UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
report (Date of earliest event reported): March 23,
2010 (March 23, 2010)
Avis
Budget Group, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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1-10308
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06-0918165
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification Number)
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6
Sylvan Way
Parsippany,
NJ
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07054
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(973)
496-4700
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(Registrant’s
telephone number, including area code)
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N/A
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(Former
name or former address, if changed since last
report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement.
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On March
23, 2010, our Avis Budget Rental Car Funding (AESOP) LLC subsidiary (the
“Issuer”) issued $100,000,000 aggregate principal amount of Series 2010-2 3.63%
Rental Car Asset Backed Notes, Class A, and $15,831,000 aggregate principal
amount of Series 2010-2 5.74% Rental Car Asset Backed Notes, Class B (together,
the “Series 2010-2 Notes”). On March 23, 2010, the Issuer also issued
$400,000,000 aggregate principal amount of Series 2010-3 4.64% Rental Car Asset
Backed Notes, Class A and $62,658,000 aggregate principal amount of Series
2010-3 6.74% Rental Car Asset Backed Notes, Class B (together, the “Series
2010-3 Notes”, and, together with the Series 2010-2 Notes, the
“Notes”). The Issuer issued the Series 2010-2 Notes under the Series
2010-2 Supplement (the “2010-2 Supplement”), dated March 23, 2010, between the
Issuer and The Bank of New York Mellon Trust Company, N.A. (“BNYMellon”),
as trustee and as Series 2010-2 Agent, to the Second Amended and Restated Base
Indenture (the “Base Indenture”), dated as of June 3, 2004, as amended, between
the Issuer and BNYMellon, as trustee. The Issuer issued the
Series 2010-3 Notes under the Series 2010-3 Supplement (the “2010-3
Supplement”), dated March 23, 2010, between the Issuer and BNYMellon, as trustee
and as Series 2010-3 Agent, to the Base Indenture.
The Notes
are secured under the Base Indenture primarily by vehicles in our domestic fleet
and other related assets. A copy of the 2010-2 Supplement and the
2010-3 Supplement are attached hereto as Exhibit 10.1 and
Exhibit 10.2,
respectively, and are incorporated by reference herein, and a copy of the
press release announcing the closing is attached hereto as Exhibit 99.1
and is incorporated by reference herein.
Certain of the purchasers of the Notes,
and the trustee, and their respective affiliates, have performed and may in the
future perform, various commercial banking, investment banking and other
financial advisory services for us and our subsidiaries for which they have
received, and will receive, customary fees and expenses.
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Item
2.03
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Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
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The
information described above under “Item 1.01 Entry into a Material Definitive
Agreement” is incorporated herein by reference.
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Item
9.01
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Financial
Statements and Exhibits.
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(d) Exhibits.
The following exhibits are filed as
part of this report:
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Exhibit
No.
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Description
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10.1
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Series
2010-2 Supplement, dated as of March 23, 2010, among Avis Budget Rental
Car Funding (AESOP) LLC and The Bank of New York Mellon Trust Company,
N.A., as trustee and as Series 2010-2 Agent.
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10.2
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Series
2010-3 Supplement, dated as of March 23, 2010, among Avis Budget Rental
Car Funding (AESOP) LLC and The Bank of New York Mellon Trust Company,
N.A., as trustee and Series 2010-3 Agent.
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99.1
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Press
Release dated March 23, 2010.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereto
duly authorized.
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AVIS
BUDGET GROUP, INC.
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By:
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/s/ Jean
M. Sera
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Name:
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Jean
M. Sera
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Title:
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Senior
Vice President and Secretary
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Date:
March 23, 2010
AVIS
BUDGET GROUP, INC.
CURRENT
REPORT ON FORM 8-K
Report
Dated March 23, 2010
(March 23, 2010)
EXHIBIT
INDEX
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Exhibit
No.
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Description
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10.1
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Series
2010-2 Supplement, dated as of March 23, 2010, among Avis Budget Rental
Car Funding (AESOP) LLC and The Bank of New York Mellon Trust Company,
N.A., as trustee and as Series 2010-2 Agent.
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10.2
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Series
2010-3 Supplement, dated as of March 23, 2010, among Avis Budget Rental
Car Funding (AESOP) LLC and The Bank of New York Mellon Trust Company,
N.A., as trustee and Series 2010-3 Agent.
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99.1
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Press
Release dated March 23, 2010.
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Exhibit 10.1
AVIS
BUDGET RENTAL CAR FUNDING (AESOP) LLC,
as
Issuer
and
THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A.,
as
Trustee and Series 2010-2 Agent
_____________________
SERIES
2010-2 SUPPLEMENT
dated as
of March 23, 2010
to
SECOND
AMENDED AND RESTATED BASE INDENTURE
dated as
of June 3, 2004
_____________________
Series
2010-2 3.63% Rental Car Asset Backed Notes, Class A
Series
2010-2 5.74% Rental Car Asset Backed Notes, Class B
TABLE OF
CONTENTS
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Page
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ARTICLE
I DEFINITIONS
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2
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ARTICLE
II SERIES 2010-2 ALLOCATIONS
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22
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Section
2.1. Establishment of Series 2010-2 Collection Account, Series 2010-2
Excess
Collection
Account and Series 2010-2 Accrued Interest Account
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22
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Section
2.2. Allocations with Respect to the Series 2010-2 Notes
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22
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Section
2.3. Payments to Noteholders
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26
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Section
2.4. Payment of Note Interest
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29
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Section
2.5. Payment of Note Principal
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29
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Section
2.6. Administrator’s Failure to Instruct the Trustee to Make a Deposit or
Payment
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33
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Section
2.7. Series 2010-2 Reserve Account
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33
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Section
2.8. Series 2010-2 Letters of Credit and Series 2010-2 Cash Collateral
Account
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35
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Section
2.9. Series 2010-2 Distribution Account
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39
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Section
2.10. Series 2010-2 Accounts Permitted Investments
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41
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Section
2.11. Series 2010-2 Demand Notes Constitute Additional Collateral for
Series 2010-2
Notes
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42
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Section
2.12. Subordination of the Class B Notes
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42
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ARTICLE
III AMORTIZATION EVENTS
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42
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ARTICLE
IV FORM OF SERIES 2010-2 NOTES
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43
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Section
4.1. Restricted Global Series 2010-2 Notes
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43
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Section
4.2. Temporary Global Series 2010-2 Notes; Permanent Global Series
2010-2 Notes
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44
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ARTICLE
V GENERAL
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44
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Section
5.1. Optional Repurchase
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44
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Section
5.2. Information
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45
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Section
5.3. Exhibits
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45
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Section
5.4. Ratification of Base Indenture
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45
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Section
5.5. Counterparts
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45
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Section
5.6. Governing Law
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45
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Section
5.7. Amendments
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45
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Section
5.8. Discharge of Indenture
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46
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Section
5.9. Notice to Rating Agencies
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46
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Section
5.10. Capitalization of ABRCF
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46
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Section
5.11. Required Noteholders.
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46
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Section
5.12. Series 2010-2 Demand Notes
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46
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Section
5.13. Termination of Supplement
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46
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Section
5.14. Noteholder Consent to Certain Amendments
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47
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Section
5.15. Confidential Information.
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48
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Section
5.16. Capitalized Cost Covenant
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48
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Section
5.17. Further Limitation of Liability.
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48
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Section
5.18. Force Majeure
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Page
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Section
5.19. Waiver of Jury Trial, etc.
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49
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Section
5.20. Submission to Jurisdiction
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49
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SERIES
2010-2 SUPPLEMENT, dated as of March 23, 2010 (this “Supplement”), among
AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC, a special purpose limited liability
company established under the laws of Delaware (“ABRCF”), THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A. (formerly known as The Bank of New York), a
limited purpose national banking association with trust powers, as trustee (in
such capacity, and together with its successors in trust thereunder as provided
in the Base Indenture referred to below, the “Trustee”), and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (formerly known as The Bank of New
York), as agent (in such capacity, the “Series 2010-2 Agent”)
for the benefit of the Series 2010-2 Noteholders, to the Second Amended and
Restated Base Indenture, dated as of June 3, 2004, between ABRCF and the Trustee
(as amended, modified or supplemented from time to time, exclusive of
Supplements creating a new Series of Notes, the “Base
Indenture”).
PRELIMINARY
STATEMENT
WHEREAS,
Sections 2.2 and 12.1 of the Base Indenture provide, among other things, that
ABRCF and the Trustee may at any time and from time to time enter into a
supplement to the Base Indenture for the purpose of authorizing the issuance of
one or more Series of Notes;
NOW,
THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is
hereby created a Series of Notes to be issued pursuant to the Base Indenture and
this Supplement, and such Series of Notes shall be designated generally as the
Series 2010-2 Rental Car Asset Backed Notes.
The
Series 2010-2 Notes shall be issued in two Classes, the first of which shall be
known as the “Class A Notes” and the second of which shall be known as the
“Class B Notes”. On the Closing Date, ABRCF shall issue (i) one
tranche of Class A Notes, which shall be designated as the Series 2010-2 3.63%
Rental Car Asset Backed Notes, Class A and, (ii) one tranche of Class B Notes,
which shall be designated as the Series 2010-2 5.74% Rental Car Asset Backed
Notes, Class B.
The Class
A Notes and Class B Notes, together, constitute the Series 2010-2
Notes. The Class B Notes shall be subordinated in right of payment to
the Class A Notes, to the extent set forth herein.
The
proceeds from the sale of the Series 2010-2 Notes shall be deposited in the
Collection Account and shall be deemed to be Principal Collections.
The
Series 2010-2 Notes are a non-Segregated Series of Notes (as more fully
described in the Base Indenture). Accordingly, all references in this
Supplement to “all” Series of Notes (and all references in this Supplement to
terms defined in the Base Indenture that contain references to “all” Series of
Notes) shall refer to all Series of Notes other than Segregated Series of
Notes.
-1-
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 or Exhibit references herein shall refer to
Articles, Sections, Subsections or Exhibits of this Supplement, except as
otherwise provided herein. Unless otherwise stated herein, as the
context otherwise requires or if such term is otherwise defined in the Base
Indenture, each capitalized term used or defined herein shall relate only to the
Series 2010-2 Notes and not to any other Series of Notes issued by
ABRCF. In the event that a term used herein shall be defined both
herein and in the Base Indenture, the definition of such term herein shall
govern.
(b) The
following words and phrases shall have the following meanings with respect to
the Series 2010-2 Notes and the definitions of such terms are applicable to the
singular as well as the plural form of such terms and to the masculine as well
as the feminine and neuter genders of such terms:
“ABCR” means Avis
Budget Car Rental, LLC.
“Adjusted Net Book
Value” means, as of any date of determination, with respect to each
Adjusted Program Vehicle as of such date, the product of 0.965 and the Net Book
Value of such Adjusted Program Vehicle as of such date.
“Business Day” means
any day other than (a) a Saturday or a Sunday or (b) a day on which banking
institutions in New York City or in the city in which the corporate trust office
of the Trustee is located are authorized or obligated by law or executive order
to close.
“Certificate of Lease Deficit
Demand” means a certificate substantially in the form of Annex A to the Series
2010-2 Letters of Credit.
“Certificate of Termination
Date Demand” means a certificate substantially in the form of Annex D to the Series
2010-2 Letters of Credit.
“Certificate of Termination
Demand” means a certificate substantially in the form of Annex C to the Series
2010-2 Letters of Credit.
“Certificate of Unpaid Demand
Note Demand” means a certificate substantially in the form of Annex B to the Series
2010-2 Letters of Credit.
“Class” means a class
of the Series 2010-2 Notes, which may be the Class A Notes or the Class B
Notes.
“Class A Carryover Controlled
Amortization Amount” means, with respect to any Related Month during the
Series 2010-2 Controlled Amortization Period, the amount, if any, by which the
portion of the Monthly Total Principal Allocation paid to the Class A
Noteholders pursuant to Section 2.5(e)(i) for the previous Related Month was
less than the Class A Controlled Distribution Amount for the previous Related
Month; provided, however, that for the
first
-2-
“Class A Controlled
Amortization Amount” means (i) with respect to any Related Month during
the Series 2010-2 Controlled Amortization Period other than the Related Month
immediately preceding the Series 2010-2 Expected Final Distribution Date,
$16,666,666.67 and (ii) with respect to the Related Month immediately
preceding the Series 2010-2 Expected Final Distribution Date,
$16,666,666.65.
“Class A Controlled
Distribution Amount” means, with respect to any Related Month during the
Series 2010-2 Controlled Amortization Period, an amount equal to the sum of the
Class A Controlled Amortization Amount and any Class A Carryover Controlled
Amortization Amount for such Related Month.
“Class A Initial Invested
Amount” means the aggregate initial principal amount of the Class A
Notes, which is $100,000,000.
“Class A Invested
Amount” means, when used with respect to any date, an amount equal to (a)
the Class A Initial Invested Amount minus (b) the amount
of principal payments made to Class A Noteholders on or prior to such
date.
“Class A Monthly
Interest” means, with respect to (i) the initial Series 2010-2 Interest
Period, an amount equal to $272,250.00 and (ii) any other Series 2010-2 Interest
Period, an amount equal to the product of (A) one-twelfth of the Class A Note
Rate and (B) the Class A Invested Amount on the first day of such Series 2010-2
Interest Period, after giving effect to any principal payments made on such
date.
“Class A Note” means
any one of the Series 2010-2 3.63% Rental Car Asset Backed Notes, Class A,
executed by ABRCF and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-1, Exhibit A-2 or Exhibit
A-3. Definitive Class A 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 Note Rate”
means 3.63% per annum.
“Class A Noteholder”
means the Person in whose name a Class A Note is registered in the Note
Register.
“Class A Shortfall”
has the meaning set forth in Section 2.3(g)(i).
“Class B Carryover Controlled
Amortization Amount” means, with respect to any Related Month during the
Series 2010-2 Controlled Amortization Period, the amount, if any, by which the
portion of the Monthly Total Principal Allocation paid to the Class B
Noteholders pursuant to Section 2.5(e)(ii) for the previous Related Month was
less than the Class B Controlled Distribution Amount for the previous Related
Month; provided, however, that for the
first Related Month in the Series 2010-2 Controlled Amortization Period, the
Class B Carryover Controlled Amortization Amount shall be zero.
-3-
“Class B Controlled
Amortization Amount” means with respect to any Related Month during the
Series 2010-2 Controlled Amortization Period, $2,638,500.00.
“Class B Controlled
Distribution Amount” means, with respect to any Related Month during the
Series 2010-2 Controlled Amortization Period, an amount equal to the sum of the
Class B Controlled Amortization Amount and any Class B Carryover Controlled
Amortization Amount for such Related Month.
“Class B Initial Invested
Amount” means the aggregate initial principal amount of the Class B
Notes, which is $15,831,000.
“Class B Invested
Amount” means, when used with respect to any date, an amount equal to (a)
the Class B Initial Invested Amount minus (b) the amount
of principal payments made to Class B Noteholders on or prior to such
date.
“Class B Monthly
Interest” means, with respect to (i) the initial Series 2010-2 Interest
Period, an amount equal to $68,152.46 and (ii) any other Series 2010-2 Interest
Period, an amount equal to the product of (A) one-twelfth of the Class B Note
Rate and (B) the Class B Invested Amount on the first day of such Series 2010-2
Interest Period, after giving effect to any principal payments made on such
date.
“Class B Note” means
any one of the Series 2010-2 5.74% Rental Car Asset Backed Notes, Class B,
executed by ABRCF and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit B-1, Exhibit B-2 or Exhibit
B-3. Definitive Class B 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 B Note Rate”
means 5.74% per annum.
“Class B Noteholder”
means the Person in whose name a Class B Note is registered in the Note
Register.
“Class B Shortfall”
has the meaning set forth in Section 2.3(g)(ii).
“Clearstream” is
defined in Section 4.2.
“Confirmation
Condition” means, with respect to any Bankrupt Manufacturer which is a
debtor in Chapter 11 Proceedings, a condition that shall be satisfied upon the
bankruptcy court having competent jurisdiction over such Chapter 11 Proceedings
issuing an order that remains in effect approving (i) the assumption of such
Bankrupt Manufacturer’s Manufacturer Program (and the related Assignment
Agreements) by such Bankrupt Manufacturer or the trustee in bankruptcy of such
Bankrupt Manufacturer under Section 365 of the Bankruptcy Code and at the time
of such assumption, the payment of all amounts due and payable by such Bankrupt
Manufacturer under such Manufacturer Program and the curing of all other
defaults by the Bankrupt Manufacturer thereunder or (ii) the execution, delivery
and performance by such Bankrupt Manufacturer of a new post-petition
Manufacturer Program (and the related assignment agreements) on the same terms
and covering the same Vehicles as such Bankrupt Manufacturer’s Manufacturer
Program (and the related Assignment Agreements) in
-4-
effect on
the date such Bankrupt Manufacturer became subject to such Chapter 11
Proceedings and, at the time of the execution and delivery of such new
post-petition Manufacturer Program, the payment of all amounts due and payable
by such Bankrupt Manufacturer under such Manufacturer Program and the curing of
all other defaults by the Bankrupt Manufacturer thereunder; provided that
notwithstanding the foregoing, the Confirmation Condition shall be deemed
satisfied until the 90th
calendar day following the initial filing in respect of such Chapter 11
Proceedings.
“DBRS” means DBRS,
Inc.
“DBRS Excluded Manufacturer
Receivable Specified Percentage” means, as of any date of determination,
with respect to each DBRS Non-Investment Grade Manufacturer as of such date, the
percentage (not to exceed 100%) most recently specified in writing by DBRS to
ABRCF and the Trustee and consented to by the Requisite Series 2010-2
Noteholders with respect to such DBRS Non-Investment Grade Manufacturer; provided, however, that as of
the Series 2010-2 Closing Date the DBRS Excluded Manufacturer Receivable
Specified Percentage for each DBRS Non-Investment Grade Manufacturer shall be
100%; provided,
further, that
the initial DBRS Excluded Manufacturer Receivable Specified Percentage with
respect to any Manufacturer that becomes an DBRS Non-Investment Grade
Manufacturer after the Series 2010-2 Closing Date shall be 100%.
“DBRS Excluded Receivable
Amount” means, as of any date of determination, the sum of the following
amounts with respect to each DBRS Non-Investment Grade Manufacturer as of such
date: the product of (i) to the extent such amounts are included in
the calculation of AESOP I Operating Lease Loan Agreement Borrowing Base as of
such date, all amounts receivable, as of such date, by AESOP Leasing or the
Intermediary from such DBRS Non-Investment Grade Manufacturer and (ii) the DBRS
Excluded Manufacturer Receivable Specified Percentage for such DBRS
Non-Investment Grade Manufacturer as of such date.
“DBRS Non-Investment Grade
Manufacturer” means, as of any date of determination, any Manufacturer
that (i) is not a Bankrupt Manufacturer and (ii) does not have a long-term
senior unsecured debt rating of at least “BBB (low)” from DBRS; provided that any
Manufacturer whose long-term senior unsecured debt rating is downgraded from at
least “BBB (low)” to below “BBB (low)” by DBRS after the Series 2010-2 Closing
Date shall not be deemed an DBRS Non-Investment Grade Manufacturer until the
thirtieth (30th)
calendar day following such downgrade.
“Demand Note Issuer”
means each issuer of a Series 2010-2 Demand Note.
“Disbursement” means
any Lease Deficit Disbursement, any Unpaid Demand Note Disbursement, any
Termination Date Disbursement or any Termination Disbursement under a Series
2010-2 Letter of Credit, or any combination thereof, as the context may
require.
“Euroclear” is defined
in Section 4.2.
“Excess Collections”
is defined in Section 2.3(f)(i).
-5-
“Excluded Receivable
Amount” means, as of any date of determination, the greater of the
Moody’s Excluded Receivable Amount and the DBRS Excluded Receivable Amount as of
such date.
“Finance Guide” means
the Black Book Official Finance/Lease Guide.
“Inclusion Date”
means, with respect to any Vehicle, the date that is three months after the
earlier of (i) the date such Vehicle became a Redesignated Vehicle and (ii) if
the Manufacturer of such Vehicle is a Bankrupt Manufacturer, the date upon which
the Event of Bankruptcy which caused such Manufacturer to become a Bankrupt
Manufacturer first occurred.
“Lease Deficit
Disbursement” means an amount drawn under a Series 2010-2 Letter of
Credit pursuant to a Certificate of Lease Deficit Demand.
“Market Value Average”
means, as of any day, the percentage equivalent of a fraction, the numerator of
which is the average of the Selected Fleet Market Value as of the preceding
Determination Date and the two Determination Dates precedent thereto and the
denominator of which is the sum of (a) the average of the aggregate Net Book
Value of all Non-Program Vehicles (excluding (i) any Unaccepted Program
Vehicles, (ii) any Excluded Redesignated Vehicles and (iii) any other
Non-Program Vehicles that are subject to a Manufacturer Program with an Eligible
Non-Program Manufacturer with respect to which no Manufacturer Event of Default
has occurred and is continuing) and (b) the average of the aggregate Adjusted
Net Book Value of all Adjusted Program Vehicles, in the case of each of clause
(a) and (b) leased under the AESOP I Operating Lease and the Finance Lease as of
the preceding Determination Date and the two Determination Dates precedent
thereto.
“Monthly Total Principal
Allocation” means for any Related Month the sum of all Series 2010-2
Principal Allocations with respect to such Related Month.
“Moody’s Excluded
Manufacturer Receivable Specified Percentage” means, as of any date of
determination, with respect to each Moody’s Non-Investment Grade Manufacturer as
of such date, the percentage (not to exceed 100%) most recently specified in
writing by Moody’s to ABRCF and the Trustee and consented to by the Requisite
Series 2010-2 Noteholders with respect to such Moody’s Non-Investment Grade
Manufacturer; provided, however, that as of
the Series 2010-2 Closing Date the Moody’s Excluded Manufacturer Receivable
Specified Percentage for each Moody’s Non-Investment Grade Manufacturer shall be
100%; provided
further that
the initial Moody’s Excluded Manufacturer Receivable Specified Percentage with
respect to any Manufacturer that becomes a Moody’s Non-Investment Grade
Manufacturer after the Series 2010-2 Closing Date shall be 100%.
“Moody’s Excluded Receivable
Amount” means, as of any date of determination, the sum of the following
amounts with respect to each Moody’s Non-Investment Grade Manufacturer as of
such date: the product of (i) to the extent such amounts are included
in the calculation of AESOP I Operating Lease Loan Agreement Borrowing Base as
of such date, all amounts receivable, as of such date, by AESOP Leasing or the
Intermediary from such Moody’s Non-Investment Grade Manufacturer and (ii) the
Moody’s Excluded Manufacturer Receivable Specified Percentage for such Moody’s
Non-Investment Grade Manufacturer as of such date.
-6-
“Moody’s Non-Investment Grade
Manufacturer” means, as of any date of determination, any Manufacturer
that (i) is not a Bankrupt Manufacturer and (ii) does not have a long term
senior unsecured debt rating of at least “Baa3” from Moody’s; provided that any
Manufacturer whose long term senior unsecured debt rating is downgraded from at
least “Baa3” to below “Baa3” by Moody’s after the Series 2010-2 Closing Date
shall not be deemed a Moody’s Non Investment Grade Manufacturer until the
thirtieth (30th) calendar day following such downgrade.
“Past Due Rent
Payment” is defined in Section 2.2(g).
“Permanent Global Class A
Note” is defined in Section 4.2.
“Permanent Global Class B
Note” is defined in Section 4.2.
“Permanent Global Series
2010-2 Notes” is defined in Section 4.2.
“Pre-Preference Period Demand
Note Payments” means, as of any date of determination, the aggregate
amount of all proceeds of demands made on the Series 2010-2 Demand Notes
included in the Series 2010-2 Demand Note Payment Amount as of the Series 2010-2
Letter of Credit Termination Date that were paid by the Demand Note Issuers more
than one year before such date of determination; provided, however, that if an Event of
Bankruptcy (or the occurrence of an event described in clause (a) of the
definition thereof, without the lapse of a period of sixty (60) consecutive
days) with respect to a Demand Note Issuer occurs during such one-year period,
(x) the Pre-Preference Period Demand Note Payments as of any date during the
period from and including the date of the occurrence of such Event of Bankruptcy
to and including the conclusion or dismissal of the proceedings giving rise to
such Event of Bankruptcy without continuing jurisdiction by the court in such
proceedings shall equal the Pre-Preference Period Demand Note Payments as of the
date of such occurrence for all Demand Note Issuers and (y) the Pre-Preference
Period Demand Note Payments as of any date after the conclusion or dismissal of
such proceedings shall equal the Series 2010-2 Demand Note Payment Amount as of
the date of the conclusion or dismissal of such proceedings.
“Principal Deficit
Amount” means, as of any date of determination, the excess, if any, of
(i) the Series 2010-2 Invested Amount on such date (after giving effect to the
distribution of the Monthly Total Principal Allocation for the Related Month if
such date is a Distribution Date) over (ii) the Series 2010-2 AESOP I Operating
Lease Loan Agreement Borrowing Base on such date; provided, however that the
Principal Deficit Amount on any date occurring during the period commencing on
and including the date of the filing by any of the Lessees of a petition for
relief under Chapter 11 of the Bankruptcy Code to but excluding the date on
which each of the Lessees shall have resumed making all payments of the portion
of Monthly Base Rent relating to Loan Interest required to be made under the
AESOP I Operating Lease, shall mean the excess, if any, of (x) the Series 2010-2
Invested Amount on such date (after giving effect to the distribution of Monthly
Total Principal Allocation for the Related Month if such date is a Distribution
Date) over (y) the sum of (1) the Series 2010-2 AESOP I Operating Lease Loan
Agreement Borrowing Base on such date and (2) the lesser of (a) the Series
2010-2 Liquidity Amount on such date and (b) the Series 2010-2 Required
Liquidity Amount on such date.
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“Pro Rata Share”
means, with respect to any Series 2010-2 Letter of Credit Provider as of any
date, the fraction (expressed as a percentage) obtained by dividing (A) the
available amount under such Series 2010-2 Letter of Credit Provider’s Series
2010-2 Letter of Credit as of such date by (B) an amount equal to the aggregate
available amount under all Series 2010-2 Letters of Credit as of such date;
provided, that
only for purposes of calculating the Pro Rata Share with respect to any Series
2010-2 Letter of Credit Provider as of any date, if such Series 2010-2 Letter of
Credit Provider has not complied with its obligation to pay the Trustee the
amount of any draw under its Series 2010-2 Letter of Credit made prior to such
date, the available amount under such Series 2010-2 Letter of Credit Provider’s
Series 2010-2 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 2010-2 Letter of Credit Provider has paid such amount to the
Trustee and been reimbursed by the Lessee or the applicable Demand Note Issuer,
as the case may be, for such amount (provided that the
foregoing calculation shall not in any manner reduce the undersigned’s actual
liability in respect of any failure to pay any demand under its Series 2010-2
Letter of Credit).
“Required Controlling Class
Series 2010-2 Noteholders” means (i) for so long as any Class A Notes are
outstanding, Class A Noteholders holding more than 50% of the Class A Invested
Amount and (ii) if no Class A Notes are outstanding, Class B Noteholders holding
more than 50% of the Class B Invested Amount.
“Requisite Series 2010-2
Noteholders” means, Series 2010-2 Noteholders holding more than 50% of
the Series 2010-2 Invested Amount.
“Restricted Global Class A
Note” is defined in Section 4.1.
“Restricted Global Class B
Note” is defined in Section 4.1.
“Selected Fleet Market
Value” means, with respect to all Adjusted Program Vehicles and all
Non-Program Vehicles (excluding (i) any Unaccepted Program Vehicles,
(ii) any Excluded Redesignated Vehicles and (iii) any other Non-Program
Vehicles that are subject to a Manufacturer Program with an Eligible Non-Program
Manufacturer with respect to which no Manufacturer Event of Default has occurred
and is continuing) as of any date of determination, the sum of the respective
Market Values of each such Adjusted Program Vehicle and each such Non-Program
Vehicle, in each case subject to the AESOP I Operating Lease or the Finance
Lease as of such date. For purposes of computing the Selected Fleet
Market Value, the “Market Value” of an Adjusted Program Vehicle or a Non-Program
Vehicle means the market value of such Vehicle as specified in the most recently
published NADA Guide for the model class and model year of such Vehicle based on
the average equipment and the average mileage of each Vehicle of such model
class and model year then leased under the AESOP I Operating Lease and the
Finance Lease; provided, that if the
NADA Guide is not being published or the NADA Guide is being published but such
Vehicle is not included therein, the Market Value of such Vehicle shall be based
on the market value specified in the most recently published Finance Guide for
the model class and model year of such Vehicle based on the average equipment
and the average mileage of each Vehicle of such model class and model year then
leased under the AESOP I Operating Lease or the Finance Lease; provided, further, that if
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the
Finance Guide is being published but such Vehicle is not included therein, the
Market Value of such Vehicle shall mean (x) in the case of an Adjusted Program
Vehicle, the Adjusted Net Book Value of such Adjusted Program Vehicle and (y) in
the case of a Non-Program Vehicle, the Net Book Value of such Non-Program
Vehicle provided, further, that if the
Finance Guide is not being published, the Market Value of such Vehicle shall be
based on an independent third-party data source selected by the Administrator
and approved by each Rating Agency that is rating any Series of Notes at the
request of ABRCF based on the average equipment and average mileage of each
Vehicle of such model class and model year then leased under the AESOP I
Operating Lease or the Finance Lease; provided, further, that if no
such third-party data source or methodology shall have been so approved or any
such third-party data source or methodology is not available, the Market Value
of such Vehicle shall be equal to a reasonable estimate of the wholesale market
value of such Vehicle as determined by the Administrator, based on the Net Book
Value of such Vehicle and any other factors deemed relevant by the
Administrator.
“Series 2003-4 Notes”
means the Series of Notes designated as the Series 2003-4 Notes.
“Series 2004-1 Notes”
means the Series of Notes designated as the Series 2004-1 Notes.
“Series 2005-1 Notes”
means the Series of Notes designated as the Series 2005-1 Notes.
“Series 2005-2 Notes”
means the Series of Notes designated as the Series 2005-2 Notes.
“Series 2005-4 Notes”
means the Series of Notes designated as the Series 2005-4 Notes.
“Series 2006-1 Notes”
means the Series of Notes designated as the Series 2006-1 Notes.
“Series 2007-2 Notes”
means the Series of Notes designated as the Series 2007-2 Notes.
“Series 2008-1 Notes”
means the Series of Notes designated as the Series 2008-1 Notes.
“Series 2009-1 Notes”
means the Series of Notes designated as the Series 2009-1 Notes.
“Series 2009-2 Notes”
means the Series of Notes designated as Series 2009-2.
“Series 2009-3 Notes”
means the Series of Notes designated as Series 2009-3.
“Series 2010-1 Notes”
means the Series of Notes designated as Series 2010-1.
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“Series 2010-2
Accounts” means each of the Series 2010-2 Distribution Account, the
Series 2010-2 Reserve Account, the Series 2010-2 Collection Account, the Series
2010-2 Excess Collection Account and the Series 2010-2 Accrued Interest
Account.
“Series 2010-2 Accrued
Interest Account” is defined in Section 2.1(b).
“Series 2010-2 AESOP I
Operating Lease Loan Agreement Borrowing Base” means, as of any date of
determination, the product of (a) the Series 2010-2 AESOP I Operating Lease
Vehicle Percentage as of such date and (b) the excess of (i) the AESOP I
Operating Lease Loan Agreement Borrowing Base as of such date over (ii) the
Excluded Receivable Amount as of such date.
“Series 2010-2 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 2010-2 Required AESOP I
Operating Lease Vehicle Amount as of such date and the denominator of which is
the sum of the Required AESOP I Operating Lease Vehicle Amounts for all Series
of Notes as of such date.
“Series 2010-2 Agent”
is defined in the recitals hereto.
“Series 2010-2 Available Cash
Collateral Account Amount” means, as of any date of determination, the
amount on deposit in the Series 2010-2 Cash Collateral Account (after giving
effect to any deposits thereto and withdrawals and releases therefrom on such
date).
“Series-2010-2 Available
Reserve Account Amount” means, as of any date of determination, the
amount on deposit in the Series 2010-2 Reserve Account (after giving effect to
any deposits thereto and withdrawals and releases therefrom on such
date).
“Series 2010-2 Cash
Collateral Account” is defined in Section 2.8(f).
“Series 2010-2 Cash
Collateral Account Collateral” is defined in
Section 2.8(a).
“Series 2010-2 Cash
Collateral Account Surplus” means, with respect to any Distribution Date,
the lesser of (a) the Series 2010-2 Available Cash Collateral Account Amount and
(b) the lesser of (A) the excess, if any, of the Series 2010-2 Liquidity Amount
(after giving effect to any withdrawal from the Series 2010-2 Reserve Account on
such Distribution Date) over the Series 2010-2 Required Liquidity Amount on such
Distribution Date and (B) the excess, if any, of the Series 2010-2 Enhancement
Amount (after giving effect to any withdrawal from the Series 2010-2 Reserve
Account on such Distribution Date) over the Series 2010-2 Required Enhancement
Amount on such Distribution Date; provided, however that, on any
date after the Series 2010-2 Letter of Credit Termination Date, the Series
2010-2 Cash Collateral Account Surplus shall mean the excess, if any, of (x) the
Series 2010-2 Available Cash Collateral Account Amount over (y) the Series
2010-2 Demand Note Payment Amount minus the Pre-Preference
Period Demand Note Payments as of such date.
“Series 2010-2 Cash
Collateral Percentage” means, as of any date of determination, the
percentage equivalent of a fraction, the numerator of which is the Series 2010-2
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Available
Cash Collateral Amount as of such date and the denominator of which is the
Series 2010-2 Letter of Credit Liquidity Amount as of such date.
“Series 2010-2 Closing
Date” means March 23, 2010.
“Series 2010-2
Collateral” means the Collateral, each Series 2010-2 Letter of Credit,
each Series 2010-2 Demand Note, the Series 2010-2 Distribution Account
Collateral, the Series 2010-2 Cash Collateral Account Collateral and the Series
2010-2 Reserve Account Collateral.
“Series 2010-2 Collection
Account” is defined in Section 2.1(b).
“Series 2010-2 Controlled
Amortization Period” means the period commencing at the opening of
business on February 1, 2013 (or, 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 2010-2 Rapid Amortization Period, (ii) the
date on which the Series 2010-2 Notes are fully paid and (iii) the termination
of the Indenture.
“Series 2010-2 DBRS
Enhancement Percentage” means, as of any date of determination, the sum
of (i) the product of (A) the Series 2010-2 DBRS Lowest Enhancement Rate as of
such date and (B) the Series 2010-2 DBRS Lowest Enhanced Vehicle Percentage as
of such date, (ii) the product of (A) the Series 2010-2 DBRS Intermediate
Enhancement Rate as of such date and (B) the Series 2010-2 DBRS Intermediate
Enhanced Vehicle Percentage as of such date, and (iii) the product of (A) the
Series 2010-2 DBRS Highest Enhancement Rate as of such date and (B) the Series
2010-2 DBRS Highest Enhanced Vehicle Percentage as of such date.
“Series 2010-2 DBRS Highest
Enhanced Vehicle Percentage” means, as of any date of determination, a
fraction, expressed as a percentage, (a) the numerator of which is the aggregate
Net Book Value of all Vehicles leased under the AESOP I Operating Lease that
were manufactured by Manufacturer that does not have a long-term senior
unsecured debt rating of at least “BBB (low)” from DBRS as of such date and (b)
the denominator of which is the aggregate Net Book Value of all Vehicles leased
under the AESOP I Operating Lease as of such date.
“Series 2010-2 DBRS Highest
Enhancement Rate” means, as of any date of determination, the sum of (a)
35.5% and (b) 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 2010-2 DBRS
Intermediate Enhanced Vehicle Percentage” means, as of any date of
determination, 100% minus the sum of (a) the Series 2010-2 DBRS Lowest Enhanced
Vehicle Percentage and (b) the Series 2010-2 DBRS Highest Enhanced Vehicle
Percentage.
“Series 2010-2 DBRS
Intermediate Enhancement Rate” means, as of any date of determination,
the sum of (a) 35.5% and (b) the highest, for any calendar month within
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the
preceding twelve calendar months, of the greater of (c) 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 as not yet
occurred).
“Series 2010-2 DBRS Lowest
Enhanced Vehicle Percentage” means, as of any date of determination, a
fraction, expressed as a percentage, (a) the numerator of which is the sum,
without duplication, of (1) the aggregate Net Book Value of all Program Vehicles
leased under the AESOP I Operating Lease that are manufactured by Eligible
Program Manufacturers having long-term senior unsecured debt ratings of “BBB” or
higher from DBRS as of such date, (2) so long as any Eligible Non-Program
Manufacturer has a long-term senior unsecured debt rating of “BBB” or higher
from DBRS and no Manufacturer Event of Default has occurred and is continuing
with respect to such Eligible Non-Program Manufacturer, the aggregate Net Book
Value of all Non-Program Vehicles leased under the AESOP I Operating Lease
manufactured by each such Eligible Non-Program Manufacturer that are subject to
a Manufacturer Program and remain eligible for repurchase thereunder as of such
date and (3) the lesser of (A) the sum of (x) if as of such date any Eligible
Program Manufacturer has a long-term senior unsecured debt rating of “BBB (low)”
from DBRS, the aggregate Net Book Value of all Program Vehicles leased under the
AESOP I Operating Lease manufactured by each such Eligible Program Manufacturer
as of such date and (y) if as of such date any Eligible Non-Program Manufacturer
has a long-term senior unsecured debt rating of “BBB (low)” from DBRS and no
Manufacturer Event of Default has occurred and is continuing with respect to
such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by
each such Eligible Non-Program Manufacturer that are subject to a Manufacturer
Program and remain eligible for repurchase thereunder as of such date and (B)
10% of the aggregate Net Book Value of all Vehicles leased under the AESOP I
Operating Lease as of such date and (b) the denominator of which is the
aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease as of such date.
“Series 2010-2 DBRS Lowest
Enhancement Rate” means, as of any date of determination,
25%.
“Series 2010-2 Demand
Note” means each demand note made by a Demand Note Issuer, substantially
in the form of Exhibit
C, as amended, modified or restated from time to time.
“Series 2010-2 Demand Note
Payment Amount” means, as of the Series 2010-2 Letter of Credit
Termination Date, the aggregate amount of all proceeds of demands made on the
Series 2010-2 Demand Notes pursuant to Section 2.5(b) or (c) that were
deposited into the Series 2010-2 Distribution Account and paid to the Series
2010-2 Noteholders during the one year period ending on the Series 2010-2 Letter
of Credit Termination Date; provided, however, that if an
Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the definition thereof, without the lapse of a period of sixty (60) consecutive
days) with respect to a Demand Note Issuer shall have occurred during such one
year period, the Series 2010-2 Demand Note Payment Amount as of the Series
2010-2 Letter of Credit Termination Date shall equal the Series 2010-2 Demand
Note Payment Amount as if it were calculated as of the date of such
occurrence.
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“Series 2010-2 Deposit
Date” is defined in Section 2.2.
“Series 2010-2 Distribution
Account” is defined in Section 2.9(a).
“Series 2010-2 Distribution
Account Collateral” is defined in Section 2.9(d).
“Series 2010-2 Eligible
Letter of Credit Provider” means a Person satisfactory to ABCR and the
Demand Note Issuers and having, at the time of the issuance of the related
Series 2010-2 Letter of Credit, a long-term senior unsecured debt rating (or the
equivalent thereof) of at least “A1” from Moody’s and at least “A (high)” from
DBRS and a short term senior unsecured debt rating of at least “P-1” from
Moody’s and at least “R-1” from DBRS that is (a) a commercial bank having total
assets in excess of $500,000,000, (b) a finance company, insurance company or
other financial institution that in the ordinary course of business issues
letters of credit and has total assets in excess of $200,000,000 or (c) any
other financial institution; provided, however, that if a
Person is not a Series 2010-2 Letter of Credit Provider (or a letter of credit
provider under the Supplement for any other Series of Notes), then such Person
shall not be a Series 2010-2 Eligible Letter of Credit Provider until ABRCF has
provided 10 days’ prior notice to the Rating Agencies that such Person has been
proposed as a Series 2010-2 Letter of Credit Provider.
“Series 2010-2
Enhancement” means the Series 2010-2 Cash Collateral Account Collateral,
the Series 2010-2 Letters of Credit, the Series 2010-2 Demand Notes, the Series
2010-2 Overcollateralization Amount and the Series 2010-2 Reserve Account
Amount.
“Series 2010-2 Enhancement
Amount” means, as of any date of determination, the sum of (i) the Series
2010-2 Overcollateralization Amount as of such date, (ii) the Series 2010-2
Letter of Credit Amount as of such date, (iii) the Series 2010-2 Available
Reserve Account Amount as of such date and (iv) the amount of cash and Permitted
Investments on deposit in the Series 2010-2 Collection Account (not including
amounts allocable to the Series 2010-2 Accrued Interest Account) and the Series
2010-2 Excess Collection Account as of such date.
“Series 2010-2 Enhancement
Deficiency” means, on any date of determination, the amount by which the
Series 2010-2 Enhancement Amount is less than the Series 2010-2 Required
Enhancement Amount as of such date.
“Series 2010-2 Excess
Collection Account” is defined in Section 2.1(b).
“Series 2010-2 Expected Final
Distribution Date” means the August 2013 Distribution Date.
“Series 2010-2 Final
Distribution Date” means the August 2014 Distribution Date.
“Series 2010-2 Interest
Period” means a period commencing on and including a Distribution Date
and ending on and including the day preceding the next succeeding Distribution
Date; provided,
however that
the initial Series 2010-2 Interest Period shall
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commence
on and include the Series 2010-2 Closing Date and end on and include April 19,
2010.
“Series 2010-2 Invested
Amount” means, as of any date of determination, the sum of the Class A
Invested Amount as of such date and the Class B Invested Amount as of such
date.
“Series 2010-2 Invested
Percentage” means as of any date of determination:
(a) when
used with respect to Principal Collections, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which shall
be equal to the sum of the Series 2010-2 Invested Amount and the Series 2010-2
Overcollateralization Amount, determined during the Series 2010-2 Revolving
Period as of the end of the Related Month (or, until the end of the initial
Related Month, on the Series 2010-2 Closing Date), or, during the Series 2010-2
Controlled Amortization Period and the Series 2010-2 Rapid Amortization Period,
as of the end of the Series 2010-2 Revolving Period, and the denominator of
which shall be the greater 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
Series 2010-2 Closing Date, and (II) as of the same date as in clause (I), the
sum of the numerators used to determine (i) invested percentages for allocations
with respect to Principal Collections (for all Series of Notes and all classes
of such Series of Notes) and (ii) overcollateralization percentages for
allocations with respect to Principal Collections (for all Series of Notes that
provide for credit enhancement in the form of overcollateralization);
and
(b) when
used with respect to Interest Collections, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which shall
be the Accrued Amounts with respect to the Series 2010-2 Notes on such date of
determination, and the denominator of which shall be the aggregate Accrued
Amounts with respect to all Series of Notes on such date of
determination.
“Series 2010-2 Lease Interest
Payment Deficit” means, on any Distribution Date, an amount equal to the
excess, if any, of (a) the aggregate amount of Interest Collections which
pursuant to Section 2.2(a), (b), (c) or (d) would have been allocated to the
Series 2010-2 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
2.2(a), (b), (c) or (d) have been allocated to the Series 2010-2 Accrued
Interest Account (excluding any amounts paid into the Series 2010-2 Accrued
Interest Account pursuant to the proviso in Sections 2.2(c)(ii) and/or
2.2(d)(ii)) from and excluding the preceding Distribution Date to and including
the Business Day immediately preceding such Distribution Date.
“Series 2010-2 Lease Payment
Deficit” means either a Series 2010-2 Lease Interest Payment Deficit or a
Series 2010-2 Lease Principal Payment Deficit.
“Series 2010-2 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
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Series
2010-2 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 2.5(b) on account of such Series 2010-2 Lease Principal
Payment Deficit.
“Series 2010-2 Lease
Principal Payment Deficit” means on any Distribution Date the sum of (a)
the Series 2010-2 Monthly Lease Principal Payment Deficit for such Distribution
Date and (b) the Series 2010-2 Lease Principal Payment Carryover Deficit for
such Distribution Date.
“Series 2010-2 Letter of
Credit” means an irrevocable letter of credit, if any, substantially in
the form of Exhibit
D issued by a Series 2010-2 Eligible Letter of Credit Provider in favor
of the Trustee for the benefit of the Series 2010-2 Noteholders.
“Series 2010-2 Letter of
Credit Amount” means, as of any date of determination, the lesser of (a)
the sum of (i) the aggregate amount available to be drawn on such date under
each Series 2010-2 Letter of Credit on which no draw has been made pursuant to
Section 2.8(c), as specified therein, and (ii) if the Series 2010-2 Cash
Collateral Account has been established and funded pursuant to Section 2.8, the
Series 2010-2 Available Cash Collateral Account Amount on such date and (b) the
aggregate outstanding principal amount of the Series 2010-2 Demand Notes on such
date.
“Series 2010-2 Letter of
Credit Expiration Date” means, with respect to any Series 2010-2 Letter
of Credit, the expiration date set forth in such Series 2010-2 Letter of Credit,
as such date may be extended in accordance with the terms of such Series 2010-2
Letter of Credit.
“Series 2010-2 Letter of
Credit Liquidity Amount” means, as of any date of determination, the sum
of (a) the aggregate amount available to be drawn on such date under each Series
2010-2 Letter of Credit on which no draw has been made pursuant to Section
2.8(c), as specified therein, and (b) if the Series 2010-2 Cash Collateral
Account has been established and funded pursuant to Section 2.8, the Series
2010-2 Available Cash Collateral Account Amount on such date.
“Series 2010-2 Letter of
Credit Provider” means the issuer of a Series 2010-2 Letter of
Credit.
“Series 2010-2 Letter of
Credit Termination Date” means the first to occur of (a) the date on
which the Series 2010-2 Notes are fully paid and (b) the Series 2010-2
Termination Date.
“Series 2010-2 Limited
Liquidation Event of Default” means, so long as such event or condition
continues, any event or condition of the type specified in clauses (a) through
(g) of Article III; provided, however, that any
event or condition of the type specified in clauses (a) through (g) of Article
III shall not constitute a Series 2010-2 Limited Liquidation Event of Default if
the Trustee shall have received the written consent of the Requisite Series
2010-2 Noteholders waiving the occurrence of such Series 2010-2 Limited
Liquidation Event of Default. The Trustee shall promptly (but in any
event within two days) provide the Rating Agencies with written notice of such
waiver.
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“Series 2010-2 Liquidity
Amount” means, as of any date of determination, the sum of (a) the Series
2010-2 Letter of Credit Liquidity Amount on such date and (b) the Series 2010-2
Available Reserve Account Amount on such date.
“Series 2010-2 Maximum
Amount” means any of the Series 2010-2 Maximum Manufacturer Amounts, the
Series 2010-2 Maximum Non-Eligible Manufacturer Amount, the Series 2010-2
Maximum Non-Program Vehicle Amount or the Series 2010-2 Maximum Specified States
Amount.
“Series 2010-2 Maximum
Hyundai Amount” means, as of any day, an amount equal to 20% of the
aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
“Series 2010-2 Maximum
Individual Isuzu/Subaru Amount” means, as of any day, with respect to
Isuzu or Subaru individually, an amount equal to 5% of the aggregate Net Book
Value of all Vehicles leased under the Leases on such day.
“Series 2010-2 Maximum Kia
Amount” means, as of any day, an amount equal to 10% of the aggregate Net
Book Value of all Vehicles leased under the Leases on such day.
“Series 2010-2 Maximum
Manufacturer Amount” means, as of any day, any of the Series 2010-2
Maximum Mitsubishi Amount, the Series 2010-2 Maximum Individual Isuzu/Subaru
Amount, the Series 2010-2 Maximum Hyundai Amount, the Series 2010-2 Maximum Kia
Amount or the Series 2010-2 Maximum Suzuki Amount.
“Series 2010-2 Maximum
Mitsubishi Amount” means, as of any day, an amount equal to 10% of the
aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
“Series 2010-2 Maximum
Non-Eligible Manufacturer Amount” means, as of any day, an amount
equal to 3% of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
“Series 2010-2 Maximum
Non-Program Vehicle Amount” means, as of any day, an amount equal to the
Series 2010-2 Maximum Non-Program Vehicle Percentage of the aggregate Net Book
Value of all Vehicles leased under the Leases on such day.
“Series 2010-2 Maximum
Non-Program Vehicle Percentage” means, as of any date of determination,
the sum of (a) 85% and (b) a fraction, expressed as a percentage, the numerator
of which is the aggregate Net Book Value of all Redesignated Vehicles
manufactured by a Bankrupt Manufacturer or a Manufacturer with respect to which
a Manufacturer Event of Default has occurred, and in each case leased under the
AESOP I Operating Lease or the Finance Lease as of such date, and the
denominator of which is the aggregate Net Book Value of all Vehicles leased
under the Leases as of such date.
“Series 2010-2 Maximum
Specified States Amount” means, as of any day, an amount equal to 7.5% of
the aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
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“Series 2010-2 Maximum Suzuki
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 2010-2 Monthly
Interest” means, with respect to any Series 2010-2 Interest Period, the
sum of the Class A Monthly Interest and the Class B Monthly Interest in each
case with respect to such Series 2010-2 Interest Period.
“Series 2010-2 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 2.2(a), (b), (c) or (d) would have been
allocated to the Series 2010-2 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 2.2(a),
(b), (c) or (d) have been allocated to the Series 2010-2 Collection Account
(without giving effect to any amounts paid into the Series 2010-2 Accrued
Interest Account pursuant to the proviso in Sections 2.2(c)(ii) and/or
2.2(d)(ii)) from and excluding the preceding Distribution Date to and including
the Business Day immediately preceding such Distribution Date.
“Series 2010-2 Moody’s
Highest Enhanced Vehicle Percentage” means, as of any date
of determination, a fraction, expressed as a percentage, (a) the numerator of
which is the aggregate Net Book Value of all Vehicles leased under the AESOP I
Operating Lease that are either not subject to a Manufacturer Program or not
eligible for repurchase under a Manufacturer Program as of such date and (b) the
denominator of which is the aggregate Net Book Value of all Vehicles leased
under the AESOP I Operating Lease as of such date.
“Series 2010-2 Moody’s
Highest Enhancement Rate” means, as of any date of determination, the sum
of (a) 39% and (b) 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 2010-2 Moody’s
Intermediate Enhanced Vehicle Percentage” means, as of any date of
determination, 100% minus the sum of (a)
the Series 2010-2 Moody’s Lowest Enhanced Vehicle Percentage and (b) the Series
2010-2 Moody’s Highest Enhanced Vehicle Percentage.
“Series 2010-2 Moody’s
Intermediate Enhancement Rate” means, as of any date of determination,
39%.
“Series 2010-2 Moody’s Lowest
Enhanced Vehicle Percentage” means, as of any date of determination, a
fraction, expressed as a percentage, (a) the numerator of which is the sum,
without duplication, of (1) the aggregate Net Book Value of all Program Vehicles
leased under the AESOP I Operating Lease that are manufactured by Eligible
Program
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Manufacturers
having long-term senior unsecured debt ratings of “Baa2” or higher from Moody’s
as of such date, (2) so long as any Eligible Non-Program Manufacturer has a
long-term senior unsecured debt rating of “Baa2” or higher from Moody’s and no
Manufacturer Event of Default has occurred and is continuing with respect to
such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by
each such Eligible Non-Program Manufacturer that are subject to a Manufacturer
Program and remain eligible for repurchase thereunder as of such date and (3)
the lesser of (A) the sum of (x) if as of such date any Eligible Program
Manufacturer has a long-term senior unsecured debt rating of “Baa3” from
Moody’s, the aggregate Net Book Value of all Program Vehicles leased under the
AESOP I Operating Lease manufactured by each such Eligible Program Manufacturer
as of such date and (y) if as of such date any Eligible Non-Program Manufacturer
has a long-term senior unsecured debt rating of “Baa3” from Moody’s and no
Manufacturer Event of Default has occurred and is continuing with respect to
such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by
each such Eligible Non-Program Manufacturer that are subject to a Manufacturer
Program and remain eligible for repurchase thereunder as of such date and (B)
10% of the aggregate Net Book Value of all Vehicles leased under the AESOP I
Operating Lease as of such date and (b) the denominator of which is the
aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease as of such date.
“Series 2010-2 Moody’s Lowest
Enhancement Rate” means, as of any date of determination,
25%.
“Series 2010-2 Moody’s
Required Enhancement Percentage” means, as of any date of determination,
the sum of (i) the product of (A) the Series 2010-2 Moody’s Lowest Enhancement
Rate as of such date and (B) the Series 2010-2 Moody’s Lowest Enhanced Vehicle
Percentage as of such date, (ii) the product of (A) the Series 2010-2 Moody’s
Intermediate Enhancement Rate as of such date and (B) the Series 2010-2 Moody’s
Intermediate Enhanced Vehicle Percentage as of such date, and (iii) the product
of (A) the Series 2010-2 Moody’s Highest Enhancement Rate as of such date and
(B) the Series 2010-2 Moody’s Highest Enhanced Vehicle Percentage as of such
date.
“Series 2010-2 Note
Owner” means each beneficial owner of a Series 2010-2 Note.
“Series 2010-2 Note
Rate” means the Class A Note Rate or the Class B Note Rate, as
applicable.
“Series 2010-2
Noteholder” means any Class A Noteholder or any Class B
Noteholder.
“Series 2010-2 Notes”
means, collectively, the Class A Notes and the Class B Notes.
“Series 2010-2
Overcollateralization Amount” means (i) as of any date on which no AESOP
I Operating Lease Vehicle Deficiency exists, the Series 2010-2 Required
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Overcollateralization
Amount as of such date and (ii) as of any date on which an AESOP I Operating
Lease Vehicle Deficiency exists, the excess, if any, of (x) the Series 2010-2
AESOP I Operating Lease Loan Agreement Borrowing Base as of such date over (y)
the Series 2010-2 Invested Amount as of such date.
“Series 2010-2 Past Due Rent
Payment” is defined in Section 2.2(g).
“Series 2010-2
Percentage” means, as of any date of determination, a fraction, expressed
as a percentage, the numerator of which is the Series 2010-2 Invested Amount as
of such date and the denominator of which is the Aggregate Invested Amount as of
such date.
“Series 2010-2 Principal
Allocation” is defined in Section 2.2(a)(ii).
“Series 2010-2 Rapid
Amortization Period” means the period beginning at the close of business
on the Business Day immediately preceding the day on which an Amortization Event
is deemed to have occurred with respect to any Class of Series 2010-2 Notes and
ending upon the earliest to occur of (i) the date on which the Series 2010-2
Notes are fully paid, (ii) the Series 2010-2 Final Distribution Date and (iii)
the termination of the Indenture.
“Series 2010-2 Reimbursement
Agreement” means any and each agreement providing for the reimbursement
of a Series 2010-2 Letter of Credit Provider for draws under its Series 2010-2
Letter of Credit as the same may be amended, supplemented, restated or otherwise
modified from time to time.
“Series 2010-2 Repurchase
Amount” is defined in Section 5.1.
“Series 2010-2 Required AESOP
I Operating Lease Vehicle Amount” means, as of any date of determination,
the sum of the Series 2010-2 Invested Amount and the Series 2010-2 Required
Overcollateralization Amount as of such date.
“Series 2010-2 Required
Enhancement Amount” means, as of any date of determination, the sum of
(i) the product of the Series 2010-2 Required Enhancement Percentage as of such
date and the Series 2010-2 Invested Amount as of such date, (ii) the Series
2010-2 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the Non-Program Vehicle Amount
as of such date over the Series 2010-2 Maximum Non-Program Vehicle Amount as of
such date, (iii) the Series 2010-2 AESOP I Operating Lease Vehicle Percentage as
of the immediately preceding Business Day of the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Mitsubishi and leased
under the Leases as of such date over the Series 2010-2 Maximum Mitsubishi
Amount as of such date, (iv) the Series 2010-2 AESOP I Operating Lease Vehicle
Percentage as of the immediately preceding Business Day of the excess, if any,
of the aggregate Net Book Value of all Vehicles manufactured by Isuzu or Subaru,
individually, and leased under the Leases as of such date over the Series 2010-2
Maximum Individual Isuzu/Subaru Amount as of such date, (v) the Series 2010-2
AESOP I Operating Lease Vehicle Percentage as of the immediately preceding
Business Day of the excess, if any, of the aggregate Net Book Value of all
Vehicles manufactured by Hyundai and leased under the Leases as of such date
over the Series 2010-2 Maximum Hyundai Amount as of such date, (vi) the Series
2010-2 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the
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aggregate
Net Book Value of all Vehicles manufactured by Kia and leased under the Leases
as of such date over the Series 2010-2 Maximum Kia Amount as of such date, (vii)
the Series 2010-2 AESOP I Operating Lease Vehicle Percentage as of the
immediately preceding Business Day of the excess, if any, of the aggregate Net
Book Value of all Vehicles manufactured by Suzuki and leased under the Leases as
of such date over the Series 2010-2 Maximum Suzuki Amount as of such date,
(viii) the Series 2010-2 AESOP I Operating Lease Vehicle Percentage as of the
immediately preceding Business Day of the excess, if any, of the Specified
States Amount as of such date over the Series 2010-2 Maximum Specified States
Amount as of such date and (ix) the Series 2010-2 AESOP I Operating Lease
Vehicle Percentage as of the immediately preceding Business Day of the excess,
if any, of the Non-Eligible Manufacturer Amount as of such date over the Series
2010-2 Maximum Non-Eligible Manufacturer Amount as of such date.
“Series 2010-2 Required
Enhancement Percentage” means, as of any date of determination, the
greater of (i) the Series 2010-2 DBRS Enchancement Percentage as of such date
and (ii) the Series 2010-2 Moody’s Required Enhancement Percentage as of such
date.
“Series 2010-2 Required
Liquidity Amount” means, as of any date of determination, an amount equal
to the product of 2.50% and the Series 2010-2 Invested Amount as of such
date.
“Series 2010-2 Required
Overcollateralization Amount” means, as of any date of determination, the
excess, if any, of the Series 2010-2 Required Enhancement Amount over the sum of
(i) the Series 2010-2 Letter of Credit Amount as of such date, (ii) the Series
2010-2 Available Reserve Account Amount on such date and (iii) the amount of
cash and Permitted Investments on deposit in the Series 2010-2 Collection
Account (not including amounts allocable to the Series 2010-2 Accrued Interest
Account) and the Series 2010-2 Excess Collection Account on such
date.
“Series 2010-2 Required
Reserve Account Amount” means, for any date of determination, an amount
equal to the greater of (a) the excess, if any, of the Series 2010-2
Required Liquidity Amount as of such date over the Series 2010-2 Letter of
Credit Liquidity Amount as of such date and (b) the excess, if any, of the
Series 2010-2 Required Enhancement Amount over the Series 2010-2 Enhancement
Amount (excluding therefrom the Series 2010-2 Available Reserve Account Amount
and calculated after giving effect to any payments of principal to be made on
the Series 2010-2 Notes) as of such date.
“Series 2010-2 Reserve
Account” is defined in Section 2.7(a).
“Series 2010-2 Reserve
Account Collateral” is defined in Section 2.7(d).
“Series 2010-2 Reserve
Account Surplus” means, with respect to any Distribution Date, the
excess, if any, of the Series 2010-2 Available Reserve Account Amount over the
Series 2010-2 Required Reserve Account Amount on such Distribution
Date.
“Series 2010-2 Revolving
Period” means the period from and including the Series 2010-2 Closing
Date to the earlier of (i) the commencement of the Series 2010-2 Controlled
Amortization Period and (ii) the commencement of the Series 2010-2 Rapid
Amortization Period; provided that if the
Series 2010-2 Notes are paid in full on or prior to the Series
2010-2
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Expected
Final Distribution Date, then the Series 2010-2 Revolving Period shall also
include the period from and including the first day of the calendar month during
which the Distribution Date on which the Series 2010-2 Notes are paid in full
occurs to the commencement of the Series 2010-2 Rapid Amortization
Period.
“Series 2010-2
Shortfall” means, on any Distribution Date, the sum of the Class A
Shortfall and the Class B Shortfall on such Distribution Date.
“Series 2010-2 Termination
Date” means the August 2014 Distribution Date.
“Series 2010-2 Trustee’s
Fees” means, for any Distribution Date during the Series 2010-2 Rapid
Amortization Period on which there exists a Series 2010-2 Lease Interest Payment
Deficit, a portion of the fees payable to the Trustee in an amount equal to the
product of (i) the Series 2010-2 Percentage as of the beginning of the Series
2010-2 Interest Period ending on the day preceding such Distribution Date and
(ii) the fees owing to the Trustee under the Indenture; provided that the
Series 2010-2 Trustee’s Fees in the aggregate for all Distribution Dates shall
not exceed 1.1% of the Series 2010-2 Required AESOP I Operating Lease Vehicle
Amount as of the last day of the Series 2010-2 Revolving Period.
“Series 2010-2 Unpaid Demand
Amount” means, with respect to any single draw pursuant to Section 2.5(c)
or (d) on the Series 2010-2 Letters of Credit, the aggregate amount drawn by the
Trustee on all Series 2010-2 Letters of Credit.
“Series 2010-3 Notes”
means the Series of Notes designated as Series 2010-3.
“Supplement” is
defined in the preamble hereto.
“Temporary Global Class A
Note” is defined in Section 4.2.
“Temporary Global Class B
Note” is defined in Section 4.2.
“Temporary Global Series
2010-2 Notes” is defined in Section 4.2.
“Termination Date
Disbursement” means an amount drawn under a Series 2010-2 Letter of
Credit pursuant to a Certificate of Termination Date Demand.
“Termination
Disbursement” means an amount drawn under a Series 2010-2 Letter of
Credit pursuant to a Certificate of Termination Demand.
“Trustee” is defined
in the recitals hereto.
“Unpaid Demand Note
Disbursement” means an amount drawn under a Series 2010-2 Letter of
Credit pursuant to a Certificate of Unpaid Demand Note Demand.
(c) Any
amounts calculated by reference to the Series 2010-2 Invested Amount (or any
component thereof) on any date shall, unless otherwise stated, be calculated
after giving effect to any payment of principal made to the applicable Series
2010-2 Noteholders on such date.
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ARTICLE
II
SERIES
2010-2 ALLOCATIONS
With
respect to the Series 2010-2 Notes, the following shall apply:
Section
2.1. Establishment of Series
2010-2 Collection Account, Series 2010-2 Excess Collection Account and Series
2010-2 Accrued Interest Account. (a) All
Collections allocable to the Series 2010-2 Notes shall be allocated to the
Collection Account.
(b) The
Trustee will create three administrative subaccounts within the Collection
Account for the benefit of the Series 2010-2 Noteholders: the Series
2010-2 Collection Account (such sub-account, the “Series 2010-2 Collection
Account”), the Series 2010-2 Excess Collection Account (such sub-account,
the “Series 2010-2
Excess Collection Account”) and the Series 2010-2 Accrued Interest
Account (such sub-account, the “Series 2010-2 Accrued
Interest Account”).
Section
2.2. Allocations with Respect to
the Series 2010-2 Notes. The
net proceeds from the initial sale of each Class of the Series 2010-2 Notes will
be deposited into the Collection Account. On each Business Day on
which Collections are deposited into the Collection Account (each such date, a
“Series 2010-2 Deposit
Date”), the Administrator will direct the Trustee in writing pursuant to
the Administration Agreement to allocate all amounts deposited into the
Collection Account in accordance with the provisions of this Section
2.2:
(a) Allocations of Collections
During the Series 2010-2 Revolving Period. During the Series
2010-2 Revolving Period, the Administrator will direct the Trustee in writing
pursuant to the Administration Agreement to allocate on each day, prior to
11:00 a.m. (New York City time) on each Series 2010-2 Deposit Date, all
amounts deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2010-2 Collection Account an amount equal to the Series 2010-2
Invested Percentage (as of such day) of the aggregate amount of Interest
Collections on such day. All such amounts allocated to the Series
2010-2 Collection Account shall be further allocated to the Series 2010-2
Accrued Interest Account; and
(ii) allocate
to the Series 2010-2 Excess Collection Account an amount equal to the sum of (A)
the Series 2010-2 Invested Percentage (as of such day) of the aggregate amount
of Principal Collections on such day (for any such day, the “Series 2010-2 Principal
Allocation”) and (B) the proceeds from the issuance of any Class of the
Series 2010-2 Notes.
(b) Allocations of Collections
During the Series 2010-2 Controlled Amortization Period. With
respect to the Series 2010-2 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
2010-2 Deposit Date, all amounts deposited into the Collection Account as set
forth below:
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(i) allocate
to the Series 2010-2 Collection Account an amount determined as set forth in
Section 2.2(a)(i) above for such day, which amount shall be further allocated to
the Series 2010-2 Accrued Interest Account; and
(ii) allocate
to the Series 2010-2 Collection Account an amount equal to the Series 2010-2
Principal Allocation for such day, which amount shall be used to make principal
payments in respect of the Series 2010-2 Notes in accordance with Section 2.5,
(A) first, in respect of the Class A Notes in an amount equal to the Class A
Controlled Distribution Amount and (B) second, in respect of the Class B Notes
in an amount equal to the Class B Controlled Distribution Amount, in each case
with respect to the Related Month; provided, however, that if the
Monthly Total Principal Allocation exceeds the sum of the Class A Controlled
Distribution Amount and the Class B Controlled Distribution Amount, in each case
with respect to the Related Month, then the amount of such excess shall be
allocated to the Series 2010-2 Excess Collection Account.
(c) Allocations of Collections
During the Series 2010-2 Rapid Amortization Period. With
respect to the Series 2010-2 Rapid Amortization Period, other than after the
occurrence of an Event of Bankruptcy with respect to ABCR, any other Lessee or
any Permitted Sublessee, 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 2010-2 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2010-2 Collection Account an amount determined as set forth in
Section 2.2(a)(i) above for such day, which amount shall be further allocated to
the Series 2010-2 Accrued Interest Account; and
(ii) allocate
to the Series 2010-2 Collection Account an amount equal to the Series 2010-2
Principal Allocation for such day, which amount shall be used in accordance with
Section 2.5 to make principal payments in respect of the Class A Notes until the
Class A Notes have been paid in full, and after the Class A Notes have been paid
in full shall be used to make principal payments in respect of the Class B Notes
until the Class B Notes have been paid in full; provided that if on
any Determination Date (A) the Administrator determines that the amount
anticipated to be available from Interest Collections allocable to the Series
2010-2 Notes and other amounts available pursuant to Section 2.3 to pay the sum
of (x) the Series 2010-2 Monthly Interest for the next succeeding Distribution
Date and (y) any unpaid Series 2010-2 Shortfall on such Distribution Date
(together with interest on such Series 2010-2 Shortfall) will be less than the
sum of the Series 2010-2 Monthly Interest for such Distribution Date and such
Series 2010-2 Shortfall and (B) the Series 2010-2 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 2010-2
Notes during the Related Month equal to the lesser of such insufficiency and the
Series 2010-2 Enhancement Amount to the Series 2010-2 Accrued Interest Account
to be treated as Interest Collections on such Distribution Date.
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(d) Allocations of Collections
after the Occurrence of an Event of Bankruptcy. After the
occurrence of an Event of Bankruptcy with respect to ABCR, any other Lessee or
any Permitted Sublessee, 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 2010-2 Deposit Date, all
amounts attributable to the AESOP I Operating Lease Loan Agreement deposited
into the Collection Account as set forth below:
(i) allocate
to the Series 2010-2 Collection Account an amount equal to the Series 2010-2
AESOP I Operating Lease Vehicle Percentage as of the date of the occurrence of
such Event of Bankruptcy of the aggregate amount of Interest Collections made
under the AESOP I Operating Lease Loan Agreement for such day. All
such amounts allocated to the Series 2010-2 Collection Account shall be further
allocated to the Series 2010-2 Accrued Interest Account;
(ii) allocate
to the Series 2010-2 Collection Account an amount equal to the Series 2010-2
AESOP I Operating Lease Vehicle Percentage as of the date of the occurrence of
such Event of Bankruptcy of the aggregate amount of Principal Collections made
under the AESOP I Operating Lease Loan Agreement, which amount shall be used in
accordance with Section 2.5 to make principal payments in respect of the Class A
Notes until the Class A Notes have been paid in full, and after the Class A
Notes have been paid in full shall be used to make principal payments in respect
of the Class B Notes until the Class B Notes have been paid in full; provided that if on
any Determination Date (A) the Administrator determines that the amount
anticipated to be available from Interest Collections allocable to the Series
2010-2 Notes and other amounts available pursuant to Section 2.3 to pay the sum
of (x) the Series 2010-2 Monthly Interest for the next succeeding Distribution
Date and (y) any unpaid Series 2010-2 Shortfall on such Distribution Date
(together with interest on such Series 2010-2 Shortfall) will be less than the
sum of the Series 2010-2 Interest for such Distribution Date and such Series
2010-2 Shortfall and (B) the Series 2010-2 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 2010-2 Notes during
the Related Month equal to the lesser of such insufficiency and the Series
2010-2 Enhancement Amount to the Series 2010-2 Accrued Interest Account to be
treated as Interest Collections on such Distribution Date.
(e) Series 2010-2 Excess
Collection Account. Amounts allocated to the Series 2010-2
Excess Collection Account on any Series 2010-2 Deposit Date will be (w) first,
deposited in the Series 2010-2 Reserve Account in an amount up to the excess, if
any, of the Series 2010-2 Required Reserve Account Amount for such date over the
Series 2010-2 Available Reserve Account Amount for such date, (x) second, used
to pay the principal amount of other Series of Notes that are then in
amortization, (y) third, 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 and (B) 100% minus the Loan
Payment Allocation Percentage with respect to
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the AESOP
I Operating Lease Loan Agreement as of such date and (C) the amount of any
remaining funds and (z) fourth, paid to ABRCF 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
available for financing thereunder; provided, however, that in the
case of clauses (x), (y) and (z), that no Amortization Event, Series 2010-2
Enhancement Deficiency or AESOP I Operating Lease Vehicle Deficiency would
result therefrom or exist immediately thereafter. Upon the occurrence
of an Amortization Event and once a Trust Officer has actual knowledge of the
Amortization Event, funds on deposit in the Series 2010-2 Excess Collection
Account will be withdrawn by the Trustee, deposited in the Series 2010-2
Collection Account and allocated as Principal Collections to reduce the Series
2010-2 Invested Amount on the immediately succeeding Distribution
Date.
(f) Allocations From Other
Series. Amounts allocated to other Series of Notes that have
been reallocated by ABRCF to the Series 2010-2 Notes (i) during the Series
2010-2 Revolving Period shall be allocated to the Series 2010-2 Excess
Collection Account and applied in accordance with Section 2.2(e) and (ii) during
the Series 2010-2 Controlled Amortization Period or the Series 2010-2
Rapid Amortization Period shall be allocated to the Series 2010-2 Collection
Account and applied in accordance with Section 2.2(b) or 2.2(c), as
applicable, to make principal payments in respect of the Series 2010-2
Notes.
(g) Past Due Rent
Payments. Notwithstanding the foregoing, if in the case of
Section 2.2(a) or (b), after the occurrence of a Series 2010-2 Lease Payment
Deficit, the Lessees shall make payments of Monthly Base Rent or other amounts
payable by the Lessees under the Leases on or prior to the fifth Business Day
after the occurrence of such Series 2010-2 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 2010-2 Collection
Account an amount equal to the Series 2010-2 Invested Percentage as of the date
of the occurrence of such Series 2010-2 Lease Payment Deficit of the Collections
attributable to such Past Due Rent Payment (the “Series 2010-2 Past Due Rent
Payment”). The Administrator shall instruct the Trustee in
writing pursuant to the Administration Agreement to withdraw from the Series
2010-2 Collection Account and apply the Series 2010-2 Past Due Rent Payment in
the following order:
(i) if the
occurrence of such Series 2010-2 Lease Payment Deficit resulted in one or more
Lease Deficit Disbursements being made under the Series 2010-2 Letters of
Credit, pay to each Series 2010-2 Letter of Credit Provider who made such a
Lease Deficit Disbursement for application in accordance with the provisions of
the applicable Series 2010-2 Reimbursement Agreement an amount equal to the
lesser of (x) the unreimbursed amount of such Series 2010-2 Letter of
Credit Provider’s Lease Deficit Disbursement and (y) such Series 2010-2 Letter
of Credit Provider’s Pro Rata Share of the Series 2010-2 Past Due Rent
Payment;
(ii) if the
occurrence of such Series 2010-2 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2010-2 Cash Collateral
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Account,
deposit in the Series 2010-2 Cash Collateral Account an amount equal to the
lesser of (x) the amount of the Series 2010-2 Past Due Rent Payment remaining
after any payment pursuant to clause (i) above and (y) the amount withdrawn from
the Series 2010-2 Cash Collateral Account on account of such Series 2010-2 Lease
Payment Deficit;
(iii) if the
occurrence of such Series 2010-2 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2010-2 Reserve Account pursuant to Section 2.3(d),
deposit in the Series 2010-2 Reserve Account an amount equal to the lesser of
(x) the amount of the Series 2010-2 Past Due Rent Payment remaining after any
payments pursuant to clauses (i) and (ii) above and (y) the excess, if any, of
the Series 2010-2 Required Reserve Account Amount over the Series 2010-2
Available Reserve Account Amount on such day;
(iv) allocate
to the Series 2010-2 Accrued Interest Account the amount, if any, by which the
Series 2010-2 Lease Interest Payment Deficit, if any, relating to such Series
2010-2 Lease Payment Deficit exceeds the amount of the Series 2010-2 Past Due
Rent Payment applied pursuant to clauses (i), (ii) and (iii) above;
and
(v) treat the
remaining amount of the Series 2010-2 Past Due Rent Payment as Principal
Collections allocated to the Series 2010-2 Notes in accordance with Section
2.2(a)(ii) or 2.2(b)(ii), as the case may be.
Section
2.3. Payments to
Noteholders. On
each Determination Date, as provided below, the Administrator shall instruct the
Paying Agent in writing pursuant to the Administration Agreement to withdraw,
and on the following Distribution Date the Paying Agent, acting in accordance
with such instructions, shall withdraw the amounts required to be withdrawn from
the Collection Account pursuant to Section 2.3(a) below in respect of all
funds available from Interest Collections processed since the preceding
Distribution Date and allocated to the holders of the Series 2010-2
Notes.
(a) Note Interest with Respect
to the Series 2010-2 Notes. On each Determination Date, the
Administrator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement as to the amount to be withdrawn and
paid pursuant to Section 2.4 from the Series 2010-2 Accrued Interest Account to
the extent funds are anticipated to be available from Interest Collections
allocable to the Series 2010-2 Notes processed from but not including the
preceding Distribution Date through the succeeding Distribution Date in respect
of (i) first,
an amount equal to the Class A Monthly Interest for the Series 2010-2 Interest
Period ending on the day preceding the related Distribution Date, (ii) second, an amount
equal to the amount of any unpaid Class A Shortfall as of the preceding
Distribution Date (together with any accrued interest on such Class A
Shortfall), (iii) third, an amount
equal to the Class B Monthly Interest for the Series 2010-2 Interest Period
ending on the day preceding the related Distribution Date and (iv) fourth, an amount
equal to the amount of any unpaid Class B Shortfall as of the preceding
Distribution Date (together with any accrued interest on such Class B
Shortfall). On the following Distribution Date, the Trustee shall
withdraw the amounts described
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in the
first sentence of this Section 2.3(a) from the Series 2010-2 Accrued Interest
Account and deposit such amounts in the Series 2010-2 Distribution
Account.
(b) Lease Payment Deficit
Notice. On or before 3:00 p.m. (New York City time) on the
Business Day immediately preceding each Distribution Date, the Administrator
shall notify the Trustee of the amount of any Series 2010-2 Lease Payment
Deficit, such notification to be in the form of Exhibit E (each a
“Lease Payment Deficit
Notice”).
(c) Draws on Series 2010-2
Letters of Credit For Series 2010-2 Lease Interest Payment
Deficits. If the Administrator determines on the Business Day
immediately preceding any Distribution Date that on such Distribution Date there
will exist a Series 2010-2 Lease Interest Payment Deficit, the Administrator
shall, on or prior to 3:00 p.m. (New York City time) on such Business Day,
instruct the Trustee in writing to draw on the Series 2010-2 Letters of Credit,
if any, and, the Trustee shall, by 5:00 p.m. (New York City time) on such
Business Day draw an amount as set forth in such notice equal to the least of
(i) such Series 2010-2 Lease Interest Payment Deficit, (ii) the excess, if any,
of the sum of (A) the amounts described in clauses (i) through (iv) of Section
2.3(a) above for such Distribution Date and (B) during the Series 2010-2 Rapid
Amortization Period, the Series 2010-2 Trustee’s Fees for such Distribution
Date, over the amounts available from the Series 2010-2 Accrued Interest Account
and (iii) the Series 2010-2 Letter of Credit Liquidity Amount on the Series
2010-2 Letters of Credit by presenting to each Series 2010-2 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 2010-2
Distribution Account on such date; provided, however, that if the
Series 2010-2 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2010-2 Cash Collateral Account and
deposit in the Series 2010-2 Distribution Account an amount equal to the lesser
of (x) the Series 2010-2 Cash Collateral Percentage on such date of the least of
the amounts described in clauses (i), (ii) and (iii) above and (y) the Series
2010-2 Available Cash Collateral Account Amount on such date and draw an amount
equal to the remainder of such amount on the Series 2010-2 Letters of
Credit.
(d) Withdrawals from Series
2010-2 Reserve Account. If the Administrator determines on any
Distribution Date that the amounts available from the Series 2010-2 Accrued
Interest Account plus the amount, if
any, to be drawn under the Series 2010-2 Letters of Credit and /or withdrawn
from the Series 2010-2 Cash Collateral Account pursuant to Section 2.3(c) are
insufficient to pay the sum of (A) the amounts described in clauses (i) through
(iv) of Section 2.3(a) above on such Distribution Date and (B) during the
Series 2010-2 Rapid Amortization Period, the Series 2010-2 Trustee’s Fees for
such Distribution Date, the Administrator shall instruct the Trustee in writing
to withdraw from the Series 2010-2 Reserve Account and deposit in the Series
2010-2 Distribution Account on such Distribution Date an amount equal to the
lesser of the Series 2010-2 Available Reserve Account Amount and such
insufficiency. The Trustee shall withdraw such amount from the Series
2010-2 Reserve Account and deposit such amount in the Series 2010-2 Distribution
Account.
(e) [RESERVED]
(f) Balance. On
or prior to the second Business Day preceding each Distribution Date, the
Administrator shall instruct the Trustee and the Paying Agent in writing
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pursuant
to the Administration Agreement to pay the balance (after making the payments
required in Section 2.4), if any, of the amounts available from the Series
2010-2 Accrued Interest Account and the Series 2010-2 Distribution Account,
plus the
amount, if any, drawn under the Series 2010-2 Letters of Credit and/or withdrawn
from the Series 2010-2 Cash Collateral Account pursuant to Section 2.3(c) plus the amount, if
any, withdrawn from the Series 2010-2 Reserve Account pursuant to Section 2.3(d)
as follows:
(i) on each
Distribution Date during the Series 2010-2 Revolving Period or the Series 2010-2
Controlled Amortization Period, (1) first, to the Administrator, an amount equal
to the Series 2010-2 Percentage as of the beginning of the Series 2010-2
Interest Period ending on the day preceding such Distribution Date of the
portion of the Monthly Administration Fee payable by ABRCF (as specified in
clause (iii) of the definition thereof) for such Series 2010-2 Interest Period,
(2) second, to the Trustee, an amount equal to the Series 2010-2 Percentage as
of the beginning of such Series 2010-2 Interest Period of the fees owing to the
Trustee under the Indenture for such Series 2010-2 Interest Period, (3) third 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 2010-2
Percentage as of the beginning of such Series 2010-2 Interest Period of such
Carrying Charges (other than Carrying Charges provided for above) for such
Series 2010-2 Interest Period and (4) fourth, the balance, if any (“Excess Collections”),
shall be withdrawn by the Paying Agent from the Series 2010-2 Collection Account
and deposited in the Series 2010-2 Excess Collection Account; and
(ii) on each
Distribution Date during the Series 2010-2 Rapid Amortization Period, (1) first,
to the Trustee, an amount equal to the Series 2010-2 Percentage as of the
beginning of such Series 2010-2 Interest Period ending on the day preceding such
Distribution Date of the fees owing to the Trustee under the Indenture for such
Series 2010-2 Interest Period, (2) second, to the Administrator, an amount equal
to the Series 2010-2 Percentage as of the beginning of such Series 2010-2
Interest Period of the portion of the Monthly Administration Fee (as specified
in clause (iii) of the definition thereof) payable by ABRCF for such Series
2010-2 Interest Period, (3) third, 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 2010-2 Percentage as of the beginning of
such Series 2010-2 Interest Period of such Carrying Charges (other than Carrying
Charges provided for above) for such Series 2010-2 Interest Period and (4)
fourth, so long as the Series 2010-2 Invested Amount is greater than the Monthly
Total Principal Allocations for the Related Month, an amount equal to the excess
of the Series 2010-2 Invested Amount over the Monthly Total Principal
Allocations for the Related Month shall be treated as Principal
Collections.
(g) Shortfalls. (i) If
the amounts described in Section 2.3 are insufficient to pay the Class A Monthly
Interest on any Distribution Date, payments of interest to the Class A
Noteholders will be reduced on a pro rata basis by the
amount of such deficiency. The aggregate amount, if any, of such
deficiency on any Distribution Date, together with the aggregate unpaid amount
of any such deficiencies with respect to all prior Distribution Dates, shall be
referred to as the “Class A
Shortfall”. Interest shall accrue on the Class A Shortfall at
the Class A Note Rate.
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(ii) If the
amounts described in Section 2.3 are insufficient to pay the amounts described
in clauses (i) and (ii) of Section 2.3(a) and the Class B Monthly Interest on
any Distribution Date, payments of interest to the Class B Noteholders will be
reduced on a pro rata basis by the
amount of such deficiency. The aggregate amount, if any, of such
deficiency on any Distribution Date (which deficiency on any Distribution Date
shall not exceed the Class B Monthly Interest for the Series 2010-2 Interest
Period ended on the day preceding such Distribution Date), together with the
aggregate unpaid amount of any such deficiencies with respect to all prior
Distribution Dates, shall be referred to as the “Class B
Shortfall”. Interest shall accrue on the Class B Shortfall at
the Class B Note Rate.
Section
2.4. Payment of Note
Interest. (a) On
each Distribution Date, subject to Section 9.8 of the Base Indenture, the Paying
Agent shall, in accordance with Section 6.1 of the Base Indenture, pay the
following amounts in the following order of priority from amounts deposited into
the Series 2010-2 Distribution Account pursuant to Section 2.3:
(i) first, to the Class A
Noteholders, the amounts due to the Class A Noteholders described in Sections
2.3(a)(i) and (ii); and
(ii) second, to the Class
B Noteholders the amounts due to the Class B Noteholders described in Sections
2.3(a)(iii) and (iv).
Section
2.5. Payment of Note
Principal. (a) Monthly Payments During
Controlled Amortization Period or Rapid Amortization
Period. On each Determination Date, commencing on the second
Determination Date during the Series 2010-2 Controlled Amortization Period or
the first Determination Date after the commencement of the Series 2010-2 Rapid
Amortization Period, the Administrator shall instruct the Trustee and the Paying
Agent in writing pursuant to the Administration Agreement and in accordance with
this Section 2.5 as to (1) the amount allocated to the Series 2010-2 Notes
during the Related Month pursuant to Section 2.2(b)(ii), (c)(ii) or (d)(ii), as
the case may be, (2) any amounts to be drawn on the Series 2010-2 Demand Notes
and/or on the Series 2010-2 Letters of Credit (or withdrawn from the Series
2010-2 Cash Collateral Account) pursuant to this Section 2.5 and (3) any amounts
to be withdrawn from the Series 2010-2 Reserve Account pursuant to this Section
2.5 and deposited into the Series 2010-2 Distribution Account. On the
Distribution Date following each such Determination Date, the Trustee shall
withdraw the amount allocated to the Series 2010-2 Notes during the Related
Month pursuant to Section 2.2(b)(ii), (c)(ii) or (d)(ii), as the case may be,
from the Series 2010-2 Collection Account and deposit such amount in the Series
2010-2 Distribution Account, to be paid to the holders of the Series 2010-2
Notes.
(b) Principal Draws on Series
2010-2 Letters of Credit. If the Administrator determines on
the Business Day immediately preceding any Distribution Date during the Series
2010-2 Rapid Amortization Period that on such Distribution Date there will exist
a Series 2010-2 Lease Principal Payment Deficit, the Administrator shall
instruct the Trustee in writing to draw on the Series 2010-2 Letters of Credit,
if any, as provided below. Upon receipt of a notice by the Trustee
from the Administrator in respect of a Series 2010-2 Lease Principal Payment
Deficit on or prior to 3:00 p.m. (New York City time) on the Business Day
immediately preceding a Distribution Date, the Trustee shall, by 5:00 p.m. (New
York City time) on such Business Day draw an amount as set forth in such notice
equal to the least of (i) such Series 2010-2 Lease
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Principal
Payment Deficit, (ii) the Principal Deficit Amount for such Distribution Date
and (iii) the Series 2010-2 Letter of Credit Liquidity Amount on the Series
2010-2 Letters of Credit by presenting to each Series 2010-2 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 2010-2
Distribution Account on such date; provided, however, that if the
Series 2010-2 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2010-2 Cash Collateral Account and
deposit in the Series 2010-2 Distribution Account an amount equal to the lesser
of (x) the Series 2010-2 Cash Collateral Percentage for such date of the lesser
of the Series 2010-2 Lease Principal Payment Deficit and the Principal Deficit
Amount for such Distribution Date and (y) the Series 2010-2 Available Cash
Collateral Account Amount on such date and draw an amount equal to the remainder
of such amount on the Series 2010-2 Letters of
Credit. Notwithstanding any of the preceding to the contrary, during
the period after the date of the filing by any of the Lessees of a petition for
relief under Chapter 11 of the Bankruptcy Code until the date on which each of
the Lessees shall have resumed making all payments of the portion of Monthly
Base Rent relating to Loan Interest required to be made under the AESOP I
Operating Lease, the Administrator shall only instruct the Trustee to draw on
the Series 2010-2 Letters of Credit (or withdraw from the Series 2010-2 Cash
Collateral Account, if applicable) pursuant to this Section 2.5(b), and the
Trustee shall only draw (or withdraw), an amount equal to the lesser of (i) the
amount determined as provided in the preceding sentence and (ii) the excess, if
any, of (x) the Series 2010-2 Liquidity Amount on such date over (y) the Series
2010-2 Required Liquidity Amount on such date.
(c) Final Distribution
Date. Each of the entire Class A Invested Amount and the
entire Class B Invested Amount shall be due and payable on the Series 2010-2
Final Distribution Date. In connection therewith:
(i) Demand Note
Draw. If the amount to be deposited in the Series 2010-2
Distribution Account in accordance with Section 2.5(a) together with any amounts
to be deposited therein in accordance with Section 2.5(b) on the Series 2010-2
Final Distribution Date is less than the Series 2010-2 Invested Amount and there
are any Series 2010-2 Letters of Credit on such date, then, prior to 10:00 a.m.
(New York City time) on the second Business Day prior to the Series 2010-2 Final
Distribution Date, the Administrator shall instruct the Trustee in writing to
make a demand (a “Demand Notice”)
substantially in the form attached hereto as Exhibit F on the
Demand Note Issuers for payment under the Series 2010-2 Demand Notes in an
amount equal to the lesser of (i) such insufficiency and (ii) the Series 2010-2
Letter of Credit Amount. The Trustee shall, prior to 12:00 noon (New
York City time) on the second Business Day preceding such Series 2010-2 Final
Distribution Date deliver such Demand Notice to the Demand Note Issuers; provided, however, that if an
Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred and be continuing, the
Trustee shall not be required to deliver such Demand Notice to such Demand Note
Issuer. The Trustee shall cause the proceeds of any demand on the
Series 2010-2 Demand Notes to be deposited into the Series 2010-2 Distribution
Account.
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(ii) 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 the Series 2010-2
Final Distribution Date a Demand Notice has been transmitted by the Trustee to
the Demand Note Issuers pursuant to clause (i) of this Section 2.5(c) and any
Demand Note Issuer shall have failed to pay to the Trustee or deposit into the
Series 2010-2 Distribution Account the amount specified in such Demand Notice in
whole or in part or (y) due to the occurrence of an Event of Bankruptcy (or the
occurrence of an event described in clause (a) of the definition thereof,
without the lapse of a period of 60 consecutive days) with respect to one or
more of the Demand Note Issuers, the Trustee shall not have delivered such
Demand Notice to any Demand Note Issuer on the second Business Day preceding the
Series 2010-2 Final Distribution Date, then, in the case of (x) or (y) the
Trustee shall draw on the Series 2010-2 Letters of Credit by 12:00 noon (New
York City time) on such Business Day an amount equal to the lesser of (a) the
amount that the Demand Note Issuers so failed to pay under the Series 2010-2
Demand Notes (or, the amount that the Trustee failed to demand for payment
thereunder) and (b) the Series 2010-2 Letter of Credit Amount on such Business
Day by presenting to each Series 2010-2 Letter of Credit Provider a draft
accompanied by a Certificate of Unpaid Demand Note Demand; provided, however, that if the
Series 2010-2 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2010-2 Cash Collateral Account and
deposit in the Series 2010-2 Distribution Account an amount equal to the lesser
of (x) the Series 2010-2 Cash Collateral Percentage on such Business Day of the
amount that the Demand Note Issuers so failed to pay under the Series 2010-2
Demand Notes (or, the amount that the Trustee failed to demand for payment
thereunder) and (y) the Series 2010-2 Available Cash Collateral Account Amount
on such Business Day and draw an amount equal to the remainder of the amount
that the Demand Note Issuers failed to pay under the Series 2010-2 Demand Notes
(or, the amount that the Trustee failed to demand for payment thereunder) on the
Series 2010-2 Letters of Credit. The Trustee shall deposit, or cause
the deposit of, the proceeds of any draw on the Series 2010-2 Letters of Credit
and the proceeds of any withdrawal from the Series 2010-2 Cash Collateral
Account to be deposited in the Series 2010-2 Distribution Account.
(iii) Reserve Account
Withdrawal. If, after giving effect to the deposit into the
Series 2010-2 Distribution Account of the amount to be deposited in accordance
with Section 2.5(a) and the amounts described in clauses (i) and (ii) of this
Section 2.5(c), the amount to be deposited in the Series 2010-2 Distribution
Account with respect to the Series 2010-2 Final Distribution Date is or will be
less than the Series 2010-2 Invested Amount, then, prior to 12:00 noon (New York
City time) on the second Business Day prior to such Series 2010-2 Final
Distribution Date, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 2010-2 Reserve Account, an amount equal to the
lesser of the Series 2010-2 Available Reserve Account Amount and such remaining
insufficiency and deposit it in the Series 2010-2 Distribution Account on such
Series 2010-2 Final Distribution Date.
(d) Principal Deficit
Amount. On each Distribution Date, other than the Series
2010-2 Final Distribution Date, on which the Principal Deficit Amount is greater
than zero, amounts shall be transferred to the Series 2010-2 Distribution
Account as follows:
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(i) Demand Note
Draw. If on any Determination Date, the Administrator
determines that the Principal Deficit Amount with respect to the next succeeding
Distribution Date will be greater than zero and there are any Series 2010-2
Letters of Credit on such date, prior to 10:00 a.m. (New York City time) on the
second Business Day prior to such 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 2010-2 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 definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred and be continuing, the
Trustee shall not be required to deliver such Demand Notice to such Demand Note
Issuer. The Trustee shall cause the proceeds of any demand on the
Series 2010-2 Demand Note to be deposited into the Series 2010-2 Distribution
Account.
(ii) 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 into the
Series 2010-2 Distribution Account the amount specified in such Demand Notice in
whole or in part or (y) due to the occurrence of an Event of Bankruptcy (or the
occurrence of an event described in clause (a) of the definition thereof,
without the lapse of a period of 60 consecutive days) with respect to any Demand
Note Issuer, the Trustee shall not have delivered such Demand Notice to 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 2010-2 Letters of Credit an amount equal to the lesser of
(i) Series 2010-2 Letter of Credit Amount and (ii) the aggregate
amount that the Demand Note Issuers failed to pay under the Series 2010-2 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
by presenting to each Series 2010-2 Letter of Credit Provider a draft
accompanied by a Certificate of Unpaid Demand Note Demand; provided, however, that if the
Series 2010-2 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2010-2 Cash Collateral Account and
deposit in the Series 2010-2 Distribution Account an amount equal to the lesser
of (x) the Series 2010-2 Cash Collateral Percentage on such Business Day of the
aggregate amount that the Demand Note Issuers so failed to pay under the Series
2010-2 Demand Notes (or, the amount that the Trustee failed to demand for
payment thereunder) and (y) the Series 2010-2 Available Cash Collateral Account
Amount on such Business Day and draw an amount equal to the remainder of the
aggregate amount that the Demand Note Issuers failed to pay under the Series
2010-2 Demand Notes (or, the amount that the Trustee failed to demand for
payment thereunder) on the Series 2010-2 Letters of Credit. The
Trustee shall deposit into, or cause the deposit of, the proceeds of any draw on
the Series 2010-2 Letters of Credit and the proceeds of any withdrawal from the
Series 2010-2 Cash Collateral Account to be deposited in the Series 2010-2
Distribution Account.
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(iii) Reserve Account
Withdrawal. If the Series 2010-2 Letter of Credit Amount will
be less than the Principal Deficit Amount on any Distribution Date, then, prior
to 12:00 noon (New York City time) on the second Business Day prior to such
Distribution Date, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 2010-2 Reserve Account, an amount equal to the lesser
of (x) the Series 2010-2 Available Reserve Account Amount and (y) the amount by
which the Principal Deficit Amount exceeds the amounts to be deposited in the
Series 2010-2 Distribution Account in accordance with clauses (i) and (ii) of
this Section 2.5(d) and deposit it in the Series 2010-2 Distribution Account on
such Distribution Date.
(e) Distributions. (i) Class A
Notes. On each Distribution Date occurring on or after the
date a withdrawal is made from the Series 2010-2 Collection Account pursuant to
Section 2.5(a) or amounts are deposited in the Series 2010-2 Distribution
Account pursuant to Section 2.5(b), (c) or (d) the Paying Agent shall, in
accordance with Section 6.1 of the Base Indenture, pay pro rata to each Class A
Noteholder from the Series 2010-2 Distribution Account the amount deposited
therein pursuant to Section 2.5(a), (b), (c) or (d), to the extent necessary to
pay the Class A Controlled Amortization Amount during the Series 2010-2
Controlled Amortization Period or to the extent necessary to pay the Class A
Invested Amount during the Series 2010-2 Rapid Amortization Period.
(ii) Class B
Notes. On each Distribution Date occurring on or after the
date a withdrawal is made from the Series 2010-2 Collection Account pursuant to
Section 2.5(a) or amounts are deposited in the Series 2010-2 Distribution
Account pursuant to Section 2.5(b), (c) or (d) the Paying Agent shall, in
accordance with Section 6.1 of the Base Indenture, pay pro rata to each Class B
Noteholder from the Series 2010-2 Distribution Account the amount deposited
therein pursuant to Section 2.5(a), (b), (c) or (d) less the aggregate amount
applied to make the payments required pursuant to Section 2.5(e)(i), to the
extent necessary to pay the Class B Controlled Amortization Amount during the
Series 2010-2 Controlled Amortization Period or to the extent necessary to pay
the Class B Invested Amount during the Series 2010-2 Rapid Amortization
Period.
Section
2.6. Administrator’s Failure to
Instruct the Trustee to Make a Deposit or Payment. If
the Administrator fails to give notice or instructions to make any payment from
or deposit into the Collection Account required to be given by the
Administrator, at the time specified in the Administration Agreement or any
other Related Document (including applicable grace periods), the Trustee shall
make such payment or deposit into or from the Collection Account without such
notice or instruction from the Administrator, provided that the
Administrator, upon request of the Trustee, promptly provides the Trustee with
all information necessary to allow the Trustee to make such a payment or
deposit. When any payment or deposit hereunder or under any other
Related Document is required to be made by the Trustee or the Paying Agent at or
prior to a specified time, the Administrator shall deliver any applicable
written instructions with respect thereto reasonably in advance of such
specified time.
Section
2.7. Series 2010-2 Reserve
Account. (a) Establishment of Series
2010-2 Reserve Account. ABRCF shall establish and maintain in
the name of the Series 2010-2 Agent for the benefit of the Series 2010-2
Noteholders, or cause to be established and maintained, an account (the “Series 2010-2 Reserve
Account”), bearing a designation clearly
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indicating
that the funds deposited therein are held for the benefit of the Series 2010-2
Noteholders. The Series 2010-2 Reserve Account shall be maintained
(i) with a Qualified Institution, or (ii) as a segregated trust account with the
corporate trust department of a depository institution or trust company having
corporate trust powers and acting as trustee for funds deposited in the Series
2010-2 Reserve Account; provided that, if at
any time such Qualified Institution is no longer a Qualified Institution or the
credit rating of any securities issued by such depositary institution or trust
company shall be reduced to below “BBB (low)” by DBRS or “Baa2” by Moody’s, then
ABRCF shall, within thirty (30) days of such reduction, establish a new Series
2010-2 Reserve Account with a new Qualified Institution. If the
Series 2010-2 Reserve Account is not maintained in accordance with the previous
sentence, ABRCF shall establish a new Series 2010-2 Reserve Account, within ten
(10) Business Days after obtaining knowledge of such fact, which complies with
such sentence, and shall instruct the Series 2010-2 Agent in writing to transfer
all cash and investments from the non-qualifying Series 2010-2 Reserve Account
into the new Series 2010-2 Reserve Account. Initially, the Series
2010-2 Reserve Account will be established with The Bank of New York Mellon
Trust Company, N.A.
(b) Administration of the Series
2010-2 Reserve Account. The Administrator may instruct the
institution maintaining the Series 2010-2 Reserve Account to invest funds on
deposit in the Series 2010-2 Reserve Account from time to time in Permitted
Investments; provided, however, that any
such investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were received, unless
any Permitted Investment held in the Series 2010-2 Reserve Account is held with
the Paying Agent, then such investment may mature on such Distribution Date and
such funds shall be available for withdrawal on or prior to such Distribution
Date. All such Permitted Investments will be credited to the Series
2010-2 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 ABRCF, take such
action as is required to maintain the Trustee’s security interest in the
Permitted Investments credited to the Series 2010-2 Reserve
Account. ABRCF 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 the purchase price of such
Permitted Investments. In the absence of written investment
instructions hereunder, funds on deposit in the Series 2010-2 Reserve Account
shall remain uninvested.
(c) Earnings from Series 2010-2
Reserve Account. All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Series 2010-2 Reserve
Account shall be deemed to be on deposit therein and available for
distribution.
(d) Series 2010-2 Reserve
Account Constitutes Additional Collateral for Series 2010-2
Notes. In order to secure and provide for the repayment and
payment of ABRCF’s Obligations with respect to the Series 2010-2 Notes, ABRCF
hereby grants a security interest in and assigns, pledges, grants, transfers and
sets over to the Trustee, for the benefit of the Series
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2010-2
Noteholders, all of ABRCF’s right, title and interest in and to the following
(whether now or hereafter existing or acquired): (i) the Series
2010-2 Reserve Account, including any security entitlement thereto; (ii) all
funds on deposit therein from time to time; (iii) all certificates and
instruments, if any, representing or evidencing any or all of the Series 2010-2
Reserve Account or the funds on deposit therein from time to time; (iv) all
investments made at any time and from time to time with monies in the Series
2010-2 Reserve Account, whether constituting securities, instruments, general
intangibles, investment property, financial assets or other property; (v) all
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
the Series 2010-2 Reserve Account, the funds on deposit therein from time to
time or the investments made with such funds; and (vi) all proceeds of any and
all of the foregoing, including, without limitation, cash (the items in the
foregoing clauses (i) through (vi) are referred to, collectively, as the
“Series 2010-2 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 2010-2 Reserve Account and in all proceeds thereof, and shall be the only
person authorized to originate entitlement orders in respect of the Series
2010-2 Reserve Account. The Series 2010-2 Reserve Account Collateral
shall be under the sole dominion and control of the Trustee for the benefit of
the Series 2010-2 Noteholders. The Series 2010-2 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 2010-2 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 2010-2 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.
(e) Series 2010-2 Reserve
Account Surplus. In the event that the Series 2010-2 Reserve
Account Surplus on any Distribution Date, after giving effect to all withdrawals
from the Series 2010-2 Reserve Account, is greater than zero, if no Series
2010-2 Enhancement Deficiency or AESOP I Operating Lease Vehicle Deficiency
would result therefrom or exist thereafter, the Trustee, acting in accordance
with the written instructions of the Administrator pursuant to the
Administration Agreement, shall withdraw from the Series 2010-2 Reserve Account
an amount equal to the Series 2010-2 Reserve Account Surplus and shall pay such
amount to ABRCF.
(f) Termination of Series 2010-2
Reserve Account. Upon the termination of the Indenture
pursuant to Section 11.1 of the Base Indenture, the Trustee, acting in
accordance with the written instructions of the Administrator, after the prior
payment of all amounts owing to the Series 2010-2 Noteholders and payable from
the Series 2010-2 Reserve Account as provided herein, shall withdraw from the
Series 2010-2 Reserve Account all amounts on deposit therein for payment to
ABRCF.
Section
2.8. Series 2010-2 Letters of
Credit and Series 2010-2 Cash Collateral Account. (a) Series 2010-2 Letters of
Credit and Series 2010-2 Cash Collateral Account Constitute Additional
Collateral for Series 2010-2 Notes. In order to secure and
provide for the repayment and payment of ABRCF’s Obligations with respect to the
Series 2010-2 Notes, ABRCF hereby grants a security interest in and assigns,
pledges, grants, transfers and sets over to the Trustee, for the benefit of the
Series 2010-2 Noteholders, all of ABRCF’s right, title and
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interest
in and to the following (whether now or hereafter existing or
acquired): (i) each Series 2010-2 Letter of Credit;
(ii) the Series 2010-2 Cash Collateral Account, including any security
entitlement thereto; (iii) all funds on deposit in the Series 2010-2 Cash
Collateral Account from time to time; (iv) all certificates and
instruments, if any, representing or evidencing any or all of the Series 2010-2
Cash Collateral Account or the funds on deposit therein from time to time;
(v) all investments made at any time and from time to time with monies in
the Series 2010-2 Cash Collateral Account, whether constituting securities,
instruments, general intangibles, investment property, financial assets or other
property; (vi) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for the Series 2010-2 Cash Collateral Account, the
funds on deposit therein from time to time or the investments made with such
funds; and (vii) all proceeds of any and all of the foregoing, including,
without limitation, cash (the items in the foregoing clauses (ii) through
(vii) are referred to, collectively, as the “Series 2010-2 Cash
Collateral Account Collateral”). The Trustee shall, for the
benefit of the Series 2010-2 Noteholders, possess all right, title and interest
in all funds on deposit from time to time in the Series 2010-2 Cash Collateral
Account and in all proceeds thereof, and shall be the only person authorized to
originate entitlement orders in respect of the Series 2010-2 Cash Collateral
Account. The Series 2010-2 Cash Collateral Account shall be under the
sole dominion and control of the Trustee for the benefit of the Series 2010-2
Noteholders. The Series 2010-2 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 2010-2 Cash Collateral Account; (ii) that its
jurisdiction as a securities intermediary is New York, (iii) that each item of
property (whether investment property, financial asset, security, instrument or
cash) credited to the Series 2010-2 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.
(b) Series 2010-2 Letter of
Credit Expiration Date. If prior to the date which is ten (10)
days prior to the then - scheduled Series 2010-2 Letter of Credit Expiration
Date with respect to any Series 2010-2 Letter of Credit, excluding the amount
available to be drawn under such Series 2010-2 Letter of Credit but taking into
account each substitute Series 2010-2 Letter of Credit which has been obtained
from a Series 2010-2 Eligible Letter of Credit Provider and is in full force and
effect on such date, the Series 2010-2 Enhancement Amount would be equal to or
more than the Series 2010-2 Required Enhancement Amount and the Series 2010-2
Liquidity Amount would be equal to or greater than the Series 2010-2 Required
Liquidity Amount, then the Administrator shall notify the Trustee in writing no
later than two (2) Business Days prior to such Series 2010-2 Letter of Credit
Expiration Date of such determination. If prior to the date which is
ten (10) days prior to the then-scheduled Series 2010-2 Letter of Credit
Expiration Date with respect to any Series 2010-2 Letter of Credit, excluding
the amount available to be drawn under such Series 2010-2 Letter of Credit but
taking into account a substitute Series 2010-2 Letter of Credit which has been
obtained from a Series 2010-2 Eligible Letter of Credit Provider and is in full
force and effect on such date, the Series 2010-2 Enhancement Amount would be
less than the Series 2010-2 Required Enhancement Amount or the Series 2010-2
Liquidity Amount would be less than the Series 2010-2 Required Liquidity Amount,
then the Administrator shall notify the Trustee in writing no later than two (2)
Business Days prior to such Series 2010-2 Letter of Credit Expiration Date of
(x) the greater of (A) the excess, if any, of the Series 2010-2 Required
Enhancement Amount over the Series 2010-2 Enhancement Amount,
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excluding
the available amount under such expiring Series 2010-2 Letter of Credit but
taking into account any substitute Series 2010-2 Letter of Credit which has been
obtained from a Series 2010-2 Eligible Letter of Credit Provider and is in full
force and effect, on such date, and (B) the excess, if any, of the Series 2010-2
Required Liquidity Amount over the Series 2010-2 Liquidity Amount, excluding the
available amount under such expiring Series 2010-2 Letter of Credit but taking
into account any substitute Series 2010-2 Letter of Credit which has been
obtained from a Series 2010-2 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 2010-2 Letter of Credit on such date. Upon receipt of
such notice by the Trustee on or prior to 10:00 a.m. (New York City time) on any
Business Day, the Trustee shall, by 12:00 noon (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 noon (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 2010-2 Letter of Credit by presenting a
draft accompanied by a Certificate of Termination Demand and shall cause the
Termination Disbursement to be deposited in the Series 2010-2 Cash Collateral
Account.
If the
Trustee does not receive the notice from the Administrator described in the
first paragraph of this Section 2.8(b) on or prior to the date that is two (2)
Business Days prior to each Series 2010-2 Letter of Credit Expiration Date, the
Trustee shall, by 12:00 noon (New York City time) on such Business Day draw the
full amount of such Series 2010-2 Letter of Credit by presenting a draft
accompanied by a Certificate of Termination Demand and shall cause the
Termination Disbursement to be deposited in the Series 2010-2 Cash Collateral
Account.
(c) Series 2010-2 Letter of
Credit Providers. The Administrator shall notify the Trustee
in writing within one (1) Business Day of becoming aware that (i) the long-term
senior unsecured debt credit rating of any Series 2010-2 Letter of Credit
Provider has fallen below “A (high)” as determined by DBRS or “A1” as determined
by Moody’s or (ii) the short-term senior unsecured debt credit rating of any
Series 2010-2 Letter of Credit Provider has fallen below “R-1” as determined by
DBRS or “P-1” as determined by Moody’s. At such time the
Administrator shall also notify the Trustee of (i) the greater of (A) the
excess, if any, of the Series 2010-2 Required Enhancement Amount over the Series
2010-2 Enhancement Amount, excluding the available amount under the Series
2010-2 Letter of Credit issued by such Series 2010-2 Letter of Credit Provider,
on such date, and (B) the excess, if any, of the Series 2010-2 Required
Liquidity Amount over the Series 2010-2 Liquidity Amount, excluding the
available amount under such Series 2010-2 Letter of Credit, on such date, and
(ii) the amount available to be drawn on such Series 2010-2 Letter of
Credit on such date. Upon receipt of such notice by the Trustee on or
prior to 10:00 a.m. (New York City time) on any Business Day, the Trustee shall,
by 12:00 noon (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 noon
(New York City time) on the next following Business Day), draw on such Series
2010-2 Letter of Credit in an amount equal to the lesser of the amounts in
clause (i) and clause (ii) of the immediately preceding sentence on
such Business Day by presenting a draft accompanied by a Certificate of
Termination Demand and shall cause the Termination Disbursement to be deposited
in the Series 2010-2 Cash Collateral Account.
(d) Termination Date Demands on
the Series 2010-2 Letters of Credit. Prior to 10:00 a.m. (New
York City time) on the Business Day immediately succeeding the Series
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2010-2
Letter of Credit Termination Date, the Administrator shall determine the Series
2010-2 Demand Note Payment Amount, if any, as of the Series 2010-2 Letter of
Credit Termination Date and, if the Series 2010-2 Demand Note Payment Amount is
greater than zero, instruct the Trustee in writing to draw on the Series 2010-2
Letters of Credit. Upon receipt of any such notice by the Trustee on
or prior to 11:00 a.m. (New York City time) on a Business Day, the Trustee
shall, by 12:00 noon (New York City time) on such Business Day draw an amount
equal to the lesser of (i) the Series 2010-2 Demand Note Payment Amount and
(ii) the Series 2010-2 Letter of Credit Liquidity Amount on the Series
2010-2 Letters of Credit by presenting to each Series 2010-2 Letter of Credit
Provider a draft accompanied by a Certificate of Termination Date Demand and
shall cause the Termination Date Disbursement to be deposited in the Series
2010-2 Cash Collateral Account; provided, however, that if the
Series 2010-2 Cash Collateral Account has been established and funded, the
Trustee shall draw an amount equal to the product of (a) 100% minus the Series
2010-2 Cash Collateral Percentage and (b) the lesser of the amounts referred to
in clause (i) and (ii) on such Business Day on the Series 2010-2 Letters of
Credit as calculated by the Administrator and provided in writing to the
Trustee.
(e) Draws on the Series 2010-2
Letters of Credit. If there is more than one Series 2010-2
Letter of Credit on the date of any draw on the Series 2010-2 Letters of Credit
pursuant to the terms of this Supplement, the Administrator shall instruct the
Trustee, in writing, to draw on each Series 2010-2 Letter of Credit in an amount
equal to the Pro Rata Share of the Series 2010-2 Letter of Credit Provider
issuing such Series 2010-2 Letter of Credit of the amount of such draw on the
Series 2010-2 Letters of Credit.
(f) Establishment of Series
2010-2 Cash Collateral Account. On or prior to the date of any
drawing under a Series 2010-2 Letter of Credit pursuant to Section 2.8(b),
(c) or (d) above, ABRCF shall establish and maintain in the name of the Trustee
for the benefit of the Series 2010-2 Noteholders, or cause to be established and
maintained, an account (the “Series 2010-2 Cash
Collateral Account”), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 2010-2
Noteholders. The Series 2010-2 Cash Collateral Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segregated
trust account with the corporate trust department of a depository institution or
trust company having corporate trust powers and acting as trustee for funds
deposited in the Series 2010-2 Cash Collateral Account; provided, however, 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 (low)” by DBRS or “Baa3” by Moody’s, then
ABRCF shall, within thirty (30) days of such reduction, establish a new Series
2010-2 Cash Collateral Account with a new Qualified Institution or a new
segregated trust account with the corporate trust department of a depository
institution or trust company having corporate trust powers and acting as trustee
for funds deposited in the Series 2010-2 Cash Collateral Account. If
a new Series 2010-2 Cash Collateral Account is established, ABRCF shall instruct
the Trustee in writing to transfer all cash and investments from the
non-qualifying Series 2010-2 Cash Collateral Account into the new Series 2010-2
Cash Collateral Account.
(g) Administration of the Series
2010-2 Cash Collateral Account. ABRCF may instruct (by
standing instructions or otherwise) the institution maintaining the Series
2010-2 Cash Collateral Account to invest funds on deposit in the Series 2010-2
Cash Collateral Account from time to time in Permitted Investments; provided, however, that any
such investment shall
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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 2010-2 Cash Collateral Account is held with the Paying Agent, in
which case such investment may mature on such Distribution Date so long as such
funds shall be available for withdrawal on or prior to such Distribution
Date. All such Permitted Investments will be credited to the Series
2010-2 Cash Collateral Account and any such Permitted Investments that
constitute (i) physical property (and that is not either a United States
security entitlement or a security entitlement) shall be physically delivered to
the Trustee; (ii) United States security entitlements or security
entitlements shall be controlled (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 ABRCF, take such action as is required to maintain the Trustee’s
security interest in the Permitted Investments credited to the Series 2010-2
Cash Collateral Account. ABRCF 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 the
purchase price of such Permitted Investments. In the absence of
written investment instructions hereunder, funds on deposit in the Series 2010-2
Cash Collateral Account shall remain uninvested.
(h) Earnings from Series 2010-2
Cash Collateral Account. All interest and earnings (net of
losses and investment expenses) paid on funds on deposit in the Series 2010-2
Cash Collateral Account shall be deemed to be on deposit therein and available
for distribution.
(i) Series 2010-2 Cash
Collateral Account Surplus. In the event that the Series
2010-2 Cash Collateral Account Surplus on any Distribution Date (or, after the
Series 2010-2 Letter of Credit Termination Date, on any date) is greater than
zero, the Trustee, acting in accordance with the written instructions of the
Administrator, shall withdraw from the Series 2010-2 Cash Collateral Account an
amount equal to the Series 2010-2 Cash Collateral Account Surplus and shall pay
such amount: first, to the Series
2010-2 Letter of Credit Providers to the extent of any unreimbursed drawings
under the related Series 2010-2 Reimbursement Agreement, for application in
accordance with the provisions of the related Series 2010-2 Reimbursement
Agreement, and, second, to ABRCF any
remaining amount.
(j) Termination of Series 2010-2
Cash Collateral Account. Upon the termination of this
Supplement in accordance with its terms, the Trustee, acting in accordance with
the written instructions of the Administrator, after the prior payment of all
amounts owing to the Series 2010-2 Noteholders and payable from the Series
2010-2 Cash Collateral Account as provided herein, shall withdraw from the
Series 2010-2 Cash Collateral Account all amounts on deposit therein (to the
extent not withdrawn pursuant to Section 2.8(i) above) and shall pay such
amounts: first, to the Series
2010-2 Letter of Credit Providers to the extent of any unreimbursed drawings
under the related Series 2010-2 Reimbursement Agreement, for application in
accordance with the provisions of the related Series 2010-2 Reimbursement
Agreement, and, second, to ABRCF any
remaining amount.
Section
2.9. Series 2010-2 Distribution
Account. (a) Establishment of Series
2010-2 Distribution Account. ABRCF shall establish and
maintain in the name of the Trustee for the benefit of the Series 2010-2
Noteholders, or cause to be established and maintained, an
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account
(the “Series 2010-2
Distribution Account”), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 2010-2
Noteholders. The Series 2010-2 Distribution Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segregated trust
account with the corporate trust department of a depository institution or trust
company having corporate trust powers and acting as trustee for funds deposited
in the Series 2010-2 Distribution Account; provided, however, that if at
any time such Qualified Institution is no longer a Qualified Institution or the
credit rating of any securities issued by such depositary institution or trust
company shall be reduced to below “BBB (low)” by DBRS or “Baa3” by Moody’s, then
ABRCF shall, within thirty (30) days of such reduction, establish a new Series
2010-2 Distribution Account with a new Qualified Institution. If the
Series 2010-2 Distribution Account is not maintained in accordance with the
previous sentence, ABRCF shall establish a new Series 2010-2 Distribution
Account, within ten (10) Business Days after obtaining knowledge of such fact,
which complies with such sentence, and shall instruct the Series 2010-2 Agent in
writing to transfer all cash and investments from the non-qualifying Series
2010-2 Distribution Account into the new Series 2010-2 Distribution
Account. Initially, the Series 2010-2 Distribution Account will be
established with The Bank of New York Mellon Trust Company, N.A.
(b) Administration of the Series
2010-2 Distribution Account. The Administrator may instruct
the institution maintaining the Series 2010-2 Distribution Account to invest
funds on deposit in the Series 2010-2 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 2010-2 Distribution Account is held
with the Paying Agent, then such investment may mature on such Distribution Date
and such funds shall be available for withdrawal on or prior to such
Distribution Date. All such Permitted Investments will be credited to
the Series 2010-2 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 ABRCF, take such action as is required to maintain the Trustee’s
security interest in the Permitted Investments credited to the Series 2010-2
Distribution Account. ABRCF 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 the purchase price
of such Permitted Investments. In the absence of written investment
instructions hereunder, funds on deposit in the Series 2010-2 Distribution
Account shall remain uninvested.
(c) Earnings from Series 2010-2
Distribution Account. All interest and earnings (net of losses
and investment expenses) paid on funds on deposit in the Series 2010-2
Distribution Account shall be deemed to be on deposit and available for
distribution.
(d) Series 2010-2 Distribution
Account Constitutes Additional Collateral for Series 2010-2
Notes. In order to secure and provide for the repayment and
payment of ABRCF’s Obligations with respect to the Series 2010-2 Notes, ABRCF
hereby grants a security interest in
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and
assigns, pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 2010-2 Noteholders, all of ABRCF’s right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2010-2 Distribution Account, including any
security entitlement thereto; (ii) all funds on deposit therein from time to
time; (iii) all certificates and instruments, if any, representing or evidencing
any or all of the Series 2010-2 Distribution Account or the funds on deposit
therein from time to time; (iv) all investments made at any time and from time
to time with monies in the Series 2010-2 Distribution Account, whether
constituting securities, instruments, general intangibles, investment property,
financial assets or other property; (v) all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the Series 2010-2
Distribution Account, the funds on deposit therein from time to time or the
investments made with such funds; and (vi) all proceeds of any and all of
the foregoing, including, without limitation, cash (the items in the foregoing
clauses (i) through (vi) are referred to, collectively, as the “Series 2010-2 Distribution
Account Collateral”). The Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Series
2010-2 Distribution Account and in and to all proceeds thereof, and shall be the
only person authorized to originate entitlement orders in respect of the Series
2010-2 Distribution Account. The Series 2010-2 Distribution Account
Collateral shall be under the sole dominion and control of the Trustee for the
benefit of the Series 2010-2 Noteholders. The Series 2010-2 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 2010-2
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 2010-2
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.
Section
2.10. Series 2010-2 Accounts
Permitted Investments. ABRCF
shall not, and shall not permit, funds on deposit in the Series 2010-2 Accounts
to be invested in:
(i) Permitted
Investments that do not mature at least one Business Day before the next
Distribution Date;
(ii) demand
deposits, time deposits or certificates of deposit with a maturity in excess of
360 days;
(iii) commercial
paper which is not rated “P-1” by Moody’s;
(iv) money
market funds or eurodollar time deposits which are not rated at least “P-1” by
Moody’s;
(v) eurodollar
deposits that are not rated “P-1” by Moody’s or that are with financial
institutions not organized under the laws of a G-7 nation; or
(vi) any
investment, instrument or security not otherwise listed in clause
(i) through (vi) of the definition of “Permitted Investments” in the Base
Indenture.
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Section
2.11. Series 2010-2 Demand Notes
Constitute Additional Collateral for Series 2010-2 Notes. In
order to secure and provide for the repayment and payment of ABRCF’s Obligations
with respect to the Series 2010-2 Notes, ABRCF hereby grants a security interest
in and assigns, pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 2010-2 Noteholders, all of ABRCF’s right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2010-2 Demand Notes; (ii) all
certificates and instruments, if any, representing or evidencing the Series
2010-2 Demand Notes; and (iii) all proceeds of any and all of the
foregoing, including, without limitation, cash. On the date hereof,
ABRCF shall deliver to the Trustee, for the benefit of the Series 2010-2
Noteholders, each Series 2010-2 Demand Note, endorsed in blank. The
Trustee, for the benefit of the Series 2010-2 Noteholders, shall be the only
Person authorized to make a demand for payments on the Series 2010-2 Demand
Notes.
Section
2.12. Subordination of the Class B
Notes. Notwithstanding
anything to the contrary contained in this Supplement, the Indenture or in any
other Related Document, the Class B Notes will be subordinate in all respects to
the Class A Notes as and to the extent set forth in this Section
2.12(a). No payments on account of principal shall be made with
respect to the Class B Notes on any Distribution Date prior to the Series 2010-2
Rapid Amortization Period unless an amount equal to the Class A Controlled
Distribution Amount for the Related Month shall have been paid to the Class A
Noteholders and no payments on account of principal shall be made with respect
to the Class B Notes during the Series 2010-2 Rapid Amortization Period or on
the Series 2010-2 Final Distribution Date until the Class A Notes have been paid
in full. No payments on account of interest shall be made with
respect to the Class B Notes until all payments of interest then due and payable
with respect to the Class A Notes (including, without limitation, all accrued
interest, all Class A Shortfall and all interest accrued on such Class A
Shortfall) have been paid in full.
ARTICLE
III
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 2010-2 Notes and collectively shall constitute the Amortization
Events set forth in Section 9.1(n) of the Base Indenture with respect to the
Series 2010-2 Notes (without notice or other action on the part of the Trustee
or any holders of the Series 2010-2 Notes):
(a) a Series
2010-2 Enhancement Deficiency shall occur and continue for at least two (2)
Business Days; provided, however, that such
event or condition shall not be an Amortization Event if during such two (2)
Business Day period such Series 2010-2 Enhancement Deficiency shall have been
cured in accordance with the terms and conditions of the Indenture and the
Related Documents;
(b) the
Series 2010-2 Liquidity Amount shall be less than the Series 2010-2 Required
Liquidity Amount for at least two (2) Business Days; provided, however, that such
event or condition shall not be an Amortization Event if during such two
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(2) Business
Day period such insufficiency shall have been cured in accordance with the terms
and conditions of the Indenture and the Related Documents;
(c) the
Collection Account, the Series 2010-2 Collection Account, the Series 2010-2
Excess Collection Account or the Series 2010-2 Reserve Account shall be subject
to an injunction, estoppel or other stay or a Lien (other than Liens permitted
under the Related Documents);
(d) all
principal of and interest on any Class of the Series 2010-2 Notes is not paid in
full on or before the Series 2010-2 Expected Final Distribution
Date;
(e) any
Series 2010-2 Letter of Credit shall not be in full force and effect for at
least two (2) Business Days and (x) either a Series 2010-2 Enhancement
Deficiency would result from excluding such Series 2010-2 Letter of Credit from
the Series 2010-2 Enhancement Amount or (y) the Series 2010-2 Liquidity Amount,
excluding therefrom the available amount under such Series 2010-2 Letter of
Credit, would be less than the Series 2010-2 Required Liquidity
Amount;
(f) from and
after the funding of the Series 2010-2 Cash Collateral Account, the Series
2010-2 Cash Collateral Account shall be subject to an injunction, estoppel or
other stay or a Lien (other than Liens permitted under the Related Documents)
for at least two (2) Business Days and either (x) a Series 2010-2 Enhancement
Deficiency would result from excluding the Series 2010-2 Available Cash
Collateral Account Amount from the Series 2010-2 Enhancement Amount or (y) the
Series 2010-2 Liquidity Amount, excluding therefrom the Series 2010-2 Available
Cash Collateral Amount, would be less than the Series 2010-2 Required Liquidity
Amount; and
(g) an Event
of Bankruptcy shall have occurred with respect to any Series 2010-2 Letter of
Credit Provider or any Series 2010-2 Letter of Credit Provider repudiates its
Series 2010-2 Letter of Credit or refuses to honor a proper draw thereon and
either (x) a Series 2010-2 Enhancement Deficiency would result from excluding
such Series 2010-2 Letter of Credit from the Series 2010-2 Enhancement Amount or
(y) the Series 2010-2 Liquidity Amount, excluding therefrom the available amount
under such Series 2010-2 Letter of Credit, would be less than the Series 2010-2
Required Liquidity Amount.
ARTICLE
IV
FORM
OF SERIES 2010-2 NOTES
Section
4.1. Restricted Global Series
2010-2 Notes. Each
Class of the Series 2010-2 Notes to be issued in the United States will be
issued in book-entry form and represented by one or more permanent global Notes
in fully registered form without interest coupons (each, a “Restricted Global Class A
Note”, or a “Restricted Global Class B
Note”, as the case may be), substantially in the form set forth in Exhibits A-1 and
B-1, with such
legends as may be applicable thereto as set forth in the Base Indenture, and
will be sold only in the United States (1) initially to institutional accredited
investors within the meaning of Regulation D under the
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Securities
Act in reliance on an exemption from the registration requirements of the
Securities Act and (2) thereafter to qualified institutional buyers within
the meaning of, and in reliance on, Rule 144A under the Securities Act and shall
be deposited on behalf of the purchasers of such Class of the Series 2010-2
Notes represented thereby, with the Trustee as custodian for DTC, and registered
in the name of Cede as DTC’s nominee, duly executed by ABRCF and authenticated
by the Trustee in the manner set forth in Section 2.4 of the Base
Indenture.
Section
4.2. Temporary Global Series
2010-2 Notes; Permanent Global Series 2010-2 Notes. Each
Class of the Series 2010-2 Notes to be issued outside the United States will be
issued and sold in transactions outside the United States in reliance on
Regulation S under the Securities Act, as provided in the applicable note
purchase agreement, and shall initially be issued in the form of one or more
temporary notes in registered form without interest coupons (each, a “Temporary Global Class A
Note”, or a “Temporary Global Class B
Note”, as the case may be, and collectively the “Temporary Global Series
2010-2 Notes”), substantially in the form set forth in Exhibits A-2, and
B-2, which
shall be deposited on behalf of the purchasers of such Class of the Series
2010-2 Notes represented thereby with a custodian for, and registered in the
name of a nominee of DTC, for the account of Euroclear Bank S.A./N.V., as
operator of the Euroclear System (“Euroclear”) or for
Clearstream Banking, société anonyme (“Clearstream”), duly
executed by ABRCF and authenticated by the Trustee in the manner set forth in
Section 2.4 of the Base Indenture. Interests in each Temporary Global
Series 2010-2 Note will be exchangeable, in whole or in part, for interests in
one or more permanent global notes in registered form without interest coupons
(each, a “Permanent
Global Class A Note” or a “Permanent Global Class B
Note”, as the case may be, and collectively the “Permanent Global Series
2010-2 Notes”), substantially in the form of Exhibits A-3, and
B-3, in
accordance with the provisions of such Temporary Global Series 2010-2 Note and
the Base Indenture (as modified by this Supplement). Interests in a
Permanent Global Series 2010-2 Note will be exchangeable for a definitive Series
2010-2 Note in accordance with the provisions of such Permanent Global Series
2010-2 Note and the Base Indenture (as modified by this
Supplement).
ARTICLE
V
GENERAL
Section
5.1. Optional
Repurchase. The
Series 2010-2 Notes shall be subject to repurchase by ABRCF at its option in
accordance with Section 6.3 of the Base Indenture on any Distribution Date after
the Series 2010-2 Invested Amount is reduced to an amount less than or equal to
10% of the sum of the Class A Initial Invested Amount and the Class B Initial
Invested Amount (the “Series 2010-2 Repurchase
Amount”). The repurchase price for any Series 2010-2 Note
shall equal the aggregate outstanding principal balance of such Series 2010-2
Note (determined after giving effect to any payments of principal and interest
on such Distribution Date), plus accrued and
unpaid interest on such outstanding principal balance.
-44-
Section
5.2. Information. The
Trustee shall provide to the Series 2010-2 Noteholders, or their designated
agent, copies of all information furnished to the Trustee or ABRCF pursuant to
the Related Documents, as such information relates to the Series 2010-2 Notes or
the Series 2010-2 Collateral.
Section
5.3. Exhibits. The
following exhibits attached hereto supplement the exhibits included in the
Indenture.
|
Exhibit
A-1:
|
Form
of Restricted Global Class A Note
|
|
|
Exhibit
A-2:
|
Form
of Temporary Global Class A Note
|
|
|
Exhibit
A-3:
|
Form
of Permanent Global Class A Note
|
|
|
Exhibit
B-1:
|
Form
of Restricted Global Class B Note
|
|
|
Exhibit
B-2:
|
Form
of Temporary Global Class B Note
|
|
|
Exhibit
B-3:
|
Form
of Permanent Global Class B Note
|
|
|
Exhibit
C:
|
Form
of Series 2010-2 Demand Note
|
|
|
Exhibit
D:
|
Form
of Letter of Credit
|
|
|
Exhibit
E:
|
Form
of Lease Payment Deficit Notice
|
|
|
Exhibit
F:
|
Form
of Demand Notice
|
|
|
Exhibit
G:
|
Form
of Supplemental Indenture No. 3 to the Base Indenture
|
|
|
Exhibit
H:
|
Form
of Amendment to the Master Exchange
Agreement
|
Section
5.4. Ratification of Base
Indenture. As
supplemented by this Supplement, the Base Indenture is in all respects ratified
and confirmed and the Base Indenture as so supplemented by this Supplement shall
be read, taken, and construed as one and the same instrument.
Section
5.5. 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
5.6. 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
5.7. Amendments. This
Supplement may be modified or amended from time to time in accordance with the
terms of the Base Indenture; provided, however, that if,
pursuant to the terms of the Base Indenture or this Supplement, the consent of
the Required Noteholders is required for an amendment or modification of this
Supplement or any other Related Document, such requirement shall be satisfied if
such amendment or modification is consented to by the Requisite Series 2010-2
Noteholders; provided further, that, so
long as (i) no Amortization Event has occurred and is continuing and (ii) the
Rating Agency Consent Condition is met with respect to the outstanding Series
2010-2 Notes, ABRCF shall be able to (x) increase the Series 2010-2 Maximum
Hyundai Amount up to an amount not to exceed 30% of the aggregate Net Book Value
of all Vehicles leased under the Leases and (y) increase the Series 2010-2
Maximum Kia Amount up to an amount not to exceed 15% of the aggregate Net
-45-
Book
Value of all Vehicles leased under the Leases at any time without the consent of
the Series 2010-2 Noteholders by giving written notice of such increase to the
Trustee along with an Officer’s Certificate certifying that no Amortization
Event has occurred and is continuing.
Section
5.8. Discharge of
Indenture. Notwithstanding
anything to the contrary contained in the Base Indenture, no discharge of the
Indenture pursuant to Section 11.1(b) of the Base Indenture will be effective as
to the Series 2010-2 Notes without the consent of the Requisite Series 2010-2
Noteholders.
Section
5.9. Notice to Rating
Agencies. The
Trustee shall provide to each Rating Agency a copy of each notice, opinion of
counsel, certificate or other item delivered to, or required to be provided by,
the Trustee pursuant to this Supplement or any other Related
Document.
Section
5.10. Capitalization of
ABRCF. ABRCF
agrees that on the Series 2010-2 Closing Date it will have capitalization in an
amount equal to or greater than 3% of the sum of (x) the Series 2010-2 Invested
Amount and (y) the invested amount of the Series 2003-4 Notes, the Series 2004-1
Notes, the Series 2005-1 Notes, the Series 2005-2 Notes, the Series 2005-4
Notes, the Series 2006-1 Notes, the Series 2007-2 Notes, the Series 2008-1
Notes, the Series 2009-1 Notes, the Series 2009-2 Notes, the Series 2009-3
Notes, the Series 2010-1 Notes and the Series 2010-3 Notes.
Section
5.11. Required
Noteholders.Subject
to Section 5.7 above, any action pursuant to Section 5.6, Section 8.13 or
Article 9 of the Base Indenture that requires the consent of, or is permissible
at the direction of, the Required Noteholders with respect to the Series 2010-2
Notes pursuant to the Base Indenture shall only be allowed with the consent of,
or at the direction of, the Required Controlling Class Series 2010-2
Noteholders. Any other action pursuant to any Related Document which
requires the consent or approval of, or the waiver by, the Required Noteholders
with respect to the Series 2010-2 Notes shall require the consent or approval
of, or waiver by, the Requisite Series 2010-2 Noteholders.
Section
5.12. Series 2010-2 Demand
Notes. Other
than pursuant to a demand thereon pursuant to Section 2.5, ABRCF shall not
reduce the amount of the Series 2010-2 Demand Notes or forgive amounts payable
thereunder so that the outstanding principal amount of the Series 2010-2 Demand
Notes after such reduction or forgiveness is less than the Series 2010-2 Letter
of Credit Liquidity Amount. ABRCF shall not agree to any amendment of
the Series 2010-2 Demand Notes without first satisfying the Rating Agency
Confirmation Condition and the Rating Agency Consent Condition.
Section
5.13. Termination of
Supplement. This
Supplement shall cease to be of further effect when all outstanding Series
2010-2 Notes theretofore authenticated and issued have been delivered (other
than destroyed, lost, or stolen Series 2010-2 Notes which have been replaced or
paid) to the Trustee for cancellation, ABRCF has paid all sums payable
hereunder, and, if the Series 2010-2 Demand Note Payment Amount on the Series
2010-2 Letter of Credit Termination Date was greater than zero, all amounts have
been withdrawn from the Series 2010-2 Cash Collateral Account in accordance with
Section 2.8(i).
-46-
Section
5.14. Noteholder Consent to
Certain Amendments. Each
Series 2010-2 Noteholder, upon any acquisition of a Series 2010-2 Note, will be
deemed to agree and consent to (i) the execution by ABRCF of a Supplemental
Indenture to the Base Indenture substantially in the form of Exhibit G hereto and
(ii) the execution of an amendment to the Master Exchange Agreement
substantially in the form of Exhibit H
hereto. Such deemed consent will apply to each proposed amendment set
forth in Exhibits
G and H
individually, and the failure to adopt any of the amendments set forth therein
will not revoke the consent with respect to any other amendment.
Section
5.15. Confidential
Information. (a) The
Trustee and each Series 2010-2 Note Owner agrees, by its acceptance and holding
of a beneficial interest in a Series 2010-2 Note, to maintain the
confidentiality of all Confidential Information in accordance with procedures
adopted by the Trustee or such Series 2010-2 Note Owner 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 Confidential Information substantially in accordance with
the terms of this Section 5.15; (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 5.15;
(iii) any other Series 2010-2 Note Owner; (iv) any Person of the type that would
be, to such Person’s knowledge, permitted to acquire an interest in the Series
2010-2 Notes in accordance with the requirements of the Indenture to which such
Person sells or offers to sell any such Series 2010-2 Note or any part thereof
and that agrees to hold confidential the Confidential Information substantially
in accordance with this Section 5.15 (or in accordance with such other
confidentiality procedures as are acceptable to ABRCF); (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 organization, 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 5.15 (or in accordance with such other confidentiality procedures as are
acceptable to ABRCF); (viii) any other Person with the consent of ABRCF; or (ix)
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 ABRCF (unless prohibited by applicable law, rule,
order or decree or other requirement having the force of law), (C) in connection
with any litigation to which such Person is a party upon prior notice to ABRCF
(unless prohibited 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 2010-2 Notes has occurred and is continuing, to the extent such
Person may reasonably 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 2010-2 Notes, the Indenture or any other Related Document; and
provided, further, however, that delivery to any Series 2010-2 Note Owner of any
report or information required by the terms of the Indenture to be provided to
such Series 2010-2 Note Owner shall not be a violation of this Section
5.15. Each Series 2010-2 Note Owner agrees, by acceptance of a
beneficial interest in a Series 2010-2 Note, except as set forth in clauses (v),
(vi) and (ix) above, that it shall use the Confidential Information for the sole
purpose of making an investment in the Series 2010-2
-47-
Notes or
administering its investment in the Series 2010-2 Notes. In the event
of any required disclosure of the Confidential Information by such Series 2010-2
Note Owner, such Series 2010-2 Note Owner agrees to use reasonable efforts to
protect the confidentiality of the Confidential Information.
(b) For the
purposes of this Section 5.15, “Confidential
Information” means information delivered to the Trustee or any Series
2010-2 Note Owner by or on behalf of ABRCF 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 Series 2010-2 Note Owner prior to the
time of such disclosure; (ii) subsequently becomes publicly known through no act
or omission by the Trustee, any Series 2010-2 Note Owner or any person acting on
behalf of the Trustee or any Series 2010-2 Note Owner; (iii) otherwise is known
or becomes known to the Trustee or any Series 2010-2 Note Owner other than (x)
through disclosure by ABRCF or (y) as a result of the breach of a fiduciary duty
to ABRCF or a contractual duty to ABRCF; or (iv) is allowed to be treated as
non-confidential by consent of ABRCF.
Section
5.16. Capitalized Cost
Covenant. ABRCF
hereby agrees that it shall not permit the aggregate Capitalized Cost for all
Vehicles purchased in any model year that are not subject to a Manufacturer
Program to exceed 85% of the aggregate MSRP (Manufacturer Suggested Retail
Price) of all such Vehicles; provided, however, that ABCRF
shall not modify the customary buying patterns or purchasing criteria used
by the Administrator and its Affiliates with respect to the Vehicles if the
primary purpose of such modification is to comply with this
covenant.
Section
5.17. Further Limitation of
Liability. Notwithstanding
anything in this Supplement to the contrary, in no event shall the Trustee or
its directors, officers, agents or employees be liable under this Supplement for
special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, lost profits), even if the Trustee or
its directors, officers, agents or employees have been advised of the likelihood
of such loss or damage and regardless of the form of action.
Section
5.18. Force Majeure.
In no
event shall the Trustee be liable for any failure or delay in the performance of
its obligations under this Supplement because of circumstances beyond the
Trustee’s control, including, but not limited to, a failure, termination,
suspension of a clearing house, securities depositary, settlement system or
central payment system in any applicable part of the world or acts of God,
flood, war (whether declared or undeclared), civil or military disturbances or
hostilities, nuclear or natural catastrophes, political unrest, explosion,
severe weather or accident, earthquake, terrorism, fire, riot, labor
disturbances, strikes or work stoppages for any reason, embargo, government
action, including any laws, ordinances, regulations or the like (whether
domestic, federal, state, county or municipal or foreign) which delay, restrict
or prohibit the providing of the services contemplated by this Supplement, or
the unavailability of communications or computer facilities, the failure of
equipment or interruption of communications or computer facilities, or the
unavailability of the Federal Reserve Bank wire or telex or other wire or
communication facility, or any other causes beyond the Trustee’s control whether
or not of the same class or kind as specified above.
-48-
Section
5.19. Waiver of Jury Trial,
etc. EACH OF
THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO
THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHTS IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS SUPPLEMENT, THE SERIES 2010-2 NOTES, THE SERIES 2010-2
DEMAND NOTES, THE SERIES 2010-2 LETTER OF CREDIT AND ANY OTHER RELATED DOCUMENTS
EXECUTED IN CONNECTION WITH THE ISSUANCE OF THE SERIES 2010-2 NOTES, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR
ACTIONS OF THE PARTIES HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS SUPPLEMENT.
Section
5.20. Submission to
Jurisdiction.EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS (TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW) TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK CITY, STATE OF NEW
YORK, OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SUPPLEMENT, THE SERIES 2010-2 NOTES, THE SERIES 2010-2 DEMAND NOTES, THE SERIES
2010-2 LETTER OF CREDIT AND ANY OTHER RELATED DOCUMENTS EXECUTED IN CONNECTION
WITH THE ISSUANCE OF THE SERIES 2010-2 NOTES AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURT. EACH OF THE PARTIES HERETO EACH HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION EACH MAY NOW OR HEREAFTER
HAVE, TO THE LAYING OF VENUE IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
AS WELL AS ANY RIGHT EACH MAY NOW OR HEREAFTER HAVE, TO REMOVE ANY SUCH ACTION
OR PROCEEDING, ONCE COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF FORUM NON CONVENIENS OR
OTHERWISE. NOTHING CONTAINED HEREIN SHALL PRECLUDE ANY PARTY HERETO
FROM BRINGING AN ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SUPPLEMENT, THE SERIES 2010-2 NOTES, THE SERIES 2010-2 DEMAND NOTES, THE SERIES
2010-2 LETTER OF CREDIT AND ANY OTHER RELATED DOCUMENTS EXECUTED IN CONNECTION
WITH THE ISSUANCE OF THE SERIES 2010-2 NOTES IN ANY OTHER COUNTRY, STATE OR
PLACE HAVING JURISDICTION OVER SUCH ACTION OR PROCEEDING.
-49-
IN
WITNESS WHEREOF, ABRCF and the Trustee have caused this Supplement to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
|
AVIS
BUDGET RENTAL CAR FUNDING (AESOP) LLC
|
|||
|
By:
|
/s/
David Calabria
|
||
|
Name:
David Calabria
Title:
Vice President, Assistant Secretary & Assistant
Treasurer
|
|
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as
Trustee
|
|||
|
By:
|
/s/
Sally R. Tokich
|
||
|
Title:
Senior Associate
|
|||
|
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as
Series 2010-2 Agent
|
|||
|
By:
|
/s/
Sally R. Tokich
|
||
|
Title:
Senior Associate
|
Exhibit
10.2
AVIS
BUDGET RENTAL CAR FUNDING (AESOP) LLC,
as
Issuer
and
THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A.,
as
Trustee and Series 2010-3 Agent
_____________________
SERIES
2010-3 SUPPLEMENT
dated as
of March 23, 2010
to
SECOND
AMENDED AND RESTATED BASE INDENTURE
dated as
of June 3, 2004
_____________________
Series
2010-3 4.64% Rental Car Asset Backed Notes, Class A
Series
2010-3 6.74% Rental Car Asset Backed Notes, Class B
TABLE OF
CONTENTS
|
Page
|
|
|
ARTICLE
I DEFINITIONS
|
2
|
|
ARTICLE
II SERIES 2010-3 ALLOCATIONS
|
22
|
|
Section
2.1. Establishment of Series 2010-3 Collection Account, Series 2010-3
Excess Collection
Account and Series 2010-3 Accrued Interest Account
|
22
|
|
Section
2.2. Allocations with Respect to the Series 2010-3 Notes
|
22
|
|
Section
2.3. Payments to Noteholders
|
26
|
|
Section
2.4. Payment of Note Interest
|
29
|
|
Section
2.5. Payment of Note Principal
|
29
|
|
Section
2.6. Administrator’s Failure to Instruct the Trustee to Make a Deposit or
Payment
|
33
|
|
Section
2.7. Series 2010-3 Reserve Account
|
34
|
|
Section
2.8. Series 2010-3 Letters of Credit and Series 2010-3 Cash Collateral
Account
|
36
|
|
Section
2.9. Series 2010-3 Distribution Account
|
40
|
|
Section
2.10. Series 2010-3 Accounts Permitted Investments
|
41
|
|
Section
2.11. Series 2010-3 Demand Notes Constitute Additional Collateral for
Series 2010-3
Notes
|
42
|
|
Section
2.12. Subordination of the Class B Notes
|
42
|
|
ARTICLE
III AMORTIZATION EVENTS
|
42
|
|
ARTICLE
IV FORM OF SERIES 2010-3 NOTES
|
44
|
|
Section
4.1. Restricted Global Series 2010-3 Notes
|
44
|
|
Section
4.2. Temporary Global Series 2010-3 Notes; Permanent Global Series 2010-3
Notes
|
44
|
|
ARTICLE
V GENERAL
|
44
|
|
Section
5.1. Optional Repurchase
|
44
|
|
Section
5.2. Information
|
45
|
|
Section
5.3. Exhibits
|
45
|
|
Section
5.4. Ratification of Base Indenture
|
45
|
|
Section
5.5. Counterparts
|
45
|
|
Section
5.6. Governing Law
|
45
|
|
Section
5.7. Amendments
|
45
|
|
Section
5.8. Discharge of Indenture
|
46
|
|
Section
5.9. Notice to Rating Agencies
|
46
|
|
Section
5.10. Capitalization of ABRCF
|
46
|
|
Section
5.11. Required Noteholders.
|
46
|
|
Section
5.12. Series 2010-3 Demand Notes
|
46
|
|
Section
5.13. Termination of Supplement
|
46
|
|
Section
5.14. Noteholder Consent to Certain Amendments
|
47
|
|
Section
5.15. Confidential Information.
|
47
|
|
Section
5.16. Capitalized Cost Covenant
|
48
|
|
Section
5.17. Further Limitation of Liability.
|
48
|
|
Section
5.18. Force Majeure
|
48
|
|
Page
|
|
|
Section
5.19. Waiver of Jury Trial, etc.
|
49
|
|
Section
5.20. Submission to Jurisdiction
|
49
|
SERIES
2010-3 SUPPLEMENT, dated as of March 23, 2010 (this “Supplement”), among
AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC, a special purpose limited liability
company established under the laws of Delaware (“ABRCF”), THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A. (formerly known as The Bank of New York), a
limited purpose national banking association with trust powers, as trustee (in
such capacity, and together with its successors in trust thereunder as provided
in the Base Indenture referred to below, the “Trustee”), and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (formerly known as The Bank of New
York), as agent (in such capacity, the “Series 2010-3 Agent”)
for the benefit of the Series 2010-3 Noteholders, to the Second Amended and
Restated Base Indenture, dated as of June 3, 2004, between ABRCF and the Trustee
(as amended, modified or supplemented from time to time, exclusive of
Supplements creating a new Series of Notes, the “Base
Indenture”).
PRELIMINARY
STATEMENT
WHEREAS,
Sections 2.2 and 12.1 of the Base Indenture provide, among other things, that
ABRCF and the Trustee may at any time and from time to time enter into a
supplement to the Base Indenture for the purpose of authorizing the issuance of
one or more Series of Notes;
NOW,
THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is
hereby created a Series of Notes to be issued pursuant to the Base Indenture and
this Supplement, and such Series of Notes shall be designated generally as the
Series 2010-3 Rental Car Asset Backed Notes.
The
Series 2010-3 Notes shall be issued in two Classes, the first of which shall be
known as the “Class A Notes” and the second of which shall be known as the
“Class B Notes”. On the Closing Date, ABRCF shall issue (i) one
tranche of Class A Notes, which shall be designated as the Series 2010-3 4.64%
Rental Car Asset Backed Notes, Class A and, (ii) one tranche of Class B Notes,
which shall be designated as the Series 2010-3 6.74% Rental Car Asset Backed
Notes, Class B.
The Class
A Notes and Class B Notes, together, constitute the Series 2010-3
Notes. The Class B Notes shall be subordinated in right of payment to
the Class A Notes, to the extent set forth herein.
The
proceeds from the sale of the Series 2010-3 Notes shall be deposited in the
Collection Account and shall be deemed to be Principal Collections.
The
Series 2010-3 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.
-1-
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 or Exhibit references herein shall refer to
Articles, Sections, Subsections or Exhibits of this Supplement, except as
otherwise provided herein. Unless otherwise stated herein, as the
context otherwise requires or if such term is otherwise defined in the Base
Indenture, each capitalized term used or defined herein shall relate only to the
Series 2010-3 Notes and not to any other Series of Notes issued by
ABRCF. In the event that a term used herein shall be defined both
herein and in the Base Indenture, the definition of such term herein shall
govern.
(b) The
following words and phrases shall have the following meanings with respect to
the Series 2010-3 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:
“ABCR” means Avis
Budget Car Rental, LLC.
“Adjusted Net Book
Value” means, as of any date of determination, with respect to each
Adjusted Program Vehicle as of such date, the product of 0.965 and the Net Book
Value of such Adjusted Program Vehicle as of such date.
“Business Day” means
any day other than (a) a Saturday or a Sunday or (b) a day on which banking
institutions in New York City or in the city in which the corporate trust office
of the Trustee is located are authorized or obligated by law or executive order
to close.
“Certificate of Lease Deficit
Demand” means a certificate substantially in the form of Annex A to the Series
2010-3 Letters of Credit.
“Certificate of Termination
Date Demand” means a certificate substantially in the form of Annex D to the Series
2010-3 Letters of Credit.
“Certificate of Termination
Demand” means a certificate substantially in the form of Annex C to the Series
2010-3 Letters of Credit.
“Certificate of Unpaid Demand
Note Demand” means a certificate substantially in the form of Annex B to the Series
2010-3 Letters of Credit.
“Class” means a class
of the Series 2010-3 Notes, which may be the Class A Notes or the Class B
Notes.
“Class A Carryover Controlled
Amortization Amount” means, with respect to any Related Month during the
Series 2010-3 Controlled Amortization Period, the amount, if any, by which the
portion of the Monthly Total Principal Allocation paid to the Class A
Noteholders pursuant to Section 2.5(e)(i) for the previous Related Month was
less than the Class A Controlled Distribution Amount for the previous Related
Month; provided, however, that for the
first
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Related
Month in the Series 2010-3 Controlled Amortization Period, the Class A Carryover
Controlled Amortization Amount shall be zero.
“Class A Controlled
Amortization Amount” means (i) with respect to any Related Month during
the Series 2010-3 Controlled Amortization Period other than the Related Month
immediately preceding the Series 2010-3 Expected Final Distribution Date,
$66,666,666.67 and (ii) with respect to the Related Month immediately
preceding the Series 2010-3 Expected Final Distribution Date,
$66,666,666.65.
“Class A Controlled
Distribution Amount” means, with respect to any Related Month during the
Series 2010-3 Controlled Amortization Period, an amount equal to the sum of the
Class A Controlled Amortization Amount and any Class A Carryover Controlled
Amortization Amount for such Related Month.
“Class A Initial Invested
Amount” means the aggregate initial principal amount of the Class A
Notes, which is $400,000,000.
“Class A Invested
Amount” means, when used with respect to any date, an amount equal to (a)
the Class A Initial Invested Amount minus (b) the amount
of principal payments made to Class A Noteholders on or prior to such
date.
“Class A Monthly
Interest” means, with respect to (i) the initial Series 2010-3 Interest
Period, an amount equal to $1,392,000.00 and (ii) any other Series 2010-3
Interest Period, an amount equal to the product of (A) one-twelfth of the Class
A Note Rate and (B) the Class A Invested Amount on the first day of such Series
2010-3 Interest Period, after giving effect to any principal payments made on
such date.
“Class A Note” means
any one of the Series 2010-3 4.64% Rental Car Asset Backed Notes, Class A,
executed by ABRCF and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-1, Exhibit A-2 or Exhibit
A-3. Definitive Class A 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 Note Rate”
means 4.64% per annum.
“Class A Noteholder”
means the Person in whose name a Class A Note is registered in the Note
Register.
“Class A Shortfall”
has the meaning set forth in Section 2.3(g)(i).
“Class B Carryover Controlled
Amortization Amount” means, with respect to any Related Month during the
Series 2010-3 Controlled Amortization Period, the amount, if any, by which the
portion of the Monthly Total Principal Allocation paid to the Class B
Noteholders pursuant to Section 2.5(e)(ii) for the previous Related Month was
less than the Class B Controlled Distribution Amount for the previous Related
Month; provided, however, that for the
first Related Month in the Series 2010-3 Controlled Amortization Period, the
Class B Carryover Controlled Amortization Amount shall be zero.
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“Class B Controlled
Amortization Amount” means with respect to any Related Month during the
Series 2010-3 Controlled Amortization Period, $10,443,000.
“Class B Controlled
Distribution Amount” means, with respect to any Related Month during the
Series 2010-3 Controlled Amortization Period, an amount equal to the sum of the
Class B Controlled Amortization Amount and any Class B Carryover Controlled
Amortization Amount for such Related Month.
“Class B Initial Invested
Amount” means the aggregate initial principal amount of the Class B
Notes, which is $62,658,000.
“Class B Invested
Amount” means, when used with respect to any date, an amount equal to (a)
the Class B Initial Invested Amount minus (b) the amount
of principal payments made to Class B Noteholders on or prior to such
date.
“Class B Monthly
Interest” means, with respect to (i) the initial Series 2010-3 Interest
Period, an amount equal to $316,736.19 and (ii) any other Series 2010-3 Interest
Period, an amount equal to the product of (A) one-twelfth of the Class B Note
Rate and (B) the Class B Invested Amount on the first day of such Series 2010-3
Interest Period, after giving effect to any principal payments made on such
date.
“Class B Note” means
any one of the Series 2010-3 6.74% Rental Car Asset Backed Notes, Class B,
executed by ABRCF and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit B-1, Exhibit B-2 or Exhibit
B-3. Definitive Class B 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 B Note Rate”
means 6.74% per annum.
“Class B Noteholder”
means the Person in whose name a Class B Note is registered in the Note
Register.
“Class B Shortfall”
has the meaning set forth in Section 2.3(g)(ii).
“Clearstream” is
defined in Section 4.2.
“Confirmation
Condition” means, with respect to any Bankrupt Manufacturer which is a
debtor in Chapter 11 Proceedings, a condition that shall be satisfied upon the
bankruptcy court having competent jurisdiction over such Chapter 11 Proceedings
issuing an order that remains in effect approving (i) the assumption of such
Bankrupt Manufacturer’s Manufacturer Program (and the related Assignment
Agreements) by such Bankrupt Manufacturer or the trustee in bankruptcy of such
Bankrupt Manufacturer under Section 365 of the Bankruptcy Code and at the time
of such assumption, the payment of all amounts due and payable by such Bankrupt
Manufacturer under such Manufacturer Program and the curing of all other
defaults by the Bankrupt Manufacturer thereunder or (ii) the execution, delivery
and performance by such Bankrupt Manufacturer of a new post-petition
Manufacturer Program (and the related assignment agreements) on the same terms
and covering the same Vehicles as such Bankrupt Manufacturer’s Manufacturer
Program (and the related Assignment Agreements) in
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effect on
the date such Bankrupt Manufacturer became subject to such Chapter 11
Proceedings and, at the time of the execution and delivery of such new
post-petition Manufacturer Program, the payment of all amounts due and payable
by such Bankrupt Manufacturer under such Manufacturer Program and the curing of
all other defaults by the Bankrupt Manufacturer thereunder; provided that
notwithstanding the foregoing, the Confirmation Condition shall be deemed
satisfied until the 90th
calendar day following the initial filing in respect of such Chapter 11
Proceedings.
“DBRS” means DBRS,
Inc.
“DBRS Excluded Manufacturer
Receivable Specified Percentage” means, as of any date of determination,
with respect to each DBRS Non-Investment Grade Manufacturer as of such date, the
percentage (not to exceed 100%) most recently specified in writing by DBRS to
ABRCF and the Trustee and consented to by the Requisite Series 2010-3
Noteholders with respect to such DBRS Non-Investment Grade Manufacturer; provided, however, that as of
the Series 2010-3 Closing Date the DBRS Excluded Manufacturer Receivable
Specified Percentage for each DBRS Non-Investment Grade Manufacturer shall be
100%; provided,
further, that
the initial DBRS Excluded Manufacturer Receivable Specified Percentage with
respect to any Manufacturer that becomes an DBRS Non-Investment Grade
Manufacturer after the Series 2010-3 Closing Date shall be 100%.
“DBRS Excluded Receivable
Amount” means, as of any date of determination, the sum of the following
amounts with respect to each DBRS Non-Investment Grade Manufacturer as of such
date: the product of (i) to the extent such amounts are included in
the calculation of AESOP I Operating Lease Loan Agreement Borrowing Base as of
such date, all amounts receivable, as of such date, by AESOP Leasing or the
Intermediary from such DBRS Non-Investment Grade Manufacturer and (ii) the DBRS
Excluded Manufacturer Receivable Specified Percentage for such DBRS
Non-Investment Grade Manufacturer as of such date.
“DBRS Non-Investment Grade
Manufacturer” means, as of any date of determination, any Manufacturer
that (i) is not a Bankrupt Manufacturer and (ii) does not have a long-term
senior unsecured debt rating of at least “BBB (low)” from DBRS; provided that any
Manufacturer whose long-term senior unsecured debt rating is downgraded from at
least “BBB (low)” to below “BBB (low)” by DBRS after the Series 2010-3 Closing
Date shall not be deemed an DBRS Non-Investment Grade Manufacturer until the
thirtieth (30th)
calendar day following such downgrade.
“Demand Note Issuer”
means each issuer of a Series 2010-3 Demand Note.
“Disbursement” means
any Lease Deficit Disbursement, any Unpaid Demand Note Disbursement, any
Termination Date Disbursement or any Termination Disbursement under a Series
2010-3 Letter of Credit, or any combination thereof, as the context may
require.
“Euroclear” is defined
in Section 4.2.
“Excess Collections”
is defined in Section 2.3(f)(i).
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“Excluded Receivable
Amount” means, as of any date of determination, the greater of the
Moody’s Excluded Receivable Amount and the DBRS Excluded Receivable Amount as of
such date.
“Finance Guide” means
the Black Book Official Finance/Lease Guide.
“Inclusion Date”
means, with respect to any Vehicle, the date that is three months after the
earlier of (i) the date such Vehicle became a Redesignated Vehicle and (ii) if
the Manufacturer of such Vehicle is a Bankrupt Manufacturer, the date upon which
the Event of Bankruptcy which caused such Manufacturer to become a Bankrupt
Manufacturer first occurred.
“Lease Deficit
Disbursement” means an amount drawn under a Series 2010-3 Letter of
Credit pursuant to a Certificate of Lease Deficit Demand.
“Market Value Average”
means, as of any day, the percentage equivalent of a fraction, the numerator of
which is the average of the Selected Fleet Market Value as of the preceding
Determination Date and the two Determination Dates precedent thereto and the
denominator of which is the sum of (a) the average of the aggregate Net Book
Value of all Non-Program Vehicles (excluding (i) any Unaccepted Program
Vehicles, (ii) any Excluded Redesignated Vehicles and (iii) any other
Non-Program Vehicles that are subject to a Manufacturer Program with an Eligible
Non-Program Manufacturer with respect to which no Manufacturer Event of Default
has occurred and is continuing) and (b) the average of the aggregate Adjusted
Net Book Value of all Adjusted Program Vehicles, in the case of each of clause
(a) and (b) leased under the AESOP I Operating Lease and the Finance Lease as of
the preceding Determination Date and the two Determination Dates precedent
thereto.
“Monthly Total Principal
Allocation” means for any Related Month the sum of all Series 2010-3
Principal Allocations with respect to such Related Month.
“Moody’s Excluded
Manufacturer Receivable Specified Percentage” means, as of any date of
determination, with respect to each Moody’s Non-Investment Grade Manufacturer as
of such date, the percentage (not to exceed 100%) most recently specified in
writing by Moody’s to ABRCF and the Trustee and consented to by the Requisite
Series 2010-3 Noteholders with respect to such Moody’s Non-Investment Grade
Manufacturer; provided, however, that as of
the Series 2010-3 Closing Date the Moody’s Excluded Manufacturer Receivable
Specified Percentage for each Moody’s Non-Investment Grade Manufacturer shall be
100%; provided
further that
the initial Moody’s Excluded Manufacturer Receivable Specified Percentage with
respect to any Manufacturer that becomes a Moody’s Non-Investment Grade
Manufacturer after the Series 2010-3 Closing Date shall be 100%.
“Moody’s Excluded Receivable
Amount” means, as of any date of determination, the sum of the following
amounts with respect to each Moody’s Non-Investment Grade Manufacturer as of
such date: the product of (i) to the extent such amounts are included
in the calculation of AESOP I Operating Lease Loan Agreement Borrowing Base as
of such date, all amounts receivable, as of such date, by AESOP Leasing or the
Intermediary from such Moody’s Non-Investment Grade Manufacturer and (ii) the
Moody’s Excluded Manufacturer Receivable Specified Percentage for such Moody’s
Non-Investment Grade Manufacturer as of such date.
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“Moody’s Non-Investment Grade
Manufacturer” means, as of any date of determination, any Manufacturer
that (i) is not a Bankrupt Manufacturer and (ii) does not have a long term
senior unsecured debt rating of at least “Baa3” from Moody’s; provided that any
Manufacturer whose long term senior unsecured debt rating is downgraded from at
least “Baa3” to below “Baa3” by Moody’s after the Series 2010-3 Closing Date
shall not be deemed a Moody’s Non Investment Grade Manufacturer until the
thirtieth (30th) calendar day following such downgrade.
“Past Due Rent
Payment” is defined in Section 2.2(g).
“Permanent Global Class A
Note” is defined in Section 4.2.
“Permanent Global Class B
Note” is defined in Section 4.2.
“Permanent Global Series
2010-3 Notes” is defined in Section 4.2.
“Pre-Preference Period Demand
Note Payments” means, as of any date of determination, the aggregate
amount of all proceeds of demands made on the Series 2010-3 Demand Notes
included in the Series 2010-3 Demand Note Payment Amount as of the Series 2010-3
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 sixty (60) consecutive
days) with respect to a Demand Note Issuer occurs during such one-year period,
(x) the Pre-Preference Period Demand Note Payments as of any date during the
period from and including the date of the occurrence of such Event of Bankruptcy
to and including the conclusion or dismissal of the proceedings giving rise to
such Event of Bankruptcy without continuing jurisdiction by the court in such
proceedings shall equal the Pre-Preference Period Demand Note Payments as of the
date of such occurrence for all Demand Note Issuers and (y) the Pre-Preference
Period Demand Note Payments as of any date after the conclusion or dismissal of
such proceedings shall equal the Series 2010-3 Demand Note Payment Amount as of
the date of the conclusion or dismissal of such proceedings.
“Principal Deficit
Amount” means, as of any date of determination, the excess, if any, of
(i) the Series 2010-3 Invested Amount on such date (after giving effect to the
distribution of the Monthly Total Principal Allocation for the Related Month if
such date is a Distribution Date) over (ii) the Series 2010-3 AESOP I Operating
Lease Loan Agreement Borrowing Base on such date; provided, however that the
Principal Deficit Amount on any date occurring during the period commencing on
and including the date of the filing by any of the Lessees of a petition for
relief under Chapter 11 of the Bankruptcy Code to but excluding the date on
which each of the Lessees shall have resumed making all payments of the portion
of Monthly Base Rent relating to Loan Interest required to be made under the
AESOP I Operating Lease, shall mean the excess, if any, of (x) the Series 2010-3
Invested Amount on such date (after giving effect to the distribution of Monthly
Total Principal Allocation for the Related Month if such date is a Distribution
Date) over (y) the sum of (1) the Series 2010-3 AESOP I Operating Lease Loan
Agreement Borrowing Base on such date and (2) the lesser of (a) the Series
2010-3 Liquidity Amount on such date and (b) the Series 2010-3 Required
Liquidity Amount on such date.
-7-
“Pro Rata Share”
means, with respect to any Series 2010-3 Letter of Credit Provider as of any
date, the fraction (expressed as a percentage) obtained by dividing (A) the
available amount under such Series 2010-3 Letter of Credit Provider’s Series
2010-3 Letter of Credit as of such date by (B) an amount equal to the aggregate
available amount under all Series 2010-3 Letters of Credit as of such date;
provided, that
only for purposes of calculating the Pro Rata Share with respect to any Series
2010-3 Letter of Credit Provider as of any date, if such Series 2010-3 Letter of
Credit Provider has not complied with its obligation to pay the Trustee the
amount of any draw under its Series 2010-3 Letter of Credit made prior to such
date, the available amount under such Series 2010-3 Letter of Credit Provider’s
Series 2010-3 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 2010-3 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 2010-3
Letter of Credit).
“Required Controlling Class
Series 2010-3 Noteholders” means (i) for so long as any Class A Notes are
outstanding, Class A Noteholders holding more than 50% of the Class A Invested
Amount and (ii) if no Class A Notes are outstanding, Class B Noteholders holding
more than 50% of the Class B Invested Amount.
“Requisite Series 2010-3
Noteholders” means, Series 2010-3 Noteholders holding more than 50% of
the Series 2010-3 Invested Amount.
“Restricted Global Class A
Note” is defined in Section 4.1.
“Restricted Global Class B
Note” is defined in Section 4.1.
“Selected Fleet Market
Value” means, with respect to all Adjusted Program Vehicles and all
Non-Program Vehicles (excluding (i) any Unaccepted Program Vehicles,
(ii) any Excluded Redesignated Vehicles and (iii) any other Non-Program
Vehicles that are subject to a Manufacturer Program with an Eligible Non-Program
Manufacturer with respect to which no Manufacturer Event of Default has occurred
and is continuing) as of any date of determination, the sum of the respective
Market Values of each such Adjusted Program Vehicle and each such Non-Program
Vehicle, in each case subject to the AESOP I Operating Lease or the Finance
Lease as of such date. For purposes of computing the Selected Fleet
Market Value, the “Market Value” of an Adjusted Program Vehicle or a Non-Program
Vehicle means the market value of such Vehicle as specified in the most recently
published NADA Guide for the model class and model year of such Vehicle based on
the average equipment and the average mileage of each Vehicle of such model
class and model year then leased under the AESOP I Operating Lease and the
Finance Lease; provided, that if the
NADA Guide is not being published or the NADA Guide is being published but such
Vehicle is not included therein, the Market Value of such Vehicle shall be based
on the market value specified in the most recently published Finance Guide for
the model class and model year of such Vehicle based on the average equipment
and the average mileage of each Vehicle of such model class and model year then
leased under the AESOP I Operating Lease or the Finance Lease; provided, further, that if
-8-
the
Finance Guide is being published but such Vehicle is not included therein, the
Market Value of such Vehicle shall mean (x) in the case of an Adjusted Program
Vehicle, the Adjusted Net Book Value of such Adjusted Program Vehicle and (y) in
the case of a Non-Program Vehicle, the Net Book Value of such Non-Program
Vehicle provided, further, that if the
Finance Guide is not being published, the Market Value of such Vehicle shall be
based on an independent third-party data source selected by the Administrator
and approved by each Rating Agency that is rating any Series of Notes at the
request of ABRCF based on the average equipment and average mileage of each
Vehicle of such model class and model year then leased under the AESOP I
Operating Lease or the Finance Lease; provided, further, that if no
such third-party data source or methodology shall have been so approved or any
such third-party data source or methodology is not available, the Market Value
of such Vehicle shall be equal to a reasonable estimate of the wholesale market
value of such Vehicle as determined by the Administrator, based on the Net Book
Value of such Vehicle and any other factors deemed relevant by the
Administrator.
“Series 2003-4 Notes”
means the Series of Notes designated as the Series 2003-4 Notes.
“Series 2004-1 Notes”
means the Series of Notes designated as the Series 2004-1 Notes.
“Series 2005-1 Notes”
means the Series of Notes designated as the Series 2005-1 Notes.
“Series 2005-2 Notes”
means the Series of Notes designated as the Series 2005-2 Notes.
“Series 2005-4 Notes”
means the Series of Notes designated as the Series 2005-4 Notes.
“Series 2006-1 Notes”
means the Series of Notes designated as the Series 2006-1 Notes.
“Series 2007-2 Notes”
means the Series of Notes designated as the Series 2007-2 Notes.
“Series 2008-1 Notes”
means the Series of Notes designated as the Series 2008-1 Notes.
“Series 2009-1 Notes”
means the Series of Notes designated as the Series 2009-1 Notes.
“Series 2009-2 Notes”
means the Series of Notes designated as Series 2009-2.
“Series 2009-3 Notes”
means the Series of Notes designated as Series 2009-3.
“Series 2010-1 Notes”
means the Series of Notes designated as Series 2010-1.
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“Series 2010-2 Notes”
means the Series of Notes designated as Series 2010-2.
“Series 2010-3
Accounts” means each of the Series 2010-3 Distribution Account, the
Series 2010-3 Reserve Account, the Series 2010-3 Collection Account, the Series
2010-3 Excess Collection Account and the Series 2010-3 Accrued Interest
Account.
“Series 2010-3 Accrued
Interest Account” is defined in Section 2.1(b).
“Series 2010-3 AESOP I
Operating Lease Loan Agreement Borrowing Base” means, as of any date of
determination, the product of (a) the Series 2010-3 AESOP I Operating Lease
Vehicle Percentage as of such date and (b) the excess of (i) the AESOP I
Operating Lease Loan Agreement Borrowing Base as of such date over (ii) the
Excluded Receivable Amount as of such date.
“Series 2010-3 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 2010-3 Required AESOP I
Operating Lease Vehicle Amount as of such date and the denominator of which is
the sum of the Required AESOP I Operating Lease Vehicle Amounts for all Series
of Notes as of such date.
“Series 2010-3 Agent”
is defined in the recitals hereto.
“Series 2010-3 Available Cash
Collateral Account Amount” means, as of any date of determination, the
amount on deposit in the Series 2010-3 Cash Collateral Account (after giving
effect to any deposits thereto and withdrawals and releases therefrom on such
date).
“Series 2010-3 Available
Reserve Account Amount” means, as of any date of determination, the
amount on deposit in the Series 2010-3 Reserve Account (after giving effect to
any deposits thereto and withdrawals and releases therefrom on such
date).
“Series 2010-3 Cash
Collateral Account” is defined in Section 2.8(f).
“Series 2010-3 Cash
Collateral Account Collateral” is defined in
Section 2.8(a).
“Series 2010-3 Cash
Collateral Account Surplus” means, with respect to any Distribution Date,
the lesser of (a) the Series 2010-3 Available Cash Collateral Account Amount and
(b) the lesser of (A) the excess, if any, of the Series 2010-3 Liquidity Amount
(after giving effect to any withdrawal from the Series 2010-3 Reserve Account on
such Distribution Date) over the Series 2010-3 Required Liquidity Amount on such
Distribution Date and (B) the excess, if any, of the Series 2010-3 Enhancement
Amount (after giving effect to any withdrawal from the Series 2010-3 Reserve
Account on such Distribution Date) over the Series 2010-3 Required Enhancement
Amount on such Distribution Date; provided, however that, on any
date after the Series 2010-3 Letter of Credit Termination Date, the Series
2010-3 Cash Collateral Account Surplus shall mean the excess, if any, of (x) the
Series 2010-3 Available Cash Collateral Account Amount over (y) the Series
2010-3 Demand Note Payment Amount minus the Pre-Preference
Period Demand Note Payments as of such date.
-10-
“Series 2010-3 Cash
Collateral Percentage” means, as of any date of determination, the
percentage equivalent of a fraction, the numerator of which is the Series 2010-3
Available Cash Collateral Amount as of such date and the denominator of which is
the Series 2010-3 Letter of Credit Liquidity Amount as of such
date.
“Series 2010-3 Closing
Date” means March 23, 2010.
“Series 2010-3
Collateral” means the Collateral, each Series 2010-3 Letter of Credit,
each Series 2010-3 Demand Note, the Series 2010-3 Distribution Account
Collateral, the Series 2010-3 Cash Collateral Account Collateral and the Series
2010-3 Reserve Account Collateral.
“Series 2010-3 Collection
Account” is defined in Section 2.1(b).
“Series 2010-3 Controlled
Amortization Period” means the period commencing at the opening of
business on November 1, 2014 (or, 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 2010-3 Rapid Amortization Period, (ii) the
date on which the Series 2010-3 Notes are fully paid and (iii) the termination
of the Indenture.
“Series 2010-3 DBRS
Enhancement Percentage” means, as of any date of determination, the sum
of (i) the product of (A) the Series 2010-3 DBRS Lowest Enhancement Rate as of
such date and (B) the Series 2010-3 DBRS Lowest Enhanced Vehicle Percentage as
of such date, (ii) the product of (A) the Series 2010-3 DBRS Intermediate
Enhancement Rate as of such date and (B) the Series 2010-3 DBRS Intermediate
Enhanced Vehicle Percentage as of such date, and (iii) the product of (A) the
Series 2010-3 DBRS Highest Enhancement Rate as of such date and (B) the Series
2010-3 DBRS Highest Enhanced Vehicle Percentage as of such date.
“Series 2010-3 DBRS Highest
Enhanced Vehicle Percentage” means, as of any date of determination, a
fraction, expressed as a percentage, (a) the numerator of which is the aggregate
Net Book Value of all Vehicles leased under the AESOP I Operating Lease that
were manufactured by Manufacturer that does not have a long-term senior
unsecured debt rating of at least “BBB (low)” from DBRS as of such date and (b)
the denominator of which is the aggregate Net Book Value of all Vehicles leased
under the AESOP I Operating Lease as of such date.
“Series 2010-3 DBRS Highest
Enhancement Rate” means, as of any date of determination, the sum of (a)
35.5% and (b) 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 2010-3 DBRS
Intermediate Enhanced Vehicle Percentage” means, as of any date of
determination, 100% minus the sum of (a) the Series 2010-3 DBRS Lowest Enhanced
Vehicle Percentage and (b) the Series 2010-3 DBRS Highest Enhanced Vehicle
Percentage.
-11-
“Series 2010-3 DBRS
Intermediate Enhancement Rate” means, as of any date of determination,
the sum of (a) 35.5% and (b) the highest, for any calendar month within the
preceding twelve calendar months, of the greater of (c) 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 as not yet
occurred).
“Series 2010-3 DBRS Lowest
Enhanced Vehicle Percentage” means, as of any date of determination, a
fraction, expressed as a percentage, (a) the numerator of which is the sum,
without duplication, of (1) the aggregate Net Book Value of all Program Vehicles
leased under the AESOP I Operating Lease that are manufactured by Eligible
Program Manufacturers having long-term senior unsecured debt ratings of “BBB” or
higher from DBRS as of such date, (2) so long as any Eligible Non-Program
Manufacturer has a long-term senior unsecured debt rating of “BBB” or higher
from DBRS and no Manufacturer Event of Default has occurred and is continuing
with respect to such Eligible Non-Program Manufacturer, the aggregate Net Book
Value of all Non-Program Vehicles leased under the AESOP I Operating Lease
manufactured by each such Eligible Non-Program Manufacturer that are subject to
a Manufacturer Program and remain eligible for repurchase thereunder as of such
date and (3) the lesser of (A) the sum of (x) if as of such date any Eligible
Program Manufacturer has a long-term senior unsecured debt rating of “BBB (low)”
from DBRS, the aggregate Net Book Value of all Program Vehicles leased under the
AESOP I Operating Lease manufactured by each such Eligible Program Manufacturer
as of such date and (y) if as of such date any Eligible Non-Program Manufacturer
has a long-term senior unsecured debt rating of “BBB (low)” from DBRS and no
Manufacturer Event of Default has occurred and is continuing with respect to
such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by
each such Eligible Non-Program Manufacturer that are subject to a Manufacturer
Program and remain eligible for repurchase thereunder as of such date and (B)
10% of the aggregate Net Book Value of all Vehicles leased under the AESOP I
Operating Lease as of such date and (b) the denominator of which is the
aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease as of such date.
“Series 2010-3 DBRS Lowest
Enhancement Rate” means, as of any date of determination,
25%.
“Series 2010-3 Demand
Note” means each demand note made by a Demand Note Issuer, substantially
in the form of Exhibit
C, as amended, modified or restated from time to time.
“Series 2010-3 Demand Note
Payment Amount” means, as of the Series 2010-3 Letter of Credit
Termination Date, the aggregate amount of all proceeds of demands made on the
Series 2010-3 Demand Notes pursuant to Section 2.5(b) or (c) that were
deposited into the Series 2010-3 Distribution Account and paid to the Series
2010-3 Noteholders during the one year period ending on the Series 2010-3 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 sixty (60) consecutive
days) with respect to a Demand Note Issuer shall have occurred during such one
year period, the Series 2010-3 Demand Note
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Payment
Amount as of the Series 2010-3 Letter of Credit Termination Date shall equal the
Series 2010-3 Demand Note Payment Amount as if it were calculated as of the date
of such occurrence.
“Series 2010-3 Deposit
Date” is defined in Section 2.2.
“Series 2010-3 Distribution
Account” is defined in Section 2.9(a).
“Series 2010-3 Distribution
Account Collateral” is defined in Section 2.9(d).
“Series 2010-3 Eligible
Letter of Credit Provider” means a Person satisfactory to ABCR and the
Demand Note Issuers and having, at the time of the issuance of the related
Series 2010-3 Letter of Credit, a long-term senior unsecured debt rating (or the
equivalent thereof) of at least “A1” from Moody’s and at least “A (high)” from
DBRS and a short term senior unsecured debt rating of at least “P-1” from
Moody’s and at least “R-1” from DBRS that is (a) a commercial bank having total
assets in excess of $500,000,000, (b) a finance company, insurance company or
other financial institution that in the ordinary course of business issues
letters of credit and has total assets in excess of $200,000,000 or (c) any
other financial institution; provided, however, that if a
Person is not a Series 2010-3 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 2010-3 Eligible Letter of Credit Provider until ABRCF has
provided 10 days’ prior notice to the Rating Agencies that such Person has been
proposed as a Series 2010-3 Letter of Credit Provider.
“Series 2010-3
Enhancement” means the Series 2010-3 Cash Collateral Account Collateral,
the Series 2010-3 Letters of Credit, the Series 2010-3 Demand Notes, the Series
2010-3 Overcollateralization Amount and the Series 2010-3 Reserve Account
Amount.
“Series 2010-3 Enhancement
Amount” means, as of any date of determination, the sum of (i) the Series
2010-3 Overcollateralization Amount as of such date, (ii) the Series 2010-3
Letter of Credit Amount as of such date, (iii) the Series 2010-3 Available
Reserve Account Amount as of such date and (iv) the amount of cash and Permitted
Investments on deposit in the Series 2010-3 Collection Account (not including
amounts allocable to the Series 2010-3 Accrued Interest Account) and the Series
2010-3 Excess Collection Account as of such date.
“Series 2010-3 Enhancement
Deficiency” means, on any date of determination, the amount by which the
Series 2010-3 Enhancement Amount is less than the Series 2010-3 Required
Enhancement Amount as of such date.
“Series 2010-3 Excess
Collection Account” is defined in Section 2.1(b).
“Series 2010-3 Expected Final
Distribution Date” means the May 2015 Distribution Date.
“Series 2010-3 Final
Distribution Date” means the May 2016 Distribution Date.
“Series 2010-3 Interest
Period” means a period commencing on and including a Distribution Date
and ending on and including the day preceding the next succeeding
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Distribution
Date; provided,
however that
the initial Series 2010-3 Interest Period shall commence on and include the
Series 2010-3 Closing Date and end on and include April 19, 2010.
“Series 2010-3 Invested
Amount” means, as of any date of determination, the sum of the Class A
Invested Amount as of such date and the Class B Invested Amount as of such
date.
“Series 2010-3 Invested
Percentage” means as of any date of determination:
(a) when
used with respect to Principal Collections, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which shall
be equal to the sum of the Series 2010-3 Invested Amount and the Series 2010-3
Overcollateralization Amount, determined during the Series 2010-3 Revolving
Period as of the end of the Related Month (or, until the end of the initial
Related Month, on the Series 2010-3 Closing Date), or, during the Series 2010-3
Controlled Amortization Period and the Series 2010-3 Rapid Amortization Period,
as of the end of the Series 2010-3 Revolving Period, and the denominator of
which shall be the greater 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
Series 2010-3 Closing Date, and (II) as of the same date as in clause (I), the
sum of the numerators used to determine (i) invested percentages for allocations
with respect to Principal Collections (for all Series of Notes and all classes
of such Series of Notes) and (ii) overcollateralization percentages for
allocations with respect to Principal Collections (for all Series of Notes that
provide for credit enhancement in the form of overcollateralization);
and
(b) when
used with respect to Interest Collections, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which shall
be the Accrued Amounts with respect to the Series 2010-3 Notes on such date of
determination, and the denominator of which shall be the aggregate Accrued
Amounts with respect to all Series of Notes on such date of
determination.
“Series 2010-3 Lease Interest
Payment Deficit” means, on any Distribution Date, an amount equal to the
excess, if any, of (a) the aggregate amount of Interest Collections which
pursuant to Section 2.2(a), (b), (c) or (d) would have been allocated to the
Series 2010-3 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
2.2(a), (b), (c) or (d) have been allocated to the Series 2010-3 Accrued
Interest Account (excluding any amounts paid into the Series 2010-3 Accrued
Interest Account pursuant to the proviso in Sections 2.2(c)(ii) and/or
2.2(d)(ii)) from and excluding the preceding Distribution Date to and including
the Business Day immediately preceding such Distribution Date.
“Series 2010-3 Lease Payment
Deficit” means either a Series 2010-3 Lease Interest Payment Deficit or a
Series 2010-3 Lease Principal Payment Deficit.
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“Series 2010-3 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 2010-3 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 2.5(b) on account of such Series 2010-3 Lease Principal
Payment Deficit.
“Series 2010-3 Lease
Principal Payment Deficit” means on any Distribution Date the sum of (a)
the Series 2010-3 Monthly Lease Principal Payment Deficit for such Distribution
Date and (b) the Series 2010-3 Lease Principal Payment Carryover Deficit for
such Distribution Date.
“Series 2010-3 Letter of
Credit” means an irrevocable letter of credit, if any, substantially in
the form of Exhibit
D issued by a Series 2010-3 Eligible Letter of Credit Provider in favor
of the Trustee for the benefit of the Series 2010-3 Noteholders.
“Series 2010-3 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 2010-3 Letter of Credit on which no draw has been made pursuant to
Section 2.8(c), as specified therein, and (ii) if the Series 2010-3 Cash
Collateral Account has been established and funded pursuant to Section 2.8, the
Series 2010-3 Available Cash Collateral Account Amount on such date and (b) the
aggregate outstanding principal amount of the Series 2010-3 Demand Notes on such
date.
“Series 2010-3 Letter of
Credit Expiration Date” means, with respect to any Series 2010-3 Letter
of Credit, the expiration date set forth in such Series 2010-3 Letter of Credit,
as such date may be extended in accordance with the terms of such Series 2010-3
Letter of Credit.
“Series 2010-3 Letter of
Credit Liquidity Amount” means, as of any date of determination, the sum
of (a) the aggregate amount available to be drawn on such date under each Series
2010-3 Letter of Credit on which no draw has been made pursuant to Section
2.8(c), as specified therein, and (b) if the Series 2010-3 Cash Collateral
Account has been established and funded pursuant to Section 2.8, the Series
2010-3 Available Cash Collateral Account Amount on such date.
“Series 2010-3 Letter of
Credit Provider” means the issuer of a Series 2010-3 Letter of
Credit.
“Series 2010-3 Letter of
Credit Termination Date” means the first to occur of (a) the date on
which the Series 2010-3 Notes are fully paid and (b) the Series 2010-3
Termination Date.
“Series 2010-3 Limited
Liquidation Event of Default” means, so long as such event or condition
continues, any event or condition of the type specified in clauses (a) through
(g) of Article III; provided, however, that any
event or condition of the type specified in clauses (a) through (g) of Article
III shall not constitute a Series 2010-3 Limited Liquidation Event of Default if
the Trustee shall have received the written consent of the Requisite Series
2010-3 Noteholders waiving the occurrence of such Series 2010-3 Limited
Liquidation Event of Default.
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The
Trustee shall promptly (but in any event within two days) provide the Rating
Agencies with written notice of such waiver.
“Series 2010-3 Liquidity
Amount” means, as of any date of determination, the sum of (a) the Series
2010-3 Letter of Credit Liquidity Amount on such date and (b) the Series 2010-3
Available Reserve Account Amount on such date.
“Series 2010-3 Maximum
Amount” means any of the Series 2010-3 Maximum Manufacturer Amounts, the
Series 2010-3 Maximum Non-Eligible Manufacturer Amount, the Series 2010-3
Maximum Non-Program Vehicle Amount or the Series 2010-3 Maximum Specified States
Amount.
“Series 2010-3 Maximum
Hyundai Amount” means, as of any day, an amount equal to 20% of the
aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
“Series 2010-3 Maximum
Individual Isuzu/Subaru Amount” means, as of any day, with respect to
Isuzu or Subaru individually, an amount equal to 5% of the aggregate Net Book
Value of all Vehicles leased under the Leases on such day.
“Series 2010-3 Maximum Kia
Amount” means, as of any day, an amount equal to 10% of the aggregate Net
Book Value of all Vehicles leased under the Leases on such day.
“Series 2010-3 Maximum
Manufacturer Amount” means, as of any day, any of the Series 2010-3
Maximum Mitsubishi Amount, the Series 2010-3 Maximum Individual Isuzu/Subaru
Amount, the Series 2010-3 Maximum Hyundai Amount, the Series 2010-3 Maximum Kia
Amount or the Series 2010-3 Maximum Suzuki Amount.
“Series 2010-3 Maximum
Mitsubishi Amount” means, as of any day, an amount equal to 10% of the
aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
“Series 2010-3 Maximum
Non-Eligible Manufacturer Amount” means, as of any day, an amount
equal to 3% of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
“Series 2010-3 Maximum
Non-Program Vehicle Amount” means, as of any day, an amount equal to the
Series 2010-3 Maximum Non-Program Vehicle Percentage of the aggregate Net Book
Value of all Vehicles leased under the Leases on such day.
“Series 2010-3 Maximum
Non-Program Vehicle Percentage” means, as of any date of determination,
the sum of (a) 85% and (b) a fraction, expressed as a percentage, the numerator
of which is the aggregate Net Book Value of all Redesignated Vehicles
manufactured by a Bankrupt Manufacturer or a Manufacturer with respect to which
a Manufacturer Event of Default has occurred, and in each case leased under the
AESOP I Operating Lease or the Finance Lease as of such date, and the
denominator of which is the aggregate Net Book Value of all Vehicles leased
under the Leases as of such date.
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“Series 2010-3 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 2010-3 Maximum Suzuki
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 2010-3 Monthly
Interest” means, with respect to any Series 2010-3 Interest Period, the
sum of the Class A Monthly Interest and the Class B Monthly Interest in each
case with respect to such Series 2010-3 Interest Period.
“Series 2010-3 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 2.2(a), (b), (c) or (d) would have been
allocated to the Series 2010-3 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 2.2(a),
(b), (c) or (d) have been allocated to the Series 2010-3 Collection Account
(without giving effect to any amounts paid into the Series 2010-3 Accrued
Interest Account pursuant to the proviso in Sections 2.2(c)(ii) and/or
2.2(d)(ii)) from and excluding the preceding Distribution Date to and including
the Business Day immediately preceding such Distribution Date.
“Series 2010-3 Moody’s
Highest Enhanced Vehicle Percentage” means, as of any date
of determination, a fraction, expressed as a percentage, (a) the numerator of
which is the aggregate Net Book Value of all Vehicles leased under the AESOP I
Operating Lease that are either not subject to a Manufacturer Program or not
eligible for repurchase under a Manufacturer Program as of such date and (b) the
denominator of which is the aggregate Net Book Value of all Vehicles leased
under the AESOP I Operating Lease as of such date.
“Series 2010-3 Moody’s
Highest Enhancement Rate” means, as of any date of determination, the sum
of (a) 40.5% and (b) 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 2010-3 Moody’s
Intermediate Enhanced Vehicle Percentage” means, as of any date of
determination, 100% minus the sum of (a)
the Series 2010-3 Moody’s Lowest Enhanced Vehicle Percentage and (b) the Series
2010-3 Moody’s Highest Enhanced Vehicle Percentage.
“Series 2010-3 Moody’s
Intermediate Enhancement Rate” means, as of any date of determination,
40.5%.
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“Series 2010-3 Moody’s Lowest
Enhanced Vehicle Percentage” means, as of any date of determination, a
fraction, expressed as a percentage, (a) the numerator of which is the sum,
without duplication, of (1) the aggregate Net Book Value of all Program Vehicles
leased under the AESOP I Operating Lease that are manufactured by Eligible
Program Manufacturers having long-term senior unsecured debt ratings of “Baa2”
or higher from Moody’s as of such date, (2) so long as any Eligible Non-Program
Manufacturer has a long-term senior unsecured debt rating of “Baa2” or higher
from Moody’s and no Manufacturer Event of Default has occurred and is continuing
with respect to such Eligible Non-Program Manufacturer, the aggregate Net Book
Value of all Non-Program Vehicles leased under the AESOP I Operating Lease
manufactured by each such Eligible Non-Program Manufacturer that are subject to
a Manufacturer Program and remain eligible for repurchase thereunder as of such
date and (3) the lesser of (A) the sum of (x) if as of such date any Eligible
Program Manufacturer has a long-term senior unsecured debt rating of “Baa3” from
Moody’s, the aggregate Net Book Value of all Program Vehicles leased under the
AESOP I Operating Lease manufactured by each such Eligible Program Manufacturer
as of such date and (y) if as of such date any Eligible Non-Program Manufacturer
has a long-term senior unsecured debt rating of “Baa3” from Moody’s and no
Manufacturer Event of Default has occurred and is continuing with respect to
such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by
each such Eligible Non-Program Manufacturer that are subject to a Manufacturer
Program and remain eligible for repurchase thereunder as of such date and (B)
10% of the aggregate Net Book Value of all Vehicles leased under the AESOP I
Operating Lease as of such date and (b) the denominator of which is the
aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease as of such date.
“Series 2010-3 Moody’s Lowest
Enhancement Rate” means, as of any date of determination,
25%.
“Series 2010-3 Moody’s
Required Enhancement Percentage” means, as of any date of determination,
the sum of (i) the product of (A) the Series 2010-3 Moody’s Lowest Enhancement
Rate as of such date and (B) the Series 2010-3 Moody’s Lowest Enhanced Vehicle
Percentage as of such date, (ii) the product of (A) the Series 2010-3 Moody’s
Intermediate Enhancement Rate as of such date and (B) the Series 2010-3 Moody’s
Intermediate Enhanced Vehicle Percentage as of such date, and (iii) the product
of (A) the Series 2010-3 Moody’s Highest Enhancement Rate as of such date and
(B) the Series 2010-3 Moody’s Highest Enhanced Vehicle Percentage as of such
date.
“Series 2010-3 Note
Owner” means each beneficial owner of a Series 2010-3 Note.
“Series 2010-3 Note
Rate” means the Class A Note Rate or the Class B Note Rate, as
applicable.
“Series 2010-3
Noteholder” means any Class A Noteholder or any Class B
Noteholder.
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“Series 2010-3 Notes”
means, collectively, the Class A Notes and the Class B Notes.
“Series 2010-3
Overcollateralization Amount” means (i) as of any date on which no AESOP
I Operating Lease Vehicle Deficiency exists, the Series 2010-3 Required
Overcollateralization Amount as of such date and (ii) as of any date on which an
AESOP I Operating Lease Vehicle Deficiency exists, the excess, if any, of (x)
the Series 2010-3 AESOP I Operating Lease Loan Agreement Borrowing Base as of
such date over (y) the Series 2010-3 Invested Amount as of such
date.
“Series 2010-3 Past Due Rent
Payment” is defined in Section 2.2(g).
“Series 2010-3
Percentage” means, as of any date of determination, a fraction, expressed
as a percentage, the numerator of which is the Series 2010-3 Invested Amount as
of such date and the denominator of which is the Aggregate Invested Amount as of
such date.
“Series 2010-3 Principal
Allocation” is defined in Section 2.2(a)(ii).
“Series 2010-3 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 any Class of Series 2010-3 Notes and
ending upon the earliest to occur of (i) the date on which the Series 2010-3
Notes are fully paid, (ii) the Series 2010-3 Final Distribution Date and (iii)
the termination of the Indenture.
“Series 2010-3 Reimbursement
Agreement” means any and each agreement providing for the reimbursement
of a Series 2010-3 Letter of Credit Provider for draws under its Series 2010-3
Letter of Credit as the same may be amended, supplemented, restated or otherwise
modified from time to time.
“Series 2010-3 Repurchase
Amount” is defined in Section 5.1.
“Series 2010-3 Required AESOP
I Operating Lease Vehicle Amount” means, as of any date of determination,
the sum of the Series 2010-3 Invested Amount and the Series 2010-3 Required
Overcollateralization Amount as of such date.
“Series 2010-3 Required
Enhancement Amount” means, as of any date of determination, the sum of
(i) the product of the Series 2010-3 Required Enhancement Percentage as of such
date and the Series 2010-3 Invested Amount as of such date, (ii) the Series
2010-3 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the Non-Program Vehicle Amount
as of such date over the Series 2010-3 Maximum Non-Program Vehicle Amount as of
such date, (iii) the Series 2010-3 AESOP I Operating Lease Vehicle Percentage as
of the immediately preceding Business Day of the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Mitsubishi and leased
under the Leases as of such date over the Series 2010-3 Maximum Mitsubishi
Amount as of such date, (iv) the Series 2010-3 AESOP I Operating Lease Vehicle
Percentage as of the immediately preceding Business Day of the excess, if any,
of the aggregate Net Book Value of all Vehicles manufactured by Isuzu or Subaru,
individually, and leased under the Leases as of such date over the Series 2010-3
Maximum Individual Isuzu/Subaru Amount as of such date, (v)
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the
Series 2010-3 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the aggregate Net Book Value of
all Vehicles manufactured by Hyundai and leased under the Leases as of such date
over the Series 2010-3 Maximum Hyundai Amount as of such date, (vi) the Series
2010-3 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the aggregate Net Book Value of
all Vehicles manufactured by Kia and leased under the Leases as of such date
over the Series 2010-3 Maximum Kia Amount as of such date, (vii) the Series
2010-3 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the aggregate Net Book Value of
all Vehicles manufactured by Suzuki and leased under the Leases as of such date
over the Series 2010-3 Maximum Suzuki Amount as of such date, (viii) the Series
2010-3 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the Specified States Amount as
of such date over the Series 2010-3 Maximum Specified States Amount as of such
date and (ix) the Series 2010-3 AESOP I Operating Lease Vehicle Percentage as of
the immediately preceding Business Day of the excess, if any, of the
Non-Eligible Manufacturer Amount as of such date over the Series 2010-3 Maximum
Non-Eligible Manufacturer Amount as of such date.
“Series 2010-3 Required
Enhancement Percentage” means, as of any date of determination, the
greater of (i) the Series 2010-3 DBRS Enhancement Percentage as of such date and
(ii) the Series 2010-3 Moody’s Required Enhancement Percentage as of such
date.
“Series 2010-3 Required
Liquidity Amount” means, as of any date of determination, an amount equal
to the product of 3.25% and the Series 2010-3 Invested Amount as of such
date.
“Series 2010-3 Required
Overcollateralization Amount” means, as of any date of determination, the
excess, if any, of the Series 2010-3 Required Enhancement Amount over the sum of
(i) the Series 2010-3 Letter of Credit Amount as of such date, (ii) the Series
2010-3 Available Reserve Account Amount on such date and (iii) the amount of
cash and Permitted Investments on deposit in the Series 2010-3 Collection
Account (not including amounts allocable to the Series 2010-3 Accrued Interest
Account) and the Series 2010-3 Excess Collection Account on such
date.
“Series 2010-3 Required
Reserve Account Amount” means, for any date of determination, an amount
equal to the greater of (a) the excess, if any, of the Series 2010-3
Required Liquidity Amount as of such date over the Series 2010-3 Letter of
Credit Liquidity Amount as of such date and (b) the excess, if any, of the
Series 2010-3 Required Enhancement Amount over the Series 2010-3 Enhancement
Amount (excluding therefrom the Series 2010-3 Available Reserve Account Amount
and calculated after giving effect to any payments of principal to be made on
the Series 2010-3 Notes) as of such date.
“Series 2010-3 Reserve
Account” is defined in Section 2.7(a).
“Series 2010-3 Reserve
Account Collateral” is defined in Section 2.7(d).
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“Series 2010-3 Reserve
Account Surplus” means, with respect to any Distribution Date, the
excess, if any, of the Series 2010-3 Available Reserve Account Amount over the
Series 2010-3 Required Reserve Account Amount on such Distribution
Date.
“Series 2010-3 Revolving
Period” means the period from and including the Series 2010-3 Closing
Date to the earlier of (i) the commencement of the Series 2010-3 Controlled
Amortization Period and (ii) the commencement of the Series 2010-3 Rapid
Amortization Period; provided that if the
Series 2010-3 Notes are paid in full on or prior to the Series 2010-3 Expected
Final Distribution Date, then the Series 2010-3 Revolving Period shall also
include the period from and including the first day of the calendar month during
which the Distribution Date on which the Series 2010-3 Notes are paid in full
occurs to the commencement of the Series 2010-3 Rapid Amortization
Period.
“Series 2010-3
Shortfall” means, on any Distribution Date, the sum of the Class A
Shortfall and the Class B Shortfall on such Distribution Date.
“Series 2010-3 Termination
Date” means the May 2016 Distribution Date.
“Series 2010-3 Trustee’s
Fees” means, for any Distribution Date during the Series 2010-3 Rapid
Amortization Period on which there exists a Series 2010-3 Lease Interest Payment
Deficit, a portion of the fees payable to the Trustee in an amount equal to the
product of (i) the Series 2010-3 Percentage as of the beginning of the Series
2010-3 Interest Period ending on the day preceding such Distribution Date and
(ii) the fees owing to the Trustee under the Indenture; provided that the
Series 2010-3 Trustee’s Fees in the aggregate for all Distribution Dates shall
not exceed 1.1% of the Series 2010-3 Required AESOP I Operating Lease Vehicle
Amount as of the last day of the Series 2010-3 Revolving Period.
“Series 2010-3 Unpaid Demand
Amount” means, with respect to any single draw pursuant to Section 2.5(c)
or (d) on the Series 2010-3 Letters of Credit, the aggregate amount drawn by the
Trustee on all Series 2010-3 Letters of Credit.
“Supplement” is
defined in the preamble hereto.
“Temporary Global Class A
Note” is defined in Section 4.2.
“Temporary Global Class B
Note” is defined in Section 4.2.
“Temporary Global Series
2010-3 Notes” is defined in Section 4.2.
“Termination Date
Disbursement” means an amount drawn under a Series 2010-3 Letter of
Credit pursuant to a Certificate of Termination Date Demand.
“Termination
Disbursement” means an amount drawn under a Series 2010-3 Letter of
Credit pursuant to a Certificate of Termination Demand.
“Trustee” is defined
in the recitals hereto.
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“Unpaid Demand Note
Disbursement” means an amount drawn under a Series 2010-3 Letter of
Credit pursuant to a Certificate of Unpaid Demand Note Demand.
(c) Any
amounts calculated by reference to the Series 2010-3 Invested Amount (or any
component thereof) on any date shall, unless otherwise stated, be calculated
after giving effect to any payment of principal made to the applicable Series
2010-3 Noteholders on such date.
ARTICLE
II
SERIES
2010-3 ALLOCATIONS
With
respect to the Series 2010-3 Notes, the following shall apply:
Section
2.1. Establishment of Series
2010-3 Collection Account, Series 2010-3 Excess Collection Account and Series
2010-3 Accrued Interest Account. (a) All
Collections allocable to the Series 2010-3 Notes shall be allocated to the
Collection Account.
(b) The
Trustee will create three administrative subaccounts within the Collection
Account for the benefit of the Series 2010-3 Noteholders: the Series
2010-3 Collection Account (such sub-account, the “Series 2010-3 Collection
Account”), the Series 2010-3 Excess Collection Account (such sub-account,
the “Series 2010-3
Excess Collection Account”) and the Series 2010-3 Accrued Interest
Account (such sub-account, the “Series 2010-3 Accrued
Interest Account”).
Section
2.2. Allocations with Respect to
the Series 2010-3 Notes. The
net proceeds from the initial sale of each Class of the Series 2010-3 Notes will
be deposited into the Collection Account. On each Business Day on
which Collections are deposited into the Collection Account (each such date, a
“Series 2010-3 Deposit
Date”), the Administrator will direct the Trustee in writing pursuant to
the Administration Agreement to allocate all amounts deposited into the
Collection Account in accordance with the provisions of this Section
2.2:
(a) Allocations of Collections
During the Series 2010-3 Revolving Period. During the Series
2010-3 Revolving Period, the Administrator will direct the Trustee in writing
pursuant to the Administration Agreement to allocate on each day, prior to
11:00 a.m. (New York City time) on each Series 2010-3 Deposit Date, all
amounts deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2010-3 Collection Account an amount equal to the Series 2010-3
Invested Percentage (as of such day) of the aggregate amount of Interest
Collections on such day. All such amounts allocated to the Series
2010-3 Collection Account shall be further allocated to the Series 2010-3
Accrued Interest Account; and
(ii) allocate
to the Series 2010-3 Excess Collection Account an amount equal to the sum of (A)
the Series 2010-3 Invested Percentage (as of such day) of the aggregate amount
of Principal Collections on such day (for any such day, the
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“Series 2010-3 Principal
Allocation”) and (B) the proceeds from the issuance of any Class of the
Series 2010-3 Notes.
(b) Allocations of Collections
During the Series 2010-3 Controlled Amortization Period. With
respect to the Series 2010-3 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
2010-3 Deposit Date, all amounts deposited into the Collection Account as set
forth below:
(i) allocate
to the Series 2010-3 Collection Account an amount determined as set forth in
Section 2.2(a)(i) above for such day, which amount shall be further allocated to
the Series 2010-3 Accrued Interest Account; and
(ii) allocate
to the Series 2010-3 Collection Account an amount equal to the Series 2010-3
Principal Allocation for such day, which amount shall be used to make principal
payments in respect of the Series 2010-3 Notes in accordance with Section 2.5,
(A) first, in respect of the Class A Notes in an amount equal to the Class A
Controlled Distribution Amount and (B) second, in respect of the Class B Notes
in an amount equal to the Class B Controlled Distribution Amount, in each case
with respect to the Related Month; provided, however, that if the
Monthly Total Principal Allocation exceeds the sum of the Class A Controlled
Distribution Amount and the Class B Controlled Distribution Amount, in each case
with respect to the Related Month, then the amount of such excess shall be
allocated to the Series 2010-3 Excess Collection Account.
(c) Allocations of Collections
During the Series 2010-3 Rapid Amortization Period. With
respect to the Series 2010-3 Rapid Amortization Period, other than after the
occurrence of an Event of Bankruptcy with respect to ABCR, any other Lessee or
any Permitted Sublessee, 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 2010-3 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2010-3 Collection Account an amount determined as set forth in
Section 2.2(a)(i) above for such day, which amount shall be further allocated to
the Series 2010-3 Accrued Interest Account; and
(ii) allocate
to the Series 2010-3 Collection Account an amount equal to the Series 2010-3
Principal Allocation for such day, which amount shall be used in accordance with
Section 2.5 to make principal payments in respect of the Class A Notes until the
Class A Notes have been paid in full, and after the Class A Notes have been paid
in full shall be used to make principal payments in respect of the Class B Notes
until the Class B Notes have been paid in full; provided that if on
any Determination Date (A) the Administrator determines that the amount
anticipated to be available from Interest Collections allocable to the Series
2010-3 Notes and other amounts available pursuant to Section 2.3 to pay the sum
of (x) the Series 2010-3 Monthly Interest for the next succeeding
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Distribution
Date and (y) any unpaid Series 2010-3 Shortfall on such Distribution Date
(together with interest on such Series 2010-3 Shortfall) will be less than the
sum of the Series 2010-3 Monthly Interest for such Distribution Date and such
Series 2010-3 Shortfall and (B) the Series 2010-3 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 2010-3
Notes during the Related Month equal to the lesser of such insufficiency and the
Series 2010-3 Enhancement Amount to the Series 2010-3 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
occurrence of an Event of Bankruptcy with respect to ABCR, any other Lessee or
any Permitted Sublessee, 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 2010-3 Deposit Date, all
amounts attributable to the AESOP I Operating Lease Loan Agreement deposited
into the Collection Account as set forth below:
(i) allocate
to the Series 2010-3 Collection Account an amount equal to the Series 2010-3
AESOP I Operating Lease Vehicle Percentage as of the date of the occurrence of
such Event of Bankruptcy of the aggregate amount of Interest Collections made
under the AESOP I Operating Lease Loan Agreement for such day. All
such amounts allocated to the Series 2010-3 Collection Account shall be further
allocated to the Series 2010-3 Accrued Interest Account;
(ii) allocate
to the Series 2010-3 Collection Account an amount equal to the Series 2010-3
AESOP I Operating Lease Vehicle Percentage as of the date of the occurrence of
such Event of Bankruptcy of the aggregate amount of Principal Collections made
under the AESOP I Operating Lease Loan Agreement, which amount shall be used in
accordance with Section 2.5 to make principal payments in respect of the Class A
Notes until the Class A Notes have been paid in full, and after the Class A
Notes have been paid in full shall be used to make principal payments in respect
of the Class B Notes until the Class B Notes have been paid in full; provided that if on
any Determination Date (A) the Administrator determines that the amount
anticipated to be available from Interest Collections allocable to the Series
2010-3 Notes and other amounts available pursuant to Section 2.3 to pay the sum
of (x) the Series 2010-3 Monthly Interest for the next succeeding Distribution
Date and (y) any unpaid Series 2010-3 Shortfall on such Distribution Date
(together with interest on such Series 2010-3 Shortfall) will be less than the
sum of the Series 2010-3 Interest for such Distribution Date and such Series
2010-3 Shortfall and (B) the Series 2010-3 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 2010-3 Notes during
the Related Month equal to the lesser of such insufficiency and the Series
2010-3 Enhancement Amount to the Series 2010-3 Accrued Interest Account to be
treated as Interest Collections on such Distribution Date.
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(e) Series 2010-3 Excess
Collection Account. Amounts allocated to the Series 2010-3
Excess Collection Account on any Series 2010-3 Deposit Date will be (w) first,
deposited in the Series 2010-3 Reserve Account in an amount up to the excess, if
any, of the Series 2010-3 Required Reserve Account Amount for such date over the
Series 2010-3 Available Reserve Account Amount for such date, (x) second, used
to pay the principal amount of other Series of Notes that are then in
amortization, (y) third, 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 and (B) 100% minus the Loan
Payment Allocation Percentage with respect to the AESOP I Operating Lease Loan
Agreement as of such date and (C) the amount of any remaining funds and (z)
fourth, paid to ABRCF 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 available for financing
thereunder; provided, however, that in the
case of clauses (x), (y) and (z), that no Amortization Event, Series 2010-3
Enhancement Deficiency or AESOP I Operating Lease Vehicle Deficiency would
result therefrom or exist immediately thereafter. Upon the occurrence
of an Amortization Event and once a Trust Officer has actual knowledge of the
Amortization Event, funds on deposit in the Series 2010-3 Excess Collection
Account will be withdrawn by the Trustee, deposited in the Series 2010-3
Collection Account and allocated as Principal Collections to reduce the Series
2010-3 Invested Amount on the immediately succeeding Distribution
Date.
(f) Allocations From Other
Series. Amounts allocated to other Series of Notes that have
been reallocated by ABRCF to the Series 2010-3 Notes (i) during the Series
2010-3 Revolving Period shall be allocated to the Series 2010-3 Excess
Collection Account and applied in accordance with Section 2.2(e) and (ii) during
the Series 2010-3 Controlled Amortization Period or the Series 2010-3
Rapid Amortization Period shall be allocated to the Series 2010-3 Collection
Account and applied in accordance with Section 2.2(b) or 2.2(c), as
applicable, to make principal payments in respect of the Series 2010-3
Notes.
(g) Past Due Rent
Payments. Notwithstanding the foregoing, if in the case of
Section 2.2(a) or (b), after the occurrence of a Series 2010-3 Lease Payment
Deficit, the Lessees shall make payments of Monthly Base Rent or other amounts
payable by the Lessees under the Leases on or prior to the fifth Business Day
after the occurrence of such Series 2010-3 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 2010-3 Collection
Account an amount equal to the Series 2010-3 Invested Percentage as of the date
of the occurrence of such Series 2010-3 Lease Payment Deficit of the Collections
attributable to such Past Due Rent Payment (the “Series 2010-3 Past Due Rent
Payment”). The Administrator shall instruct the Trustee in
writing pursuant to the Administration Agreement to withdraw from the Series
2010-3 Collection Account and apply the Series 2010-3 Past Due Rent Payment in
the following order:
(i) if the
occurrence of such Series 2010-3 Lease Payment Deficit resulted in one or more
Lease Deficit Disbursements being made under the
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Series
2010-3 Letters of Credit, pay to each Series 2010-3 Letter of Credit Provider
who made such a Lease Deficit Disbursement for application in accordance with
the provisions of the applicable Series 2010-3 Reimbursement Agreement an amount
equal to the lesser of (x) the unreimbursed amount of such Series 2010-3
Letter of Credit Provider’s Lease Deficit Disbursement and (y) such Series
2010-3 Letter of Credit Provider’s Pro Rata Share of the Series 2010-3 Past Due
Rent Payment;
(ii) if the
occurrence of such Series 2010-3 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2010-3 Cash Collateral Account, deposit in the Series
2010-3 Cash Collateral Account an amount equal to the lesser of (x) the amount
of the Series 2010-3 Past Due Rent Payment remaining after any payment pursuant
to clause (i) above and (y) the amount withdrawn from the Series 2010-3 Cash
Collateral Account on account of such Series 2010-3 Lease Payment
Deficit;
(iii) if the
occurrence of such Series 2010-3 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2010-3 Reserve Account pursuant to Section 2.3(d),
deposit in the Series 2010-3 Reserve Account an amount equal to the lesser of
(x) the amount of the Series 2010-3 Past Due Rent Payment remaining after any
payments pursuant to clauses (i) and (ii) above and (y) the excess, if any, of
the Series 2010-3 Required Reserve Account Amount over the Series 2010-3
Available Reserve Account Amount on such day;
(iv) allocate
to the Series 2010-3 Accrued Interest Account the amount, if any, by which the
Series 2010-3 Lease Interest Payment Deficit, if any, relating to such Series
2010-3 Lease Payment Deficit exceeds the amount of the Series 2010-3 Past Due
Rent Payment applied pursuant to clauses (i), (ii) and (iii) above;
and
(v) treat the
remaining amount of the Series 2010-3 Past Due Rent Payment as Principal
Collections allocated to the Series 2010-3 Notes in accordance with Section
2.2(a)(ii) or 2.2(b)(ii), as the case may be.
Section
2.3. Payments to
Noteholders. On
each Determination Date, as provided below, the Administrator shall instruct the
Paying Agent in writing pursuant to the Administration Agreement to withdraw,
and on the following Distribution Date the Paying Agent, acting in accordance
with such instructions, shall withdraw the amounts required to be withdrawn from
the Collection Account pursuant to Section 2.3(a) below in respect of all
funds available from Interest Collections processed since the preceding
Distribution Date and allocated to the holders of the Series 2010-3
Notes.
(a) Note Interest with Respect
to the Series 2010-3 Notes. On each Determination Date, the
Administrator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement as to the amount to be withdrawn and
paid pursuant to Section 2.4 from the Series 2010-3 Accrued Interest Account to
the extent funds are anticipated to be available from Interest Collections
allocable to the Series 2010-3 Notes processed from but not including the
preceding Distribution Date through the succeeding Distribution Date in
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respect
of (i) first,
an amount equal to the Class A Monthly Interest for the Series 2010-3 Interest
Period ending on the day preceding the related Distribution Date, (ii) second, an amount
equal to the amount of any unpaid Class A Shortfall as of the preceding
Distribution Date (together with any accrued interest on such Class A
Shortfall), (iii) third, an amount
equal to the Class B Monthly Interest for the Series 2010-3 Interest Period
ending on the day preceding the related Distribution Date and (iv) fourth, an amount
equal to the amount of any unpaid Class B Shortfall as of the preceding
Distribution Date (together with any accrued interest on such Class B
Shortfall). On the following Distribution Date, the Trustee shall
withdraw the amounts described in the first sentence of this Section 2.3(a) from
the Series 2010-3 Accrued Interest Account and deposit such amounts in the
Series 2010-3 Distribution Account.
(b) Lease Payment Deficit
Notice. On or before 3:00 p.m. (New York City time) on the
Business Day immediately preceding each Distribution Date, the Administrator
shall notify the Trustee of the amount of any Series 2010-3 Lease Payment
Deficit, such notification to be in the form of Exhibit E (each a
“Lease Payment Deficit
Notice”).
(c) Draws on Series 2010-3
Letters of Credit For Series 2010-3 Lease Interest Payment
Deficits. If the Administrator determines on the Business Day
immediately preceding any Distribution Date that on such Distribution Date there
will exist a Series 2010-3 Lease Interest Payment Deficit, the Administrator
shall, on or prior to 3:00 p.m. (New York City time) on such Business Day,
instruct the Trustee in writing to draw on the Series 2010-3 Letters of Credit,
if any, and, the Trustee shall, by 5:00 p.m. (New York City time) on such
Business Day draw an amount as set forth in such notice equal to the least of
(i) such Series 2010-3 Lease Interest Payment Deficit, (ii) the excess, if any,
of the sum of (A) the amounts described in clauses (i) through (iv) of Section
2.3(a) above for such Distribution Date and (B) during the Series 2010-3 Rapid
Amortization Period, the Series 2010-3 Trustee’s Fees for such Distribution
Date, over the amounts available from the Series 2010-3 Accrued Interest Account
and (iii) the Series 2010-3 Letter of Credit Liquidity Amount on the Series
2010-3 Letters of Credit by presenting to each Series 2010-3 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 2010-3
Distribution Account on such date; provided, however, that if the
Series 2010-3 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2010-3 Cash Collateral Account and
deposit in the Series 2010-3 Distribution Account an amount equal to the lesser
of (x) the Series 2010-3 Cash Collateral Percentage on such date of the least of
the amounts described in clauses (i), (ii) and (iii) above and (y) the Series
2010-3 Available Cash Collateral Account Amount on such date and draw an amount
equal to the remainder of such amount on the Series 2010-3 Letters of
Credit.
(d) Withdrawals from Series
2010-3 Reserve Account. If the Administrator determines on any
Distribution Date that the amounts available from the Series 2010-3 Accrued
Interest Account plus the amount, if
any, to be drawn under the Series 2010-3 Letters of Credit and /or withdrawn
from the Series 2010-3 Cash Collateral Account pursuant to Section 2.3(c) are
insufficient to pay the sum of (A) the amounts described in clauses (i) through
(iv) of Section 2.3(a) above on such Distribution Date and (B) during the
Series 2010-3 Rapid Amortization Period, the Series 2010-3 Trustee’s Fees for
such Distribution Date, the Administrator shall instruct the Trustee in writing
to withdraw from the Series 2010-3 Reserve Account and deposit in the Series
2010-3 Distribution Account on such Distribution Date an
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amount
equal to the lesser of the Series 2010-3 Available Reserve Account Amount and
such insufficiency. The Trustee shall withdraw such amount from the
Series 2010-3 Reserve Account and deposit such amount in the Series 2010-3
Distribution Account.
(e) [RESERVED]
(f) Balance. On
or prior to the second Business Day preceding each Distribution Date, the
Administrator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement to pay the balance (after making the
payments required in Section 2.4), if any, of the amounts available from the
Series 2010-3 Accrued Interest Account and the Series 2010-3 Distribution
Account, plus
the amount, if any, drawn under the Series 2010-3 Letters of Credit and/or
withdrawn from the Series 2010-3 Cash Collateral Account pursuant to Section
2.3(c) plus the
amount, if any, withdrawn from the Series 2010-3 Reserve Account pursuant to
Section 2.3(d) as follows:
(i) on each
Distribution Date during the Series 2010-3 Revolving Period or the Series 2010-3
Controlled Amortization Period, (1) first, to the Administrator, an amount equal
to the Series 2010-3 Percentage as of the beginning of the Series 2010-3
Interest Period ending on the day preceding such Distribution Date of the
portion of the Monthly Administration Fee payable by ABRCF (as specified in
clause (iii) of the definition thereof) for such Series 2010-3 Interest Period,
(2) second, to the Trustee, an amount equal to the Series 2010-3 Percentage as
of the beginning of such Series 2010-3 Interest Period of the fees owing to the
Trustee under the Indenture for such Series 2010-3 Interest Period, (3) third 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 2010-3
Percentage as of the beginning of such Series 2010-3 Interest Period of such
Carrying Charges (other than Carrying Charges provided for above) for such
Series 2010-3 Interest Period and (4) fourth, the balance, if any (“Excess Collections”),
shall be withdrawn by the Paying Agent from the Series 2010-3 Collection Account
and deposited in the Series 2010-3 Excess Collection Account; and
(ii) on each
Distribution Date during the Series 2010-3 Rapid Amortization Period, (1) first,
to the Trustee, an amount equal to the Series 2010-3 Percentage as of the
beginning of such Series 2010-3 Interest Period ending on the day preceding such
Distribution Date of the fees owing to the Trustee under the Indenture for such
Series 2010-3 Interest Period, (2) second, to the Administrator, an amount equal
to the Series 2010-3 Percentage as of the beginning of such Series 2010-3
Interest Period of the portion of the Monthly Administration Fee (as specified
in clause (iii) of the definition thereof) payable by ABRCF for such Series
2010-3 Interest Period, (3) third, 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 2010-3 Percentage as of the beginning of
such Series 2010-3 Interest Period of such Carrying Charges (other than Carrying
Charges provided for above) for such Series 2010-3 Interest Period and (4)
fourth, so long as the Series 2010-3 Invested Amount is greater than the Monthly
Total Principal Allocations for the Related Month, an amount equal to the excess
of the Series 2010-3 Invested Amount over the Monthly Total Principal
Allocations for the Related Month shall be treated as Principal
Collections.
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(g) Shortfalls. (i) If
the amounts described in Section 2.3 are insufficient to pay the Class A Monthly
Interest on any Distribution Date, payments of interest to the Class A
Noteholders will be reduced on a pro rata basis by the
amount of such deficiency. The aggregate amount, if any, of such
deficiency on any Distribution Date, together with the aggregate unpaid amount
of any such deficiencies with respect to all prior Distribution Dates, shall be
referred to as the “Class A
Shortfall”. Interest shall accrue on the Class A Shortfall at
the Class A Note Rate.
(ii) If the
amounts described in Section 2.3 are insufficient to pay the amounts described
in clauses (i) and (ii) of Section 2.3(a) and the Class B Monthly Interest on
any Distribution Date, payments of interest to the Class B Noteholders will be
reduced on a pro rata basis by the
amount of such deficiency. The aggregate amount, if any, of such
deficiency on any Distribution Date (which deficiency on any Distribution Date
shall not exceed the Class B Monthly Interest for the Series 2010-3 Interest
Period ended on the day preceding such Distribution Date), together with the
aggregate unpaid amount of any such deficiencies with respect to all prior
Distribution Dates, shall be referred to as the “Class B
Shortfall”. Interest shall accrue on the Class B Shortfall at
the Class B Note Rate.
Section
2.4. Payment of Note
Interest. (a) On
each Distribution Date, subject to Section 9.8 of the Base Indenture, the Paying
Agent shall, in accordance with Section 6.1 of the Base Indenture, pay the
following amounts in the following order of priority from amounts deposited into
the Series 2010-3 Distribution Account pursuant to Section 2.3:
(i) first, to the Class A
Noteholders, the amounts due to the Class A Noteholders described in Sections
2.3(a)(i) and (ii); and
(ii) second, to the Class
B Noteholders the amounts due to the Class B Noteholders described in Sections
2.3(a)(iii) and (iv).
Section
2.5. Payment of Note
Principal. (a) Monthly Payments During
Controlled Amortization Period or Rapid Amortization
Period. On each Determination Date, commencing on the second
Determination Date during the Series 2010-3 Controlled Amortization Period or
the first Determination Date after the commencement of the Series 2010-3 Rapid
Amortization Period, the Administrator shall instruct the Trustee and the Paying
Agent in writing pursuant to the Administration Agreement and in accordance with
this Section 2.5 as to (1) the amount allocated to the Series 2010-3 Notes
during the Related Month pursuant to Section 2.2(b)(ii), (c)(ii) or (d)(ii), as
the case may be, (2) any amounts to be drawn on the Series 2010-3 Demand Notes
and/or on the Series 2010-3 Letters of Credit (or withdrawn from the Series
2010-3 Cash Collateral Account) pursuant to this Section 2.5 and (3) any amounts
to be withdrawn from the Series 2010-3 Reserve Account pursuant to this Section
2.5 and deposited into the Series 2010-3 Distribution Account. On the
Distribution Date following each such Determination Date, the Trustee shall
withdraw the amount allocated to the Series 2010-3 Notes during the Related
Month pursuant to Section 2.2(b)(ii), (c)(ii) or (d)(ii), as the case may be,
from the Series 2010-3 Collection Account and deposit such amount in the Series
2010-3 Distribution Account, to be paid to the holders of the Series 2010-3
Notes.
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(b) Principal Draws on Series
2010-3 Letters of Credit. If the Administrator determines on
the Business Day immediately preceding any Distribution Date during the Series
2010-3 Rapid Amortization Period that on such Distribution Date there will exist
a Series 2010-3 Lease Principal Payment Deficit, the Administrator shall
instruct the Trustee in writing to draw on the Series 2010-3 Letters of Credit,
if any, as provided below. Upon receipt of a notice by the Trustee
from the Administrator in respect of a Series 2010-3 Lease Principal Payment
Deficit on or prior to 3:00 p.m. (New York City time) on the Business Day
immediately preceding a Distribution Date, the Trustee shall, by 5:00 p.m. (New
York City time) on such Business Day draw an amount as set forth in such notice
equal to the least of (i) such Series 2010-3 Lease Principal Payment Deficit,
(ii) the Principal Deficit Amount for such Distribution Date and (iii) the
Series 2010-3 Letter of Credit Liquidity Amount on the Series 2010-3 Letters of
Credit by presenting to each Series 2010-3 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 2010-3 Distribution Account
on such date; provided, however, that if the
Series 2010-3 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2010-3 Cash Collateral Account and
deposit in the Series 2010-3 Distribution Account an amount equal to the lesser
of (x) the Series 2010-3 Cash Collateral Percentage for such date of the lesser
of the Series 2010-3 Lease Principal Payment Deficit and the Principal Deficit
Amount for such Distribution Date and (y) the Series 2010-3 Available Cash
Collateral Account Amount on such date and draw an amount equal to the remainder
of such amount on the Series 2010-3 Letters of
Credit. Notwithstanding any of the preceding to the contrary, during
the period after the date of the filing by any of the Lessees of a petition for
relief under Chapter 11 of the Bankruptcy Code until the date on which each of
the Lessees shall have resumed making all payments of the portion of Monthly
Base Rent relating to Loan Interest required to be made under the AESOP I
Operating Lease, the Administrator shall only instruct the Trustee to draw on
the Series 2010-3 Letters of Credit (or withdraw from the Series 2010-3 Cash
Collateral Account, if applicable) pursuant to this Section 2.5(b), and the
Trustee shall only draw (or withdraw), an amount equal to the lesser of (i) the
amount determined as provided in the preceding sentence and (ii) the excess, if
any, of (x) the Series 2010-3 Liquidity Amount on such date over (y) the Series
2010-3 Required Liquidity Amount on such date.
(c) Final Distribution
Date. Each of the entire Class A Invested Amount and the
entire Class B Invested Amount shall be due and payable on the Series 2010-3
Final Distribution Date. In connection therewith:
(i) Demand Note
Draw. If the amount to be deposited in the Series 2010-3
Distribution Account in accordance with Section 2.5(a) together with any amounts
to be deposited therein in accordance with Section 2.5(b) on the Series 2010-3
Final Distribution Date is less than the Series 2010-3 Invested Amount and there
are any Series 2010-3 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 2010-3 Final
Distribution Date, the Administrator shall instruct the Trustee in writing to
make a demand (a “Demand Notice”)
substantially in the form attached hereto as Exhibit F on the
Demand Note Issuers for payment under the Series 2010-3 Demand Notes in an
amount equal to the lesser of (i) such insufficiency and (ii) the Series 2010-3
Letter of Credit Amount. The Trustee shall, prior to 12:00 noon (New
York City time) on the second Business Day preceding such Series 2010-3 Final
Distribution Date deliver such Demand Notice to the
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Demand
Note Issuers; provided, however, that if an
Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred and be continuing, the
Trustee shall not be required to deliver such Demand Notice to such Demand Note
Issuer. The Trustee shall cause the proceeds of any demand on the
Series 2010-3 Demand Notes to be deposited into the Series 2010-3 Distribution
Account.
(ii) 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 the Series 2010-3
Final Distribution Date a Demand Notice has been transmitted by the Trustee to
the Demand Note Issuers pursuant to clause (i) of this Section 2.5(c) and any
Demand Note Issuer shall have failed to pay to the Trustee or deposit into the
Series 2010-3 Distribution Account the amount specified in such Demand Notice in
whole or in part or (y) due to the occurrence of an Event of Bankruptcy (or the
occurrence of an event described in clause (a) of the definition thereof,
without the lapse of a period of 60 consecutive days) with respect to one or
more of the Demand Note Issuers, the Trustee shall not have delivered such
Demand Notice to any Demand Note Issuer on the second Business Day preceding the
Series 2010-3 Final Distribution Date, then, in the case of (x) or (y) the
Trustee shall draw on the Series 2010-3 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 so failed to pay under the Series 2010-3
Demand Notes (or, the amount that the Trustee failed to demand for payment
thereunder) and (b) the Series 2010-3 Letter of Credit Amount on such Business
Day by presenting to each Series 2010-3 Letter of Credit Provider a draft
accompanied by a Certificate of Unpaid Demand Note Demand; provided, however, that if the
Series 2010-3 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2010-3 Cash Collateral Account and
deposit in the Series 2010-3 Distribution Account an amount equal to the lesser
of (x) the Series 2010-3 Cash Collateral Percentage on such Business Day of the
amount that the Demand Note Issuers so failed to pay under the Series 2010-3
Demand Notes (or, the amount that the Trustee failed to demand for payment
thereunder) and (y) the Series 2010-3 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 2010-3 Demand Notes
(or, the amount that the Trustee failed to demand for payment thereunder) on the
Series 2010-3 Letters of Credit. The Trustee shall deposit, or cause
the deposit of, the proceeds of any draw on the Series 2010-3 Letters of Credit
and the proceeds of any withdrawal from the Series 2010-3 Cash Collateral
Account to be deposited in the Series 2010-3 Distribution Account.
(iii) Reserve Account
Withdrawal. If, after giving effect to the deposit into the
Series 2010-3 Distribution Account of the amount to be deposited in accordance
with Section 2.5(a) and the amounts described in clauses (i) and (ii) of this
Section 2.5(c), the amount to be deposited in the Series 2010-3 Distribution
Account with respect to the Series 2010-3 Final Distribution Date is or will be
less than the Series 2010-3 Invested Amount, then, prior to 12:00 noon (New York
City time) on the second Business Day prior to such Series 2010-3 Final
Distribution Date, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 2010-3 Reserve Account, an amount equal
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to the
lesser of the Series 2010-3 Available Reserve Account Amount and such remaining
insufficiency and deposit it in the Series 2010-3 Distribution Account on such
Series 2010-3 Final Distribution Date.
(d) Principal Deficit
Amount. On each Distribution Date, other than the Series
2010-3 Final Distribution Date, on which the Principal Deficit Amount is greater
than zero, amounts shall be transferred to the Series 2010-3 Distribution
Account as follows:
(i) Demand Note
Draw. If on any Determination Date, the Administrator
determines that the Principal Deficit Amount with respect to the next succeeding
Distribution Date will be greater than zero and there are any Series 2010-3
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 2010-3 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 definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred and be continuing, the
Trustee shall not be required to deliver such Demand Notice to such Demand Note
Issuer. The Trustee shall cause the proceeds of any demand on the
Series 2010-3 Demand Note to be deposited into the Series 2010-3 Distribution
Account.
(ii) 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 into the
Series 2010-3 Distribution Account the amount specified in such Demand Notice in
whole or in part or (y) due to the occurrence of an Event of Bankruptcy (or the
occurrence of an event described in clause (a) of the definition thereof,
without the lapse of a period of 60 consecutive days) with respect to any Demand
Note Issuer, the Trustee shall not have delivered such Demand Notice to any
Demand Note Issuer on the second Business Day preceding such Distribution Date,
then, in the case of (x) or (y) the Trustee shall on such Business Day draw on
the Series 2010-3 Letters of Credit an amount equal to the lesser of
(i) Series 2010-3 Letter of Credit Amount and (ii) the aggregate
amount that the Demand Note Issuers failed to pay under the Series 2010-3 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
by presenting to each Series 2010-3 Letter of Credit Provider a draft
accompanied by a Certificate of Unpaid Demand Note Demand; provided, however, that if the
Series 2010-3 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2010-3 Cash Collateral Account and
deposit in the Series 2010-3 Distribution Account an amount equal to the lesser
of (x) the Series 2010-3 Cash Collateral Percentage on such Business Day of the
aggregate amount that the Demand Note Issuers so failed to pay under the Series
2010-3 Demand Notes (or, the amount that the Trustee failed to demand for
payment thereunder) and (y) the Series 2010-3 Available Cash Collateral Account
Amount on such Business Day and draw an amount equal to the remainder of the
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aggregate
amount that the Demand Note Issuers failed to pay under the Series 2010-3 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
on the Series 2010-3 Letters of Credit. The Trustee shall deposit
into, or cause the deposit of, the proceeds of any draw on the Series 2010-3
Letters of Credit and the proceeds of any withdrawal from the Series 2010-3 Cash
Collateral Account to be deposited in the Series 2010-3 Distribution
Account.
(iii) Reserve Account
Withdrawal. If the Series 2010-3 Letter of Credit Amount will
be less than the Principal Deficit Amount on any Distribution Date, then, prior
to 12:00 noon (New York City time) on the second Business Day prior to such
Distribution Date, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 2010-3 Reserve Account, an amount equal to the lesser
of (x) the Series 2010-3 Available Reserve Account Amount and (y) the amount by
which the Principal Deficit Amount exceeds the amounts to be deposited in the
Series 2010-3 Distribution Account in accordance with clauses (i) and (ii) of
this Section 2.5(d) and deposit it in the Series 2010-3 Distribution Account on
such Distribution Date.
(e) Distributions. (i) Class A
Notes. On each Distribution Date occurring on or after the
date a withdrawal is made from the Series 2010-3 Collection Account pursuant to
Section 2.5(a) or amounts are deposited in the Series 2010-3 Distribution
Account pursuant to Section 2.5(b), (c) or (d) the Paying Agent shall, in
accordance with Section 6.1 of the Base Indenture, pay pro rata to each Class A
Noteholder from the Series 2010-3 Distribution Account the amount deposited
therein pursuant to Section 2.5(a), (b), (c) or (d), to the extent necessary to
pay the Class A Controlled Amortization Amount during the Series 2010-3
Controlled Amortization Period or to the extent necessary to pay the Class A
Invested Amount during the Series 2010-3 Rapid Amortization Period.
(ii) Class B
Notes. On each Distribution Date occurring on or after the
date a withdrawal is made from the Series 2010-3 Collection Account pursuant to
Section 2.5(a) or amounts are deposited in the Series 2010-3 Distribution
Account pursuant to Section 2.5(b), (c) or (d) the Paying Agent shall, in
accordance with Section 6.1 of the Base Indenture, pay pro rata to each Class B
Noteholder from the Series 2010-3 Distribution Account the amount deposited
therein pursuant to Section 2.5(a), (b), (c) or (d) less the aggregate amount
applied to make the payments required pursuant to Section 2.5(e)(i), to the
extent necessary to pay the Class B Controlled Amortization Amount during the
Series 2010-3 Controlled Amortization Period or to the extent necessary to pay
the Class B Invested Amount during the Series 2010-3 Rapid Amortization
Period.
Section
2.6. Administrator’s Failure to
Instruct the Trustee to Make a Deposit or Payment. If
the Administrator fails to give notice or instructions to make any payment from
or deposit into the Collection Account required to be given by the
Administrator, at the time specified in the Administration Agreement or any
other Related Document (including applicable grace periods), the Trustee shall
make such payment or deposit into or from the Collection Account without such
notice or instruction from the Administrator, provided that the
Administrator, upon request of the Trustee, promptly provides the Trustee with
all information necessary to allow the Trustee to make such a payment or
deposit. When any payment or deposit hereunder or under any other
Related Document is required to be made by the Trustee or the
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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
2.7. Series 2010-3 Reserve
Account. (a) Establishment of Series
2010-3 Reserve Account. ABRCF shall establish and maintain in
the name of the Series 2010-3 Agent for the benefit of the Series 2010-3
Noteholders, or cause to be established and maintained, an account (the “Series 2010-3 Reserve
Account”), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Series 2010-3
Noteholders. The Series 2010-3 Reserve Account shall be maintained
(i) with a Qualified Institution, or (ii) as a segregated trust account with the
corporate trust department of a depository institution or trust company having
corporate trust powers and acting as trustee for funds deposited in the Series
2010-3 Reserve Account; provided that, if at
any time such Qualified Institution is no longer a Qualified Institution or the
credit rating of any securities issued by such depositary institution or trust
company shall be reduced to below “BBB (low)” by DBRS or “Baa2” by Moody’s, then
ABRCF shall, within thirty (30) days of such reduction, establish a new Series
2010-3 Reserve Account with a new Qualified Institution. If the
Series 2010-3 Reserve Account is not maintained in accordance with the previous
sentence, ABRCF shall establish a new Series 2010-3 Reserve Account, within ten
(10) Business Days after obtaining knowledge of such fact, which complies with
such sentence, and shall instruct the Series 2010-3 Agent in writing to transfer
all cash and investments from the non-qualifying Series 2010-3 Reserve Account
into the new Series 2010-3 Reserve Account. Initially, the Series
2010-3 Reserve Account will be established with The Bank of New York Mellon
Trust Company, N.A.
(b) Administration of the Series
2010-3 Reserve Account. The Administrator may instruct the
institution maintaining the Series 2010-3 Reserve Account to invest funds on
deposit in the Series 2010-3 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 2010-3 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
2010-3 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 ABRCF, take such
action as is required to maintain the Trustee’s security interest in the
Permitted Investments credited to the Series 2010-3 Reserve
Account. ABRCF 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 the purchase price of such
Permitted Investments. In the absence of written investment
instructions hereunder, funds on deposit in the Series 2010-3 Reserve Account
shall remain uninvested.
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(c) Earnings from Series 2010-3
Reserve Account. All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Series 2010-3 Reserve
Account shall be deemed to be on deposit therein and available for
distribution.
(d) Series 2010-3 Reserve
Account Constitutes Additional Collateral for Series 2010-3
Notes. In order to secure and provide for the repayment and
payment of ABRCF’s Obligations with respect to the Series 2010-3 Notes, ABRCF
hereby grants a security interest in and assigns, pledges, grants, transfers and
sets over to the Trustee, for the benefit of the Series 2010-3 Noteholders, all
of ABRCF’s right, title and interest in and to the following (whether now or
hereafter existing or acquired): (i) the Series 2010-3 Reserve
Account, including any security entitlement thereto; (ii) all funds on deposit
therein from time to time; (iii) all certificates and instruments, if any,
representing or evidencing any or all of the Series 2010-3 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 2010-3 Reserve
Account, whether constituting securities, instruments, general intangibles,
investment property, financial assets or other property; (v) all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the Series
2010-3 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 2010-3 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 2010-3 Reserve Account and in all proceeds thereof, and shall be the only
person authorized to originate entitlement orders in respect of the Series
2010-3 Reserve Account. The Series 2010-3 Reserve Account Collateral
shall be under the sole dominion and control of the Trustee for the benefit of
the Series 2010-3 Noteholders. The Series 2010-3 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 2010-3 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 2010-3 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.
(e) Series 2010-3 Reserve
Account Surplus. In the event that the Series 2010-3 Reserve
Account Surplus on any Distribution Date, after giving effect to all withdrawals
from the Series 2010-3 Reserve Account, is greater than zero, if no Series
2010-3 Enhancement Deficiency or AESOP I Operating Lease Vehicle Deficiency
would result therefrom or exist thereafter, the Trustee, acting in accordance
with the written instructions of the Administrator pursuant to the
Administration Agreement, shall withdraw from the Series 2010-3 Reserve Account
an amount equal to the Series 2010-3 Reserve Account Surplus and shall pay such
amount to ABRCF.
(f) Termination of Series 2010-3
Reserve Account. Upon the termination of the Indenture
pursuant to Section 11.1 of the Base Indenture, the Trustee, acting in
accordance with the written instructions of the Administrator, after the prior
payment of all amounts owing to the Series 2010-3 Noteholders and payable from
the Series 2010-3 Reserve Account as
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provided
herein, shall withdraw from the Series 2010-3 Reserve Account all amounts on
deposit therein for payment to ABRCF.
Section
2.8. Series 2010-3 Letters of
Credit and Series 2010-3 Cash Collateral Account. (a) Series 2010-3 Letters of
Credit and Series 2010-3 Cash Collateral Account Constitute Additional
Collateral for Series 2010-3 Notes. In order to secure and
provide for the repayment and payment of ABRCF’s Obligations with respect to the
Series 2010-3 Notes, ABRCF hereby grants a security interest in and assigns,
pledges, grants, transfers and sets over to the Trustee, for the benefit of the
Series 2010-3 Noteholders, all of ABRCF’s right, title and interest in and to
the following (whether now or hereafter existing or
acquired): (i) each Series 2010-3 Letter of Credit;
(ii) the Series 2010-3 Cash Collateral Account, including any security
entitlement thereto; (iii) all funds on deposit in the Series 2010-3 Cash
Collateral Account from time to time; (iv) all certificates and
instruments, if any, representing or evidencing any or all of the Series 2010-3
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 2010-3 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 2010-3 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 2010-3 Cash
Collateral Account Collateral”). The Trustee shall, for the
benefit of the Series 2010-3 Noteholders, possess all right, title and interest
in all funds on deposit from time to time in the Series 2010-3 Cash Collateral
Account and in all proceeds thereof, and shall be the only person authorized to
originate entitlement orders in respect of the Series 2010-3 Cash Collateral
Account. The Series 2010-3 Cash Collateral Account shall be under the
sole dominion and control of the Trustee for the benefit of the Series 2010-3
Noteholders. The Series 2010-3 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 2010-3 Cash Collateral Account; (ii) that its
jurisdiction as a securities intermediary is New York, (iii) that each item of
property (whether investment property, financial asset, security, instrument or
cash) credited to the Series 2010-3 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.
(b) Series 2010-3 Letter of
Credit Expiration Date. If prior to the date which is ten (10)
days prior to the then - scheduled Series 2010-3 Letter of Credit Expiration
Date with respect to any Series 2010-3 Letter of Credit, excluding the amount
available to be drawn under such Series 2010-3 Letter of Credit but taking into
account each substitute Series 2010-3 Letter of Credit which has been obtained
from a Series 2010-3 Eligible Letter of Credit Provider and is in full force and
effect on such date, the Series 2010-3 Enhancement Amount would be equal to or
more than the Series 2010-3 Required Enhancement Amount and the Series 2010-3
Liquidity Amount would be equal to or greater than the Series 2010-3 Required
Liquidity Amount, then the Administrator shall notify the Trustee in writing no
later than two (2) Business Days prior to such Series 2010-3 Letter of Credit
Expiration Date of such determination. If prior to the date which is
ten (10) days prior to the then-scheduled Series 2010-3 Letter of Credit
Expiration Date
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with
respect to any Series 2010-3 Letter of Credit, excluding the amount available to
be drawn under such Series 2010-3 Letter of Credit but taking into account a
substitute Series 2010-3 Letter of Credit which has been obtained from a Series
2010-3 Eligible Letter of Credit Provider and is in full force and effect on
such date, the Series 2010-3 Enhancement Amount would be less than the Series
2010-3 Required Enhancement Amount or the Series 2010-3 Liquidity Amount would
be less than the Series 2010-3 Required Liquidity Amount, then the Administrator
shall notify the Trustee in writing no later than two (2) Business Days prior to
such Series 2010-3 Letter of Credit Expiration Date of (x)
the greater of (A) the excess, if any, of the Series 2010-3 Required Enhancement
Amount over the Series 2010-3 Enhancement Amount, excluding the available amount
under such expiring Series 2010-3 Letter of Credit but taking into account any
substitute Series 2010-3 Letter of Credit which has been obtained from a Series
2010-3 Eligible Letter of Credit Provider and is in full force and effect, on
such date, and (B) the excess, if any, of the Series 2010-3 Required Liquidity
Amount over the Series 2010-3 Liquidity Amount, excluding the available amount
under such expiring Series 2010-3 Letter of Credit but taking into account any
substitute Series 2010-3 Letter of Credit which has been obtained from a Series
2010-3 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
2010-3 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 noon (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 noon (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 2010-3 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 2010-3 Cash Collateral Account.
If the
Trustee does not receive the notice from the Administrator described in the
first paragraph of this Section 2.8(b) on or prior to the date that is two (2)
Business Days prior to each Series 2010-3 Letter of Credit Expiration Date, the
Trustee shall, by 12:00 noon (New York City time) on such Business Day draw the
full amount of such Series 2010-3 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 2010-3 Cash Collateral
Account.
(c) Series 2010-3 Letter of
Credit Providers. The Administrator shall notify the Trustee
in writing within one (1) Business Day of becoming aware that (i) the long-term
senior unsecured debt credit rating of any Series 2010-3 Letter of Credit
Provider has fallen below “A (high)” as determined by DBRS or “A1” as determined
by Moody’s or (ii) the short-term senior unsecured debt credit rating of any
Series 2010-3 Letter of Credit Provider has fallen below “R-1” as determined by
DBRS or “P-1” as determined by Moody’s. At such time the
Administrator shall also notify the Trustee of (i) the greater of (A) the
excess, if any, of the Series 2010-3 Required Enhancement Amount over the Series
2010-3 Enhancement Amount, excluding the available amount under the Series
2010-3 Letter of Credit issued by such Series 2010-3 Letter of Credit Provider,
on such date, and (B) the excess, if any, of the Series 2010-3 Required
Liquidity Amount over the Series 2010-3 Liquidity Amount, excluding the
available amount under such Series 2010-3 Letter of Credit, on such date, and
(ii) the amount available to be drawn on such Series 2010-3 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 noon (New York City time) on such Business Day (or, in the case of any
notice
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given to
the Trustee after 10:00 a.m. (New York City time), by 12:00 noon (New York City
time) on the next following Business Day), draw on such Series 2010-3 Letter of
Credit in an amount equal to the lesser of the amounts in clause (i) and
clause (ii) of the immediately preceding sentence on such Business Day by
presenting a draft accompanied by a Certificate of Termination Demand and shall
cause the Termination Disbursement to be deposited in the Series 2010-3 Cash
Collateral Account.
(d) Termination Date Demands on
the Series 2010-3 Letters of Credit. Prior to 10:00 a.m. (New
York City time) on the Business Day immediately succeeding the Series 2010-3
Letter of Credit Termination Date, the Administrator shall determine the Series
2010-3 Demand Note Payment Amount, if any, as of the Series 2010-3 Letter of
Credit Termination Date and, if the Series 2010-3 Demand Note Payment Amount is
greater than zero, instruct the Trustee in writing to draw on the Series 2010-3
Letters of Credit. Upon receipt of any such notice by the Trustee on
or prior to 11:00 a.m. (New York City time) on a Business Day, the Trustee
shall, by 12:00 noon (New York City time) on such Business Day draw an amount
equal to the lesser of (i) the Series 2010-3 Demand Note Payment Amount and
(ii) the Series 2010-3 Letter of Credit Liquidity Amount on the Series
2010-3 Letters of Credit by presenting to each Series 2010-3 Letter of Credit
Provider a draft accompanied by a Certificate of Termination Date Demand and
shall cause the Termination Date Disbursement to be deposited in the Series
2010-3 Cash Collateral Account; provided, however, that if the
Series 2010-3 Cash Collateral Account has been established and funded, the
Trustee shall draw an amount equal to the product of (a) 100% minus the Series
2010-3 Cash Collateral Percentage and (b) the lesser of the amounts referred to
in clause (i) and (ii) on such Business Day on the Series 2010-3 Letters of
Credit as calculated by the Administrator and provided in writing to the
Trustee.
(e) Draws on the Series 2010-3
Letters of Credit. If there is more than one Series 2010-3
Letter of Credit on the date of any draw on the Series 2010-3 Letters of Credit
pursuant to the terms of this Supplement, the Administrator shall instruct the
Trustee, in writing, to draw on each Series 2010-3 Letter of Credit in an amount
equal to the Pro Rata Share of the Series 2010-3 Letter of Credit Provider
issuing such Series 2010-3 Letter of Credit of the amount of such draw on the
Series 2010-3 Letters of Credit.
(f) Establishment of Series
2010-3 Cash Collateral Account. On or prior to the date of any
drawing under a Series 2010-3 Letter of Credit pursuant to Section 2.8(b),
(c) or (d) above, ABRCF shall establish and maintain in the name of the Trustee
for the benefit of the Series 2010-3 Noteholders, or cause to be established and
maintained, an account (the “Series 2010-3 Cash
Collateral Account”), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 2010-3
Noteholders. The Series 2010-3 Cash Collateral Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segregated
trust account with the corporate trust department of a depository institution or
trust company having corporate trust powers and acting as trustee for funds
deposited in the Series 2010-3 Cash Collateral Account; provided, however, 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 (low)” by DBRS or “Baa3” by Moody’s, then
ABRCF shall, within thirty (30) days of such reduction, establish a new Series
2010-3 Cash Collateral Account with a new Qualified Institution or a new
segregated trust account with the corporate trust department of a depository
institution or trust company having
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corporate
trust powers and acting as trustee for funds deposited in the Series 2010-3 Cash
Collateral Account. If a new Series 2010-3 Cash Collateral Account is
established, ABRCF shall instruct the Trustee in writing to transfer all cash
and investments from the non-qualifying Series 2010-3 Cash Collateral Account
into the new Series 2010-3 Cash Collateral Account.
(g) Administration of the Series
2010-3 Cash Collateral Account. ABRCF may instruct (by
standing instructions or otherwise) the institution maintaining the Series
2010-3 Cash Collateral Account to invest funds on deposit in the Series 2010-3
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 2010-3 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 2010-3 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 ABRCF, take such action as is required to maintain the Trustee’s
security interest in the Permitted Investments credited to the Series 2010-3
Cash Collateral Account. ABRCF 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 the
purchase price of such Permitted Investments. In the absence of
written investment instructions hereunder, funds on deposit in the Series 2010-3
Cash Collateral Account shall remain uninvested.
(h) Earnings from Series 2010-3
Cash Collateral Account. All interest and earnings (net of
losses and investment expenses) paid on funds on deposit in the Series 2010-3
Cash Collateral Account shall be deemed to be on deposit therein and available
for distribution.
(i) Series 2010-3 Cash
Collateral Account Surplus. In the event that the Series
2010-3 Cash Collateral Account Surplus on any Distribution Date (or, after the
Series 2010-3 Letter of Credit Termination Date, on any date) is greater than
zero, the Trustee, acting in accordance with the written instructions of the
Administrator, shall withdraw from the Series 2010-3 Cash Collateral Account an
amount equal to the Series 2010-3 Cash Collateral Account Surplus and shall pay
such amount: first, to the Series
2010-3 Letter of Credit Providers to the extent of any unreimbursed drawings
under the related Series 2010-3 Reimbursement Agreement, for application in
accordance with the provisions of the related Series 2010-3 Reimbursement
Agreement, and, second, to ABRCF any
remaining amount.
(j) Termination of Series 2010-3
Cash Collateral Account. Upon the termination of this
Supplement in accordance with its terms, the Trustee, acting in accordance with
the written instructions of the Administrator, after the prior payment of all
amounts owing to the Series 2010-3 Noteholders and payable from the Series
2010-3 Cash Collateral Account as provided herein, shall withdraw from the
Series 2010-3 Cash Collateral Account all amounts on
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deposit
therein (to the extent not withdrawn pursuant to Section 2.8(i) above) and
shall pay such amounts: first, to the Series
2010-3 Letter of Credit Providers to the extent of any unreimbursed drawings
under the related Series 2010-3 Reimbursement Agreement, for application in
accordance with the provisions of the related Series 2010-3 Reimbursement
Agreement, and, second, to ABRCF any
remaining amount.
Section
2.9. Series 2010-3 Distribution
Account. (a) Establishment of Series
2010-3 Distribution Account. ABRCF shall establish and
maintain in the name of the Trustee for the benefit of the Series 2010-3
Noteholders, or cause to be established and maintained, an account (the “Series 2010-3 Distribution
Account”), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Series 2010-3
Noteholders. The Series 2010-3 Distribution Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segregated trust
account with the corporate trust department of a depository institution or trust
company having corporate trust powers and acting as trustee for funds deposited
in the Series 2010-3 Distribution Account; provided, however, that if at
any time such Qualified Institution is no longer a Qualified Institution or the
credit rating of any securities issued by such depositary institution or trust
company shall be reduced to below “BBB (low)” by DBRS or “Baa3” by Moody’s, then
ABRCF shall, within thirty (30) days of such reduction, establish a new Series
2010-3 Distribution Account with a new Qualified Institution. If the
Series 2010-3 Distribution Account is not maintained in accordance with the
previous sentence, ABRCF shall establish a new Series 2010-3 Distribution
Account, within ten (10) Business Days after obtaining knowledge of such fact,
which complies with such sentence, and shall instruct the Series 2010-3 Agent in
writing to transfer all cash and investments from the non-qualifying Series
2010-3 Distribution Account into the new Series 2010-3 Distribution
Account. Initially, the Series 2010-3 Distribution Account will be
established with The Bank of New York Mellon Trust Company, N.A.
(b) Administration of the Series
2010-3 Distribution Account. The Administrator may instruct
the institution maintaining the Series 2010-3 Distribution Account to invest
funds on deposit in the Series 2010-3 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 2010-3 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 2010-3 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 ABRCF, take such action as is required to maintain the Trustee’s
security interest in the Permitted Investments credited to the Series 2010-3
Distribution Account. ABRCF 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 the
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purchase
price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2010-3
Distribution Account shall remain uninvested.
(c) Earnings from Series 2010-3
Distribution Account. All interest and earnings (net of losses
and investment expenses) paid on funds on deposit in the Series 2010-3
Distribution Account shall be deemed to be on deposit and available for
distribution.
(d) Series 2010-3 Distribution
Account Constitutes Additional Collateral for Series 2010-3
Notes. In order to secure and provide for the repayment and
payment of ABRCF’s Obligations with respect to the Series 2010-3 Notes, ABRCF
hereby grants a security interest in and assigns, pledges, grants, transfers and
sets over to the Trustee, for the benefit of the Series 2010-3 Noteholders, all
of ABRCF’s right, title and interest in and to the following (whether now or
hereafter existing or acquired): (i) the Series 2010-3 Distribution
Account, including any security entitlement thereto; (ii) all funds on deposit
therein from time to time; (iii) all certificates and instruments, if any,
representing or evidencing any or all of the Series 2010-3 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 2010-3 Distribution
Account, whether constituting securities, instruments, general intangibles,
investment property, financial assets or other property; (v) all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the Series
2010-3 Distribution Account, the funds on deposit therein from time to time or
the investments made with such funds; and (vi) all proceeds of any and all
of the foregoing, including, without limitation, cash (the items in the
foregoing clauses (i) through (vi) are referred to, collectively, as the “Series 2010-3 Distribution
Account Collateral”). The Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Series
2010-3 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
2010-3 Distribution Account. The Series 2010-3 Distribution Account
Collateral shall be under the sole dominion and control of the Trustee for the
benefit of the Series 2010-3 Noteholders. The Series 2010-3 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 2010-3
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 2010-3
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.
Section
2.10. Series 2010-3 Accounts
Permitted Investments. ABRCF
shall not, and shall not permit, funds on deposit in the Series 2010-3 Accounts
to be invested in:
(i) Permitted
Investments that do not mature at least one Business Day before the next
Distribution Date;
(ii) demand
deposits, time deposits or certificates of deposit with a maturity in excess of
360 days;
(iii) commercial
paper which is not rated “P-1” by Moody’s;
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(iv) money
market funds or eurodollar time deposits which are not rated at least “P-1” by
Moody’s;
(v) eurodollar
deposits that are not rated “P-1” by Moody’s or that are with financial
institutions not organized under the laws of a G-7 nation; or
(vi) any
investment, instrument or security not otherwise listed in clause
(i) through (vi) of the definition of “Permitted Investments” in the Base
Indenture.
Section
2.11. Series 2010-3 Demand Notes
Constitute Additional Collateral for Series 2010-3 Notes. In
order to secure and provide for the repayment and payment of ABRCF’s Obligations
with respect to the Series 2010-3 Notes, ABRCF hereby grants a security interest
in and assigns, pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 2010-3 Noteholders, all of ABRCF’s right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2010-3 Demand Notes; (ii) all
certificates and instruments, if any, representing or evidencing the Series
2010-3 Demand Notes; and (iii) all proceeds of any and all of the
foregoing, including, without limitation, cash. On the date hereof,
ABRCF shall deliver to the Trustee, for the benefit of the Series 2010-3
Noteholders, each Series 2010-3 Demand Note, endorsed in blank. The
Trustee, for the benefit of the Series 2010-3 Noteholders, shall be the only
Person authorized to make a demand for payments on the Series 2010-3 Demand
Notes.
Section
2.12. Subordination of the Class B
Notes. Notwithstanding
anything to the contrary contained in this Supplement, the Indenture or in any
other Related Document, the Class B Notes will be subordinate in all respects to
the Class A Notes as and to the extent set forth in this Section
2.12(a). No payments on account of principal shall be made with
respect to the Class B Notes on any Distribution Date prior to the Series 2010-3
Rapid Amortization Period unless an amount equal to the Class A Controlled
Distribution Amount for the Related Month shall have been paid to the Class A
Noteholders and no payments on account of principal shall be made with respect
to the Class B Notes during the Series 2010-3 Rapid Amortization Period or on
the Series 2010-3 Final Distribution Date until the Class A Notes have been paid
in full. No payments on account of interest shall be made with
respect to the Class B Notes until all payments of interest then due and payable
with respect to the Class A Notes (including, without limitation, all accrued
interest, all Class A Shortfall and all interest accrued on such Class A
Shortfall) have been paid in full.
ARTICLE
III
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 2010-3 Notes and collectively shall constitute the Amortization
Events set forth in Section 9.1(n) of the Base Indenture with respect to the
Series 2010-3 Notes (without notice or other action on the part of the Trustee
or any holders of the Series 2010-3 Notes):
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(a) a Series
2010-3 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 2010-3 Enhancement Deficiency shall have been
cured in accordance with the terms and conditions of the Indenture and the
Related Documents;
(b) the
Series 2010-3 Liquidity Amount shall be less than the Series 2010-3 Required
Liquidity Amount for at least two (2) Business Days; provided, however, that such
event or condition shall not be an Amortization Event if during such two
(2) Business Day period such insufficiency shall have been cured in
accordance with the terms and conditions of the Indenture and the Related
Documents;
(c) the
Collection Account, the Series 2010-3 Collection Account, the Series 2010-3
Excess Collection Account or the Series 2010-3 Reserve Account shall be subject
to an injunction, estoppel or other stay or a Lien (other than Liens permitted
under the Related Documents);
(d) all
principal of and interest on any Class of the Series 2010-3 Notes is not paid in
full on or before the Series 2010-3 Expected Final Distribution
Date;
(e) any
Series 2010-3 Letter of Credit shall not be in full force and effect for at
least two (2) Business Days and (x) either a Series 2010-3 Enhancement
Deficiency would result from excluding such Series 2010-3 Letter of Credit from
the Series 2010-3 Enhancement Amount or (y) the Series 2010-3 Liquidity Amount,
excluding therefrom the available amount under such Series 2010-3 Letter of
Credit, would be less than the Series 2010-3 Required Liquidity
Amount;
(f) from and
after the funding of the Series 2010-3 Cash Collateral Account, the Series
2010-3 Cash Collateral Account shall be subject to an injunction, estoppel or
other stay or a Lien (other than Liens permitted under the Related Documents)
for at least two (2) Business Days and either (x) a Series 2010-3 Enhancement
Deficiency would result from excluding the Series 2010-3 Available Cash
Collateral Account Amount from the Series 2010-3 Enhancement Amount or (y) the
Series 2010-3 Liquidity Amount, excluding therefrom the Series 2010-3 Available
Cash Collateral Amount, would be less than the Series 2010-3 Required Liquidity
Amount; and
(g) an Event
of Bankruptcy shall have occurred with respect to any Series 2010-3 Letter of
Credit Provider or any Series 2010-3 Letter of Credit Provider repudiates its
Series 2010-3 Letter of Credit or refuses to honor a proper draw thereon and
either (x) a Series 2010-3 Enhancement Deficiency would result from excluding
such Series 2010-3 Letter of Credit from the Series 2010-3 Enhancement Amount or
(y) the Series 2010-3 Liquidity Amount, excluding therefrom the available amount
under such Series 2010-3 Letter of Credit, would be less than the Series 2010-3
Required Liquidity Amount.
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ARTICLE
IV
FORM
OF SERIES 2010-3 NOTES
Section
4.1. Restricted Global Series
2010-3 Notes. Each
Class of the Series 2010-3 Notes to be issued in the United States will be
issued in book-entry form and represented by one or more permanent global Notes
in fully registered form without interest coupons (each, a “Restricted Global Class A
Note”, or a “Restricted Global Class B
Note”, as the case may be), substantially in the form set forth in Exhibits A-1 and
B-1, with such
legends as may be applicable thereto as set forth in the Base Indenture, and
will be sold only in the United States (1) initially to institutional accredited
investors within the meaning of Regulation D under the Securities Act in
reliance on an exemption from the registration requirements of the Securities
Act and (2) thereafter to qualified institutional buyers within the meaning
of, and in reliance on, Rule 144A under the Securities Act and shall be
deposited on behalf of the purchasers of such Class of the Series 2010-3 Notes
represented thereby, with the Trustee as custodian for DTC, and registered in
the name of Cede as DTC’s nominee, duly executed by ABRCF and authenticated by
the Trustee in the manner set forth in Section 2.4 of the Base
Indenture.
Section
4.2. Temporary Global Series
2010-3 Notes; Permanent Global Series 2010-3 Notes. Each
Class of the Series 2010-3 Notes to be issued outside the United States will be
issued and sold in transactions outside the United States in reliance on
Regulation S under the Securities Act, as provided in the applicable note
purchase agreement, and shall initially be issued in the form of one or more
temporary notes in registered form without interest coupons (each, a “Temporary Global Class A
Note”, or a “Temporary Global Class B
Note”, as the case may be, and collectively the “Temporary Global Series
2010-3 Notes”), substantially in the form set forth in Exhibits A-2, and
B-2, which
shall be deposited on behalf of the purchasers of such Class of the Series
2010-3 Notes represented thereby with a custodian for, and registered in the
name of a nominee of DTC, for the account of Euroclear Bank S.A./N.V., as
operator of the Euroclear System (“Euroclear”) or for
Clearstream Banking, société anonyme (“Clearstream”), duly
executed by ABRCF and authenticated by the Trustee in the manner set forth in
Section 2.4 of the Base Indenture. Interests in each Temporary Global
Series 2010-3 Note will be exchangeable, in whole or in part, for interests in
one or more permanent global notes in registered form without interest coupons
(each, a “Permanent
Global Class A Note” or a “Permanent Global Class B
Note”, as the case may be, and collectively the “Permanent Global Series
2010-3 Notes”), substantially in the form of Exhibits A-3, and
B-3, in
accordance with the provisions of such Temporary Global Series 2010-3 Note and
the Base Indenture (as modified by this Supplement). Interests in a
Permanent Global Series 2010-3 Note will be exchangeable for a definitive Series
2010-3 Note in accordance with the provisions of such Permanent Global Series
2010-3 Note and the Base Indenture (as modified by this
Supplement).
ARTICLE
V
GENERAL
Section
5.1. Optional
Repurchase. The
Series 2010-3 Notes shall be subject to repurchase by ABRCF at its option in
accordance with Section 6.3 of the Base Indenture on any Distribution Date after
the Series 2010-3 Invested Amount is reduced to an amount less than or
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equal to
10% of the sum of the Class A Initial Invested Amount and the Class B Initial
Invested Amount (the “Series 2010-3 Repurchase
Amount”). The repurchase price for any Series 2010-3 Note
shall equal the aggregate outstanding principal balance of such Series 2010-3
Note (determined after giving effect to any payments of principal and interest
on such Distribution Date), plus accrued and
unpaid interest on such outstanding principal balance.
Section
5.2. Information. The
Trustee shall provide to the Series 2010-3 Noteholders, or their designated
agent, copies of all information furnished to the Trustee or ABRCF pursuant to
the Related Documents, as such information relates to the Series 2010-3 Notes or
the Series 2010-3 Collateral.
Section
5.3. Exhibits. The following exhibits attached hereto supplement the exhibits
included in the Indenture.
|
Exhibit
A-1:
|
Form
of Restricted Global Class A Note
|
|
|
Exhibit
A-2:
|
Form
of Temporary Global Class A Note
|
|
|
Exhibit
A-3:
|
Form
of Permanent Global Class A Note
|
|
|
Exhibit
B-1:
|
Form
of Restricted Global Class B Note
|
|
|
Exhibit
B-2:
|
Form
of Temporary Global Class B Note
|
|
|
Exhibit
B-3:
|
Form
of Permanent Global Class B Note
|
|
|
Exhibit
C:
|
Form
of Series 2010-3 Demand Note
|
|
|
Exhibit
D:
|
Form
of Letter of Credit
|
|
|
Exhibit
E:
|
Form
of Lease Payment Deficit Notice
|
|
|
Exhibit
F:
|
Form
of Demand Notice
|
|
|
Exhibit
G:
|
Form
of Supplemental Indenture No. 3 to the Base Indenture
|
|
|
Exhibit
H:
|
Form
of Amendment to the Master Exchange
Agreement
|
Section
5.4. Ratification of Base
Indenture. As
supplemented by this Supplement, the Base Indenture is in all respects ratified
and confirmed and the Base Indenture as so supplemented by this Supplement shall
be read, taken, and construed as one and the same instrument.
Section
5.5. 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
5.6. 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
5.7. Amendments. This
Supplement may be modified or amended from time to time in accordance with the
terms of the Base Indenture; provided, however, that if,
pursuant to the terms of the Base Indenture or this Supplement, the consent of
the Required Noteholders is required for an amendment or modification of this
Supplement or any other Related Document, such requirement shall be satisfied if
such amendment or modification is
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consented
to by the Requisite Series 2010-3 Noteholders; provided further, that, so
long as (i) no Amortization Event has occurred and is continuing and (ii) the
Rating Agency Consent Condition is met with respect to the outstanding Series
2010-3 Notes, ABRCF shall be able to (x) increase the Series 2010-3 Maximum
Hyundai Amount up to an amount not to exceed 30% of the aggregate Net Book Value
of all Vehicles leased under the Leases and (y) increase the Series 2010-3
Maximum Kia Amount up to an amount not to exceed 15% of the aggregate Net Book
Value of all Vehicles leased under the Leases at any time without the consent of
the Series 2010-3 Noteholders by giving written notice of such increase to the
Trustee along with an Officer’s Certificate certifying that no Amortization
Event has occurred and is continuing.
Section
5.8. Discharge of
Indenture. Notwithstanding
anything to the contrary contained in the Base Indenture, no discharge of the
Indenture pursuant to Section 11.1(b) of the Base Indenture will be effective as
to the Series 2010-3 Notes without the consent of the Requisite Series 2010-3
Noteholders.
Section
5.9. Notice to Rating
Agencies. The
Trustee shall provide to each Rating Agency a copy of each notice, opinion of
counsel, certificate or other item delivered to, or required to be provided by,
the Trustee pursuant to this Supplement or any other Related
Document.
Section
5.10. Capitalization of
ABRCF. ABRCF
agrees that on the Series 2010-3 Closing Date it will have capitalization in an
amount equal to or greater than 3% of the sum of (x) the Series 2010-3 Invested
Amount and (y) the invested amount of the Series 2003-4 Notes, the Series 2004-1
Notes, the Series 2005-1 Notes, the Series 2005-2 Notes, the Series 2005-4
Notes, the Series 2006-1 Notes, the Series 2007-2 Notes, the Series 2008-1
Notes, the Series 2009-1 Notes, the Series 2009-2 Notes, the Series 2009-3
Notes, the Series 2010-1 Notes and the Series 2010-2 Notes.
Section
5.11. Required Noteholders.
Subject
to Section 5.7 above, any action pursuant to Section 5.6, Section 8.13 or
Article 9 of the Base Indenture that requires the consent of, or is permissible
at the direction of, the Required Noteholders with respect to the Series 2010-3
Notes pursuant to the Base Indenture shall only be allowed with the consent of,
or at the direction of, the Required Controlling Class Series 2010-3
Noteholders. Any other action pursuant to any Related Document which
requires the consent or approval of, or the waiver by, the Required Noteholders
with respect to the Series 2010-3 Notes shall require the consent or approval
of, or waiver by, the Requisite Series 2010-3 Noteholders.
Section
5.12. Series 2010-3 Demand
Notes. Other
than pursuant to a demand thereon pursuant to Section 2.5, ABRCF shall not
reduce the amount of the Series 2010-3 Demand Notes or forgive amounts payable
thereunder so that the outstanding principal amount of the Series 2010-3 Demand
Notes after such reduction or forgiveness is less than the Series 2010-3 Letter
of Credit Liquidity Amount. ABRCF shall not agree to any amendment of
the Series 2010-3 Demand Notes without first satisfying the Rating Agency
Confirmation Condition and the Rating Agency Consent Condition.
Section
5.13. Termination of
Supplement. This
Supplement shall cease to be of further effect when all outstanding Series
2010-3 Notes theretofore authenticated and issued have
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been
delivered (other than destroyed, lost, or stolen Series 2010-3 Notes which have
been replaced or paid) to the Trustee for cancellation, ABRCF has paid all sums
payable hereunder, and, if the Series 2010-3 Demand Note Payment Amount on the
Series 2010-3 Letter of Credit Termination Date was greater than zero, all
amounts have been withdrawn from the Series 2010-3 Cash Collateral Account in
accordance with Section 2.8(i).
Section
5.14. Noteholder Consent to
Certain Amendments. Each
Series 2010-3 Noteholder, upon any acquisition of a Series 2010-3 Note, will be
deemed to agree and consent to (i) the execution by ABRCF of a Supplemental
Indenture to the Base Indenture substantially in the form of Exhibit G hereto and
(ii) the execution of an amendment to the Master Exchange Agreement
substantially in the form of Exhibit H
hereto. Such deemed consent will apply to each proposed amendment set
forth in Exhibits
G and H
individually, and the failure to adopt any of the amendments set forth therein
will not revoke the consent with respect to any other amendment.
Section
5.15. Confidential
Information. (a) The
Trustee and each Series 2010-3 Note Owner agrees, by its acceptance and holding
of a beneficial interest in a Series 2010-3 Note, to maintain the
confidentiality of all Confidential Information in accordance with procedures
adopted by the Trustee or such Series 2010-3 Note Owner 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 Confidential Information substantially in accordance with
the terms of this Section 5.15; (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 5.15;
(iii) any other Series 2010-3 Note Owner; (iv) any Person of the type that would
be, to such Person’s knowledge, permitted to acquire an interest in the Series
2010-3 Notes in accordance with the requirements of the Indenture to which such
Person sells or offers to sell any such Series 2010-3 Note or any part thereof
and that agrees to hold confidential the Confidential Information substantially
in accordance with this Section 5.15 (or in accordance with such other
confidentiality procedures as are acceptable to ABRCF); (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 organization, 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 5.15 (or in accordance with such other confidentiality procedures as are
acceptable to ABRCF); (viii) any other Person with the consent of ABRCF; or (ix)
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 ABRCF (unless prohibited by applicable law, rule,
order or decree or other requirement having the force of law), (C) in connection
with any litigation to which such Person is a party upon prior notice to ABRCF
(unless prohibited 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 2010-3 Notes has occurred and is continuing, to the extent such
Person may reasonably 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 2010-3 Notes,
-47-
the
Indenture or any other Related Document; and provided, further, however, that
delivery to any Series 2010-3 Note Owner of any report or information required
by the terms of the Indenture to be provided to such Series 2010-3 Note Owner
shall not be a violation of this Section 5.15. Each Series 2010-3
Note Owner agrees, by acceptance of a beneficial interest in a Series 2010-3
Note, except as set forth in clauses (v), (vi) and (ix) above, that it shall use
the Confidential Information for the sole purpose of making an investment in the
Series 2010-3 Notes or administering its investment in the Series 2010-3
Notes. In the event of any required disclosure of the Confidential
Information by such Series 2010-3 Note Owner, such Series 2010-3 Note Owner
agrees to use reasonable efforts to protect the confidentiality of the
Confidential Information.
(b) For the
purposes of this Section 5.15, “Confidential
Information” means information delivered to the Trustee or any Series
2010-3 Note Owner by or on behalf of ABRCF 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 Series 2010-3 Note Owner prior to the
time of such disclosure; (ii) subsequently becomes publicly known through no act
or omission by the Trustee, any Series 2010-3 Note Owner or any person acting on
behalf of the Trustee or any Series 2010-3 Note Owner; (iii) otherwise is known
or becomes known to the Trustee or any Series 2010-3 Note Owner other than (x)
through disclosure by ABRCF or (y) as a result of the breach of a fiduciary duty
to ABRCF or a contractual duty to ABRCF; or (iv) is allowed to be treated as
non-confidential by consent of ABRCF.
Section
5.16. Capitalized Cost
Covenant. ABRCF
hereby agrees that it shall not permit the aggregate Capitalized Cost for all
Vehicles purchased in any model year that are not subject to a Manufacturer
Program to exceed 85% of the aggregate MSRP (Manufacturer Suggested Retail
Price) of all such Vehicles; provided, however, that ABCRF
shall not modify the customary buying patterns or purchasing criteria used
by the Administrator and its Affiliates with respect to the Vehicles if the
primary purpose of such modification is to comply with this
covenant.
Section
5.17. Further Limitation of
Liability.Notwithstanding
anything in this Supplement to the contrary, in no event shall the Trustee or
its directors, officers, agents or employees be liable under this Supplement for
special, indirect, punitive or consequential loss or damage of any kind
whatsoever (including, but not limited to, lost profits), even if the Trustee or
its directors, officers, agents or employees have been advised of the likelihood
of such loss or damage and regardless of the form of action.
Section
5.18. Force Majeure.
In no
event shall the Trustee be liable for any failure or delay in the performance of
its obligations under this Supplement because of circumstances beyond the
Trustee’s control, including, but not limited to, a failure, termination,
suspension of a clearing house, securities depositary, settlement system or
central payment system in any applicable part of the world or acts of God,
flood, war (whether declared or undeclared), civil or military disturbances or
hostilities, nuclear or natural catastrophes, political unrest, explosion,
severe weather or accident, earthquake, terrorism, fire, riot, labor
disturbances, strikes or work stoppages for any reason, embargo, government
action, including any laws, ordinances, regulations or the like (whether
domestic, federal, state, county or municipal or
-48-
foreign)
which delay, restrict or prohibit the providing of the services contemplated by
this Supplement, or the unavailability of communications or computer facilities,
the failure of equipment or interruption of communications or computer
facilities, or the unavailability of the Federal Reserve Bank wire or telex or
other wire or communication facility, or any other causes beyond the Trustee’s
control whether or not of the same class or kind as specified
above.
Section
5.19. Waiver of Jury Trial,
etc. EACH OF
THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO
THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHTS IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS SUPPLEMENT, THE SERIES 2010-3 NOTES, THE SERIES 2010-3
DEMAND NOTES, THE SERIES 2010-3 LETTER OF CREDIT AND ANY OTHER RELATED DOCUMENTS
EXECUTED IN CONNECTION WITH THE ISSUANCE OF THE SERIES 2010-3 NOTES, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR
ACTIONS OF THE PARTIES HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES HERETO TO ENTER INTO THIS SUPPLEMENT.
Section
5.20. Submission to
Jurisdiction. EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS (TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW) TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK CITY, STATE OF NEW
YORK, OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SUPPLEMENT, THE SERIES 2010-3 NOTES, THE SERIES 2010-3 DEMAND NOTES, THE SERIES
2010-3 LETTER OF CREDIT AND ANY OTHER RELATED DOCUMENTS EXECUTED IN CONNECTION
WITH THE ISSUANCE OF THE SERIES 2010-3 NOTES AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURT. EACH OF THE PARTIES HERETO EACH HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION EACH MAY NOW OR HEREAFTER
HAVE, TO THE LAYING OF VENUE IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
AS WELL AS ANY RIGHT EACH MAY NOW OR HEREAFTER HAVE, TO REMOVE ANY SUCH ACTION
OR PROCEEDING, ONCE COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF FORUM NON CONVENIENS OR
OTHERWISE. NOTHING CONTAINED HEREIN SHALL PRECLUDE ANY PARTY HERETO
FROM BRINGING AN ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SUPPLEMENT, THE SERIES 2010-3 NOTES, THE SERIES 2010-3 DEMAND NOTES, THE SERIES
2010-3 LETTER OF CREDIT AND ANY OTHER RELATED DOCUMENTS EXECUTED IN CONNECTION
WITH THE ISSUANCE OF THE SERIES 2010-3 NOTES IN ANY OTHER COUNTRY, STATE OR
PLACE HAVING JURISDICTION OVER SUCH ACTION OR PROCEEDING.
-49-
IN
WITNESS WHEREOF, ABRCF and the Trustee have caused this Supplement to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
|
AVIS
BUDGET RENTAL CAR FUNDING (AESOP) LLC
|
||
|
By:
|
/s/
David Calabria
|
|
|
Name:
David Calabria
Title: Vice
President, Assistant Secretary & Assistant
Treasurer
|
|
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as
Trustee
|
|||
|
By:
|
/s/
Sally R. Tokich
|
||
|
Title: Senior
Associate
|
|
THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as
Series 2010-3 Agent
|
|||
|
By:
|
/s/
Sally R. Tokich
|
||
|
Title: Senior
Associate
|
Exhibit
99.1
Press
Release
AVIS
BUDGET GROUP COMPLETES $580 MILLION
ASSET-BACKED
BOND OFFERING
PARSIPPANY, N.J., March 23, 2010
- Avis Budget Group, Inc. (NYSE: CAR) announced today
that its Avis Budget Rental Car Funding LLC (AESOP) subsidiary has completed a
multi-tranche offering of approximately $580 million of three-year and five-year
asset-backed bonds. The
transaction is the first multi-tranche asset-backed securities offering by a
rental-car company since 2003. Based on the Company’s current fleet
composition, the bonds are expected to provide the Company with an advance rate
of approximately 72% on applicable collateral.
“We are
very pleased by the strong investor interest in our asset-backed
securities. This transaction allows us to achieve advance rates and
interest rates comparable to pre-2008 levels,” said David B. Wyshner, Avis
Budget Group Executive Vice President and Chief Financial
Officer. “Our strategy is to opportunistically refinance upcoming
debt maturities well in advance of their stated maturities dates, and this
offering is in line with that practice.”
The
multi-tranche $463 million Series 2010-3 asset-backed bonds were priced to yield
4.98% in the aggregate and have an expected final payment date in May
2015. The multi-tranche $116 million Series 2010-2 asset-backed bonds
were priced to yield 3.96% in the aggregate and have an expected final payment
date in August 2013. The combined series have $500 million of
asset-backed bonds rated Aaa by Moody’s Investors Service and AAA by DBRS, and
approximately $79 million of asset-backed bonds rated Baa2 by Moody’s Investors
Service and BBB (high) by DBRS.
The
Series 2010-2 and Series 2010-3 asset-backed bonds have not been and will not be
registered under the Securities Act of 1933, as amended, and may not be offered
or sold in the United States absent registration or an applicable exemption from
registration requirements. This press release shall not constitute an
offer to sell nor the solicitation of an offer to buy the Series 2010-2 and
Series 2010-3 asset-backed bonds, nor shall it constitute an offer, solicitation
or sale in any jurisdiction in which, or to any person to whom, such an offer,
solicitation or sale is unlawful.
Forward-Looking
Statements
This
press release contains certain forward-looking statements that are subject to
known and unknown risks and uncertainties that could cause actual results to
differ materially from those expressed or implied by such
statements. Important assumptions and other important factors that
could cause actual results to differ materially from those in the
forward-looking statements are specified in Avis Budget Group's Annual Report on
Form 10-K for the year ended December 31, 2009 including under headings such as
"Forward-Looking Statements", “Risk Factors” and "Management’s Discussion and
Analysis of Financial Condition and Results of Operations" and in other filings
and furnishings made by the Company with the SEC from time to
time. Except to the extent required by applicable federal securities
laws, the Company undertakes no obligation to release publicly any revisions to
any forward-looking statements, to report events or to report the occurrence of
unanticipated events.
About Avis Budget Group,
Inc.
Avis
Budget Group is a leading provider of vehicle rental services, with operations
in more than 70 countries. Through its Avis and Budget brands, the
Company is a leading general-use vehicle rental company in each of North
America, Australia, New Zealand and certain other regions. Avis
Budget Group is headquartered in Parsippany, N.J. and has approximately 23,000
employees. For more information about Avis Budget Group, visit
www.avisbudgetgroup.com.
Media
Contact Investor
Contact
John
Barrows Neal
Goldner
(973)
496-7865
(973) 496-5086
John.Barrows@avisbudget.com Neal.Goldner@avisbudget.com