EXHIBIT 10.9
CONFORMED COPY
AESOP FUNDING II L.L.C.,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
----------------------------
SUPPLEMENTAL INDENTURE NO. 4
Dated as of November 22, 2002
to
AMENDED AND RESTATED
BASE INDENTURE
Dated as of July 30, 1997
----------------------------
Rental Car Asset Backed Notes
(Issuable in Series)
SUPPLEMENTAL INDENTURE NO. 4, dated as of November 22, 2002
("SUPPLEMENTAL INDENTURE") to AMENDED AND RESTATED BASE INDENTURE, dated as of
July 30, 1997, between AESOP FUNDING II L.L.C., a special purpose, limited
liability company established under the laws of Delaware, as issuer ("AFC-II"),
and THE BANK OF NEW YORK, a New York banking corporation, as trustee (in such
capacity, the "TRUSTEE").
W I T N E S S E T H:
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WHEREAS, AFC-II and The Bank of New York, as successor to the
corporate trust administration of ▇▇▇▇▇▇ Trust and Savings Bank, are parties to
an Amended and Restated Base Indenture, dated as of July 30, 1997 (as previously
amended, the "INDENTURE"); and
WHEREAS, AFC-II desires to, among other things, amend certain terms of
the Indenture to: (i) amend and add certain definitions to permit the subleasing
by ARAC of Vehicles subject to the AESOP I Operating Lease to certain
subsidiaries of HFS Car Rental Holdings, Inc. and to provide for certain
intercreditor arrangements, (ii) include each of American Isuzu Motors Inc. and
Kia Motors America, Inc. as an Eligible Non-Program Manufacturer, (iii) change
the address of AFC-II's principal place of business and chief executive office;
(iv) amend the covenant restricting AFC-II's ability to change its location to a
restriction on AFC-II's ability to change its jurisdiction of organization; and
(v) allow for the payment of distributions by AFC-II subject to certain
limitations; and
WHEREAS, Section 12.2 of the Indenture provides that the Indenture may
be amended with the written consent of AFC-II, the Trustee, the Enhancement
Providers and the Requisite Investors; and
WHEREAS, the Requisite Investors and the Enhancement Providers have
consented in writing to the amendments set forth herein; and
WHEREAS, AFC-II has duly authorized the execution and delivery of this
Supplemental Indenture; and
WHEREAS, The Bank of New York, as Trustee under the Indenture, is
willing to enter into this Supplemental Indenture.
NOW, THEREFORE, for and in consideration of the premises, and other
good and valuable consideration the receipt and sufficiency of which are
acknowledged, it is mutually covenanted and agreed, that the Indenture be
amended and supplemented as follows:
SECTION 1: DEFINITIONS
Section 1.1 CERTAIN DEFINED TERMS.
Certain capitalized terms used herein (including in the preamble and
the recitals hereto) shall have the meanings assigned to such terms in the
Indenture, as the Indenture may be hereafter further amended or modified from
time to time in accordance with the provisions of the Indenture.
SECTION 2: THE AMENDMENTS
Section 2.1 The following definitions are hereby added to the Definitions
List, attached as Schedule I to the Indenture in the appropriate alphabetical
order:
"AESOP/DECAR INTERCREDITOR ACCOUNT" has the meaning specified for the
"Intercreditor Account" in Section 2.1(a) of the AESOP/Decar Intercreditor
Agreement.
"AESOP/DECAR INTERCREDITOR AGENT" means the party named as such in the
AESOP/Decar Intercreditor Agreement until a successor replaces it in accordance
with the applicable provisions of the AESOP/Decar Intercreditor Agreement and
thereafter means the successor serving thereunder.
"AESOP/DECAR INTERCREDITOR AGREEMENT" means the Intercreditor
Agreement, dated as of November 22, 2002, among The Bank of New York, as
intercreditor agent, the Administrator, the Trustee and The Bank of New York, as
trustee under the Decar Base Indenture, as amended, restated, modified and
supplemented from time to time.
"CHEROKEE" means Cherokee Acquisition Corporation, a Delaware
corporation, and its successors.
"DECAR BASE INDENTURE" means the Base Indenture, dated as of November
22, 2002 between HFS Decar Funding Corporation, as Issuer and The Bank of New
York, as Trustee.
"ISUZU" means American Isuzu Motors Inc., a California corporation,
and its successors.
"KIA" means Kia Motors America, Inc., a California corporation and its
successors.
"PERMITTED SUBLESSEE" means Cherokee and each other wholly-owned
Subsidiary of HFS Car Rental Holdings, Inc. that becomes a sublessee under the
terms of the Sublease.
"SPECIFIED MANUFACTURERS" means, so long as there are any notes
outstanding under the Decar Base Indenture, Kia, Nissan, Nissan Hawaii and
Subaru.
"SUBLEASE" means the Master Motor Vehicle Operating Sublease
Agreement, dated as of November 22, 2002, by and among Avis Rent A Car System,
Inc., as Sublesssor and Cherokee, as Sublessee in the form attached as Exhibit A
to the First Amendment to the Amended and Restated AESOP I Operating Lease.
Section 2.2 The definition of Related Documents in the Definitions List
attached as Schedule I to the Indenture is hereby deleted in its entirety and
replaced with the following:
"RELATED DOCUMENTS" means, collectively, the Indenture, the Notes, any
Enhancement Agreement, the Loan Agreements, the Assignment Agreements, the
Vehicle Title and
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Lienholder Nominee Agreements, the Administration Agreement, the Cendant
Indemnity, the Termination Services Agreement, the Securities Account Control
Agreements, the Loan Notes, any Placement Agency Agreement, any agreements
relating to the issuance or the purchase of any of the Notes, the Leases, the
Supplemental Documents relating to the Leases, each Lockbox Agreement, the
Master Exchange Agreement, the AESOP/Decar Intercreditor Agreement, the
Sublease, the Intercreditor Agreement and the Receivables Funding Documents.
Section 2.3 The definition of Eligible Non-Program Manufacturer in the
Definitions List attached as Schedule I to the Indenture is hereby deleted in
its entirety and replaced with the following:
"ELIGIBLE NON-PROGRAM MANUFACTURER" means each Eligible Program
Manufacturer, Subaru, Mitsubishi, Kia, Hyundai, Isuzu, Suzuki and any other
Manufacturer that (i) has been approved by the Rating Agencies or has been
reviewed by the Rating Agencies and the Rating Agencies have indicated that the
inclusion of such Manufacturer as an Eligible Non-Program Manufacturer will not
adversely affect the current rating of any Series of Notes and (ii) has been
approved by each Enhancement Provider.
Section 2.4 The definition of Mitsubishi in the Definitions List attached
as Schedule I to the Indenture is hereby deleted in its entirety and replaced
with the following:
"MITSUBISHI" means Mitsubishi Motor Sales of America, Inc., a Delaware
corporation and its successors.
Section 2.5 The definition of Repurchase Program in the Definitions List
attached as Schedule I to the Indenture is hereby amended by inserting the
following sentence at the end thereof:
"The foregoing shall include any repurchase program pursuant to which
a Manufacturer has agreed with Budget Group Inc. and/or its Affiliates to
repurchase Vehicles manufactured by such Manufacturer or one of its Affiliates
during the specified Repurchase Period, after the assignment by Budget Group
Inc. and/or its Affiliates of their respective rights under such repurchase
program to AESOP Leasing and the Manufacturer's consent in writing to such
assignment."
Section 2.6 The definition of Guaranteed Depreciation Program in the
Definitions List attached as Schedule I to the Indenture is hereby amended by
inserting the following sentence at the end thereof:
"The foregoing shall include any guaranteed depreciation program
offered by DaimlerChrysler Motors Corporation, after the assignment by Budget
Group, Inc. and/or its Affiliates of their respective rights under such
guaranteed depreciation program to AESOP Leasing and DaimlerChrysler Motors
Corporation's consent in writing to such assignment."
Section 2.7 The first sentence of Section 5.2(a) of the Indenture is
hereby deleted and replaced with the following:
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"Until this Indenture is terminated pursuant to SECTION 11.1, AFC-II
shall, and the Trustee is authorized to, cause all Collections due and to become
due to AFC-II or the Trustee, as the case may be, (i) under or in connection
with the Collateral (including, without limitation, amounts due from
Manufacturers and related auction houses under their Manufacturer Programs but
excluding amounts due from the Specified Manufacturers and their auction houses
and amounts representing the proceeds from sales of Vehicles by AESOP Leasing,
AESOP Leasing II or any Lessee to third parties other than the Manufacturers,
warranty payments and insurance proceeds) to be paid directly to the Trustee or
its agent for deposit into the Collection Account; (ii) all amounts due from
Specified Manufacturers and related auction houses under their Manufacturer
Programs under or in connection with the Collateral to be paid (A) directly to
the AESOP/Decar Intercreditor Agent or its agent for deposit into the
AESOP/Decar Intercreditor Account and deposited into the Collection Account
within five Business Days of the deposit thereof into the AESOP/Decar
Intercreditor Account or (B) directly to the Trustee or its agent for deposit
into the Collection Account, (iii) with respect to amounts representing the
proceeds from sales of Vehicles by AESOP Leasing, AESOP Leasing II or any Lessee
to third parties other than the Manufacturers to be deposited by AESOP Leasing,
AESOP Leasing II or any Lessee, as the case may be, within two Business Days of
its receipt thereof into the Collection Account; (iv) under the Loan Agreements
to be paid directly to the Trustee for deposit into the Collection Account; and
(v) from any other source to be paid either (a) directly into the Collection
Account at such times as such amounts are due or (b) by AESOP Leasing, AESOP
Leasing II or any Lessee into the Collection Account within two Business Days of
its receipt thereof (and, in each case, AFC-II represents to the Secured Parties
that it has instructed AESOP Leasing, AESOP Leasing II, each Lessee, the
Manufacturers, and any other source of Collections, as applicable, to so remit
such amounts)."
Section 2.8 Section 7.14(d) of the Indenture is hereby deleted in its
entirety and replaced with the following:
"(d) AFC-II's principal place of business and chief executive office
shall be at: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and the place
where its records concerning the Collateral are kept is at: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. AFC-II does not transact, and has not
transacted, business under any other name."
Section 2.9 Section 8.20 of the Indenture is hereby deleted in its
entirety and replaced with the following:
"SECTION 8.20. DIVIDENDS, OFFICERS' COMPENSATION, ETC.
AFC-II will not (i) declare or pay any distributions on any of its
limited liability company interests or make any purchase, redemption or other
acquisition of, any of its limited liability company interests; PROVIDED,
HOWEVER, that so long as no Amortization Event with respect to any Series of
Notes Outstanding, Potential Amortization Event with respect to any Series of
Notes Outstanding, AESOP I Operating Lease Vehicle Deficiency, Aggregate Asset
Amount Deficiency, Enhancement Deficiency, Event of Default, Liquidation Event
of Default, Limited Liquidation Event of Default, Potential Enhancement
Agreement Event of Default, Enhancement Agreement Event of Default, Potential
AESOP I Operating Lease Event of
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Default, AESOP I Operating Lease Event of Default, Potential AESOP I Operating
Lease Loan Event of Default or AESOP I Operating Lease Loan Event of Default has
occurred and is continuing or would result therefrom, AFC-II, subject to Section
18-607 of the Delaware Limited Liability Company Act, may declare and pay
distributions on its limited liability company interests or (ii) pay any wages
or salaries or other compensation to officers, directors, employees or others
except out of earnings computed in accordance with GAAP."
Section 2.10 Section 8.21 of the Indenture is hereby deleted in its
entirety and replaced with the following:
"SECTION 8.21. NAME; PRINCIPAL OFFICE.
AFC-II will neither (a) change its location (within the meaning of
Section 9-307 of the applicable UCC) without sixty (60) days' prior written
notice to the Trustee nor (b) change its name without prior written notice to
the Trustee sufficient to allow the Trustee to make all filings (including
filings of financing statements on form UCC-1) and recordings necessary to
maintain the perfection of the interest of the Trustee on behalf of the Secured
Parties in the Collateral pursuant to this Indenture. In the event that AFC-II
desires to so change its location or change its name, AFC-II will make any
required filings and prior to actually changing its location or its name AFC-II
will deliver to the Trustee (i) an Officers' Certificate and an Opinion of
Counsel confirming that all required filings have been made to continue the
perfected interest of the Trustee on behalf of the Secured Parties in the
Collateral in respect of the new location or new name of AFC-II and (ii) copies
of all such required filings with the filing information duly noted thereon by
the office in which such filings were made."
Section 2.11 Section 9.4 of the Indenture is hereby amended by adding the
following sentence to the first paragraph thereof:
"Each of AFC-II and the Trustee acknowledge that the Trustee has
direct rights to pursue remedies under the Sublease."
SECTION 3: REPRESENTATIONS AND WARRANTIES
In order to induce the Trustee to agree to this Supplemental
Indenture, AFC-II hereby represents and warrants, as follows, for the benefit of
the Trustee and the Secured Parties, as of the date hereof:
Section 3.1 AFFIRMATION OF REPRESENTATIONS AND WARRANTIES.
Each representation and warranty of AFC-II set forth in the Indenture
and in each other Related Document to which it is a party, is true and correct
as of the date of this Supplemental Indenture in all material respects as though
such representation or warranty were being made on and as of the date hereof and
is hereby deemed repeated as though fully set forth herein.
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Section 3.2 LIMITED LIABILITY COMPANY AND GOVERNMENTAL AUTHORIZATION.
The execution, delivery and performance by AFC-II of this Supplemental
Indenture (a) is within AFC-II's limited liability company powers and has been
duly authorized by all necessary limited liability company action, (b) requires
no action by or in respect of, or filing with, any governmental body, agency or
official which has not been obtained, and (c) does not contravene, conflict
with, violate, or constitute a default under any provision of applicable law or
regulation or of the certificate of formation or limited liability company
agreement of AFC-II or of any law or governmental regulation, rule, resolution,
interpretation, restriction, limitation, procedure, ordinance, writ,
determination, ruling, contract, agreement, document, obligation, commitment,
judgment, injunction, order, decree or other instrument binding upon AFC-II or
any of its Assets or result in the creation or imposition of any Lien on any
Asset of AFC-II, except for Liens created by this Indenture or the other Related
Documents. This Supplemental Indenture has been executed and delivered by a duly
authorized officer of AFC-II.
Section 3.3 BINDING EFFECT.
This Supplemental Indenture is a legal, valid and binding obligation
of AFC-II enforceable against AFC-II in accordance with its terms (except as
such enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally or by general equitable principles, whether
considered in a proceeding at law or in equity and by an implied covenant of
good faith and fair dealing).
Section 3.4 NO CONSENT.
No consent, action by or in respect of, approval or other
authorization of, or registration, declaration or filing with, any Governmental
Authority or other Person is required for the valid execution and delivery of
this Supplemental Indenture or for the performance of any of AFC-II's
obligations hereunder other than such consents, approvals, authorizations,
registrations, declarations or filings as were obtained by AFC-II prior to the
date hereof.
SECTION 4: MISCELLANEOUS
Section 4.1 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 4.2 RATIFICATION AND EFFECT.
The Indenture, as previously amended and supplemented by Supplemental
Indenture No. 1, dated as of July 31, 1998, Supplemental Indenture No. 2, dated
as of
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September 15, 1998, Supplemental Indenture No. 3, dated as of February 18, 2002
and as further amended and supplemented by this Supplemental Indenture, is in
all respects ratified and confirmed, shall continue to be in full force and
effect, and shall be read, taken and construed as one and the same instrument.
This Supplemental Indenture is limited as specified and, except as
expressly stated herein, shall not constitute a modification, acceptance or
waiver of any other provision of the Indenture.
Section 4.3 TABLE OF CONTENTS, HEADINGS, ETC.
The headings of the Sections of this Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 4.4 CHOICE OF LAW.
THIS SUPPLEMENTAL INDENTURE SHALL BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
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IN WITNESS WHEREOF, the Trustee and AFC-II have caused this
Supplemental Indenture to be duly executed by their receptive duly authorized
officers as of the day and year first written above.
AESOP FUNDING II L.L.C.,
as Issuer
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Assistant
Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Agent
