Series
2004-1 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Termination Demand under the Irrevocable Letter of Credit No.
[ ] (the “Series
2004-1 Letter of Credit”; the
terms defined therein and not otherwise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by ___________, as the
Series 2004-1 Letter of Credit Provider, in favor of The Bank of New York, as
the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Amended and Restated Series 2004-1
Supplement thereto (the “Series
2004-1 Supplement”), dated
as of March 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Mizuho Corporate Bank, Ltd., as Administrative Agent, Bayerische
Landesbank New York Branch, as Syndication Agent, Calyon Cayman Islands Branch,
as Documentation Agent, the Purchasers named therein, the Trustee and The Bank
of New York, as Series 2004-1 Agent (the “Indenture”).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Series 2004-1 Letter of Credit Provider as follows:
1. [ ] is the
Trustee under the Indenture.
2. The
Trustee is making a drawing under the Series 2004-1 Letter of Credit as required
by Sections
3.8[(b)] and
[(c)]of the
Series 2004-1 Supplement in an amount equal to $___________ (the “Termination
Disbursement”), which
amount is equal to the lesser of (i) the greater of (A) the excess, if any, of
the Series 2004-1 Required Enhancement Amount over the Series 2004-1 Enhancement
Amount, excluding the Letter of Credit Amount as in effect on the date of this
certificate and (B) the excess, if any, of the Series 2004-1 Required Liquidity
Amount over the Series 2004-1 Liquidity Amount, excluding the Letter of Credit
Amount on the date of this certificate and (ii) the Letter of Credit Amount as
in effect on the date of this certificate.
3. You are
requested to deliver an amount equal to the Termination Disbursement pursuant to
the following instructions:
[Insert
payment instructions for wire to the
Trustee
and payment date]
|
ANNEX
C
Page
2 |
4. The
Trustee acknowledges that, pursuant to the terms of the Series 2004-1 Letter of
Credit, upon the Series 2004-1 Letter of Credit Provider’s honoring in full the
draw amount set forth in this certificate, the Letter of Credit Amount shall be
automatically reduced to zero and the Series 2004-1 Letter of Credit shall
terminate and be immediately returned to the Series 2004-1 Letter of Credit
Provider.
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of ________________, ___.
|
[____________________],
as Trustee
By: ________________________ | |
|
Name:
Title: |
|
By: ________________________ | |
|
Name:
Title: |
ANNEX
D
CERTIFICATE
OF TERMINATION DATE DEMAND
[Series
2004-1 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Termination Date Demand under the Irrevocable Letter of Credit No.
[ ] (the
“Series
2004-1 Letter of Credit”; the
terms defined therein and not other-wise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by _______________, as
the Series 2004-1 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Amended and Restated Series 2004-1
Supplement thereto (the “Series
2004-1 Supplement”), dated
as of March 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Mizuho Corporate Bank, Ltd., as Administrative Agent, Bayerische
Landesbank New York Branch, as Syndication Agent, Calyon Cayman Islands Branch,
as Documentation Agent, the Purchasers named therein, the Trustee and The Bank
of New York, as Series 2004-1 Agent (the “Indenture”).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Series 2004-1 Letter of Credit Provider as follows:
1. [] is the
Trustee under the Indenture.
2. The
Trustee is making a drawing under the Series 2004-1 Letter of Credit as required
by Section
3.8(j) of the
Series 2004-1 Supplement in an amount equal to $_________ (the “Termination
Date Disbursement”), which
amount is equal to the lesser of [the product of the Series 2004-1 Letter of
Credit Provider’s Pro Rata Share as of the date hereof and] (i) the excess of
the Series 2004-1 Demand Note Payment Amount over the Series 2004-1 Available
Reserve Account Amount and (ii) the Series 2004-1 Letter of Credit Liquidity
Amount as in effect on the date of this certificate.
3. Concurrently
with the draw being demanded hereby, the undersigned is making a draw under each
of the other Series 2004-1 Letters of Credit in an amount
equal to the related other Series 2004-1 Letter of Credit Providers’ Pro Rata
Share of the Series 2004-1 Demand Note Payment Amount.
4. You are
requested to deliver an amount equal to the Termination Date Disbursement
pursuant to the following instructions:
|
ANNEX
D
Page
2 |
[insert
payment instructions for wire to the
Trustee
and payment date]
5. The
Trustee acknowledges that, pursuant to the terms of the Series 2004-1 Letter of
Credit, upon the Series 2004-1 Letter of Credit Provider’s honoring in full the
draw amount set forth in this certificate, the Letter of Credit Amount shall be
automatically reduced to zero and the Series 2004-1 Letter of Credit shall
terminate and be immediately returned to the Series 2004-1 Letter of Credit
Provider.
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of ________________, ___.
|
[____________________],
as Trustee
By: ________________________ | |
|
Name:
Title: |
|
By: ________________________ | |
|
Name:
Title: |
ANNEX
E
CERTIFICATE
OF REINSTATEMENT OF LETTER OF CREDIT AMOUNT
[Series
2004-1 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Reinstatement of Letter of Credit Amount under the Irrevocable Letter of
Credit No. [ ] (the
“Series
2004-1 Letter of Credit”; the
terms defined therein and not otherwise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by _______________, as
the Series 2004-1 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Amended and Restated Series 2004-1
Supplement thereto, dated as of March 29, 2005, among CRCF, as Issuer, Cendant
Car Rental Group, Inc., as Administrator, Mizuho Corporate Bank, Ltd., as
Administrative Agent, Bayerische Landesbank New York Branch, as Syndication
Agent, Calyon Cayman Islands Branch, as Documentation Agent, the Purchasers
named therein, the Trustee and The Bank of New York, as Series 2004-1
Agent.
The
undersigned, a duly authorized officer of Cendant Corporation (“Cendant”),
hereby certifies to the Series 2004-1 Letter of Credit Provider as
follows:
1. As of the
date of this certificate, the Series 2004-1 Letter of Credit Provider has been
reimbursed by [ ] in the
amount of $[] (the
“Reimbursement
Amount”) in
respect of the [Lease Deficit Demand] [Unpaid Demand Note Demand] made on
____________, ____.
2. Cendant
hereby notifies you that, pursuant to the terms and conditions of the Series
2004-1 Letter of Credit, the Letter of Credit Amount of the Series 2004-1 Letter
of Credit Provider is hereby reinstated in the amount of $[ ]
[NOT
TO EXCEED REIMBURSEMENT AMOUNT] so that
the Letter of Credit Amount of the Series 2004-1 Letter of Credit Provider after
taking into account such reinstatement is in an amount equal to $[ ]
[NOT
TO EXCEED MAXIMUM AMOUNT OF LETTER OF CREDIT PRIOR TO DRAWING].
3. As of the
date of this Certificate, no Event of Bankruptcy with respect to Cendant or the
Lessee has occurred and is continuing. “Event
of Bankruptcy”, with
respect to the Lessee or Cendant, means (a) a case or other proceeding shall be
commenced, without the appli-cation or consent of such Person, in any court,
seeking the liquidation, reorganization, debt arrangement, dissolution, winding
up, or composition or readjustment of debts of such Person, the appointment of a
trustee, receiver, custodian, liquidator, assignee,
|
ANNEX
E
Page
2 |
sequestrator
or the like for such Person or all or any substantial part of its assets, or any
similar action with respect to such Person under any law relating to bankruptcy,
insolv-ency, reorganization, winding up or composition or adjustment of debts,
and such case or proceeding shall continue undismissed, or unstayed and in
effect, for a period of 60 consecu-tive days; or an order for relief in respect
of such Person shall be entered in an involuntary case under the federal
bankruptcy laws or other similar laws now or hereafter in effect; or (b) such
Person shall commence a voluntary case or other proceeding under any applicable
bankruptcy, insolvency, reorganization, debt arrange-ment, dissolution or other
similar law now or hereafter in effect, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) for such Person or for any substantial
part of its property, or shall make any general assignment for the benefit of
creditors; or (c) the board of directors of such Person (if such Person is a
corporation or similar entity) shall vote to implement any of the actions set
forth in clause (b) above.
4. As of the
date of this Certificate, (i) no Event of Default (as defined in the Credit
Agreement) has occurred and is continuing under the Credit Agreement and (ii)
the amount requested for reinstatement, as specified herein, together with all
L/C Exposure (as defined in the Credit Agreement) as of the date hereof, does
not exceed the maximum amount permitted under Section 2.25 of the Credit
Agreement.
IN
WITNESS WHEREOF, Cendant has executed and delivered this certificate on this ___
day of _____________, ___.
|
CENDANT
CORPORATION
By: ________________________ | |
|
Name:
Title: |
Acknowledged
and Agreed:
The
undersigned hereby acknowledges receipt of the Reimbursement Amount (as defined
above) in the amount set forth above and agrees for the benefit of the Trustee
that the undersigned’s Letter of Credit Amount is in an amount equal to
$__________ as of the date hereof after taking into account the reinstatement of
the undersigned’s Letter of Credit Amount by an amount equal to the
Reimbursement Amount.
|
[Series
2004-1 Letter of Credit
Provider] |
|
ANNEX
E
Page
3 |
|
By: ________________________ |
|
Name:
Title: |
ANNEX
F
CERTIFICATE
OF TERMINATION
[Series
2004-1 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Termination of Letter of Credit Amount under the Irrevocable Letter of Credit
No. [ ] (the
“Series
2004-1 Letter of Credit”; the
terms defined therein and not otherwise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by _______________, as
the Series 2004-1 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (the “Trustee”), under
that certain Second Amended and Restated Base Indenture (the “Base
Indenture”), dated
as of June 3, 2004, between the Trustee and Cendant Rental Car Funding (AESOP)
LLC (formerly known as AESOP Funding II L.L.C.) (“CRCF”), as
supplemented by that certain Series 2004-1 Supplement thereto, dated as of March
29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Mizuho Corporate Bank, Ltd., as Administrative Agent, Bayerische
Landesbank New York Branch, as Syndication Agent, Calyon Cayman Islands Branch,
as Documentation Agent, the Purchasers named therein, the Trustee and The Bank
of New York, as Series 2004-1 Agent (the “Series
2004-1 Supplement” and,
together with the Base Indenture, the “Indenture”).
The
undersigned, duly authorized officers of the Trustee, hereby certify to the
Series 2004-1 Letter of Credit Provider as follows:
1. [] is the
Trustee under the Indenture.
2. As of the
date of this certificate, the Series 2004-1 Letter of Credit Termination Date
has occurred under the Series 2004-1 Supplement.
3. The
Trustee hereby notifies the Series 2004-1 Letter of Credit Provider that as a
result of the occurrence of the Series 2004-1 Letter of Credit Termination Date,
the undersigned is returning the Series 2004-1 Letter of Credit Provider’s
Series 2004-1 Letter of Credit to the Series 2004-1 Letter of Credit
Provider.
|
ANNEX
F
Page
2 |
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of_________________.
|
[____________________],
as Trustee
By: ________________________ | |
|
Name:
Title: |
|
By: ________________________ | |
|
Name:
Title: |
ANNEX
G
INSTRUCTION
TO TRANSFER
______________
__, ____
[Series
2004-1 Letter of Credit Provider]
[Address]
Attention:
[ ]
Re: Irrevocable
Letter of Credit No. [ ]
Ladies
and Gentlemen:
For value
received, the undersigned beneficiary hereby irrevocably transfers
to:
________________________________
(Name of
Transferee]
________________________________
[Address]
all
rights of the undersigned beneficiary to draw under the above-captioned Series
2004-1 Letter of Credit (the “Series
2004-1 Letter of Credit”) issued
by the Series 2004-1 Letter of Credit Provider named therein in favor of the
undersigned. The transferee has succeeded the under-signed as Trustee under that
certain Second Amended and Restated Base Indenture, dated as of June 3, 2004,
between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly known
as AESOP Funding II L.L.C.) (“CRCF”), as
supplemented by that certain Amended and Restated Series 2004-1 Supplement
thereto, dated as of March 29, 2005, among CRCF, as Issuer, Cendant Car Rental
Group, Inc., as Administrator, Mizuho Corporate Bank, Ltd., as Administrative
Agent, Bayerische Landesbank New York Branch, as Syndication Agent, Calyon
Cayman Islands Branch, as Documentation Agent, the Purchasers named therein, the
Trustee and The Bank of New York, as Series 2004-1 Agent.
By this
transfer, all rights of the undersigned beneficiary in the Series 2004-1 Letter
of Credit are transferred to the transferee and the transferee shall hereafter
have the sole rights as beneficiary thereof; provided,
however, that no
rights shall be deemed to have been transferred to the transferee until such
transfer complies with the requirements of the Series 2004-1 Letter of Credit
pertaining to transfers.
|
ANNEX
G
Page 2 |
The
Series 2004-1 Letter of Credit is returned herewith and in accordance therewith
we ask that this transfer be effective and that the Series 2004-1 Letter of
Credit Provider transfer the Series 2004-1 Letter of Credit to our transferee or
that, if so requested by the transferee, the Series 2004-1 Letter of Credit
Provider issue a new irrevocable letter of credit in favor of the transferee
with provisions consistent with the Series 2004-1 Letter of Credit.
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[____________________],
as Trustee
By: ________________________ | |
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Name:
Title: |
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By: ________________________ | |
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Name:
Title: |
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EXHIBIT
F
to
Series
2004
Supplement |
FORM OF
LEASE PAYMENT DEFICIT NOTICE
[DATE]
The Bank
of New York, as Trustee
c/o BNY
Midwest Company
0 Xxxxx
XxXxxxx Xxxxxx
Xxxxxxx,
XX 00000
Attn:
Corporate Trust Officer
Reference
is made to that certain Second Amended and Restated Base Indenture, dated as of
June 3, 2004, between The Bank of New York, as Trustee (in such capacity, the
“Trustee”) and
Cendant Rental Car Funding (AESOP) LLC (“CRCF”), as
Issuer, as supplemented by that certain Amended and Restated Series 2004-1
Supplement thereto (the “Series
2004-1 Supplement”), dated
as of March 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Mizuho Corporate Bank, Ltd., as Administrative Agent, Bayerische
Landesbank New York Branch, as Syndication Agent, Calyon Cayman Islands Branch,
as Documentation Agent, the Purchasers named therein, the Trustee and The Bank
of New York, as Series 2004-1 Agent. Capitalized terms used herein and not
defined herein have the meanings set forth in the Series 2004-1
Supplement.
Pursuant
to Section
3.3(c) of the
Series 2004-1 Supplement, Cendant Car Rental Group, Inc., in its capacity as
Administrator under the Series 2004-1 Supplement and the Related Documents,
hereby provides notice of a Series 2004-1 Lease Payment Deficit in the amount of
$[ ].
CENDANT
CAR RENTAL GROUP, INC.
By_____________________________
Name:
Title:
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EXHIBIT
G
to
Series
2004
Supplement |
FORM OF
DEMAND NOTICE
[DATE]
[Insert
Demand Note Issuer]
Ladies
and Gentlemen:
Reference
is made to that certain Second Amended and Restated Base Indenture, dated as of
June 3, 2004, between Cendant Rental Car Funding (AESOP) LLC (“CRCF”), as
Issuer, and The Bank of New York, as Trustee (in such capacity, the “Trustee”),
as supplemented by that certain Amended and Restated Series 2004-1 Supplement
thereto (the “Series
2004-1 Supplement”), dated
as of March 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Mizuho Corporate Bank, Ltd., as Administrative Agent, Bayerische
Landesbank New York Branch, as Syndication Agent, Calyon Cayman Islands Branch,
as Documentation Agent, the Purchasers named therein, the Trustee and The Bank
of New York, as Series 2004-1 Agent. Capitalized terms used herein and not
defined herein have the meanings set forth in the Series 2004-1
Supplement.
Pursuant
to Sections
3.5[(c)(iii)],
[(d)(ii)]
and
[(e)(ii)] of the Series 2004-1 Supplement, the Trustee under the Series 2004-1
Supplement hereby makes a demand for payment on the Series 2004-1 Demand Notes
in the amount of $[ ].
THE BANK
OF NEW YORK, as Trustee
By_____________________________
Name:
Title:
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EXHIBIT
H
to
Series
2004
Supplement |
[FORM OF]
TRANSFER SUPPLEMENT
TRANSFER
SUPPLEMENT, dated as of [____________], [____] among [NAME OF PURCHASER] (the
“Transferor”), each
purchaser listed as an Acquiring Purchaser on the signature pages hereof (each,
an “Acquiring
Purchaser”),
Cendant Rental Car Funding (AESOP) LLC, a Delaware limited liability company
(the “Company”),
Mizuho Corporate Bank, Ltd., as Administrative Agent (in such capacity, the
“Administrative
Agent”) and
Cendant Car Rental Group, Inc., as Administrator (the “Administrator”).
W I T
N E S S E T H:
WHEREAS,
this Transfer Supplement is being executed and delivered in accordance with
Section
10.1(b) of the
Amended and Restated Series 2004-1 Supplement, dated as of March 29, 2005 (as
from time to time amended, supplemented or otherwise modified in accordance with
the terms thereof, the “Series
2004-1 Supplement”; terms
defined therein being used herein as therein defined), among the Company, the
Administrator, Bayerische Landesbank New York Branch, as Syndication Agent,
Calyon Cayman Islands Branch, as Documentation Agent, the Purchasers named
therein, and The Bank of New York, as trustee (the “Trustee”) and
Series 2004-1 Agent, to the Second Amended and Restated Base Indenture, dated as
of June 3, 2004 (as may be amended, supplemented or otherwise modified, the
“Base
Indenture” and,
together with the Series 2004-1 Supplement, the “Indenture”),
between the Company and the Trustee;
WHEREAS,
each Acquiring Purchaser (if it is not already an existing Purchaser) wishes to
become a Purchaser party to the Series 2004-1 Supplement; and
WHEREAS,
the Transferor is selling and assigning to each Acquiring Purchaser, rights,
obligations and commitments under the Series 2004-1 Supplement and Series 2004-1
Notes;
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. Upon the
execution and delivery of this Transfer Supplement by each Acquiring Purchaser,
the Transferor, the Company, the Administrator and the Administrative Agent (the
date of such execution and delivery, the “Transfer
Issuance Date”), each
Acquiring Purchaser shall be a Purchaser party to the Series 2004-1 Supplement
for all purposes thereof.
2. The
Transferor acknowledges receipt from each Acquiring Purchaser of an amount equal
to the purchase price, as agreed between the Transferor and such Acquiring
Purchaser (the “Purchase
Price”), of
the portion being purchased by such Acquiring Purchaser (such Acquiring
Purchaser’s “Purchased
Percentage”) of the
Transferor’s Commitment under the Series 2004-1 Supplement and the Transferor’s
Series 2004-1 Invested Amount. The Transferor hereby irrevocably sells, assigns
and transfers to each Acquiring Purchaser, without recourse, representation or
warranty, and each Acquiring Purchaser hereby irrevocably purchases, takes and
assumes from the Transferor, such Acquiring Purchaser’s Purchased Percentage of
the Transferor’s Commitment under the Series 2004-1 Supplement and the
Transferor’s Series 2004-1 Invested Amount.
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3. The
Transferor has made arrangements with each Acquiring Purchaser with respect to
(i) the portion, if any, to be paid, and the date or dates for payment, by the
Transferor to such Acquiring Purchaser of any Commitment Fees heretofore
received by the Transferor pursuant to the Series 2004-1 Supplement prior to the
Transfer Issuance Date and (ii) the portion, if any, to be paid, and the date or
dates for payment, by such Acquiring Purchaser to the Transferor of Commitment
Fees or Series 2004-1 Monthly Interest received by such Acquiring Purchaser
pursuant to the Series 2004-1 Supplement from and after the Transfer Issuance
Date.
4. From and
after the Transfer Issuance Date, amounts that would otherwise by payable to or
for the account of the Transferor pursuant to the Series 2004-1 Supplement
shall, instead, be payable to or for the account of the Transferor and the
Acquiring Purchasers, as the case may be, in accordance with their respective
interests as reflected in this Transfer Supplement, whether such amounts have
accrued prior to the Transfer Issuance Date or accrue subsequent to the Transfer
Issuance Date.
5. Each of
the parties to this Transfer Supplement agrees that at any time and from time to
time upon the written request of any other party, it will execute and deliver
such further documents and do such further acts and things as such other party
may reasonably request in order to effect the purposes of this Transfer
Supplement.
6. By
executing and delivering this Transfer Supplement, the Transferor and each
Acquiring Purchaser confirm to and agree with each other and the Purchasers as
follows: (i) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free and clear of any
adverse claim created by it, the Transferor makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Series 2004-1 Supplement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Indenture, the Series 2004-1 Notes, the Related Documents or any
instrument or document furnished pursuant thereto; (ii) the Transferor makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company or the performance or observance by the
Company of any of the Company’s obligations under the Indenture, the Related
Documents or any other instrument or document furnished pursuant hereto; (iii)
each Acquiring Purchaser confirms that it has received a copy of the Indenture
and such other Related Documents and other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Transfer Supplement; (iv) each Acquiring Purchaser will, independently and
without reliance upon the Administrative Agent or the Transferor and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Indenture; (v) each Acquiring Purchaser appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Series 2004-1 Supplement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Article 9 of the Series
2004-1 Supplement; and (vi) each Acquiring Purchaser agrees that it will perform
in accordance with their terms all of the obligations which by the terms of the
Indenture are required to be performed by it as an Acquiring
Purchaser.
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7. Schedule
I hereto sets forth the revised Commitment Percentages of the Transferor and
each Acquiring Purchaser as well as administrative information with respect to
each Acquiring Purchaser.
8. THIS
TRANSFER SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
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IN
WITNESS WHEREOF, the parties hereto have caused this Transfer Supplement to be
executed by their respective duly authorized officers as of the date first set
forth above.
[NAME OF
SELLING PURCHASER], as
Transferor
By:______________________________
Title:
[NAME OF
ACQUIRING PURCHASER], as Acquiring Purchaser
By:______________________________
Title:
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CONSENTED
AND ACKNOWLEDGED:
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
By:
_______________________________
Title:
CENDANT
CAR RENTAL GROUP, INC.,
as
Administrator
By:
_______________________________
Title:
MIZUHO
CORPORATE BANK, LTD.,
as
Administrative Agent
By:
_______________________________
Title:
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EXHIBIT
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LIST OF
ADDRESSES FOR NOTICES
AND OF
COMMITMENT PERCENTAGES
MIZUHO
CORPORATE BANK, LTD., as
Administrative
Agent
_________________________________
_________________________________
New York,
New York
Attention:
Telecopier:
[TRANSFEROR]
Address:
Prior
Commitment Percentage:
Revised
Commitment Percentage:
Prior
Purchaser Invested Amount:
Revised
Purchaser Invested Amount:
[ACQUIRING
PURCHASER]
Address:
[Prior]
Commitment Percentage:
[Revised
Commitment Percentage:]
[Prior
Purchaser Invested Amount]
[Revised]
Purchaser Invested Amount:
