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) May
3, 2005 (April 29, 2005)
Cendant
Corporation
(Exact
name of Registrant as specified in its charter)
|
Delaware
(State
or other jurisdiction
of
incorporation) |
1-10308
(Commission
File No.) |
06-0918165
(I.R.S.
Employer
Identification
Number) |
|
9
West 57th
Street
New
York, NY
(Address
of principal
executive
office) |
10019
(Zip
Code)
|
Registrant's
telephone number, including area code (212)
413-1800
None
|
(Former
name or former address if changed since last
report) |
|
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:
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ]
Soliciting material pursuant to Rule 14a-12 under the Securities Act (17
CFR 240.14a-12)
[ ]
Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ]
Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
|
|
Item
1.01 |
Entry
into a Material Definitive
Agreement. |
Vehicle
Rental Program Asset-Backed Note Issuance
On April
29, 2005, our Cendant Rental Car Funding (AESOP) LLC subsidiary (“Issuer”)
entered into a seasonal funding conduit facility (“Facility”) pursuant to which
it issued its secured Series 2005-3 Variable Funding Rental Car Asset-Backed
Notes (“Notes”) in an aggregate principal amount not to exceed $750,000,000
under the Series 2005-3 Supplement (“Indenture Supplement”), dated as of April
29, 2005, among the Issuer, Deutsche Bank AG, New York Branch, as administrative
agent, certain commercial paper conduit purchasers, certain funding agents,
certain APA banks, Cendant Car Rental Group, Inc., as administrator, and The
Bank of New York, as trustee and Series 2005-3 Agent, to the Second Amended and
Restated Base Indenture (“Indenture”), dated as of June 3, 2004, between the
Issuer and The Bank of New York, as trustee. The Facility is available on a
revolving basis. The Notes are secured under the Indenture primarily by
vehicles, the majority of which are subject to manufacturer repurchase
obligations, and other related assets. The Notes bear interest at variable
rates. The commitment to lend under the Facility is expected to terminate on
December 20, 2005, and the outstanding principal balance of the Notes is
expected to be repaid in full on or prior to December 20, 2005. A copy of the
Indenture Supplement is attached hereto as Exhibit
10.1 and is
incorporated by reference herein.
Certain
of the purchasers that are parties to the Indenture Supplement, the
administrative agent 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.
|
Item
2.03 |
Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
|
The
information described above under “Item 1.01. Entry into a Material
Definitive Agreement” is hereby incorporated herein by reference.
|
Item
9.01 |
Financial
Statements and Exhibits. |
| (c) | Exhibits | |
|
10.1 |
Series
2005-3 Supplement dated as of April 29, 2005 to Second Amended and
Restated Base Indenture dated as of June 3, 2004 among Cendant Rental Car
Funding (AESOP) LLC, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent,
Certain CP Conduit Purchasers, Certain Funding Agents, Certain APA Banks
and The Bank of New York, as Trustee and Series 2005-3
Agent |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
|
CENDANT
CORPORATION
| |
|
By: |
/s/
Eric J. Bock |
|
Eric
J. Bock
Executive
Vice President, Law
and
Corporate Secretary |
Date: May
3, 2005
CENDANT
CORPORATION
CURRENT
REPORT ON FORM 8-K
Report
Dated May 3, 2005 (April 29, 2005)
EXHIBIT
INDEX
|
Exhibit
No. |
Description | |
|
10.1 |
Series
2005-3 Supplement dated as of April 29, 2005 to Second Amended and
Restated Base Indenture dated as of June 3, 2004 among Cendant Rental Car
Funding (AESOP) LLC, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent,
Certain CP Conduit Purchasers, Certain Funding Agents, Certain APA Banks
and The Bank of New York, as Trustee and Series 2005-3
Agent |
Exhibit
10.1
CENDANT
RENTAL CAR FUNDING (AESOP) LLC,
as
Issuer
CENDANT
CAR RENTAL GROUP, INC.,
as
Administrator
DEUTSCHE
BANK AG, NEW YORK BRANCH,
as
Administrative Agent
CERTAIN
CP CONDUIT PURCHASERS,
CERTAIN
FUNDING AGENTS,
CERTAIN
APA BANKS
and
THE BANK
OF NEW YORK,
as
Trustee and Series 2005-3 Agent
_____________________
SERIES
2005-3 SUPPLEMENT
dated as
of April 29, 2005
to
SECOND
AMENDED AND RESTATED BASE INDENTURE
dated as
of June 3, 2004
_____________________
TABLE
OF CONTENTS
| Page | |||
|
ARTICLE
I DEFINITIONS |
2 | ||
|
ARTICLE
II PURCHASE AND SALE OF SERIES 2005-3 NOTES; INCREASES AND
DECREASES OF SERIES 2005-3 INVESTED AMOUNT |
24 | ||
|
Section
2.1. Purchases of the Series 2005-3 Notes |
24 | ||
|
Section
2.2. Delivery |
25 | ||
|
Section
2.3. Procedure for Initial Issuance and for Increasing the Series
2005-3 Invested Amount |
25 | ||
|
Section
2.4. Sales by CP Conduit Purchasers of Series 2005-3 Notes to APA
Banks |
27 | ||
|
Section
2.5. Procedure for Decreasing the Series 2005-3 Invested Amount;
Optional Termination |
28 | ||
|
Section
2.6. Increases and Reductions of the Commitments; Extensions of the
Commitments |
29 | ||
|
Section
2.7. Interest; Fees |
31 | ||
|
Section
2.8. Indemnification by CRCF |
33 | ||
|
Section
2.9. Funding Agents |
34 | ||
|
ARTICLE
III SERIES 2005-3 ALLOCATIONS |
34 | ||
|
Section
3.1. Establishment of Series 2005-3 Collection Account, Series 2005-3
Excess Collection Account and Series 2005-3 Accrued Interest
Account |
34 | ||
|
Section
3.2. Allocations with Respect to the Series 2005-3
Notes |
35 | ||
|
Section
3.3. Payments to Noteholders |
39 | ||
|
Section
3.4. Payment of Note Interest and Commitment Fees |
42 | ||
|
Section
3.5. Payment of Note Principal |
43 | ||
|
Section
3.6. Administrator’s Failure to Instruct the Trustee to Make a
Deposit or Payment |
47 | ||
|
Section
3.7. Series 2005-3 Reserve Account |
47 | ||
|
Section
3.8. Series 2005-3 Letters of Credit and Series 2005-3 Cash
Collateral Account |
50 | ||
|
Section
3.9. Series 2005-3 Distribution Account |
54 | ||
|
Section
3.10. Series 2005-3 Demand Notes Constitute Additional Collateral for
Series 2005-3 Notes |
55 | ||
|
Section
3.11. Series 2005-3 Interest Rate Caps |
56 | ||
|
Section
3.12. Payments to Funding Agents or Purchaser Groups |
57 | ||
TABLE OF CONTENTS
(continued)
| Page | |||
|
ARTICLE
IV AMORTIZATION EVENTS |
57 | ||
|
ARTICLE
V RIGHT TO WAIVE PURCHASE RESTRICTIONS |
59 | ||
|
ARTICLE
VI CONDITIONS PRECEDENT |
61 | ||
|
Section
6.1. Conditions Precedent to Effectiveness of
Supplement |
61 | ||
|
ARTICLE
VII CHANGE IN CIRCUMSTANCES |
64 | ||
|
Section
7.1. Increased Costs |
64 | ||
|
Section
7.2. Taxes |
65 | ||
|
Section
7.3. Break Funding Payments |
67 | ||
|
Section
7.4. Alternate Rate of Interest |
68 | ||
|
Section
7.5. Mitigation Obligations |
68 | ||
|
ARTICLE
VIII REPRESENTATIONS AND WARRANTIES, COVENANTS |
69 | ||
|
Section
8.1. Representations and Warranties of CRCF and the
Administrator |
69 | ||
|
Section
8.2. Covenants of CRCF and the Administrator |
69 | ||
|
ARTICLE
IX THE ADMINISTRATIVE AGENT |
70 | ||
|
Section
9.1. Appointment |
70 | ||
|
Section
9.2. Delegation of Duties |
70 | ||
|
Section
9.3. Exculpatory Provisions |
71 | ||
|
Section
9.4. Reliance by Administrative Agent |
71 | ||
|
Section
9.5. Notice of Administrator Default or Amortization Event or
Potential Amortization Event |
71 | ||
|
Section
9.6. Non-Reliance on the Administrative Agent and Other Purchaser
Groups |
72 | ||
|
Section
9.7. Indemnification |
72 | ||
|
Section
9.8. The Administrative Agent in Its Individual
Capacity |
73 | ||
|
Section
9.9. Resignation of Administrative Agent; Successor Administrative
Agent |
73 | ||
|
ARTICLE
X THE FUNDING AGENTS |
74 | ||
|
Section
10.1. Appointment |
74 | ||
|
Section
10.2. Delegation of Duties |
74 | ||
|
Section
10.3. Exculpatory Provisions |
74 | ||
|
Section
10.4. Reliance by Each Funding Agent |
74 | ||
|
Section
10.5. Notice of Administrator Default or Amortization Event or
Potential Amortization Event |
75 | ||
|
Section
10.6. Non-Reliance on Each Funding Agent and Other Purchaser
Groups |
75 | ||
TABLE OF CONTENTS
(continued)
| Page | |||
|
Section
10.7. Indemnification |
76 | ||
|
ARTICLE
XI GENERAL |
76 | ||
|
Section
11.1. Successors
and Assigns |
76 | ||
|
Section
11.2. Securities
Law |
78 | ||
|
Section
11.3. Adjustments;
Set-off |
79 | ||
|
Section
11.4. No
Bankruptcy Petition |
79 | ||
|
Section
11.5. Limited
Recourse |
80 | ||
|
Section
11.6. Costs
and Expenses |
80 | ||
|
Section
11.7. Exhibits |
81 | ||
|
Section
11.8. Ratification
of Base Indenture |
81 | ||
|
Section
11.9. Counterparts |
81 | ||
|
Section
11.10. Governing
Law |
81 | ||
|
Section
11.11. Amendments |
81 | ||
|
Section
11.12. Discharge
of Indenture |
82 | ||
|
Section
11.13. Series
2005-3 Required Non-Program Enhancement Percentage |
82 | ||
|
Section
11.14. Series
2005-3 Demand Notes |
82 | ||
|
Section
11.15. Termination
of Supplement |
82 | ||
|
Section
11.16. Collateral
Representations and Warranties of CRCF |
82 | ||
|
Section
11.17. No
Waiver; Cumulative Remedies |
83 | ||
|
Section
11.18. Waiver
of Setoff |
84 | ||
|
Section
11.19. Notices |
84 | ||
|
Section
11.20. Confidential
Information |
84 | ||
SERIES
2005-3 SUPPLEMENT, dated as of April 29, 2005 (this “Supplement”), among
CENDANT RENTAL CAR FUNDING (AESOP) LLC, a special purpose limited liability
company estab-lished under the laws of Delaware (“CRCF”),
CENDANT CAR RENTAL GROUP, INC., a Delaware corporation (“CCRG”), as
administrator (the “Administrator”),
DEUTSCHE BANK AG, NEW YORK BRANCH (“DBNY”), in
its capacity as administrative agent for the CP Conduit Purchasers, the APA
Banks and the Funding Agents (in such capacity, the “Administrative
Agent”), the
several commercial paper conduits listed on Schedule I and their respective
permitted successors and assigns (the “CP
Conduit Purchasers” and
each, individually, a “CP
Conduit Purchaser”), the
several banks set forth opposite the name of each CP Conduit Purchaser on
Schedule I and the other banks party hereto pursu-ant to Section 11.1 (each an
“APA
Bank” with
respect to such CP Conduit Purchaser), the agent bank set forth opposite the
name of each CP Conduit Purchaser on Schedule I and its per-mitted successors
and assigns (the “Funding
Agent” with
respect to such CP Conduit Purchaser), THE BANK OF NEW YORK, a New York
banking corporation, as trustee (together with its succes-sors in trust
thereunder as pro-vided in the Base Indenture referred to below, the
“Trustee”), and
THE BANK OF NEW YORK, a New York banking corporation, as agent for the
benefit of the Series 2005-3 Noteholders (the “Series
2005-3 Agent”), to
the Second Amended and Restated Base Indenture, dated as of June 3, 2004,
between CRCF and the Trustee (as amended, modi-fied or supplemented from time to
time, exclusive of Supplements creating a new Series of Notes, the “Base
Indenture”).
PRELIMINARY
STATEMENT
WHEREAS,
Sections 2.2 and 12.1 of the Base Indenture provide, among other things, that
CRCF and the Trustee may at any time and from time to time enter into a
supple-ment 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 Inden-ture
and this Supplement and such Series of Notes shall be designated generally as
Variable Funding Rental Car Asset Backed Notes, Series 2005-3.
The
proceeds from the sale of the Series 2005-3 Notes shall be deposited in the
Collection Account and shall be paid to CRCF and used to make Loans under the
Loan Agreements to the extent that the Borrowers have requested Loans thereunder
and Eligible Vehicles are available for acquisition or refinancing thereunder on
the date hereof. Any such portion of proceeds not so used to make Loans shall be
deemed to be Principal Collections.
The
Series 2005-3 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 de-fined herein are defined in the Definitions
List attached to the Base Indenture as Schedule I thereto. All Article, Section,
Subsec-tion, Exhibit or Schedule references herein shall refer to Articles,
Sections, Subsections, Exhibits or Schedules of this Supplement, except as
otherwise provided herein. Unless other-wise stated herein, as the context
other-wise requires or if such term is otherwise defined in the Base Indenture,
each capitalized term used or defined herein shall relate only to the Series
2005-3 Notes and not to any other Series of Notes issued by CRCF.
(b) The
following words and phrases shall have the following meanings with respect to
the Series 2005-3 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:
“Acquiring
APA Bank” is
defined in Section 11.1(c).
“Acquiring
Purchaser Group” is
defined in Section 11.1(e).
“Additional
CP Conduit Purchaser” is
defined in Section 2.6(e).
“Additional
Funding Agent” is
defined in Section 2.6(e).
“Adjusted
LIBO Rate” means,
with respect to each day during each Eurodollar Period, pertaining to a portion
of the Purchaser Group Invested Amount with respect to any Purchaser Group
allocated to a Eurodollar Tranche, an interest rate per annum (rounded upwards,
if necessary, to the nearest 1/16th of 1%)
equal to the LIBO Rate for such Eurodollar Period multiplied by the Statutory
Reserve Rate.
“Administrative
Agent” is
defined in the recitals hereto.
“Administrator” is
defined in the recitals hereto.
“Affected
Party” means
any CP Conduit Purchaser and any Program Support Provider with respect to such
CP Conduit Purchaser.
“Alternate
Base Rate” means,
for any day, a rate per annum equal to the greater of (a) the Prime Rate in
effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus ½ of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
“APA
Bank” is
defined in the recitals hereto.
-2-
“APA
Bank Funded Amount” means,
with respect to any Purchaser Group for any day, the excess, if any, of the
Purchaser Group Invested Amount with respect to such Purchaser Group over the CP
Conduit Funded Amount for such day.
“APA
Bank Percentage” means,
with respect to any APA Bank, the percentage set forth opposite the name of such
APA Bank on Schedule I.
“Applicable
Margin” is
defined in the Fee Letter.
“Article
VII Costs” means
any amounts due pursuant to Article VII.
“Asset
Purchase Agreement” means,
with respect to any CP Conduit Purchaser, the asset purchase agreement,
liquidity agreement or other agreement among such CP Conduit Purchaser, the
Funding Agent with respect to such CP Conduit Purchaser and the APA Bank with
respect to such CP Conduit Purchaser, as amended, modified or supplemented from
time to time.
“Available
APA Bank Funding Amount” means,
with respect to any Purchaser Group for any Business Day, the sum of (i) the
portion of such Purchaser Group’s Commitment Percentage of the Series 2005-3
Initial Invested Amount not to be funded by such Purchaser Group by issuing
Commercial Paper if such Business Day is the Series 2005-3 Closing Date, (ii)
the portion of the APA Bank Funded Amount with respect to such Purchaser Group
not allocated to a Eurodollar Tranche on such Business Day, (iii) the portion of
the APA Bank Funded Amount with respect to such Purchaser Group allocated to any
Eurodollar Tranche, the Eurodollar Period in respect of which expires on such
Business Day and (iv) the por-tion of such Purchaser Group’s Purchaser Group
Increase Amount for such Business Day not to be funded by such Purchaser Group
by issuing Commercial Paper.
“Available
CP Funding Amount” means,
with respect to any Purchaser Group for any Business Day, the sum of (i) the
portion of such Purchaser Group’s Commitment Percentage of the Series 2005-3
Initial Invested Amount to be funded by such Purchaser Group by issuing
Commercial Paper if such Business Day is the Series 2005-3 Closing Date, (ii)
the portion of the CP Conduit Funded Amount with respect to such Purchaser Group
allocated to any CP Tranche, the CP Rate Period in respect of which expires on
such Business Day and (iii) the portion of such Purchaser Group’s Purchaser
Group Increase Amount for such Business Day to be funded by such Purchaser Group
by issuing Commercial Paper.
“Bank
Accounts” is
defined in Section 11.16(f).
“Benefitted
Purchaser Group” is
defined in Section 11.3(a).
“Board” means
the Board of Governors of the Federal Reserve System or any successor
thereto.
“Business
Day” means
any day other than (a) a Saturday or a Sunday or (b) a day on which banking
institutions in New York, New York, Chicago, Illinois or the city in
which the corporate trust office of the Trustee is located are authorized or
obligated by law or executive order to close.
-3-
“CCRG” is
defined in the recitals hereto.
“Cendant” means
Cendant Corporation, a Delaware corporation.
“Certificate
of Lease Deficit Demand” means a
certificate in the form of Annex
A to any
Series 2005-3 Letter of Credit.
“Certificate
of Termination Date Demand” means a
certificate in the form of Annex
D to any
Series 2005-3 Letter of Credit.
“Certificate
of Termination Demand” means a
certificate in the form of Annex
C to any
Series 2005-3 Letter of Credit.
“Certificate
of Unpaid Demand Note Demand” means a
certificate in the form of Annex
B to any
Series 2005-3 Letter of Credit.
“Change
in Control” means
(a) Cendant shall at any time cease to own or control, directly or indirectly,
greater than 50% of the Voting Stock of CCRG, ARAC or BRAC or (b) either CRCF or
AESOP Leasing is no longer indirectly wholly-owned by CCRG.
“Change
in Law” means
(a) any law, rule or regulation or any change therein or in the interpretation
or application thereof (whether or not having the force of law), in each case,
adopted, issued or occurring after the Series 2005-3 Closing Date or (b) any
request, guideline or directive (whether or not having the force of law) from
any government or political subdivision or agency, authority, bureau, central
bank, commission, department or instrumentality thereof, or any court, tribunal,
grand jury or arbitrator, or any accounting board or authority (whether or not
part of government) which is responsible for the establishment or interpretation
of national or international accounting principles, in each case, whether
foreign or domestic (each an “Official
Body”)
charged with the administration, interpretation or application thereof, or the
compliance with any request or directive of any Official Body (whether or not
having the force of law) made, issued or occurring after the Series 2005-3
Closing Date.
“Claim” is
defined in Section 2.8.
“Commercial
Paper” means,
with respect to any CP Conduit Purchaser, the promis-sory notes issued by, or
for the benefit of, such CP Conduit Purchaser in the commercial paper
market.
“Commitment” means,
with respect to the APA Banks included in any Purchaser Group, the obligation of
such APA Banks to purchase a Series 2005-3 Note on the Series 2005-3 Closing
Date and, thereafter, to maintain and, subject to certain conditions, increase
the Purchaser Group Invested Amount with respect to such Purchaser Group, in
each case, in an amount up to the Maximum Purchaser Group Invested Amount with
respect to such Purchaser Group.
“Commitment
Amount” means,
on any date of determination during a period set forth on Schedule I with
respect to the APA Banks included in any Purchaser Group, an amount equal to
102% of the amount set forth opposite the name of the CP Conduit Purchaser
included
-4-
in such
Purchaser Group on Schedule I for such period, as such amount may be increased
or reduced from time to time as provided in Section 2.6.
“Commitment
Fee” is
defined in Section 2.7(e).
“Commitment
Fee Rate” is
defined in the Fee Letter.
“Commitment
Percentage” means,
on any date of determination, with respect to any Purchaser Group, the ratio,
expressed as a percentage, which such Purchaser Group’s Maximum Purchaser Group
Invested Amount bears to the Series 2005-3 Maximum Invested Amount on such
date.
“Company
indemnified person” is
defined in Section 2.8.
“Conduit
Assignee” means,
with respect to any CP Conduit Purchaser, any commer-cial paper conduit
administered by the Funding Agent with respect to such CP Conduit Purchaser and
designated by such Funding Agent to accept an assignment from such CP Conduit
Purchaser of the Purchaser Group Invested Amount or a portion thereof with
respect to such CP Conduit Purchaser pursuant to Section 11.1(b).
“Consent” is
defined in Article V.
“Consent
Period Expiration Date” is
defined in Article V.
“CP
Conduit Funded Amount” means,
with respect to any Purchaser Group for any day, the portion of the Purchaser
Group Invested Amount with respect to such Purchaser Group funded by such
Purchaser Group through the issuance of Commercial Paper outstanding on such
day.
“CP
Conduit Purchaser” is
defined in the recitals hereto.
“CP
Rate Period” means,
with respect to any CP Tranche, a period of days not to exceed 270 days
commencing on a Business Day selected in accordance with Section 2.7(b);
provided that (x)
if a CP Rate Period would end on a day that is not a Business Day, such CP Rate
Period shall end on the next succeeding Business Day and (y) during the Series
2005-3 Controlled Amortization Period and the Series 2005-3 Rapid Amortization
Period, each CP Rate Period shall end on or prior to the next succeeding
Distribution Date.
“CP
Tranche” means,
with respect to a Match Funding CP Conduit Purchaser, a portion of the CP
Conduit Funded Amount with respect to such Match Funding CP Conduit Purchaser
for which the Monthly Funding Costs with respect to such Match Funding CP
Conduit Purchaser is calculated by reference to a particular Discount and a
particular CP Rate Period.
“CRCF” is
defined in the recitals hereto.
“DBNY” is
defined in the recitals hereto.
“Decrease” is
defined in Section 2.5(a).
-5-
“Demand
Note Issuer” means
each issuer of a Series 2005-3 Demand Note.
“Demand
Note Preference Payment Amount” means,
as of any day, (i) the aggregate amount of all proceeds of demands made on
the Series 2005-3 Demand Notes pursuant to Section 3.5(c)(iii) or
3.5(d)(ii) that were deposited into the Series 2005-3 Distribution Account and
paid to the Series 2005-3 Noteholders during the one-year period ending on such
day; provided,
however, that if
an Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred during such one-year
period, the Demand Note Preference Payment Amount as of such day shall equal the
Demand Note Preference Payment Amount as if it were calculated as of the date of
such occurrence minus
(ii) the aggregate amount withdrawn from the Series 2005-3 Reserve Account
or the Series 2005-3 Cash Collateral Account and paid to a Funding Agent
pursuant to Section 3.7(e) on account of a Preference Amount.
“Designated
Amounts” is
defined in Article V.
“Disbursement” means
any Lease Deficit Disbursement, any Unpaid Demand Note Disbursement, any
Termination Date Disbursement or any Termination Disbursement under a Series
2005-3 Letter of Credit, or any combination thereof, as the context may
require.
“Discount” means,
(a) with respect to any Match Funding CP Conduit Purchaser, the interest or
discount component of the Commercial Paper issued by such Match Funding CP
Conduit Purchaser to fund or maintain the CP Conduit Funded Amount with respect
to such Match Funding CP Conduit Purchaser, including an amount equal to the
portion of the face amount of the outstanding Commercial Paper issued to fund or
maintain the CP Conduit Funded Amount with respect to such CP Conduit Purchaser
that corresponds to the portion of the proceeds of such Commercial Paper that
was used to pay the interest or discount component of maturing Commercial Paper
issued to fund or maintain such CP Conduit Funded Amount, to the extent that
such CP Conduit Purchaser has not received payments of interest in respect of
such interest component prior to the maturity date of such maturing Commercial
Paper, and including the portion of such interest or discount component
constituting dealer or placement agent commissions and (b) with respect to any
Pooled Funding CP Conduit Purchaser, the amount of interest or discount to
accrue on or in respect of the Commercial Paper issued by such Pooled Funding CP
Conduit Purchaser allocated, in whole or in part, by the Funding Agent with
respect to such Pooled Funding CP Conduit Purchaser, to fund the purchase or
maintenance of the CP Conduit Funded Amount with respect to such Pooled Funding
CP Conduit Purchaser (including, without limitation, any interest attributable
to the commissions of placement agents and dealers in respect of such Commercial
Paper and any costs associated with funding small or odd-lot amounts, to the
extent that such commissions or costs are allocated, in whole or in part, to
such Commercial Paper by such Funding Agent).
“Effective
Date” is
defined in Section 6.1.
“Eligible
Assignee” means a
financial institution having short-term debt ratings of at least “A-1” from
Standard & Poor’s and “P-1” from Moody’s.
-6-
“Eurodollar
Period” means,
with respect to any Eurodollar Tranche and any Purchaser Group:
(a) initially,
the period commencing on the Series 2005-3 Closing Date, the Increase Date or a
conversion date, as the case may be, with respect to such Eurodollar Tranche and
ending one month thereafter (or such other period which is acceptable to the
Funding Agent with respect to such Purchaser Group and which in no event will be
less than 7 days); and
(b) thereafter,
each period commencing on the last day of the immediately preceding Eurodollar
Period applicable to such Eurodollar Tranche and ending one month thereafter (or
such other period which is acceptable to the Funding Agent with respect to such
Purchaser Group and which in no event will be less than 7 days);
provided that all
Eurodollar Periods must end on the next Distribution Date and all of the
foregoing provisions relating to Eurodollar Periods are subject to the
following:
(i) if any
Eurodollar Period would otherwise end on a day that is not a Business Day, such
Eurodollar Period shall be extended to the next succeeding Business Day unless
the result of such extension would be to carry such Eurodollar Period into
another calendar month, in which event such Eurodollar Period shall end on the
immediately preceding Business Day; and
(ii) any
Eurodollar Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such Eurodollar Period) shall end on the last Business Day
of the calendar month at the end of such Eurodollar Period.
“Eurodollar
Tranche” means,
with respect to any Purchaser Group, a portion of the APA Bank Funded Amount
with respect to such Purchaser Group allocated to a particular Eurodollar Period
and an Adjusted LIBO Rate determined by reference thereto.
“Excess
Collections” is
defined in Section 3.3(e)(i).
“Excluded
Taxes” means,
with respect to the Administrative Agent, any CP Conduit Purchaser, any APA
Bank, any Funding Agent, any Program Support Provider or any other recipient of
any payment to be made by or on account of any obligation of CRCF here-under,
(a) income or franchise taxes imposed on (or measured by) its net income by the
United States of America or by any other Governmental Authority, in each case,
as a result of a present or former connection between the United States of
America or the jurisdiction of such Governmental Authority imposing such tax, as
the case may be, and the Administrative Agent, such CP Conduit Purchaser, such
APA Bank, such Funding Agent, such Program Support Provider or any other such
recipient (except a connection arising solely from the Administra-tive Agent’s,
such CP Conduit Purchaser’s, such APA Bank’s, such Program Support Provider’s or
such recipient’s having executed, delivered or performed its obligations
here-under, receiving a payment hereunder or enforcing the Series 2005-3 Notes)
and (b) any branch profits tax imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which CRCF is located (except
any such branch profits or similar tax imposed as
-7-
a result
of a connection with the United States of America or other jurisdiction as a
result of a connection arising solely from the Administrative Agent’s, such CP
Conduit Purchaser’s, such APA Bank’s, such Program Support Provider’s or such
recipient’s having executed, delivered or performed its obligations hereunder,
receiving a payment hereunder or enforcing the Series 2005-3
Notes).
“Expiry
Date” means,
with respect to any Purchaser Group, the earlier of (a) the Scheduled Expiry
Date with respect to such Purchaser Group and (b) the date on which an
Amortization Event with respect to the Series 2005-3 Notes shall have been
declared or automatically occurred.
“Extending
Purchaser Group” means a
Purchaser Group other than a Non-Extending Purchaser Group.
“Federal
Funds Effective Rate” means,
for any day, the weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day of such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by
it.
“Fee
Letter” means
the letter, dated the date hereof, from CRCF addressed to the Administrative
Agent and each of the CP Conduit Purchasers, the Funding Agents and the APA
Banks setting forth certain fees payable from time to time to each of the
Purchaser Groups, as such letter may be amended or replaced from time to
time.
“Floating
Tranche” means,
with respect to any Purchaser Group, the portion of the APA Bank Funded Amount
with respect to such Purchaser Group not allocated to a Eurodollar
Tranche.
“Funding
Agent” is
defined in the recitals hereto.
“Increase” is
defined in Section 2.3(a).
“Increase
Amount” is
defined in Section 2.3(a).
“Increase
Date” is
defined in Section 2.3(a).
“Indemnified
Taxes” means
Taxes other than Excluded Taxes.
“Interest
Rate Cap Counterparty” means
CRCF’s counterparty under a Series 2005-3 Interest Rate Cap.
“Lease
Deficit Disbursement” means
an amount drawn under a Series 2005-3 Letter of Credit pursuant to a Certificate
of Lease Deficit Demand.
-8-
“LIBO
Rate” means,
with respect to each day during each Eurodollar Period pertain-ing to a
Eurodollar Tranche, the rate appearing on Telerate Page 3750 of the Dow Jones
Telerate Service (or on any successor or substitute page of such service,
providing rate quotations compar-able to those currently provided on such page
of such service, as determined by the Administrative Agent from time to time in
accordance with its customary practices for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m. (London time) on the second London Banking Day prior to
the commencement of such Eurodollar Period, as the rate for dollar deposits with
a maturity comparable to the Eurodollar Period applicable to such Eurodollar
Tranche.
“LOC
Pro Rata Share” means,
with respect to any Series 2005-3 Letter of Credit Provider as of any date, the
fraction (expressed as a percentage) obtained by dividing (A) the available
amount under such Series 2005-3 Letter of Credit Provider’s Series 2005-3 Letter
of Credit as of such date by (B) an amount equal to the aggregate available
amount under all Series 2005-3 Letters of Credit as of such date; provided that
only for purposes of calculating the LOC Pro Rata Share with respect to any
Series 2005-3 Letter of Credit Provider as of any date, if such Series 2005-3
Letter of Credit Provider has not complied with its obligation to pay the
Trustee the amount of any draw under its Series 2005-3 Letter of Credit made
prior to such date, the avail-able amount under such Series 2005-3 Letter of
Credit Provider’s Series 2005-3 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 2005-3 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 2005-3
Letter of Credit).
“London
Banking Day” means
any business day on which dealings in deposits in United States dollars are
transacted in the London interbank market.
“Match
Funding CP Conduit Purchaser” means
each CP Conduit Purchaser that, after the Series 2005-3 Closing Date, notifies
CRCF and the Administrative Agent in accordance with Section 2.7(d) in writing
that it is funding its CP Conduit Funded Amount with Commercial Paper issued by
it, or for its benefit, in specified CP Tranches selected in accordance with
Sections 2.7(b) and (c) and that, in each case, has not subsequently notified
CRCF and the Administrative Agent in writing that CRCF will no longer be
permit-ted to select CP Tranches in accordance with Sections 2.7(b) and (c) in
respect of the CP Conduit Funded Amount with respect to such CP Conduit
Purchaser.
“Maximum
Purchaser Group Invested Amount” means,
with respect to any Purchaser Group, (a) during the period commencing on the
Series 2005-3 Closing Date to but excluding September 1, 2005, the amount for
such period set forth on Schedule I opposite the name of the CP Conduit
Purchaser included in such Purchaser Group, (b) during the period commencing on
September 1, 2005 to but excluding October 1, 2005, the amount for such period
set forth on Schedule I opposite the name of the CP Conduit Purchaser included
in such Purchaser Group, and (c) during the period commencing on October 1, 2005
to but excluding December 20, 2005, the amount for such period set forth on
Schedule I opposite to the name of
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the CP
Conduit Purchaser included in such Purchaser Group, in each case, as such amount
may be increased or reduced from time to time as provided in Section 2.6. The
Maximum Purchaser Group Invested Amount with respect to each Non-Extending
Purchaser Group shall be reduced to zero on the Scheduled Expiry Date with
respect to such Purchaser Group.
“Monthly
Funding Costs” means,
with respect to each Series 2005-3 Interest Period and any Purchaser Group, the
sum of:
(a) for each
day during such Series 2005-3 Interest Period, (i) with respect to a Match
Funding CP Conduit Purchaser, the aggregate amount of Discount accruing on all
outstanding Commercial Paper issued by, or for the benefit of, such Match
Funding CP Conduit Purchaser to fund the CP Conduit Funded Amount with respect
to such Match Funding CP Conduit Purchaser on such day or (ii) with respect to a
Pooled Funding CP Conduit Purchaser, the aggregate amount of Discount accruing
on or other-wise in respect of the Commercial Paper issued by, or for the
benefit of, such Pooled Funding CP Conduit Purchaser allocated, in whole or in
part, by the Funding Agent with respect to such Pooled Funding CP Conduit
Purchaser, to fund the purchase or maintenance of the CP Conduit Funded Amount
with respect to such Pooled Funding CP Conduit Purchaser; and
(b) for each
day during such Series 2005-3 Interest Period, the sum of:
(i) an amount
equal to (A) the portion of the APA Bank Funded Amount with respect to such
Purchaser Group allocated to the Floating Tranche with respect to such Purchaser
Group on such day times (B) the
Alternate Base Rate plus the
Applicable Margin, divided by (C)
365 (or 366, as the case may be) and
(ii) an amount
equal to (A) the portion of the APA Bank Funded Amount with respect to such
Purchaser Group allocated to Eurodollar Tranches with respect to such Purchaser
Group on such day times (B) the
weighted average Adjusted LIBO Rate with respect to such Eurodollar Tranches
plus the
Applicable Margin on such day in effect with respect thereto divided by (C)
360; and
(c) for each
day during such Series 2005-3 Interest Period, an amount equal to (A) the CP
Conduit Funded Amount with respect to such Purchaser Group on such day
times (B) the
Program Fee Rate per annum divided by (C)
360.
“Monthly
Total Principal Allocation” means
for any Related Month the sum of all Series 2005-3 Principal Allocations with
respect to such Related Month.
“Non-Extending
Purchaser Group” means
any Purchaser Group who shall not have agreed to an extension of its Scheduled
Expiry Date pursuant to Section 2.6(b).
“Optional
Termination Date” is
defined in Section 2.5(b).
“Optional
Termination Notice” is
defined in Section 2.5(b).
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“Other
Taxes” means
any and all current or future stamp or documentary taxes or other excise or
property taxes, charges or similar levies arising from any payment made under
this Supplement, the Base Indenture, or any Related Documents or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Supplement, the Base Indenture or any Related Document.
“Outstanding” means,
with respect to the Series 2005-3 Notes, the Series 2005-3 Invested Amount shall
not have been reduced to zero and all accrued interest and other amounts owing
on the Series 2005-3 Notes and to the Administrative Agent, the Funding Agents,
the CP Conduit Purchasers and the APA Banks hereunder shall not have been paid
in full.
“Participants” is
defined in Section 11.1(d).
“Past
Due Rent Payment” is
defined in Section 3.2(g).
“Pooled
Funding CP Conduit Purchaser” means
each CP Conduit Purchaser that is not a Match Funding CP Conduit
Purchaser.
“Preference
Amount” means
any amount previously distributed to a member or members of a Purchaser Group on
or relating to a Series 2005-3 Note that is recoverable or that has been
recovered as a voidable preference by the trustee in a bankruptcy proceeding of
a Demand Note Issuer pursuant to the Bankruptcy Code, in accordance with a final
nonappealable order of a court having competent jurisdiction.
“Pre-Preference
Period Demand Note Payments” means,
as of any date of deter-mination, the aggregate amount of all proceeds of
demands made on the Series 2005-3 Demand Notes included in the Series 2005-3
Demand Note Payment Amount as of the Series 2005-3 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 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 contin-uing jurisdiction by the court in such
proceedings shall equal the Pre-Preference Period Demand Note Payments as of the
date of such occurrence and (y) the Pre-Preference Period Demand Note Payments
as of any date after the conclusion or dismissal of such proceedings shall equal
the Series 2005-3 Demand Note Payment Amount as of the date of the conclusion or
dismissal of such proceedings.
“Prime
Rate” means
the rate of interest per annum publicly announced from time to time by DBNY as
its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
“Principal
Deficit Amount” means,
on any date of determination, the excess, if any, of (i) the Series 2005-3
Invested Amount on such date (after giving effect to the distribution
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of the
Monthly Total Principal Allocation for the Related Month if such date is a
Distribution Date) over (ii) the Series 2005-3 AESOP I Operating Lease Loan
Agreement Borrowing Base on such date.
“Pro
Rata Share” means,
with respect to any Purchaser Group, on any date, the ratio, expressed as a
percentage, which the Purchaser Group Invested Amount with respect to such
Purchaser Group bears to the Series 2005-3 Invested Amount on such
date.
“Program
Fee Rate” is
defined in the Fee Letter.
“Program
Support Provider” means,
with respect to any CP Conduit Purchaser, the APA Bank with respect to such CP
Conduit Purchaser and any other or additional Person now or hereafter extending
credit, or having a commitment to extend credit to or for the account of, or to
make purchases from, such CP Conduit Purchaser or issuing a letter of credit,
surety bond or other instrument to support any obligations arising under or in
connection with such CP Conduit Purchaser’s securitization program.
“Purchase
Effective Date” is
defined in Section 2.6(d).
“Purchaser
Group” means,
collectively, a CP Conduit Purchaser and the APA Banks with respect to such CP
Conduit Purchaser.
“Purchaser
Group Addition Date” is
defined in Section 2.6(e).
“Purchaser
Group Increase Amount” means,
with respect to any Purchaser Group, for any Business Day, such Purchaser
Group’s Commitment Percentage of the Increase Amount, if any, on such Business
Day.
“Purchaser
Group Invested Amount” means,
with respect to any Purchaser Group, (a) when used with respect to the Series
2005-3 Closing Date, such Purchaser Group’s Commitment Percentage of the Series
2005-3 Initial Invested Amount and (b) when used with respect to any other date,
an amount equal to (i) the Purchaser Group Invested Amount with respect to such
Purchaser Group on the immedi-ately preceding Business Day plus (ii) the
Purchaser Group Increase Amount with respect to such Purchaser Group on such
date minus
(iii) the amount of principal payments made to such Purchaser Group
pursuant to Section 3.5(f) on such date plus (iv) the
amount of principal payments recovered from such Purchaser Group by a trustee as
a preference payment in a bankruptcy proceeding of a Demand Note Issuer or
otherwise.
“Purchaser
Group Supplement” is
defined in Section 11.1(e).
“Qualified
Interest Rate Cap Counterparty” means a
counterparty to a Series 2005-3 Interest Rate Cap that is a bank or other
financial institution, which has, or which has all of its obligations under its
Series 2005-3 Interest Rate Cap guaranteed by a Person that has, (i) a
short-term senior, unsecured debt, deposit, claims paying or credit (as the case
may be) rating of at least “A-1”, or if such bank or financial institution or
Person does not have a short-term senior, unsecured debt rating, then a
long-term senior, unsecured debt, deposit, claims paying or credit (as the case
may be) rating of at least “A+”, in each case, from Standard & Poor’s and
(ii) a
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short-term
senior, unsecured debt, deposit, claims paying or credit (as the case may be)
rating of “P-1”, or if such bank or financial institution or Person does not
have a short-term senior, unsecured debt rating, then a long-term senior,
unsecured debt, deposit, claims paying or credit (as the case may be) rating of
at least “A1”, in each case, from Moody’s.
“Recipient” is
defined in Section 11.20.
“Record
Date” means,
with respect to each Distribution Date, the immediately preceding Business
Day.
“Related
Additional APA Banks” is
defined in Section 2.6(e).
“Related
Purchaser Group” means,
with respect to any Funding Agent, the CP Conduit Purchaser identified next to
such Funding Agent on Schedule I and each APA Bank identified on Schedule I next
to such CP Conduit Purchaser.
“Requisite
Noteholders” means
Purchaser Groups having Commitment Percentages aggregating more than
50%.
“Scheduled
Expiry Date” means,
with respect to any Purchaser Group, the later of (a) December 20, 2005 and
(b) the last day of any extension thereof made in accordance with Section
2.6(b).
“Series
2005-3 Accrued Interest Account” is
defined in Section 3.1(b).
“Series
2005-3 AESOP I Operating Lease Loan Agreement Borrowing Base” means,
as of any date of determination, the product of (a) the Series 2005-3 AESOP I
Operating Lease Vehicle Percentage as of such date and (b) the AESOP I Operating
Lease Loan Agreement Borrowing Base as of such date.
“Series
2005-3 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 2005-3
Required AESOP I Operating Lease Vehicle Amount as of such date and the
denomina-tor of which is the sum of the Required AESOP I Operating Lease Vehicle
Amounts for all Series of Notes as of such date.
“Series
2005-3 Agent” is
defined in the recitals hereto.
“Series
2005-3 Available Cash Collateral Account Amount” means,
as of any date of determination, the amount on deposit in the Series 2005-3 Cash
Collateral Account (after giving effect to any deposits thereto and withdrawals
and releases therefrom on such date).
“Series-2005-3
Available Reserve Account Amount” means,
as of any date of determination, the amount on deposit in the Series 2005-3
Reserve Account (after giving effect to any deposits thereto and with-drawals
and releases therefrom on such date).
“Series
2005-3 Cash Collateral Account” is
defined in Section 3.8(e).
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“Series
2005-3 Cash Collateral Account Collateral” is
defined in Section 3.8(a).
“Series
2005-3 Cash Collateral Account Surplus” means,
with respect to any Distribution Date, the lesser of (a) the Series 2005-3
Available Cash Collateral Account Amount and (b) the lesser of (A) the excess,
if any, of the Series 2005-3 Liquidity Amount (after giving effect to any
with-drawal from the Series 2005-3 Reserve Account on such Distribution Date)
over the Series 2005-3 Required Liquidity Amount on such Distribution Date and
(B) the excess, if any, of the Series 2005-3 Enhancement Amount (after giving
effect to any withdrawal from the Series 2005-3 Reserve Account on such
Distribution Date) over the Series 2005-3 Required Enhancement Amount on such
Distribution Date; provided,
however, that,
on any date after the Series 2005-3 Letter of Credit Termination Date, the
Series 2005-3 Cash Collateral Account Surplus shall mean the excess, if any, of
(x) the Series 2005-3 Available Cash Collateral Account Amount over (y) the
Series 2005-3 Demand Note Payment Amount minus the
Pre-Preference Period Demand Note Payments as of such date.
“Series
2005-3 Cash Collateral Percentage” means,
as of any date of determina-tion, the percentage equivalent of a fraction, the
numerator of which is the Series 2005-3 Available Cash Collateral Amount as of
such date and the denominator of which is the Series 2005-3 Letter of Credit
Liquidity Amount as of such date.
“Series
2005-3 Closing Date” is
defined in Section 2.1(a).
“Series
2005-3 Collateral” means
the Collater-al, each Series 2005-3 Letter of Credit, each Series 2005-3 Demand
Note, the Series 2005-3 Interest Rate Cap Collateral, the Series 2005-3
Distribution Account Collateral, the Series 2005-3 Cash Collateral Account
Collateral and the Series 2005-3 Reserve Account Collateral.
“Series
2005-3 Collection Account” is
defined in Section 3.1(b).
“Series
2005-3 Controlled Amortization Amount” means
with (x) with respect to the Related Month ending September 30, 2005, the
excess, if any, of the Series 2005-3 Invested Amount as of August 30, 2005
over
$375,000,000, (y) with respect to the Related Month ending October 31, 2005, the
excess, if any, of the Series 2005-3 Invested Amount as of September 30, 2005
over
$187,500,000 and (z) with respect to the Related Month ending November 30, 2005,
$187,500,000.
“Series
2005-3 Controlled Amortization Period” means
the period commencing at the opening of business on September 1, 2005 (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 2005-3
Rapid Amortization Period, (ii) the date on which the Series 2005-3 Notes are
fully paid and (iii) the termination of the Indenture.
“Series
2005-3 Demand Note” means
each demand note made by a Demand Note Issuer, substantially in the form of
Exhibit
D, as
amended, modified or restated from time to time.
“Series
2005-3 Demand Note Payment Amount” means,
as of the Series 2005-3 Letter of Credit Termination Date, the aggregate amount
of all proceeds of demands made on the
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Series
2005-3 Demand Notes pursuant to Section 3.5(c)(iii) or 3.5(d)(ii) that were
deposited into the Series 2005-3 Distribution Account and paid to the Series
2005-3 Noteholders during the one-year period ending on the Series 2005-3 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 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred during such one-year
period, the Series 2005-3 Demand Note Payment Amount as of the Series 2005-3
Letter of Credit Termination Date shall equal the Series 2005-3 Demand Note
Payment Amount as if it were calculated as of the date of such
occurrence.
“Series
2005-3 Deposit Date” is
defined in Section 3.2.
“Series
2005-3 Distribution Account” is
defined in Section 3.9(a).
“Series
2005-3 Distribution Account Collateral” is
defined in Section 3.9(d) of this Supplement.
“Series
2005-3 Eligible Letter of Credit Provider” means a
person satisfactory to CCRG and the Demand Note Issuers and having, at the time
of the issuance of the related Series 2005-3 Letter of Credit, a long-term
senior unsecured debt rating of at least “A” from Standard & Poor’s and a
short-term senior unsecured debt rating of at least “A-1” from Standard &
Poor’s and a long-term senior unsecured debt rating of at least “A2” from
Moody’s and a short-term senior unsecured debt rating of “P-1” from Moody’s that
is a commercial bank having total assets in excess of $500,000,000; provided that if
a person is not a Series 2005-3 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 2005-3 Eligible Letter of Credit Provider until CRCF has
provided 10 days’ prior notice to the Administrative Agent that such person has
been proposed as a Series 2005-3 Letter of Credit Provider.
“Series
2005-3 Enhancement” means
the Series 2005-3 Cash Collateral Account Collateral, the Series 2005-3 Letters
of Credit, the Series 2005-3 Demand Notes, the Series 2005-3
Overcollateralization Amount and the Series 2005-3 Reserve Account
Amount.
“Series
2005-3 Enhancement Amount” means,
as of any date of determination, the sum of (i) the Series 2005-3
Overcollateralization Amount as of such date, (ii) the Series 2005-3 Letter of
Credit Amount as of such date, (iii) the Series 2005-3 Avail-able Reserve
Account Amount as of such date and (iv)
the amount of cash and Permitted Investments on deposit in the Series 2005-3
Collection Account (not including amounts allocable to the Series 2005-3 Accrued
Interest Account) and the Series 2005-3 Excess Collection Account as of such
date.
“Series
2005-3 Enhancement Deficiency” means,
on any date of determination, the amount by which the Series 2005-3 Enhancement
Amount is less than the Series 2005-3 Required Enhancement Amount as of such
date.
“Series
2005-3 Excess Collection Account” is
defined in Section 3.1(b).
-15-
“Series
2005-3 Expected Final Distribution Date” means
the January 2006 Distribution Date.
“Series
2005-3 Initial Invested Amount” is
defined in Section 2.3(a).
“Series
2005-3 Interest Period” means a
period commencing on and including a Distribution Date and ending on and
including the day preceding the next succeeding Distribu-tion Date; provided,
however, that
the initial Series 2005-3 Interest Period shall com-mence on and include the
Series 2005-3 Closing Date and end on and include May 19, 2005.
“Series
2005-3 Interest Rate Cap” is
defined in Section 3.11(a).
“Series
2005-3 Interest Rate Cap Acquisition Date” is
defined in Section 3.11(a).
“Series
2005-3 Interest Rate Cap Collateral” is
defined in Section 3.11(c).
“Series
2005-3 Interest Rate Cap Proceeds” means
the amounts received by the Trustee from an Interest Rate Cap Counterparty from
time to time in respect of a Series 2005-3 Interest Rate Cap (including amounts
received from a guarantor or from collateral).
“Series
2005-3 Invested Amount” means,
on any date of determination, the sum of the Purchaser Group Invested Amounts
with respect to each of the Purchaser Groups on such date.
“Series
2005-3 Invested Percentage” means,
as of any date of determination:
(a) when used
with respect to Principal Collections, the percentage equivalent (which
percent-age shall never exceed 100%) of a fraction the nu-merator of which shall
be equal to the sum of the Series 2005-3 Invested Amount and the Series 2005-3
Over-collateralization Amount, determined during the Series 2005-3 Revolving
Period or the Series 2005-3 Controlled Amortization Period as of the end of the
immediately preceding Business Day, or, during the Series 2005-3 Rapid
Amortization Period, as of the end of the Series 2005-3 Revolving Period, and
the denominator of which shall be the greater as of the end of the immediately
preceding Business Day of (I) the Aggregate Asset Amount and (II) the sum of the
numerators used to deter-mine (i) invested percentages for allocations with
respect to Principal Collections (for all Series of Notes and all classes of
such Series of Notes) and (ii) overcollateralization percentages for
alloca-tions with respect to Principal Collections (for all Series of Notes that
provide for credit enhancement in the form of overcollateralization);
and
(b) when used
with respect to Interest Collections, the percentage equivalent (which
percent-age shall never exceed 100%) of a fraction the nu-merator of which shall
be the Accrued Amounts with respect to the Series 2005-3 Notes on such date of
determina-tion, and the denominator of which shall be the aggregate Accrued
Amounts with respect to all Series of Notes on such date of
determination.
“Series
2005-3 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
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pursuant to
Section 3.2(a), (b), (c) or (d) would have been allocated to the Series 2005-3
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 3.2(a), (b), (c) or (d)
have been allocated to the Series 2005-3 Accrued Interest Account (excluding any
amounts paid into the Series 2005-3 Accrued Interest Account pursuant to the
proviso in Sections 3.2(c)(ii) and 3.2(d)(ii)) from and excluding the preceding
Distribution Date to and including such Distribution Date.
“Series
2005-3 Lease Payment Deficit” means
either a Series 2005-3 Lease Interest Payment Deficit or a Series 2005-3 Lease
Principal Payment Deficit.
“Series
2005-3 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 2005-3 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 3.5(c) on account of such Series 2005-3 Lease Principal
Payment Deficit.
“Series
2005-3 Lease Principal Payment Deficit” means
on any Distribution Date the sum of (a) the Series 2005-3 Monthly Lease
Principal Payment Deficit for such Distribution Date and (b) the Series 2005-3
Lease Principal Payment Carryover Deficit for such Distribution
Date.
“Series
2005-3 Letter of Credit” means
an irrevocable letter of credit, if any, substan-tially in the form of
Exhibit
E, issued
by a Series 2005-3 Eligible Letter of Credit Provider in favor of the Trustee
for the benefit of the Series 2005-3 Noteholders.
“Series
2005-3 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 2005-3
Letter of Credit, as specified therein, and (ii) if the Series 2005-3 Cash
Collateral Account has been established and funded pursuant to Section 3.8,
the Series 2005-3 Available Cash Collateral Account Amount on such date and (b)
the aggregate outstanding principal amount of the Series 2005-3 Demand Notes on
such date.
“Series
2005-3 Letter of Credit Expiration Date” means,
with respect to any Series 2005-3 Letter of Credit, the expiration date set
forth in such Series 2005-3 Letter of Credit, as such date may be extended in
accordance with the terms of such Series 2005-3 Letter of Credit.
“Series
2005-3 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 2005-3 Letter of Credit, as specified
therein, and (b) if the Series 2005-3 Cash Collateral Account has been
established and funded pursuant to Section 3.8, the Series 2005-3 Available
Cash Collateral Account Amount on such date.
“Series
2005-3 Letter of Credit Provider” means
the issuer of a Series 2005-3 Letter of Credit.
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“Series
2005-3 Letter of Credit Termination Date” means
the first to occur of (a) the date on which the Series 2005-3 Notes are
fully paid and (b) the Series 2005-3 Termination Date.
“Series
2005-3 Limited Liquidation Event of Default” means,
so long as such event or condition contin-ues, any event or condition of the
type specified in clauses (a) through (h) of Article IV; provided,
however, that
any event or condition of the type specified in clauses (a) through (h) of
Article IV shall not constitute a Series 2005-3 Limited Liquidation Event of
Default if the Trustee shall have received the written consent of each of the
Series 2005-3 Noteholders waiv-ing the occurrence of such Series 2005-3 Limited
Liquidation Event of Default.
“Series
2005-3 Liquidity Amount” means,
as of any date of determination, the sum of (a) the Series 2005-3 Letter of
Credit Liquidity Amount on such date and (b) the Series 2005-3 Available Reserve
Account Amount on such date.
“Series
2005-3 Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki Amount” means,
as of any day, with respect to Kia, Isuzu, Subaru, Hyundai and Suzuki, in the
aggregate, an amount equal to 15% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2005-3 Maximum Amount” means
any of the Series 2005-3 Maximum Manufacturer Amounts, the Series 2005-3 Maximum
Non-Eligible Manufacturer Amount, the Series 2005-3 Maximum Non-Program Vehicle
Amount or the Series 2005-3 Maximum Specified States Amount.
“Series
2005-3 Maximum Individual Kia/Isuzu/Subaru/Hyundai/Suzuki Amount” means,
as of any day, with respect to Kia, Isuzu, Subaru, Hyundai or Suzuki,
individually, an amount equal to 5% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2005-3 Maximum Invested Amount” means,
on any date of determination, the sum of the Maximum Purchaser Group Invested
Amounts with respect to each of the Purchaser Groups on such date. The Series
2005-3 Maximum Invested Amount shall be reduced by the Maximum Purchaser Group
Invested Amount of each Non-Extending Purchaser Group on the Scheduled Expiry
Date with respect to such Purchaser Group.
“Series
2005-3 Maximum Manufacturer Amount” means,
as of any day, any of the Series 2005-3 Maximum Mitsubishi Amount, the Series
2005-3 Maximum Nissan Amount, the Series 2005-3 Maximum Individual
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount or the Series 2005-3 Maximum Aggregate
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount.
“Series
2005-3 Maximum Mitsubishi Amount” means,
as of any day, an amount equal to 5% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2005-3 Maximum Nissan Amount” means,
as of any day, an amount equal to 5% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
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“Series
2005-3 Maximum Non-Eligible Manufactur-er Amount” means,
as of any day, an amount equal to 3% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2005-3 Maximum Non-Program Vehicle Amount” means,
as of any day, an amount equal to 25% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2005-3 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
2005-3 Monthly Interest” means,
with respect to any Series 2005-3 Interest Period, an amount equal to the
product of (a) the average daily Series 2005-3 Invested Amount during such
Series 2005-3 Interest Period, (b) the Series 2005-3 Note Rate for such Series
2005-3 Interest Period and (c) the number of days in such Series 2005-3 Interest
Rate Period divided by 360.
“Series
2005-3 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 3.2(a), (b),
(c) or (d) would have been allocated to the Series 2005-3 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 3.2(a), (b), (c) or (d) have been allocated to the Series 2005-3
Collection Account (without giving effect to any amounts paid into the Series
2005-3 Accrued Interest Account pursuant to the proviso in Sections 3.2(c)(ii)
and/or 3.2(d)(ii)) from and excluding the preceding Distribution Date to and
including such Distribution Date.
“Series
2005-3 Non-Program Vehicle Percentage” means,
as of any date of deter-min-ation, the higher of (a) a fraction, expressed as a
percentage, the numerator of which is the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease on such date and
the denominator of which is the aggregate Net Book Value of all Vehicles leased
under the AESOP I Operating Lease on such date and (b) a fraction, expressed as
a percentage, the numerator of which is the aggregate Net Book Value of all
Non-Program Vehicles leased under the Leases on such date and the denominator of
which is the aggregate Net Book Value of all Vehicles leased under the Leases on
such date.
“Series
2005-3 Note” means
any one of the Series 2005-3 Variable Funding Rental Car Asset Backed Notes,
executed by CRCF authenticated and delivered by or on behalf of the Trustee,
substantially in the form of Exhibit
A.
“Series
2005-3 Note Rate” means
for any Series 2005-3 Interest Period, the interest rate equal to the product of
(a) the percentage equivalent of a fraction, the numerator of which is equal to
the sum of the Monthly Funding Costs with respect to each Purchaser Group for
such Series 2005-3 Interest Period and the denominator of which is equal to the
average daily Series 2005-3 Invested Amount during such Series 2005-3 Interest
Period and (b) a fraction,
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the
numerator of which is 360 and the denominator of which is the number of days in
such Series 2005-3 Interest Period; provided,
however, that
the Series 2005-3 Note Rate will in no event be higher than the maximum rate
permitted by applicable law.
“Series
2005-3 Noteholder” means a
Person in whose name a Series 2005-3 Note is registered in the Note
Register.
“Series
2005-3 Overcollateralization Amount” means
(i) as of any date on which no AESOP I Operating Lease Vehicle Deficiency
exists, the Series 2005-3 Required Over-collaterali-zation 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 2005-3 AESOP I
Operating Lease Loan Agreement Borrowing Base as of such date over (y) the
Series 2005-3 Invested Amount as of such date.
“Series
2005-3 Past Due Rent Payment” is
defined in Section 3.2(g).
“Series
2005-3 Percentage” means,
as of any date of determination, a fraction, expressed as a percentage, the
numerator of which is the Series 2005-3 Invested Amount as of such date and the
denominator of which is the sum of the Invested Amount of each Series of Notes
outstanding as of such date.
“Series
2005-3 Principal Allocation” is
defined in Section 3.2(a)(ii).
“Series
2005-3 Program Vehicle Percentage” means,
as of any date of determin-ation, 100% minus the
Series 2005-3 Non-Program Vehicle Percentage as of such date.
“Series
2005-3 Rapid Amortization Period” means
the period beginning at the earlier to occur of (a) the close of business on the
Business Day immediately preceding the day on which an Amortization Event is
deemed to have occurred or been declared with respect to the Series 2005-3 Notes
and (b) the close of business on the Optional Termination Date, and ending upon
the earliest to occur of (i) the date on which the Series 2005-3 Notes are fully
paid, (ii) the Series 2005-3 Termination Date and (iii) the termination of the
Indenture.
“Series
2005-3 Reimbursement Agreement” means
any and each agreement provid-ing for the reimbursement of a Series 2005-3
Letter of Credit Provider for draws under its Series 2005-3 Letter of Credit as
the same may be amended, supplemented, restated or otherwise modified from time
to time.
“Series
2005-3 Required AESOP I Operating Lease Vehicle Amount” means,
as of any date of determination, the sum of the Series 2005-3 Required
Overcollateralization Amount and the Series 2005-3 Invested Amount as of such
date.
“Series
2005-3 Required Enhancement Amount” means,
as of any date of deter-mi-nation, the sum of:
(i) the
product of the Series 2005-3 Required Enhancement Percentage as of such date and
the Series 2005-3 Invested Amount as of such date;
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(ii) the
Series 2005-3 Percent-age of the greater of (x) the excess, if any, of the
Non-Program Vehicle Amount as of the immediately preceding Business Day over the
Series 2005-3 Maximum Non-Program Vehicle Amount as of the immediately preceding
Business Day and (y) the excess, if any, of (A) the Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 25% of the Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day;
(iii) the
Series 2005-3 Percent-age of the greater of (x) the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Mitsubishi and leased
under the Leases as of the immediately preceding Business Day over the Series
2005-3 Maximum Mitsubishi Amount as of the immediately preceding Business Day
and (y) the excess, if any, of (A) the Net Book Value of all Vehicles
manufactured by Mitsubishi and leased under the AESOP I Operating Lease as of
the immediately preceding Business Day over (B) 5% of the Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day;
(iv) the
Series 2005-3 Percentage of the greater of (x) the excess, if any, of the
aggre-gate Net Book Value of all Vehicles manufac-tured by Kia, Isuzu, Subaru,
Hyundai or Suzuki, indi-vidu-ally, and leased under the Leases as of the
immediately preceding Business Day over the Series 2005-3 Maximum Individual
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount as of the immediately preceding Business
Day and (y) the excess, if any, of (A) the Net Book Value of all Vehicles
manufac-tured by Kia, Isuzu, Subaru, Hyundai or Suzuki, indi-vidu-ally, and
leased under the AESOP I Operating Lease as of the immediately preceding
Business Day over (B) 5% of the Net Book Value of all Vehicles leased under the
AESOP I Operating Lease as of the immediately preceding Business
Day;
(v) the
Series 2005-3 Percentage of the greater of (x) the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Kia, Isuzu, Subaru,
Hyundai or Suzuki, in the aggregate, and leased under the Leases as of the
immediately preceding Business Day over the Series 2005-3 Maximum Aggre-gate
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount as of the immediately preceding Business
Day and (y) the excess, if any, of (A) the Net Book Value of all Vehicles
manufactured by Kia, Isuzu, Subaru, Hyundai or Suzuki, in the aggregate, and
leased under the AESOP I Operating Lease as of the immediately preceding
Business Day over (B) 15% of the Net Book Value of all Vehicles leased under the
AESOP I Operating Lease as of the immediately preceding Business
Day;
(vi) the
Series 2005-3 Percentage of the greater of (x) the excess, if any, of the
Specified States Amount as of the immediately preceding Business Day over the
Series 2005-3 Maximum Specified States Amount as of the immediately preceding
Business Day and (y) the excess, if any, of (A) the Net Book Value of all
Vehicles titled in the States of Ohio, Oklahoma and Nebraska and leased under
the AESOP I Operating Lease as of the immediately preceding Business Day over
(B) 7.5% of the Net Book Value of
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all
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day;
(vii) the
Series 2005-3 Per-cent-age of the greater of (x) the excess, if any, of the
Non-Eligible Manufacturer Amount as of the immediately preceding Business Day
over the Series 2005-3 Maximum Non-Eligible Manufacturer Amount as of the
immediately preceding Business Day and (y) the excess, if any, of (A) the Net
Book Value of all Vehicles manufactured by Manufacturers other than Eligible
Non-Program Manufacturers and leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 3% of the Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day; and
(viii) at any
time that the long-term senior unsecured debt rating of Nissan is “BBB-” or
above from Standard & Poor’s and “Baa3” or above from Moody’s, 0 and in all
other cases the Series 2005-3 Percent-age of the greater of (x) the excess, if
any, of the aggregate Net Book Value of all Vehicles manufactured by Nissan and
leased under the Leases as of the immediately preceding Business Day over the
Series 2005-3 Maximum Nissan Amount as of the immediately preceding Business Day
and (y) the excess, if any, of (A) the Net Book Value of all Vehicles
manufactured by Nissan and leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 5% of the Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day.
“Series
2005-3 Required Enhancement Percentage” means,
as of any date of deter-mination, the sum of (i) the product of (A) 22.0% and
(B) the Series 2005-3 Program Vehicle Percentage as of the immediately preceding
Business Day and (ii) the product of (A) the Series 2005-3 Required Non-Program
Enhancement Percentage as of such date and (B) the Series 2005-3 Non-Program
Vehicle Percentage as of the immediately preceding Business Day.
“Series
2005-3 Required Liquidity Amount” means,
with respect to any Distribution Date, an amount equal to 3.5% of the Series
2005-3 Invested Amount on such Distribution Date (after giving effect to any
payments of principal to be made on the Series 2005-3 Notes on such Distribution
Date).
“Series
2005-3 Required Non-Program Enhancement Percentage” means,
as of any date of determination, the greater of (a) 22.0% and (b) the sum of (i)
22.0% and (ii) the highest, for any calendar month within the preceding twelve
calendar months, of the greater of (x) an amount (not less than zero) equal to
100% minus the
Measurement Month Average for the immediately preceding Measurement Month and
(y) an amount (not less than zero) equal to 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
2005-3 Required Overcollateralization Amount” means,
as of any date of determination, the excess, if any, of the Series 2005-3
Required Enhancement Amount over the sum of (i) the Series 2005-3 Letter of
Credit Amount as of such date, (ii) the Series 2005-3 Available Reserve Account
Amount on such date and (iii) the amount of cash and Permitted
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Investments
on deposit in the Series 2005-3 Collection Account (not including amounts
allocable to the Series 2005-3 Accrued Interest Account) and the Series 2005-3
Excess Collection Account on such date.
“Series
2005-3 Required Reserve Account Amount” means,
with respect to any Distribution Date, an amount equal to the sum of (a) the
greater of (A) the excess, if any, of the Series 2005-3 Required Liquidity
Amount on such Distribution Date over the Series 2005-3 Letter of Credit
Liquidity Amount on such Distribution Date (after giving effect to any payments
of principal to be made on the Series 2005-3 Notes on such Distribution Date)
and (B) the excess, if any, of the Series 2005-3 Required Enhancement Amount
over the Series 2005-3 Enhancement Amount (excluding therefrom the Series 2005-3
Available Reserve Account Amount and calculated after giving effect to any
payments of principal to be made on the Series 2005-3 Notes) on such
Distribution Date and (b) the Demand Note Preference Payment
Amount.
“Series
2005-3 Reserve Account” is
defined in Section 3.7(a).
“Series
2005-3 Reserve Account Collateral” is
defined in Section 3.7(d).
“Series
2005-3 Reserve Account Surplus” means,
with respect to any Distribution Date, the excess, if any, of the Series 2005-3
Available Reserve Account Amount over the Series 2005-3 Required Reserve Account
Amount on such Distribution Date.
“Series
2005-3 Revolving Period” means
the period from and including, the Series 2005-3 Closing Date to the earlier of
(x) the commencement of the Series 2005-3 Rapid Amortization Period and (y) the
commencement of the Series 2005-3 Controlled Amortization Period.
“Series
2005-3 Shortfall” is
defined in Section 3.3(f).
“Series
2005-3 Termination Date” means
the Distribution Date falling in the fifteenth calendar month after the calendar
month in which the Series 2005-3 Revolving Period ends.
“Series
2005-3 Unpaid Demand Amount” means,
with respect to any single draw pursuant to Section 3.5(d) or (e) on the Series
2005-3 Letters of Credit, the aggregate amount drawn by the Trustee on all
Series 2005-3 Letters of Credit.
“Statutory
Reserve Rate” means a
fraction (expressed as a decimal), the numer-ator of which is the number one and
the denominator of which is the number one minus the
aggregate of the maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal (rounded up to the
nearest 1/100th of 1%) estab-lished by the Board with respect to the Adjusted
LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in
Regulation D of the Board). Such reserve percent-ages shall include those
imposed pursuant to Regulation D. Eurodollar Tranches shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
with-out benefit of or credit for proration, exemptions or offsets that may be
available from time to time under such Regulation D or comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the reserve percentage.
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“Supplement” is
defined in the recitals hereto.
“Taxes” means
any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Termination
Date Disbursement” means
an amount drawn under a Series 2005-3 Letter of Credit pursuant to a Certificate
of Termination Date Demand.
“Termination
Disbursement” means
an amount drawn under a Series 2005-3 Letter of Credit pursuant to a Certificate
of Termination Demand.
“Transfer
Supplement” is
defined in Section 11.1(c).
“Transferee” is
defined in Section 11.1(f).
“Trustee” is
defined in the recitals hereto.
“Unpaid
Demand Note Disbursement” means
an amount drawn under a Series 2005-3 Letter of Credit pursuant to a Certificate
of Unpaid Demand Note Demand.
“Voting
Stock” means,
with respect to any Person, the common stock or membership interests of such
Person and any other security of, or ownership interest in, such Person having
ordinary voting power to elect a majority of the board of directors or a
majority of the managers (or other Persons serving similar functions) of such
Person.
“Waiver
Event” means
the occurrence of the delivery of a Waiver Request and the subsequent waiver of
any Series 2005-3 Maximum Amount.
“Waiver
Request” is
defined in Article V.
ARTICLE
II
PURCHASE
AND SALE OF SERIES 2005-3 NOTES;
INCREASES
AND DECREASES OF SERIES 2005-3 INVESTED AMOUNT
Section
2.1. Purchases
of the Series 2005-3 Notes.
(a) Initial
Purchases. Subject
to the terms and conditions of this Supplement, including delivery of notice in
accor-dance with Section 2.3, (i) each CP Conduit Purchaser may, in its sole
discretion, purchase a Series 2005-3 Note in an amount equal to all or a portion
of its Commitment Percentage of the Series 2005-3 Initial Invested Amount on any
Business Day during the period from the Effective Date (the “Series
2005-3 Closing Date”) to and
including the Expiry Date with respect to such CP Conduit Purchaser, and if such
CP Conduit Purchaser shall have notified the Administrative Agent and the
Funding Agent with respect to such CP Conduit Purchaser that it has elected not
to fund a Series 2005-3 Note in an amount equal to its Commit-ment Percentage of
the Series 2005-3 Initial Invested Amount on the Series 2005-3 Closing Date,
each APA Bank with respect to such CP Conduit Purchaser shall fund on the Series
2005-3 Closing Date its APA Bank Percentage of that portion of such Series
2005-3 Note not to be funded by such CP Conduit Purchaser and (ii) thereafter,
(A) if a CP Conduit Purchaser shall have purchased a Series 2005-3
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Note on
the Series 2005-3 Closing Date, such CP Conduit Purchaser may, in its sole
discretion, maintain its Series 2005-3 Note, subject to increase or decrease
during the period from the Series 2005-3 Closing Date to and including the
Expiry Date with respect to such CP Conduit Purchaser, in accordance with the
provisions of this Supplement and (B) the APA Banks with respect to such CP
Conduit Purchaser shall maintain their respective APA Bank Percentages of the
Series 2005-3 Note with respect to such Purchaser Group, subject to increase or
decrease during the period from the Series 2005-3 Closing Date to and including
the Expiry Date with respect to such CP Conduit Purchaser, in accordance with
the provisions of this Supplement. Payments by each CP Conduit Purchaser and/or
the APA Banks with respect to such CP Conduit Purchaser shall be made in
immediately available funds on the Series 2005-3 Closing Date to the Funding
Agent with respect to such CP Conduit Purchaser for remittance to the Trustee
for deposit into the Series 2005-3 Collection Account.
(b) Maximum
Purchaser Group Invested Amounts.
Notwithstanding anything to the contrary contained in this Supplement, at no
time shall a Purchaser Group be required to make the initial purchase of a
Series 2005-3 Note or increase its Purchaser Group Invested Amount if the
Purchaser Group Invested Amount with respect to such Purchaser Group, after
giving effect to such purchase or increase, would exceed the Maximum Purchaser
Group Invested Amount with respect to such Purchaser Group at such
time.
(c) Form
of Series 2005-3 Notes. The
Series 2005-3 Notes shall be issued in fully registered form without interest
coupons, substantially in the form set forth in Exhibit
A.
Section
2.2. Delivery. (a) Authentication
and Delivery of Series 2005-3 Notes. On the
Series 2005-3 Closing Date, CRCF shall sign and shall direct the Trustee in
writing pursuant to Section 2.2 of the Base Indenture to duly authenticate, and
the Trustee, upon receiving such direction, shall so authenticate a Series
2005-3 Note in the name of the Funding Agent with respect to each Purchaser
Group in an amount equal to the Maximum Purchaser Group Invested Amount with
respect to such Purchaser Group and deliver such Series 2005-3 Note to such
Funding Agent in accordance with such written directions.
(b) Maintenance
of Records. The
Administrative Agent shall maintain a record of the actual Purchaser Group
Invested Amount outstanding with respect to each Purchaser Group and the actual
Series 2005-3 Invested Amount outstanding on any date of determination, which,
absent manifest error, shall constitute prima facie evidence
of the outstanding Purchaser Group Invested Amounts and outstanding Series
2005-3 Invested Amount from time to time. Upon a written request from the
Trustee, the Administrative Agent shall provide in writing the identity of the
Purchaser Groups, the related Funding Agents, the Purchaser Group Invested
Amount for each Purchaser Group and the Commitment Percentage with respect to
such Purchaser Group to the Trustee.
Section
2.3. Procedure
for Initial Issuance and for Increasing the Series 2005-3 Invested
Amount.
(a) Purchase
and Increase. Subject
to Section 2.3(c), (i) on the Series 2005-3 Closing Date, each CP
Conduit Purchaser may agree, in its sole discretion, to purchase, and the APA
Banks with respect to such CP Conduit Purchaser shall purchase, a Series 2005-3
Note in accordance with Section 2.1 and (ii) on any Business Day during the
period from the Effective Date to and including the Expiry Date with respect to
a CP Conduit Purchaser, such CP Conduit
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Purchaser
may agree, in its sole discretion, and each APA Bank with respect to such CP
Conduit Purchaser hereby agrees that the Purchaser Group Invested Amount with
respect to such Purchaser Group may be increased by an amount equal to its APA
Bank Percentage of the Commitment Percentage with respect to such Purchaser
Group of the Increase Amount (an “Increase”), upon
the request of CRCF (each date on which an increase in the Series 2005-3
Invested Amount occurs hereunder being herein referred to as the “Increase
Date”
applicable to such Increase); provided,
however, that
CRCF shall have given the Administrative Agent (with a copy to the Trustee)
irrevocable written notice (effective upon receipt), by telecopy (receipt
confirmed), substantially in the form of Exhibit
B, of such
request no later than (x) 11:00 a.m. (New York City time) on the Series
2005-3 Closing Date or such Increase Date, as the case may be, if the initial
invested amount or such Increase is in an amount up to $125,000,000 and (y)
11:00 a.m. (New York City time) on the Business Day prior to the Series 2005-3
Closing Date or such Increase Date, as the case may be, if the initial invested
amount of such Increase is in an amount in excess of $125,000,000. Such notice
shall state (x) the Series 2005-3 Closing Date or the Increase Date, as the case
may be, and (y) the initial invested amount (the “Series
2005-3 Initial Invested Amount”) or the
proposed amount of the increase in the Series 2005-3 Invested Amount (an
“Increase
Amount”), as
the case may be.
(b) APA
Bank Fundings. If a CP
Conduit Purchaser elects not to fund the full amount of its Commit-ment
Percentage of the Series 2005-3 Initial Invested Amount or a requested Increase,
such CP Conduit Purchaser shall notify the Administrative Agent and the Funding
Agent with respect to such CP Conduit Purchaser, and each APA Bank with respect
to such CP Conduit Purchaser shall fund its APA Bank Percentage of the portion
of the Commitment Percentage with respect to such Purchaser Group of the Series
2005-3 Initial Invested Amount or such Increase, as the case may be, not funded
by such CP Conduit Purchaser.
(c) Conditions
to Each Purchase and Increase. No
Purchaser Group shall be required to make the initial purchase of a Series
2005-3 Note on the Series 2005-3 Closing Date or to increase its Purchaser Group
Invested Amount on any Increase Date hereunder unless:
(i) such
Purchaser Group’s Commitment Percentage of the Series 2005-3 Initial Invested
Amount or such Increase Amount is equal to (A) $1,000,000 or an integral
multiple of $100,000 in excess thereof or (B) if less, the excess of the Maximum
Purchaser Group Invested Amount with respect to such Purchaser Group over the
Purchaser Group Invested Amount with respect to such Purchaser
Group;
(ii) after
giving effect to the Series 2005-3 Initial Invested Amount or such Increase
Amount, the Purchaser Group Invested Amount with respect to such Purchaser Group
would not exceed the Maximum Purchaser Group Invested Amount with respect to
such Purchaser Group;
(iii) after
giving effect to the Series 2005-3 Initial Invested Amount or such Increase
Amount, no AESOP I Operating Lease Vehicle Deficiency would occur and be
continuing;
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(iv) no
Amortization Event or Potential Amortization Event would occur and be continuing
prior to or after giving effect to such Series 2005-3 Initial Invested Amount or
such Increase;
(v) all of
the representations and warranties made by each of CRCF, the Lessees, the
Lessors and the Administrator in the Base Indenture, this Supplement and the
Related Documents to which each is a party are true and correct in all material
respects on and as of the Series 2005-3 Closing Date or such Increase Date, as
the case may be, as if made on and as of such date (except to the extent such
representations and warranties are expressly made as of another date);
and
(vi) all
conditions precedent to the making of any Loan under the applicable Loan
Agreements would be satisfied.
CRCF’s
acceptance of funds in connection with (x) the initial purchase of Series 2005-3
Notes on the Series 2005-3 Closing Date and (y) each Increase occurring on any
Increase Date shall constitute a representation and warranty by CRCF to the
Purchaser Groups as of the Series 2005-3 Closing Date or such Increase Date
(except to the extent such representations and war-ran-ties are expressly made
as of another date), as the case may be, that all of the conditions con-tained
in this Section 2.3(c) have been satisfied.
(d) Funding
Procedures. Upon
receipt of any notice required by Section 2.3(a) from CRCF, the
Administrative Agent shall promptly forward (by telecopy or electronic messaging
system) a copy of such notice to the Funding Agent with respect to each
Purchaser Group. After receipt by any Funding Agent with respect to a Purchaser
Group of such notice from the Administrative Agent, such Funding Agent shall, so
long as the condi-tions set forth in Sections 2.3(a) and (c) are satisfied,
promptly provide telephonic notice to the related CP Conduit Purchaser and the
related APA Banks, of the Increase Date and of such Purchaser Group’s Commitment
Percentage of the Increase Amount. If such CP Conduit Purchaser elects to fund
all or a portion of its Commitment Percentage of the Increase Amount, such CP
Conduit Purchaser shall pay in immediately available funds its Commitment
Percentage (or any portion thereof) of the amount of such Increase on the
related Increase Date to the Funding Agent with respect to such Purchaser Group
for deposit into the Series 2005-3 Collection Account. If such CP Conduit
Purchaser does not fund the full amount of its Commitment Percentage of the
Increase Amount and the related APA Banks are required to fund the portion
thereof not funded by the CP Conduit Purchaser, each such APA Bank shall pay in
immediately available funds its APA Bank Percentage of such portion on the
related Increase Date to the Funding Agent with respect to such Purchaser Group
for deposit in the Series 2005-3 Collection Account. Each Funding Agent shall
remit the amounts received by it from its CP Conduit Purchaser or the related
APA Banks pursuant to this Section 2.3(d) to the Trustee for deposit into the
Series 2005-3 Collection Account.
Section
2.4. Sales
by CP Conduit Purchasers of Series 2005-3 Notes to APA Banks.
Notwithstanding any limitation to the contrary contained herein, each CP Conduit
Purchaser may, in its own discretion, at any time, sell or assign all or any
portion of its interest in its Series 2005-3 Note to any Conduit Assignee or to
the APA Banks with respect to such CP
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Conduit
Purchaser pursuant to, and subject to the terms and conditions of, the Asset
Purchase Agreement with respect to such CP Conduit Purchaser.
Section
2.5. Procedure
for Decreasing the Series 2005-3 Invested Amount;
Optional Termination. (a) Decreases. On any
Business Day prior to the occurrence of an Amortization Event, upon the written
request of CRCF or the Administrator on behalf of CRCF, the Series 2005-3
Invested Amount may be reduced (a “Decrease”) by the
Trustee’s withdrawing (as set forth in such request) (x) funds
on deposit in the Series 2005-3 Excess Collection Account on such Business Day
in an amount not to exceed the amount of such funds on deposit therein on such
Business Day and/or (y) if such Business Day is during the Series 2005-3
Controlled Amortization Period, funds on deposit in the Series 2005-3 Collection
Account on such Business Day in an amount not to exceed the amount of such funds
on deposit therein on such Business Day that were allocated to the Series 2005-3
Notes pursuant to Section 3.2(b)(ii) on or prior to such Business Day which have
not previously been withdrawn therefrom pursuant to either this Section
2.5(a)(y) to make a Decrease or pursuant to Section 3.5(a) to be paid to the
holders of the Series 2005-3 Notes, and, in each case, depositing such funds
into the Series 2005-3 Distribution Account and distributing such funds to the
Administrative Agent on such Business Day in accordance with Section 3.5(b);
provided that
CRCF shall have given the Adminis-trative Agent (with a copy to the Trustee)
irrevocable written notice (effective upon receipt) of the amount of such
Decrease prior to 9:30 a.m. (New York City time) on the second Business Day
prior to such Decrease, in the case of any such Decrease in an amount less than
$200,000,000, and prior to 9:30 a.m. (New York City time) on a Business Day
that is at least ten days prior to such Decrease, in the case of any such
Decrease in an amount of $200,000,000 or more; provided,
further, that
any such Decrease shall be in an amount equal to $10,000,000 and integral
multiples of $500,000 in excess thereof (or, if such Decrease will be used to
reduce one or more Non-Extending Purchaser Group’s Purchaser Group Invested
Amounts, such Decrease may be in such amount as is necessary to reduce the
Purchaser Group Invested Amounts of all such Non-Extending Purchaser Groups to
zero). Upon each Decrease, the Administrative Agent shall indicate in its
records such Decrease and the Purchaser Group Invested Amount outstanding with
respect to each Purchaser Group after giving effect to such Decrease. Upon
receipt of any notice required by Section 2.5(a) from CRCF, the
Administrative Agent shall forward (by telecopy or electronic messaging system)
a copy of such notice to the Funding Agent with respect to each Purchaser Group,
no later than 1:00 p.m. (New York City time) on the Business Day
received.
(b) Optional
Termination. On any
Business Day, CRCF shall have the right to deliver an irrevocable written notice
(an “Optional
Termination Notice”) to the
Administrative Agent, the Trustee, the Administrator and the Rating Agencies in
which CRCF declares that the Commitments shall terminate on the date (the
“Optional
Termination Date”) set
forth in such notice (which date, in any event, shall be a Distribution Date not
less than five (5) Business Days from the date on which such notice is
delivered). Upon receipt of any Optional Termination Notice from CRCF, the
Administrative Agent shall promptly notify the Funding Agent with respect to
each Purchaser Group thereof.
(c) Rapid
Amortization Following Optional Termination. From
and after the Optional Termination Date, the Series 2005-3 Rapid Amortization
Period shall commence for all purposes under this Supplement, the Base Indenture
and the Related Documents.
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(d) Principal
Collections to the Non-Extending Purchaser Group. If
there are Principal Collections on deposit in the Series 2005-3 Excess
Collection Account on any Business Day on which the Purchaser Group Invested
Amount with respect to any Non-Extending Purchaser Group shall not have been
reduced to zero and CRCF would be permitted under the terms of Section 2.5(a) to
effect a Decrease with such funds, CRCF shall request such a Decrease in
accordance with Section 2.5(a) on the earliest possible date.
Section
2.6. Increases
and Reductions of the Commitments; Extensions of the Commitments.
(a) Request
for Increase of Commitment. CRCF
may from time to time request that any Purchaser Group agree to increase any
amount set forth opposite the name of the CP Conduit Purchaser included in such
Purchaser Group on Schedule I. An increase in such amount shall be effective
hereunder if such Purchaser Group shall have agreed in its sole discretion to
such increase.
(b) Extension
of Scheduled Expiry Date. If CRCF
desires to extend the Scheduled Expiry Date with respect to the Purchaser
Groups, CRCF shall notify the Administrative Agent at least 45 days prior to
such Scheduled Expiry Date of its desire to extend the Scheduled Expiry Date
with respect to the Purchaser Groups, whereupon the Administrative Agent shall
notify the Funding Agent with respect to each Purchaser Group of CRCF’s desire
to so extend the Scheduled Expiry Date. Each Funding Agent, on behalf of its
Purchaser Group, shall notify the Administrative Agent and CRCF in writing of
whether such Purchaser Group agrees to an extension of the Scheduled Expiry Date
with respect to such Purchaser Group; provided that
failure by a Funding Agent to respond to such request shall not be con-strued as
a consent by such Purchaser Group to such extension. The decision to extend or
not extend shall be made by each Purchaser Group in its sole discretion. In the
event that any Purchaser Group desires to extend its Scheduled Expiry Date for
an amount that is less than its Maximum Purchaser Group Invested Amount prior to
CRCF’s request for an extension, CRCF, in its sole discretion, may accept such
extension; provided,
however, that
such Purchaser Group (x) shall be deemed to be a Non-Extending Purchaser
Group for purposes of Section 3.5 having a Purchaser Group Invested Amount equal
to the excess of its Purchaser Group Invested Amount over a percentage of its
Maximum Purchaser Group Invested Amount that will be available after the
extension of its Scheduled Expiry Date equal to the percentage equivalent of a
fraction, the numerator of which is the sum of the Purchaser Group Invested
Amounts with respect to all Extending Purchaser Groups, other than such
Purchaser Group and any other Purchaser Group reducing its Maximum Purchaser
Group Invested Amount, and the denominator of which is the sum of the Maximum
Purchaser Group Invested Amounts of all Extending Purchaser Groups, other than
such Purchaser Group and any other Purchaser Group reducing its Maximum
Purchaser Group Invested Amount and (y) shall be deemed to be an
Extending Purchaser Group with a Maximum Purchaser Group Invested Amount equal
to the portion of its Maximum Purchaser Group Invested Amount that will be
available after the extension of its Scheduled Expiry Date. In connection with
any request by CRCF to extend the Scheduled Expiry Date pursuant to this Section
2.6(b), CRCF shall provide to the Administrative Agent, who shall provide to
each Purchaser Group, on or prior to the effective date of any such extension, a
certificate of the chief financial officer of CRCF to the effect set forth in
Schedule 8.3(d) of the Base Indenture.
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(c) Optional
Reduction in Series 2005-3 Maximum Invested Amount. On any
Business Day, CRCF may, upon two (2) Business Days’ prior written notice to the
Administrative Agent (effec-tive upon receipt) (with copies to the Administrator
and the Trustee) reduce the Series 2005-3 Maximum Invested Amount in an amount
equal to $10,000,000 or a whole multi-ple of $1,000,000 in excess thereof;
provided that no
such termination or reduction shall be per-mitted if, after giving effect
thereto and to any reduction in the Series 2005-3 Invested Amount on such date,
the Purchaser Group Invested Amount with respect to any Purchaser Group would
exceed the Maximum Purchaser Group Invested Amount with respect to such
Purchaser Group then in effect. Any reduc-tion in the Series 2005-3 Maximum
Invested Amount shall be made on a pro
rata basis to
the Maximum Purchaser Group Invested Amounts with respect to the Purchaser
Groups, based on the Maximum Purchaser Group Invested Amount with respect to
each Purchaser Group. Once reduced, the Maximum Purchaser Group Invested Amounts
may not be subsequently reinstated without each such Purchaser Group’s prior
written consent, which consent shall be granted or not in the sole discretion of
such Purchaser Group.
(d) Mandatory
Assignment. If,
after receiving a request for extension of its Scheduled Expiry Date from CRCF
pursuant to Section 2.6(b), the Funding Agent with respect to a CP Conduit
Purchaser notifies CRCF in writing of its decision not to extend its Scheduled
Expiry Date as requested or fails to respond to CRCF’s request within 30 days of
its receipt of such request, at the request of CRCF, such CP Conduit Purchaser
and the APA Banks with respect to such CP Conduit Purchaser shall on a
Distribution Date thereafter selected by CRCF (or such other date as may be
agreed by CRCF, the Funding Agent and the Administrative Agent) assign all or
any portion of their respective rights and obligations under this Supplement and
the Series 2005-3 Notes pursuant to Section 11.1 to a replacement CP Conduit
Purchaser and the APA Banks with respect to such replacement CP Conduit
Purchaser selected by CRCF upon payment by the replacement CP Conduit Purchaser
and the APA Banks with respect to such replacement CP Conduit Purchaser (or upon
payment by CRCF as agreed to by CRCF, the assignor and the assignee) of an
amount equal to the sum of (i) the Purchaser Group Invested Amount with respect
to such Non-Extending Purchaser Group, plus (ii) (A)
if such Purchaser Group includes a Match Funding CP Conduit Purchaser, the sum
of (x) all accrued and unpaid Discount on all outstanding Commercial Paper
issued by, or for the benefit of, such Match Funding CP Conduit Purchaser to
fund the CP Funded Amount with respect to such Match Funding CP Conduit
Purchaser from the issuance date(s) thereof to but excluding the date (the
“Purchase
Effective Date”) of the
assignment to the replacement CP Conduit Purchaser and the APA Banks with
respect to such CP Conduit Purchaser and (y) the aggregate Discount to accrue on
all outstanding Commercial Paper issued by, or for the benefit of, such Match
Funding CP Conduit Purchaser to fund the CP Funded Amount with respect to such
Match Funding CP Conduit Purchaser from and including the Purchase Effective
Date to and excluding the maturity date of each CP Tranche with respect to such
Match Funding CP Conduit Purchaser or (B) if such Non-Extending Purchaser Group
includes a Pooled Funding CP Conduit Purchaser, the sum of (x) the aggregate
amount of accrued and unpaid Discount on or in respect of the Commercial Paper
issued by, or for the benefit of, such Pooled Funding CP Conduit Purchaser
allocated, in whole or in part, by the Funding Agent with respect to such Pooled
Funding CP Conduit Purchaser, to fund the purchase or maintenance of the CP
Funded Amount with respect to such Pooled Funding CP Conduit Purchaser as of the
Purchase Effective Date and (y) the aggregate amount of Discount to accrue on or
in respect of the Commercial Paper issued by, or for the benefit of, such Pooled
Funding CP Conduit Purchaser allocated, in whole or in part, by the
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Funding
Agent with respect to such Pooled Funding CP Conduit Purchaser, to fund the
purchase or maintenance of the CP Funded Amount with respect to such Pooled
Funding CP Conduit Purchaser from and including the Purchase Effective Date to
and excluding the maturity dates of such Commercial Paper, plus (iii)
all accrued and unpaid interest on the APA Bank Funded Amount with respect to
such Purchaser Group, calculated at the Alternate Base Rate or the applicable
Adjusted LIBO Rate plus the
Applicable Margin as of the Purchase Effective Date, plus (iv) for
each day from but excluding the last day of the Series 2005-3 Interest Period
immediately preceding the Purchase Effective Date, an amount equal to (x) the CP
Funded Amount with respect to such Non-Extending Purchaser Group on such day
times (y) the
Program Fee Rate divided by (z)
360, plus (v) for
each day from but excluding the last day of the Series 2005-3 Interest Period
immediately preceding the Purchase Effective Date, an amount equal to (x) the
excess, if any, of the Commitment Amount with respect to such Non-Extending
Purchaser Group over the Purchaser Group Invested Amount with respect to such
Purchaser Group on such day times (y) the
Commitment Fee Rate divided by (z)
360, plus (vi) all
Article VII Costs then due and payable to such Non-Extending Purchaser Group,
plus (vii)
without duplication, any other amounts then due and payable to such
Non-Extending Purchaser Group pursuant to this Supplement.
(e) Option
to Add CP Conduit Purchasers. CRCF
may at any time add a multi-seller commercial paper conduit as an additional CP
Conduit Purchaser (an “Additional
CP Conduit Purchaser”) and
one or more banks providing support to the Additional CP Conduit Purchaser as
APA Banks with respect to the Additional CP Conduit Purchaser (the “Related
Additional APA Banks”), with
the prior written consent of the Administrative Agent (which consent shall not
be unreasonably withheld), by providing at least ten (10) Business Days’ prior
written notice of (i) the names of the Additional CP Conduit Purchaser, the
Related Additional APA Banks and the funding agent with respect to the
Additional CP Conduit Purchaser and the Related Additional APA Banks (the
“Additional
Funding Agent”), (ii)
the date on which CRCF desires to effect such addition (the “Purchaser
Group Addition Date”), (iii)
the proposed Maximum Purchaser Group Invested Amount with respect to the
Additional CP Conduit Purchaser and the Related Additional APA Banks and (iv)
the Commitment Percentage of each Purchaser Group on the Purchaser Group
Addition Date, after giving effect to the addition of the Additional CP Conduit
Purchaser and the Related Additional APA Banks. On the Purchaser Group Addition
Date, each CP Conduit Purchaser, the APA Banks with respect to such CP Conduit
Purchaser and the Funding Agent with respect to such CP Conduit Purchaser shall
make an assignment and assumption to the Additional CP Conduit Purchaser, the
Related Additional APA Banks and the Additional Funding Agent pursuant to
Section 11.1, as directed by the Administrative Agent, with the result that
after giving effect thereto, the Purchaser Group Invested Amount with respect to
each such Purchaser Group shall equal the product of (x) the Series 2005-3
Invested Amount on the Purchaser Group Addition Date and (y) the Commitment
Percentage of such Purchaser Group on the Purchaser Group Addition Date, after
giving effect to the addition of the Additional CP Conduit Purchaser and the
Related Additional APA Banks. No Purchaser Group shall be required to make any
assignment unless such assigning Purchaser Group shall receive in cash an amount
equal to the reduction in its Series 2005-3 Invested Amount.
Section
2.7. Interest;
Fees. (a) Interest
Paid on Distribution Dates.
Interest shall be payable on the Series 2005-3 Notes on each Distribution Date
pursuant to Section 3.3.
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(b) Allocations
to Tranches. On any
Business Day, CRCF may, subject to Section 2.7(c), elect to allocate all or any
portion of the Available CP Funding Amount with respect to any Match Funding CP
Conduit Purchaser, to one or more CP Tranches with CP Rate Periods commencing on
such Business Day by giving the Administrative Agent and the Funding Agent with
respect to such Match Funding CP Conduit Purchaser irrevocable written or
telephonic (confirmed in writing) notice thereof, which notice must be received
by such Funding Agent prior to 3:00 p.m. (New York City time) on the second
Business Day prior to such Business Day. Such notice shall specify (i) the
applicable Business Day, (ii) the CP Rate Period for each CP Tranche to which a
portion of the Available CP Funding Amount with respect to such Purchaser Group
is to be allocated and (iii) the portion of such Available CP Funding Amount
being allocated to each such CP Tranche. On any Business Day, CRCF may, subject
to Sections 2.7(c) and 7.4, elect to allocate all or any portion of the
Available APA Bank Funding Amount with respect to any Purchaser Group to one or
more Eurodollar Tranches with Eurodollar Periods commencing on such Business Day
by giving the Administrative Agent and the Funding Agent with respect to such
Purchaser Group irrevocable written or telephonic (confirmed in writing) notice
thereof, which notice must be received by such Funding Agent prior to 1:00 p.m.
(New York City time) three (3) Business Days prior to such Business Day.
Such notice shall specify (i) the applicable Business Day, (ii) the Eurodollar
Period for each Eurodollar Tranche to which a portion of the Available APA Bank
Funding Amount with respect to such Purchaser Group is to be allocated and (iii)
the portion of such Available APA Bank Funding Amount being allocated to each
such Eurodollar Tranche. Upon receipt of any such notice, the Funding Agent with
respect to a Purchaser Group shall notify the CP Conduit Purchaser and the APA
Bank with respect to such Purchaser Group of the contents of such notice
promptly upon receipt thereof.
(c) Conditions
Applicable to Tranche Allocations.
Notwithstanding anything to the contrary contained in this Section 2.7, (i) (A)
each Match Funding CP Conduit Purchaser shall approve the length of each CP Rate
Period and the portion of the Available CP Funding Amount with respect to such
Match Funding CP Conduit Purchaser allocated to such CP Rate Period, (B) such
Match Funding CP Conduit Purchaser may select, in its sole discretion, any new
CP Rate Period if (x) CRCF does not provide notice of a new CP Rate Period on a
timely basis or (y) the Funding Agent with respect to such Match Funding CP
Conduit Purchaser, on behalf of such Match Funding CP Conduit Purchaser,
determines, in its sole discretion, that the CP Rate Period requested by CRCF is
unavailable or for any reason commercially undesirable and (C) the portion of
the Available CP Funding Amount with respect to such Match Funding CP Conduit
Purchaser allocable to each CP Tranche must be in an amount equal to $1,000,000
or an integral multiple of $100,000 in excess thereof and (ii) (A) the portion
of the Available APA Bank Funding Amount with respect to any Purchaser Group
allocable to each Eurodollar Tranche must be in an amount equal to $100,000 or
an integral multiple of $100,000 in excess thereof, (B) no more than seven
Eurodollar Tranches with respect to such Purchaser Group shall be outstanding at
any one time, (C) after the occurrence and during the continuance of any
Amortization Event or Potential Amortization Event, CRCF may not elect to
allocate any portion of the Available APA Bank Funding Amount with respect to
any Purchaser Group to a Eurodollar Tranche and (D) during the Series 2005-3
Controlled Amortization Period or the Series 2005-3 Rapid Amortization Period,
CRCF may not select any Eurodollar Period that does not end on or prior to the
next succeeding Distribution Date.
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(d) Elections
Relating to Type of CP Conduit Purchaser. On any
Business Day, a Match Funding CP Conduit Purchaser may elect that CRCF no longer
be permitted to select CP Tranches in accordance with Sections 2.7(b) and (c) in
respect of the CP Conduit Funded Amount with respect to such CP Conduit
Purchaser by giving CRCF and the Administrative Agent irrevocable written notice
thereof, which notice must be received by CRCF and the Administrative Agent at
least one Business Day prior to such Business Day. On any Business Day, a Pooled
Funding CP Conduit Purchaser may with the prior written consent of the
Administrator (which consent shall not be unreasonably withheld) elect
thereafter to allow CRCF to select CP Tranches in accordance with Sections
2.7(b) and (c) in respect of the CP Conduit Funded Amount with respect to such
CP Conduit Purchaser by giving CRCF and the Administrative Agent irrevocable
written notice thereof, which notice and consent must be received by CRCF and
the Administrative Agent at least one Business Day prior to such election. Any
CP Conduit Purchaser making an election to change the manner in which its
funding costs in respect of its Series 2005-3 Note are allocated in accordance
with this Section 2.7(d) will be both a Match Funding CP Conduit Purchaser and a
Pooled Funding CP Conduit Purchaser during the period that its Series 2005-3
Note is funded on both a “pooled” and “match funded” basis and its Monthly
Funding Costs during that period will be calculated accordingly.
(e) Commitment
Fees. CRCF
shall pay with funds available pursuant to Section 3.3(a) to the Administra-tive
Agent, for the account of each Purchaser Group, on each Distribution Date, a
commitment fee with respect to the Series 2005-3 Interest Period ending on the
day preceding such Distribution Date (the “Commitment
Fee”) during
the period from the Series 2005-3 Closing Date to and including the Expiry Date
with respect to such Purchaser Group at the Commitment Fee Rate of the average
daily Commitment Amount with respect to such Purchaser Group during such Series
2005-3 Interest Period less the aver-age daily Purchaser Group Invested Amount
with respect to such Purchaser Group during such Series 2005-3 Interest Period.
The Commitment Fees shall be payable monthly in arrears on each Distribution
Date.
(f) Calculations.
Calculations of per annum rates under this Supplement shall be made on the basis
of a 360- (or 365-/366- in the case of interest on the Floating Tranche based on
the Prime Rate) day year. Calculations of Commitment Fees shall be made on the
basis of a 360-day year. Each determination of the Adjusted LIBOR Rate by the
Administrative Agent shall be conclusive and binding upon each of the parties
hereto in the absence of manifest error.
Section
2.8. Indemnification
by CRCF.
CRCF
agrees to indemnify and hold harmless the Trustee, the Administrative Agent,
each Funding Agent, each CP Conduit Purchaser, each APA Bank and each of their
respective officers, directors, agents and employees (each, a “Company
indemnified person”) from
and against any loss, liabil-ity, expense, damage or injury suffered or
sustained by (a “Claim”) such
Company indem-nified person by reason of (i) any acts, omissions or alleged acts
or omissions arising out of, or relating to, activities of CRCF pursuant to the
Indenture or the other Related Documents to which it is a party, (ii) a breach
of any representation or warranty made or deemed made by CRCF (or any of its
officers) in the Indenture or other Related Document or (iii) a failure by CRCF
to comply with any applicable law or regulation or to perform its covenants,
agreements, duties or obliga-tions required to be performed or observed by it in
accordance with the provisions of the Indenture or the other Related Documents,
including, but not limited to, any judgment, award, settlement, reasonable
attorneys’ fees and other reason-able costs or expenses incurred in connection
with the defense of
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any
actual or threatened action, proceeding or claim, except to the extent such
loss, liability, expense, damage or injury resulted from the gross negligence,
bad faith or willful misconduct of such Company indemnified person or its
officers, directors, agents, princi-pals, employees or employers or includes any
Excluded Taxes; provided that any
payments made by CRCF pursuant to this Section 2.8 shall be made solely from
funds available pursuant to Section 3.3(e), shall be non-recourse other than
with respect to such funds, and shall not constitute a claim against CRCF to the
extent that such funds are insufficient to make such payment.
Section
2.9. Funding
Agents.
(a) Recordations
of Monthly Funding Costs. The
Funding Agent with respect to each Purchaser Group is hereby authorized to
record on each Business Day the CP Funded Amount with respect to such Purchaser
Group and the aggre-gate amount of Discount accruing with respect thereto on
such Business Day and the APA Bank Funded Amount with respect to such Purchaser
Group and the amount of interest accruing with respect thereto on such Business
Day and, based on such recordations, to determine the Monthly Funding Costs with
respect to each Series 2005-3 Interest Period and such Purchaser Group. Any such
recordation by a Funding Agent, absent manifest error, shall constitute prima
facie evidence of the accuracy of the information so recorded. Further-more, the
Funding Agent with respect to each Purchaser Group shall maintain records
sufficient to iden-tify the percentage interest of the related CP Conduit
Purchaser and each APA Bank with respect to such Purchaser Group holding an
interest in the Series 2005-3 Note registered in the name of such Funding Agent
and any amounts owing thereunder.
(b) Payment
of Funds to CP Conduit Purchasers and/or the Related APA Banks. Upon
receipt of funds from the Administrative Agent on each Distribution Date and the
date of any Decrease, each Funding Agent shall pay such funds to the related CP
Conduit Purchaser and/or the related APA Bank owed such funds in accordance with
the recorda-tions maintained by it in accordance with Section 2.9(a) and the
Asset Purchase Agreement with respect to such CP Conduit Purchaser. If a Funding
Agent shall have paid to any CP Conduit Purchaser or APA Bank any funds that (i)
must be returned for any reason (including bankruptcy) or (ii) exceeds that
which such CP Conduit Purchaser or APA Bank was entitled to receive, such amount
shall be promptly repaid to such Funding Agent by such CP Conduit Purchaser or
APA Bank.
ARTICLE
III
SERIES
2005-3 ALLOCATIONS
With
respect to the Series 2005-3 Notes, the following shall apply:
Section
3.1. Establishment
of Series 2005-3 Collection Account, Series 2005-3 Excess Collection Account and
Series 2005-3 Accrued Interest Account.
(a) Allocation
of Collections. All
Collections allocable to the Series 2005-3 Notes shall be allocated to the
Collection Account.
(b) Creation
of Subaccounts. The
Trustee will create three administra-tive subaccounts within the Collection
Account for the benefit of the Series 2005-3 Noteholders: the Series 2005-3
Collection Account (such sub account, the “Series
2005-3 Collection Account”),
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the
Series 2005-3 Excess Collection Account (such sub account, the “Series
2005-3 Excess Collection Account”)
and the
Series 2005-3 Accrued Interest Account (such sub account, the “Series
2005-3 Accrued Interest Account”).
Section
3.2. Allocations
with Respect to the Series 2005-3 Notes. The net
proceeds from the initial sale of the Series 2005-3 Notes and any Increase will
be deposited into the Collection Account. On each Business Day on which
Collections are deposited into the Collection Account (each such date, a
“Series
2005-3 Deposit Date”), the
Adminis-trator will direct the Trustee in writing pursu-ant to the
Administration Agreement to allocate all amounts deposited into the Collection
Account in accordance with the provisions of this Section 3.2:
(a) Allocations
of Collections During the Series 2005-3 Revolving Period. During
the Series 2005-3 Revolving Period, the Administrator will direct the Trustee in
writing pursuant to the Administration Agree-ment to allocate on each day, prior
to 11:00 a.m. (New York City time) on each Series 2005-3 Deposit Date, all
amounts deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2005-3 Collection Account an amount equal to the Series 2005-3
Invest-ed Percentage (as of such day) of the aggregate amount of the sum of (A)
Interest Collections on such day and (B) any amounts received by the Trustee on
such day in respect of the Series 2005-3 Interest Rate Caps. All such amounts
allocated to the Series 2005-3 Collection Account shall be further allocated to
the Series 2005-3 Accrued Interest Account; and
(ii) allocate
to the Series 2005-3 Excess Collection Account the sum of (A) the Series 2005-3
Invested Percentage (as of such day) of the aggregate amount of Principal
Collections on such day (for any such day, the “Series
2005-3 Principal Allocation”) and
(B) the proceeds from the initial issuance of the Series 2005-3 Notes and from
any Increase; provided,
however, if a
Waiver Event shall have occurred, then such allocation shall be modified as
provided in Article V of this Supplement.
(b) Allocations
of Collections During the Series 2005-3 Controlled Amortization
Period. With
respect to the Series 2005-3 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 2005-3 Deposit
Date, all amounts deposited into the Collection Account as set forth
below:
(i) allocate
to the Series 2005-3 Collection Account an amount determined as set forth in
Section 3.2(a)(i) above for such day, which amount shall be further allocated to
the Series 2005-3 Accrued Interest Account;
(ii) allocate
to the Series 2005-3 Collection Account an amount equal to the Series 2005-3
Principal Allocation for such day, which amount shall be used to make principal
payments in respect of the Series 2005-3 Notes or to make a Decrease;
provided,
however, that if
the Monthly Total Principal Allocation for any Related Month exceeds the lesser
of (x) the Series 2005-3 Controlled
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Amortization
Amount for such Related Month or (y) the Series 2005-3 Invested Amount on such
Series 2005-3 Deposit Date, then the amount of such excess shall be allocated to
the Series 2005-3 Excess Collection Account; and provided,
further, that if
a Waiver Event shall have occurred, then such allocation shall be modified as
provided in Article V; and
(iii) allocate
to the Series 2005-3 Excess Collection Account the proceeds from any
Increase.
(c) Allocations
of Collections During the Series 2005-3 Rapid Amortization
Period. With
respect to the Series 2005-3 Rapid Amortization Period, other than after the
occurrence of an Event of Bankruptcy with respect to CCRG, any other Lessee or
any Permitted Sublessee, the Adminis-trator will direct the Trustee in writing
pursuant to the Administration Agree-ment to allocate, prior to 11:00 a.m.
(New York City time) on any Series 2005-3 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2005-3 Collection Account an amount deter-mined as set forth in
Section 3.2(a)(i) above for such day, which amount shall be further allocated to
the Series 2005-3 Accrued Interest Account; and
(ii) allocate
to the Series 2005-3 Collection Account an amount equal to the Series 2005-3
Princi-pal Allocation for such day, which amount shall be used to make principal
payments in respect of the Series 2005-3 Notes, ratably, without preference or
priority of any kind, until the Series 2005-3 Invested Amount is paid in full;
provided that if
on any Determination Date (A) the Administrator determines that the amount
anticipated to be available from Interest Collections allocable to the Series
2005-3 Notes, Series 2005-3 Interest Rate Cap Proceeds and other amounts
available pursuant to Section 3.3 to pay Series 2005-3 Monthly Interest and the
Commitment Fees on the next succeeding Distribution Date will be less than the
Series 2005-3 Monthly Interest and Commitment Fees for the Series 2005-3
Interest Period ending on the day preceding such Distribution Date and (B) the
Series 2005-3 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 2005-3 Notes during the Related Month equal
to the lesser of such insufficiency and the Series 2005-3 Enhancement Amount to
the Series 2005-3 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 occur-rence of an Event of Bankruptcy with respect to CCRG, any other Lessee
or any Permitted Sublessee, the Administrator will direct the Trustee in writing
pursuant to the Administra-tion Agreement to allocate, prior to 11:00 a.m.
(New York City time) on any Series 2005-3 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
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(i) allocate
to the Series 2005-3 Collection Account an amount equal to the sum of (A) the
Series 2005-3 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, and (B) any
amounts received by the Trustee in respect of the Series 2005-3 Interest Rate
Caps on such day. All such amounts allocated to the Series 2005-3 Collection
Account shall be further allocated to the Series 2005-3 Accrued Interest
Account; and
(ii) allocate
to the Series 2005-3 Collection Account an amount equal to the Series 2005-3
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 to
make principal payments in respect of the Series 2005-3 Notes until the Series
2005-3 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
2005-3 Notes, Series 2005-3 Interest Rate Cap Proceeds and other amounts
available pursuant to Section 3.3 to pay Series 2005-3 Monthly Interest and the
Commitment Fees on the next succeeding Distribution Date will be less than the
Series 2005-3 Monthly Interest and Commitment Fees for the Series 2005-3
Interest Period ending on the day preceding such Distribution Date and (B) the
Series 2005-3 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 2005-3 Notes during the Related Month equal
to the lesser of such insufficiency and the Series 2005-3 Enhancement Amount to
the Series 2005-3 Accrued Interest Account to be treated as Interest Collections
on such Distribution Date.
(e) Allocations
From Other Series. Amounts
allocated to other Series of Notes that have been reallocated by CRCF to the
Series 2005-3 Notes (i) during the Series 2005-3 Revolving Period shall be
allocated to the Series 2005-3 Excess Collection Account and applied in
accordance with Section 3.2(f) and (ii) during the Series 2005-3 Controlled
Amortization Period or the Series 2005-3 Rapid Amortization Period shall be
allocated to the Series 2005-3 Collection Account and applied in accordance with
Section 3.2(b) or Section 3.2(c) to make principal payments in respect of the
Series 2005-3 Notes.
(f) Series
2005-3 Excess Collection Account. Amounts
allocated to the Series 2005-3 Excess Collection Account on any Series 2005-3
Deposit Date will be (i) first, used to reduce the Purchaser Group Invested
Amount with respect to any Non-Extending Purchaser Group to the extent required
pursuant to Section 2.5(d), (ii) second, deposited in the Series 2005-3 Reserve
Account in an amount up to the excess, if any, of the Series 2005-3 Required
Reserve Account Amount for such date, after giving effect to any Increase or
Decrease on such date, over the Series 2005-3 Available Reserve Account Amount
for such date, (iii) third, to the extent directed by CRCF used to pay the
principal amount of other Series of Notes that are then required to be paid,
(iv) fourth, to the extent directed in writing by the Administrator, used to
make a voluntary Decrease in
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the
Series 2005-3 Invested Amount, (v) fifth, to the extent directed in writing by
the Administrator used to make a voluntary decrease in the Invested Amount of
any other Series of Notes that may be reduced in accordance with the Indenture,
(vi) sixth, released to AESOP Leasing in an amount equal to (A) the Loan
Agreement’s Share with respect to the AESOP I Operating Lease Loan Agreement as
of such date times (B) 100%
minus the Loan
Payment Allocation Percentage with respect to the AESOP I Operating Lease Loan
Agreement as of such date times (C) the amount of any remaining funds and (vii)
seventh, paid to CRCF and used to make Loans under the Loan Agreements to the
extent the Borrowers have requested Loans thereunder and Eligible Vehicles are
avail-able for financing thereunder; provided, in the
case of clauses (v), (vi) and (vii), that no AESOP I Operating Lease Vehicle
Deficiency would result there-from or exist immedi-ately thereafter. Upon the
occurrence of an Amortization Event, funds on deposit in the Series 2005-3
Excess Collection Account will be with-drawn by the Trustee, deposited in the
Series 2005-3 Collection Account and allocated as Principal Collections to
reduce the Series 2005-3 Invested Amount on the immediately succeeding
Distribution Date.
(g) Past
Due Rental Payments.
Notwithstanding Section 3.2(a), if after the occurrence of a Series 2005-3 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 2005-3 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 2005-3 Collection Account an amount equal to
the Series 2005-3 Invested Percentage as of the date of the occurrence of such
Series 2005-3 Lease Payment Deficit of the Collections attributable to such Past
Due Rent Payment (the “Series
2005-3 Past Due Rent Payment”). The
Administrator shall instruct the Trustee in writing pursuant to the
Administration Agreement to withdraw from the Series 2005-3 Collection Account
and apply the Series 2005-3 Past Due Rent Payment in the following
order:
(i) if the
occurrence of such Series 2005-3 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2005-3 Reserve Account pursuant to Section 3.3(d),
deposit in the Series 2005-3 Reserve Account an amount equal to the lesser of
(x) the Series 2005-3 Past Due Rent Payment and (y) the excess, if any, of the
Series 2005-3 Required Reserve Account Amount over the Series 2005-3 Available
Reserve Account Amount on such day;
(ii) if the
occurrence of the related Series 2005-3 Lease Payment Deficit resulted in one or
more Lease Deficit Disbursements being made under the Series 2005-3 Letters of
Credit, pay to each Series 2005-3 Letter of Credit Provider who made such a
Lease Deficit Disbursement for application in accor-dance with the provisions of
the applicable Series 2005-3 Reimbursement Agreement an amount equal to the
lesser of (x) the unreimbursed amount of such Series 2005-3 Letter of
Credit Provider’s Lease Deficit Disbursement and (y) such Series 2005-3 Letter
of Credit Provider’s pro
rata share,
calculated on the basis of the unreimbursed amount of each Series 2005-3 Letter
of Credit Provider’s Lease Deficit Disbursement, of the amount of the Series
2005-3 Past Due Rent Payment remaining after Payment pursuant to clause (i)
above;
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(iii) if the
occurrence of such Series 2005-3 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2005-3 Cash Collateral Account, deposit in the Series
2005-3 Cash Collateral Account an amount equal to the lesser of (x) the amount
of the Series 2005-3 Past Due Rent Payment remaining after any payment pursuant
to clauses (i) and (ii) above and (y) the amount withdrawn from the Series
2005-3 Cash Collateral Account on account of such Series 2005-3 Lease Payment
Deficit;
(iv) allocate
to the Series 2005-3 Accrued Interest Account the amount, if any, by which the
Series 2005-3 Lease Interest Payment Deficit, if any, relating to such Series
2005-3 Lease Payment Deficit exceeds the amount of the Series 2005-3 Past Due
Rent Payment applied pursuant to clauses (i), (ii) and (iii) above; and
(v) treat the
remaining amount of the Series 2005-3 Past Due Rent Payment as Principal
Collections allocated to the Series 2005-3 Notes in accordance with Section
3.2(a)(ii), 3.2(b)(ii) or 3.2(c)(ii), as the case may be.
Section
3.3. Payments
to Noteholders. The
Funding Agent with respect to each Purchaser Group shall provide written notice
to the Administrative Agent (x) no later than two (2) Business Days prior to
each Determination Date, setting forth the Monthly Funding Costs with respect to
such Purchaser Group with respect to the portion of the current Series 2005-3
Interest Period ending on such Business Day and a reasonable estimation of the
Monthly Funding Costs with respect to such Purchaser Group for the remainder of
such Series 2005-3 Interest Period and (y) within three (3) Business Days after
the end of each calendar month, setting forth the Monthly Funding Costs
(calculated as if such calendar month was a Series 2005-3 Interest Period) with
respect to such Purchaser Group for such calendar month. The Administrative
Agent shall, within two (2) Business Days following its receipt of such
information from each Funding Agent, compile the information provided in such
written notice pursuant to (x) or (y) above, as applicable, into one written
notice for all Purchaser Groups and forward such notice to the Administrator. If
the actual amount of the Monthly Funding Costs with respect to any Purchaser
Group for a Series 2005-3 Interest Period is less than or greater than the
amount thereof estimated by the Funding Agent with respect to such Purchaser
Group on a Determination Date, such Funding Agent shall notify the Administrator
and the Administrative Agent thereof on the next succeeding Determination Date
and the Administrator will reduce or increase the Monthly Funding Costs with
respect to such Purchaser Group for the next succeeding Series 2005-3 Interest
Period accordingly. The Administrator shall determine the Series 2005-3 Note
Rate for the last Series 2005-3 Interest Period on the Determination Date
immediately preceding the final Distribution Date based on the information
provided by the Funding Agents. If a Funding Agent determines that the actual
Monthly Funding Costs with respect to its Purchaser Group for the last Series
2005-3 Interest Period will be more or less than the estimate thereof provided
to the Administrator and informs the Administrator of such variance prior to the
Distribution Date for such Series 2005-3 Interest Period, the Administrator will
recalculate the Series 2005-3 Note Rate for such Series 2005-3 Interest Period.
On each Determination Date, as provided below, the Administrator shall instruct
the Paying Agent in writing pursuant to the Administration Agreement to
withdraw, and on the following Distribution Date the Paying Agent, acting in
accor-dance with such instruc-tions, shall withdraw
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the
amounts required to be withdrawn from the Collection Account pursuant to Section
3.3(a) below in respect of all funds available from Series 2005-3 Interest Rate
Cap Proceeds and Interest Collections processed since the preceding Distribution
Date and allocated to the holders of the Series 2005-3 Notes.
(a) Note
Interest and Commitment Fees with respect to the Series 2005-3
Notes. On each
Determin-a-tion Date, the Adminis-trator shall instruct the Trustee and the
Paying Agent in writing pursuant to the Administration Agreement as to the
amount to be withdrawn and paid pursuant to Section 3.4 from the Series 2005-3
Accrued Interest Account to the extent funds are anticipated to be available
from Interest Collections allo-cable to the Series 2005-3 Notes and the Series
2005-3 Interest Rate Cap Proceeds pro-cessed from, but not including, the
preceding Distribu-tion Date through the succeeding Dis-tribution Date in
respect of (x) first, an amount equal to the Series 2005-3 Monthly Interest for
the Series 2005-3 Interest Period ending on the day preceding the related
Distribution Date, (y) second, an amount equal to the Commitment Fees for each
Purchaser Group for the Series 2005-3 Interest Period ending on the day
preceding the related Distribution Date and (z) third, an amount equal to the
amount of any unpaid Series 2005-3 Shortfall as of the preceding Distribu-tion
Date (together with any accrued interest on such Series 2005-3 Shortfall). On
the following Distribution Date, the Trustee shall withdraw the amounts
described in the first sentence of this Sec-tion 3.3(a) from the Series
2005-3 Accrued Interest Account and deposit such amounts in the Series 2005-3
Distribution Account.
(b) Withdrawals
from Series 2005-3 Reserve Account. If the
Administrator determines on any Distribution Date that the amounts available
from the Series 2005-3 Accrued Interest Account are insufficient to pay the sum
of the amounts described in clauses (x), (y) and (z) of Section 3.3(a) above on
such Distribution Date, the Administrator shall instruct the Trustee in writing
to withdraw from the Series 2005-3 Reserve Account and deposit in the Series
2005-3 Distribution Account on such Distribution Date an amount equal to the
lesser of the Series 2005-3 Available Reserve Account Amount and such
insufficiency. The Trustee shall withdraw such amount from the Series 2005-3
Reserve Account and deposit such amount in the Series 2005-3 Distribution
Account.
(c) Lease
Payment Deficit Notice. On or
before 10:00 a.m. (New York City time) on each Distribution Date, the
Administrator shall notify the Trustee of the amount of any Series 2005-3 Lease
Payment Deficit, such notification to be in the form of Exhibit
F (each a
“Lease
Payment Deficit Notice”).
(d) Draws
on Series 2005-3 Letters of Credit For Series 2005-3 Lease Interest Payment
Deficits. If the
Administrator determines on any Distribution Date that there exists a Series
2005-3 Lease Interest Payment Deficit, the Administrator shall instruct the
Trustee in writing to draw on the Series 2005-3 Letters of Credit, if any, and,
the Trustee shall, by 12:00 noon (New York City time) on such Distribution
Date draw an amount (identified by the Administrator) equal to the least of (i)
such Series 2005-3 Lease Interest Payment Deficit, (ii) the excess, if any, of
the sum of the amounts described in clauses (x), (y) and (z) of Section 3.3(a)
above on such Distribution Date over the
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amounts
available from the Series 2005-3 Accrued Interest Account on such Distribution
Date plus the amount withdrawn from the Series 2005-3 Reserve Account pursuant
to Section 3.3(b) and (iii) the Series 2005-3 Letter of Credit Liquidity Amount
on the Series 2005-3 Letters of Credit by presenting to each Series 2005-3
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 2005-3 Distribution Account on such Distribution Date for distribution in
accordance with Section 3.4; provided,
however, that if
the Series 2005-3 Cash Collateral Account has been estab-lished and funded, the
Trustee shall withdraw from the Series 2005-3 Cash Collateral Account and
deposit in the Series 2005-3 Distribution Account an amount equal to the lesser
of (x) the Series 2005-3 Cash Collateral Percentage on such Distribution Date of
the least of the amounts described in clauses (i), (ii) and (iii) above and (y)
the Series 2005-3 Available Cash Collateral Account Amount on such Distribution
Date and draw an amount equal to the remainder of such amount on the Series
2005-3 Letters of Credit.
(e) Balance. On or
prior to the second Busi-ness Day preceding each Distribution Date, the
Adminis-trator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement to pay the balance (after making the
payments required in Sec-tion 3.3(a)), if any, of the amounts available from the
Series 2005-3 Accrued Interest Account as follows:
(i) on each
Distribution Date during the Series 2005-3 Revolving Period or the Series 2005-3
Controlled Amortization Period, (1) first, to the Administrator, an amount equal
to the Series 2005-3 Percentage as of the beginning of such Series 2005-3
Interest Period of the por-tion of the Monthly Administration Fee pay-able by
CRCF (as specified in clause (iii) of the definition thereof) for such Series
2005-3 Interest Period, (2) second, to the Trustee, an amount equal to the
Series 2005-3 Percentage as of the beginning of such Series 2005-3 Interest
Period of the Trustee’s fees for such Series 2005-3 Interest Period, (3) third,
to the Series 2005-3 Distribution Account to pay any Article VII Costs, (4)
fourth, to pay any Carrying Charges (other than Carrying Charges provided for
above) to the Persons to whom such amounts are owed, an amount equal to the
Series 2005-3 Percentage as of the beginning of such Series 2005-3 Interest
Period of such Carrying Charges (other than Carrying Charges provided for above)
for such Series 2005-3 Interest Period and (5) fifth, the balance, if any
(“Excess
Collections”), shall
be withdrawn by the Paying Agent from the Series 2005-3 Collection Account and
deposited in the Series 2005-3 Excess Collection Account; and
(ii) on each
Distribution Date during the Series 2005-3 Rapid Amorti-zation Period, (1)
first, to the Trustee, an amount equal to the Series 2005-3 Percentage as of the
beginning of such Series 2005-3 Interest Period of the Trustee’s fees for such
Series 2005-3 Interest Peri-od, (2) second, to the Adminis-tra-tor, an amount
equal to the Series 2005-3 Percentage as of the beginning of such Series 2005-3
Interest Period of the portion of the Monthly Administration Fee (as specified
in clause (iii) of the definition thereof) payable by CRCF for such Series
2005-3 Interest Period, (3) third, to the Series 2005-3 Distribution
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Account
to pay any Article VII Costs, (4) fourth, to pay any Carrying Charges (other
than Carrying Charges provided for above) to the Persons to whom such amounts
are owed, an amount equal to the Series 2005-3 Percentage as of the beginning of
such Series 2005-3 Interest Period of such Carrying Charges (other than Carrying
Charges provided for above) for such Series 2005-3 Interest Period and (5)
fifth, the balance, if any, shall be treated as Principal
Collections.
(f) Shortfalls. If the
amounts described in Section 3.3 are insufficient to pay the Series 2005-3
Monthly Interest and the Commitment Fees of the Purchaser Groups on any
Dis-tribution Date, payments of interest to the Series 2005-3 Noteholders and
payments of Commitment Fees to the Purchaser Groups will be reduced on a
pro rata basis by
the amount of such defici-ency. The aggregate amount, if any, of such deficiency
on any Distribution Date shall be referred to as the “Series
2005-3 Shortfall.”
Interest shall accrue on the Series 2005-3 Shortfall at the Alternate Base Rate
plus 2% per annum.
Section
3.4. Payment
of Note Interest and Commitment Fees. On each
Distribution Date, subject to Sec-tion 9.8 of the Base Indenture, the Paying
Agent shall, in accordance with Section 6.1 of the Base Indenture, pay to the
Adminis-trative Agent for the accounts of the Purchaser Groups from the Series
2005-3 Distribution Account the amounts deposited in the Series 2005-3
Distribution Account pursuant to Section 3.3. Upon the receipt of funds from the
Paying Agent on each Distribution Date on account of Series 2005-3 Monthly
Interest, the Administrative Agent shall pay to each Funding Agent with respect
to a Purchaser Group an amount equal to the Monthly Funding Costs with respect
to such Purchaser Group with respect to the Series 2005-3 Interest Period ending
on the day preceding such Distribution Date plus the
amount of any unpaid Series 2005-3 Shortfalls relating to unpaid Series 2005-3
Monthly Interest payable to such Purchaser Group as of the preceding
Distribution Date, together with any interest thereon at the Alternate Base Rate
plus 2% per annum. If the amount paid to the Administrative Agent on any
Distribution Date pursuant to this Section 3.4 on account of Series 2005-3
Monthly Interest for the Series 2005-3 Interest Period ending on the day
preceding such Distribution Date is less than such Series 2005-3 Monthly
Interest, the Administrative Agent shall pay the amount available to the Funding
Agents, on behalf of the Purchaser Groups, on a pro rata basis,
based on the Monthly Funding Costs with respect to each Purchaser Group with
respect to such Series 2005-3 Interest Period. Upon the receipt of funds from
the Paying Agent on each Distribution Date on account of Commitment Fees, the
Administrative Agent shall pay to each Funding Agent with respect to a Purchaser
Group an amount equal to the Commitment Fee payable to such Purchaser Group with
respect to the Series 2005-3 Interest Period ending on the day preceding such
Distribution Date plus the
amount of any unpaid Series 2005-3 Shortfalls relating to unpaid Commitment Fees
payable to such Purchaser Group as of the preceding Distribution Date, together
with any interest thereon at the Alternate Base Rate plus 2% per annum. If the
amount paid to the Administrative Agent on any Distribution Date pursuant to
this Section 3.4 on account of Commitment Fees is less than the Commitment Fees
payable on such Distribution Date, the Administrative Agent shall pay the amount
available to the Funding Agents, on behalf of the Purchaser Groups, on a
pro rata basis,
based on the Commitment Fee payable to each Purchaser Group on such Distribution
Date. Upon the receipt of funds from the Trustee or the Paying Agent on any
Distribution Date on account of Article VII Costs, the Administrative Agent
shall pay such amounts to the Funding Agent with respect to the CP Conduit
Purchaser or the APA Bank owed such amounts. If the amounts paid to the
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Administrative
Agent on any Distribution Date pursuant to Section 3.3(e) on account of Article
VII Costs are less than the Article VII Costs due and payable on such
Distribution Date, the Administrative Agent shall pay the amounts available to
the Funding Agents with respect to the CP Conduit Purchasers and APA Banks owed
such amounts, on a pro rata basis,
based on the Article VII Costs owing to such CP Conduit Purchasers and APA
Banks. Due and
unpaid Article VII Costs owing to a Purchaser Group shall accrue interest at the
Alternate Base Rate plus 2%;
provided that
Article VII Costs shall not be considered due until the first Distribution Date
following five (5) days’ notice to CRCF and the Administrator of such Article
VII Costs.
Section
3.5. Payment
of Note Principal.
(a) Monthly
Payments During Series 2005-3 Controlled Amortization Period or Series 2005-3
Rapid Amortization Period.
Commencing on the second Determination Date during the Series 2005-3 Controlled
Amortization Period or the first Determination Date after the commence-ment of
the Series 2005-3 Rapid Amortization Period, the Administrator shall in-struct
the Trustee and the Paying Agent in writing pursu-ant to the Administration
Agreement and in accordance with this Section 3.5 as to (i) the amount allocated
to the Series 2005-3 Notes during the Related Month pursuant to Section
3.2(b)(ii), (c)(ii) or (d)(ii), as the case may be, and the portion of such
amount, if any, that has been previously applied to make a Decrease pursuant to
Section 2.5, (ii) any amounts to be withdrawn from the Series 2005-3 Reserve
Account and deposited into the Series 2005-3 Distribution Ac-count or (iii) any
amounts to be drawn on the Series 2005-3 Demand Notes and/or on the Series
2005-3 Letters of Credit (or withdrawn from the Series 2005-3 Cash Collateral
Account). On the Dis-tribution Date following each such Determination Date, the
Trustee shall withdraw the amount allocated to the Series 2005-3 Notes during
the Related Month pursuant to Section 3.2(b)(ii), (c)(ii) or (d)(ii), as the
case may be, less the portion of such amount, if any, that has been previously
applied to make a Decrease pursuant to Section 2.5, from the Series 2005-3
Collection Account and deposit such amount in the Series 2005-3 Distri-bution
Account, to be paid to the holders of the Series 2005-3 Notes.
(b) Decreases. On any
Business Day (x) during the Series 2005-3 Revolving Period on which a Decrease
is to be made pursuant to Section 2.5, the Trustee shall withdraw from the
Series 2005-3 Excess Collection Account, or (y) during the Series 2005-3
Controlled Amortization Period on which a Decrease is to be made pursuant to
Section 2.5, the Trustee shall withdraw from the Series 2005-3 Excess Collection
Account and/or the Series 2005-3 Collection Account, in each case in accordance
with the written instructions of the Admin-istrator, an amount equal to the
lesser of (i) the amounts specified in clauses (x) and (y) of Section 2.5(a) and
(ii) the amount of such Decrease, and deposit such amount in the Series 2005-3
Distribution Account, to be paid to the Administrative Agent for distribution in
accordance with Section 3.5(f).
(c) Principal
Deficit Amount. On each
Distribution Date on which the Principal Deficit Amount is greater than zero,
amounts shall be transferred to the Series 2005-3 Distribution Account as
follows:
(i) Reserve
Account Withdrawal. The
Administrator shall instruct the Trustee in writing, prior to 12:00 noon
(New York City time) on such Distribution Date, in the case of a Principal
Deficit Amount resulting from a Series 2005-3 Lease Payment Deficit, or prior to
12:00 noon (New York City time) on the second Business Day prior to
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such
Distribution Date, in the case of any other Principal Deficit Amount, to
withdraw from the Series 2005-3 Reserve Account, an amount equal to the lesser
of (x) the Series 2005-3 Available Reserve Account Amount and (y) such Principal
Deficit Amount and deposit it in the Series 2005-3 Distribution Account on such
Distribution Date.
(ii) Principal
Draws on Series 2005-3 Letters of Credit. If the
Administrator determines on any Distribution Date during the Series 2005-3 Rapid
Amortization Period that there exists a Series 2005-3 Lease Principal Payment
Deficit, the Administrator shall instruct the Trustee in writing to draw on the
Series 2005-3 Letters of Credit, if any, as provided below. Upon
receipt of a notice by the Trustee from the Administra-tor in respect of a
Series 2005-3 Lease Principal Payment Deficit on or prior to 11:00 a.m.
(New York City time) on a Distribution Date, the Trustee shall, by 12:00
noon (New York City time) on such Distribution Date draw an amount equal to
the least of (i) such Series 2005-3 Lease Principal Payment Deficit, (ii) the
amount by which the Principal Deficit Amount on such Distribution Date exceeds
the amount to be deposited in the Series 2005-3 Distribution Account in
accordance with clause (i) of this Section 3.5(c) and (iii) the Series 2005-3
Letter of Credit Amount on the Series 2005-3 Letters of Credit by presenting to
each Series 2005-3 Letter of Credit Provider a draft accom-panied by a
Certificate of Lease Deficit Demand and shall cause the Lease Deficit
Disbursements to be deposited in the Series 2005-3 Distribution Account on such
Distribution Date; provided,
however, that if
the Series 2005-3 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2005-3 Cash Collateral Account and
deposit in the Series 2005-3 Distribution Account an amount equal to the lesser
of (x) the Series 2005-3 Cash Collat-eral Percentage on such Distribution Date
of the least of the amounts described in clauses (i), (ii) and (iii) above and
(y) the Series 2005-3 Available Cash Collateral Account Amount on such
Distribution Date and draw an amount equal to the remainder of such amount on
the Series 2005-3 Letters of Credit.
(iii) Demand
Note Draw. If on
any Determination Date, the Adminis-trator determines that the Principal Deficit
Amount on the next succeeding Distribution Date (after giving effect to any
withdrawal from the Series 2005-3 Reserve Account pursuant to Section 3.5(c)(i)
on such Distribution Date) will be greater than zero and there are any Series
2005-3 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 2005-3 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 defini-tion thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred and be continuing, the
Trustee shall not be required to deliver such Demand Notice to such Demand Note
Issuer. The Trustee shall cause the proceeds of any demand on the Series 2005-3
Demand Notes to be deposited into the Series 2005-3 Distribution Account.
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(iv) Letter
of Credit Draw. In the
event that either (x) on or prior to 10:00 a.m. (New York City time) on the
Business Day prior to such Distribution Date, any Demand Note Issuer shall have
failed to pay to the Trustee or deposit in the Series 2005-3 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 conse-cutive days) with respect to any Demand Note Issuer, the Trustee
shall not have delivered such Demand Notice to any Demand Note Issuer on the
second Business Day preceding such Distribution Date, then, in the case of (x)
or (y) the Trustee shall on such Business Day draw on the Series 2005-3 Letters
of Credit an amount equal to the lesser of (i) Series 2005-3 Letter of
Credit Amount and (ii) the aggregate amount that the Demand Note Issuers
failed to pay under the Series 2005-3 Demand Notes (or, the amount that the
Trustee failed to demand for payment thereunder) by presenting to each Series
2005-3 Letter of Credit Provider a draft accompanied by a Certificate of Unpaid
Demand Note Demand; provided,
however, that if
the Series 2005-3 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2005-3 Cash Collateral Account and
deposit in the
Series 2005-3 Distribution Account an amount equal to the lesser of (x) the
Series 2005-3 Cash Collateral Percentage on such Business Day of the aggregate
amount that the Demand Note Issuers failed to pay under the Series 2005-3 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (y) the Series 2005-3 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 2005-3 Demand Notes
(or, the amount that the Trustee failed to demand for payment thereunder) on the
Series 2005-3 Letters of Credit. The Trustee shall deposit into, or cause the
deposit of, the proceeds of any draw on the Series 2005-3 Letters of Credit and
the proceeds of any withdrawal from the Series 2005-3 Cash Collateral Account to
be deposited in the Series 2005-3 Distribution Account.
(d) Series
2005-3 Termination Date. The
entire Series 2005-3 Invested Amount shall be due and payable on the Series
2005-3 Termination Date. In connection therewith:
(i) Reserve
Account Withdrawal. If,
after giving effect to the deposit into the Series 2005-3 Distribution Account
of the amount to be deposited in accordance with Section 3.5(a), together
with any amounts to be deposited therein in accordance with Section 3.5(c) on
the Series 2005-3 Termination Date, the amount to be deposited in the Series
2005-3 Distribution Account with respect to the Series 2005-3 Termination Date
is or will be less than the Series 2005-3 Invested Amount, then, prior to 12:00
noon (New York City time) on the second Business Day prior to the Series
2005-3 Termination Date, the Administrator shall instruct the Trustee in writing
to withdraw from the Series 2005-3 Reserve Account, an amount equal to the
lesser of the Series 2005-3 Available Reserve Account Amount and such
insufficiency and deposit it in the Series 2005-3 Distribution Account on the
Series 2005-3 Termination Date.
(ii) Demand
Note Draw. If the
amount to be deposited in the Series 2005-3 Distribution Account in accordance
with Section 3.5(a) together with any amounts to be
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deposited
therein in accordance with Section 3.5(c) and Section 3.5(d)(i) on the Series
2005-3 Termination Date is less than the Series 2005-3 Invested Amount, and
there are any Series 2005-3 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
2005-3 Termination Date, the Administrator shall instruct the Trustee in writing
to make a demand (a “Demand
Notice”)
substantially in the form attached hereto as Exhibit
G on the
Demand Note Issuers for payment under the Series 2005-3 Demand Notes in an
amount equal to the lesser of (i) such insuf-fici-ency and (ii) the Series
2005-3 Letter of Credit Amount. The Trustee shall, prior to 12:00 noon
(New York City time) on the second Business Day preceding the Series 2005-3
Termination Date, deliver such Demand Notice to the Demand Note Issuers;
provided,
however, that if
an Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the definition thereof, without the lapse of a period of 60 consecu-tive days)
with respect to a Demand Note Issuer shall have occurred and be contin-uing, the
Trustee shall not be required to deliver such Demand Notice to such Demand Note
Issuer. The Trustee shall cause the proceeds of any demand on the Series 2005-3
Demand Notes to be deposited into the Series 2005-3 Distribution Account.
(iii) Letter
of Credit Draw. In the
event that either (x) on or prior to 10:00 a.m. (New York City time) on the
Business Day immediately preceding any Distribution Date next succeeding any
date on which a Demand Notice has been transmitted by the Trustee to the Demand
Note Issuers pursuant to clause (ii) of this Section 3.5(d) any Demand Note
Issuer shall have failed to pay to the Trustee or deposit into the Series 2005-3
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 defini-tion thereof, without the
lapse of a period of 60 consecutive days) with respect to one or more of the
Demand Note Issuers, the Trustee shall not have delivered such Demand Notice to
any Demand Note Issuer on the second Business Day preceding the Series 2005-3
Termination Date, then, in the case of (x) or (y) the Trustee shall draw on the
Series 2005-3 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 failed to pay under the Series 2005-3 Demand Notes (or, the amount
that the Trustee failed to demand for payment thereunder) and (b) the
Series 2005-3 Letter of Credit Amount on such Business Day by presenting to each
Series 2005-3 Letter of Credit Provider a draft accompanied by a Certificate of
Unpaid Demand Note Demand; provided,
however, that if
the Series 2005-3 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2005-3 Cash Collateral Account and
deposit in the Series 2005-3 Distribution Account an amount equal to the lesser
of (x) the Series 2005-3 Cash Collateral Percentage on such Business Day of the
amount that the Demand Note Issuers failed to pay under the Series 2005-3 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (y) the Series 2005-3 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 2005-3 Demand Notes (or, the
amount that the Trustee failed to demand for payment thereunder) on the Series
2005-3 Letters of Credit. The Trustee shall deposit, or cause the deposit of,
the proceeds of any draw on the Series 2005-3 Letters of Credit and the proceeds
of any
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withdrawal
from the Series 2005-3 Cash Collateral Account to be deposited in the Series
2005-3 Distribution Account.
(e) Distribution. On each
Distribution Date occurring on or after the date a withdrawal is made from the
Series 2005-3 Collection Account pursuant to Section 3.5(a) or amounts are
deposited in the Series 2005-3 Distribution Account pursuant to Section 3.5(c)
and/or (d), the Paying Agent shall, in accordance with Section 6.1 of the Base
Indenture, pay to the Administrative Agent for the accounts of the Purchaser
Groups from the Series 2005-3 Distribution Account the amount deposited therein
pursuant to Sec-tion 3.5(a), (c) and/or (d).
(f) Payment
of Funds From Decreases. Upon
the receipt of funds on account of a Decrease from the Trustee, the
Administrative Agent shall pay first, to each Funding Agent with respect to a
Non-Extending Purchaser Group a pro rata amount
of the Decrease, based on the Purchaser Group Invested Amounts with respect to
such Non-Extending Purchaser Group relative to the Purchaser Group Invested
Amounts with respect to all Non-Extending Purchaser Groups on the date of such
Decrease and second, to each Funding Agent with respect to a Purchaser Group,
such Purchaser Group’s Pro Rata Share of the remaining amount of such Decrease.
Each Purchaser Group’s share of the amount of any Decrease on any Business Day
shall be allocated by such Purchaser Group first to reduce the Available CP
Funding Amount with respect to such Purchaser Group and the Available APA Bank
Funding Amount with respect to such Purchaser Group on such Business Day and
then to reduce the portion of the Purchaser Group Invested Amount with respect
to such Purchaser Group allocated to CP Tranches and Eurodollar Tranches in such
order as such Purchaser Group may select in order to minimize costs payable
pursuant to Section 7.3. Upon the receipt of funds from the Trustee pursuant to
Sections 3.5(a), (c) and/or (d) on any Distribution Date, the Administrative
Agent shall pay to each Funding Agent with respect to a Purchaser Group, such
Purchaser Group’s Pro Rata Share of such funds.
Section
3.6. Administrator’s
Failure to Instruct the Trustee to Make a Deposit or Payment
. If the
Administrator fails to give notice or instructions to make any payment from or
deposit into the Collection Account required to be given by the Adminis-trator,
at the time speci-fied in the Administration Agreement or any other Related
Document (including appli-cable grace periods), the Trustee shall make such
payment or deposit into or from the Collection Account without such notice or
instruction from the Administrator, provided that the
Adminis-tra-tor, upon request of the Trustee, promptly provides the Trustee with
all information necessary to allow the Trustee to make such a payment or
deposit. When any payment or deposit hereunder or under any other Related
Document is required to be made by the Trustee or the Paying Agent at or prior
to a specified time, the Administrator shall deliver any applicable written
instructions with respect thereto reasonably in advance of such specified
time.
Section
3.7. Series
2005-3 Reserve Account.
(a) Establishment
of Series 2005-3 Reserve Account. CRCF
shall establish and maintain in the name of the Trustee for the benefit of the
Series 2005-3 Noteholders, or cause to be established and maintained, an account
(the “Series
2005-3 Reserve Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2005-3 Noteholders. The Series 2005-3 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
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corporate
trust powers and acting as trustee for funds deposited in the Series 2005-3
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 com-pany shall be reduced to below “BBB-” by Standard & Poor’s or
“Baa2” by Moody’s, then CRCF shall, within 30 days of such reduction, establish
a new Series 2005-3 Reserve Account with a new Qualified Institution. If the
Series 2005-3 Reserve Account is not maintained in accordance with the pre-vious
sentence, CRCF shall establish a new Series 2005-3 Reserve Account, within ten
(10) Business Days after obtaining knowledge of such fact, which complies with
such sentence, and shall instruct the Trustee in writing to transfer all cash
and investments from the non-qualifying Series 2005-3 Reserve Account into the
new Series 2005-3 Reserve Account. Initially, the Series 2005-3 Reserve Account
will be established with The Bank of New York.
(b) Administration
of the Series 2005-3 Reserve Account. The
Administrator may instruct the institution maintaining the Series 2005-3 Reserve
Account to invest funds on deposit in the Series 2005-3 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 2005-3 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 2005-3
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 CRCF, take such action as is
required to maintain the Trustee’s security interest in the Permitted
Investments credited to the Series 2005-3 Reserve Account. CRCF shall not direct
the Trustee to dispose of (or permit the disposal of) any Permitted Investments
prior to the maturity thereof to the extent such disposal would result
in a loss of
purchase price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2005-3 Reserve
Account shall remain uninvested.
(c) Earnings
from Series 2005-3 Reserve Account. All
interest and earnings (net of losses and investment expenses) paid on funds on
deposit in the Series 2005-3 Reserve Account shall be deemed to be on deposit
therein and available for distribution.
(d) Series
2005-3 Reserve Account Constitutes Additional Collateral for Series 2005-3
Notes. In
order to secure and provide for the repayment and payment of the CRCF
Obligations with respect to the Series 2005-3 Notes, CRCF hereby grants a
security interest in and assigns, pledges, grants, transfers and sets over to
the Trustee, for the benefit of the Series 2005-3 Noteholders, all of CRCF’s
right, title and interest in and to the following (whether now or hereafter
existing or acquired): (i) the Series 2005-3 Reserve Account, includ-ing any
security entitlement thereto; (ii) all funds on deposit therein from time to
time; (iii) all certificates and instruments, if any, representing or evidencing
any or all of the Series 2005-3 Reserve Account
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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 2005-3 Reserve Account,
whether consti-tuting securities, instruments, general intangibles, investment
property, financial assets or other property; (v) all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the Series 2005-3 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
2005-3 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 2005-3 Reserve Account and in all
proceeds thereof, and shall be the only person authorized to originate
entitle-ment orders in respect of the Series 2005-3 Reserve Account. The Series
2005-3 Reserve Account Collateral shall be under the sole dominion and control
of the Trustee for the benefit of the Series 2005-3 Noteholders. The Series
2005-3 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
2005-3 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 2005-3
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) Preference
Amount Withdrawals from the Series 2005-3 Reserve Account or the Series 2005-3
Cash Collateral Account. If a
member of a Purchaser Group notifies the Trustee in writing of the existence of
a Preference Amount, then, subject to the satisfaction of the conditions set
forth in the next succeeding sentence, on the Business Day on which those
conditions are first satisfied, the Trustee shall withdraw from either (x) prior
to the Series 2005-3 Letter of Credit Termination Date, the Series 2005-3
Reserve Account or (y) on or after the Series 2005-3 Letter of Credit
Termination Date, the Series 2005-3 Cash Collateral Account and pay to the
Funding Agent for such member an amount equal to such Preference Amount. Prior
to any withdrawal from the Series 2005-3 Reserve Account or the Series 2005-3
Cash Collateral Account pursuant to this Section 3.7(e), the Trustee shall
have received (i) a certified copy of the order requiring the return of such
Preference Amount; (ii) an opinion of counsel satisfactory to the Trustee that
such order is final and not subject to appeal; and (iii) a release as to any
claim against CRCF by the Purchaser Group for any amount paid in respect of such
Preference Amount. On the Business Day after Series 2005-3 Letter of Credit
Termination Date, the Trustee shall transfer the amount on deposit in the Series
2005-3 Reserve Account to the Series 2005-3 Cash Collateral
Account.
(f) Series
2005-3 Reserve Account Surplus. In the
event that the Series 2005-3 Reserve Account Surplus on any Distribution Date,
after giving effect to all withdrawals from the Series 2005-3 Reserve Account,
is greater than zero, the Trustee, acting in accordance with the written
instructions of the Administrator pursuant to the Administration Agreement,
shall withdraw from the Series 2005-3 Reserve Account an amount equal to the
Series 2005-3 Reserve Account Surplus and shall pay such amount to
CRCF.
(g) Termination
of Series 2005-3 Reserve Account. Upon
the termination of the Indenture pursuant to Section 11.1 of the Base Indenture,
the Trustee, acting in accordance
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with the
written instructions of the Administrator, after the prior payment of all
amounts owing to the Series 2005-3 Noteholders and payable from the Series
2005-3 Reserve Account as provided herein, shall withdraw from the Series 2005-3
Reserve Account all amounts on deposit therein for payment to CRCF.
Section
3.8. Series
2005-3 Letters of Credit and Series 2005-3 Cash Collateral
Account.
(a) Series
2005-3 Letters of Credit and Series 2005-3 Cash Collateral Account Constitute
Additional Collateral for Series 2005-3 Notes. In
order to secure and provide for the repayment and payment of CRCF’s obligations
with respect to the Series 2005-3 Notes, CRCF hereby grants a security interest
in and assigns, pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 2005-3 Noteholders, all of CRCF’s right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) each Series 2005-3 Letter of Credit; (ii) the Series
2005-3 Cash Collateral Account, including any security entitle-ment thereto;
(iii) all funds on deposit in the Series 2005-3 Cash Collateral Account
from time to time; (iv) all certificates and instruments, if any,
representing or evidencing any or all of the Series 2005-3 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
2005-3 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 2005-3 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
2005-3 Cash Collateral Account Collateral”). The
Trustee shall, for the benefit of the Series 2005-3 Noteholders, possess all
right, title and interest in all funds on deposit from time to time in the
Series 2005-3 Cash Collateral Account and in all
proceeds thereof, and shall be the only person authorized to originate
entitlement orders in respect
of the Series 2005-3 Cash Collateral Account. The Series 2005-3 Cash Collateral
Account shall be under the sole dominion and control of the Trustee for the
benefit of the Series 2005-3 Noteholders. The Series 2005-3 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 2005-3 Cash Collateral
Account; (ii) that its jurisdiction as securities intermediary is New York;
(iii) that each item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Series 2005-3 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
2005-3 Letter of Credit Expiration Date. If
prior to the date which is ten (10) days prior to the then-scheduled Series
2005-3 Letter of Credit Expiration Date with respect to any Series 2005-3 Letter
of Credit, excluding the amount available to be drawn under such Series 2005-3
Letter of Credit but taking into account each substitute Series 2005-3 Letter of
Credit which has been obtained from a Series 2005-3 Eligible Letter of Credit
Provider and is in full force and effect on such date, the Series 2005-3
Enhancement Amount would be equal to or more than the Series 2005-3 Required
Enhancement Amount and the Series 2005-3 Liquidity Amount would be equal to or
greater than the Series 2005-3 Required Liquidity Amount, then the Administrator
shall notify the Trustee in writing no later than two (2) Business Days prior to
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such
Series 2005-3 Letter of Credit Expiration Date of such determination. If prior
to the date which is ten (10) days prior to the then scheduled Series 2005-3
Letter of Credit Expiration Date with respect to any Series 2005-3 Letter of
Credit, excluding the amount available to be drawn under such Series 2005-3
Letter of Credit but taking into account a substitute Series 2005-3 Letter of
Credit which has been obtained from a Series 2005-3 Eligible Letter of Credit
Provider and is in full force and effect on such date, the Series 2005-3
Enhancement Amount would be less than the Series 2005-3 Required Enhancement
Amount or the Series 2005-3 Liquidity Amount would be less than the Series
2005-3 Required Liquidity Amount, then the Administrator shall notify the
Trustee in writing no later than two (2) Business Days prior to such Series
2005-3 Letter of Credit Expiration Date of (x) the greater of (A) the excess, if
any, of the Series 2005-3 Required Enhancement Amount over the Series 2005-3
Enhancement Amount, excluding the available amount under such expiring Series
2005-3 Letter of Credit but taking into account any substitute Series 2005-3
Letter of Credit which has been obtained from a Series 2005-3 Eligible Letter of
Credit Provider and is in full force and effect, on such date, and (B) the
excess, if any, of the Series 2005-3 Required Liquidity Amount over the Series
2005-3 Liquidity Amount, excluding the available amount under such expiring
Series 2005-3 Letter of Credit but taking into account any substitute Series
2005-3 Letter of Credit which has been obtained from a Series 2005-3 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 2005-3 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 2005-3 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 2005-3 Cash Collateral Account.
If the
Trustee does not receive the notice from the Administrator described in the
first paragraph of this Section 3.8(b) on or prior to the date that is two (2)
Business Days prior to each Series 2005-3 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 2005-3 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 2005-3 Cash Collateral
Account.
(c) Series
2005-3 Letter of Credit Providers. The
Administrator shall notify the Trustee in writing within one Business Day of
becoming aware that (i) the long-term senior unsecured debt credit rating of any
Series 2005-3 Letter of Credit Provider has fallen below “A” as determined by
Standard & Poor’s or “A2” as determined by Moody’s or (ii) the short-term
senior unsecured debt credit rating of any Series 2005-3 Letter of Credit
Provider has fallen below “A-1” as determined by Standard & Poor’s or “P-1”
as determined by Moody’s. At such time the Administrator shall also notify the
Trustee of (i) the greater of (A) the excess, if any, of the Series 2005-3
Required Enhancement Amount over the Series 2005-3 Enhancement Amount, excluding
the available amount under the Series 2005-3 Letter of Credit issued by such
Series 2005-3 Letter of Credit Provider, on such date, and (B) the excess, if
any, of the Series 2005-3 Required Liquidity Amount over the Series 2005-3
Liquidity Amount, excluding the available amount under such Series 2005-3 Letter
of Credit, on such date, and (ii) the amount available to be drawn on such
Series 2005-3 Letter of Credit on such date. Upon receipt of such notice by
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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 2005-3 Letter of Credit in an
amount equal to the lesser of the amounts in clause (i) and clause
(ii) of the immediately preceding sen-tence on such Business Day by
presenting a draft accompanied by a Certificate of Termination Demand and shall
cause the Termination Disbursement to be deposited in the Series 2005-3 Cash
Collateral Account.
(d) Draws
on the Series 2005-3 Letters of Credit. If
there is more than one Series 2005-3 Letter of Credit on the date of any draw on
the Series 2005-3 Letters of Credit pursuant to the terms of this Supplement,
the Administrator shall instruct the Trustee, in writing, to draw on each Series
2005-3 Letter of Credit in an amount equal to the LOC Pro Rata Share of the
Series 2005-3 Letter of Credit Provider issuing such Series 2005-3 Letter of
Credit of the amount of such draw on the Series 2005-3 Letters of
Credit.
(e) Establishment
of Series 2005-3 Cash Collateral Account. On or
prior to the date of any drawing under a Series 2005-3 Letter of Credit pursuant
to Section 3.8(b) or (c) above, CRCF shall establish and maintain in the
name of the Trustee for the benefit of the Series 2005-3 Noteholders, or cause
to be estab-lished and maintained, an account (the “Series
2005-3 Cash Collateral Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2005-3 Noteholders. The Series 2005-3 Cash
Collateral Account shall be maintained (i) with a Qualified Institution, or
(ii) as a segre-gated trust account with the corporate trust depart-ment of
a depository institution or trust company having corporate trust powers and
act-ing as trustee for funds deposited in the Series 2005-3 Cash Collateral
Account; provided that, if
at any time such Qualified Institution is no longer a Qualified Institution or
the credit rating of any securities issued by such depository institution or
trust company shall be reduced to below “BBB-” by Standard & Poor’s or
“Baa3” by Moody’s, then CRCF shall, within 30 days of such reduction, establish
a new Series 2005-3 Cash Collateral Account with a new Qualified Institution or
a new segre-gated trust account with the corporate trust department of a
depository institution or trust company having corporate trust powers and acting
as trustee for funds deposited in the Series 2005-3 Cash Collateral Account. If
a new Series 2005-3 Cash Collateral Account is established, CRCF shall instruct
the Trustee in writing to transfer all cash and invest-ments from the
non-qualifying Series 2005-3 Cash Collateral Account into the new Series 2005-3
Cash Collateral Account.
(f) Administration
of the Series 2005-3 Cash Collateral Account. CRCF
may instruct (by standing instructions or otherwise) the institution maintaining
the Series 2005-3 Cash Collateral Account to invest funds on deposit in the
Series 2005-3 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 2005-3 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 2005-3 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
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delivered
to the Trustee; (ii) United States security entitlements or security
entitlements shall be controlled (as defined in Section 8-106 of the
New York UCC) by the Trustee pending maturity or disposition, and
(iii) uncertificated securities (and not United States security
entitlements) shall be delivered to the Trustee by causing the Trustee to become
the registered holder of such securities. The Trustee shall, at the expense of
CRCF, take such action as is required to maintain the Trustee’s security
interest in the Permitted Investments credited to the Series 2005-3 Cash
Collateral Account. CRCF shall not direct the Trustee to dispose of (or permit
the disposal of) any Permitted Investments prior to the maturity thereof to the
extent such disposal would result in a loss of
purchase price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2005-3 Cash
Collateral Account shall remain uninvested.
(g) Earnings
from Series 2005-3 Cash Collateral Account. All
interest and earnings (net of losses and investment expenses) paid on funds on
deposit in the Series 2005-3 Cash Collateral Account shall be deemed to be on
deposit therein and available for distribution.
(h) Series
2005-3 Cash Collateral Account Surplus. In the
event that the Series 2005-3 Cash Collateral Account Surplus on any Distribution
Date (or, after the Series 2005-3 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 with-draw from the Series 2005-3 Cash
Collateral Account an amount equal to the Series 2005-3 Cash Collateral Account
Surplus and shall pay such amount: first, to the
Series 2005-3 Letter of Credit Providers to the extent of any unreimbursed
drawings under the related Series 2005-3 Reimbursement Agreement, for
application in accordance with the provisions of the related Series 2005-3
Reimbursement Agreement, and, second, to CRCF
any remaining amount.
(i) Termination
of Series 2005-3 Cash Collateral Account. Upon
the termina-tion of this Supplement in accordance with its terms, the Trustee,
acting in accordance with the written instructions of the Administrator, after
the prior payment of all amounts owing to the Series 2005-3 Noteholders and
payable from the Series 2005-3 Cash Collateral Account as provided herein, shall
withdraw from the Series 2005-3 Cash Collateral Account all amounts on deposit
therein (to the extent not withdrawn pursuant to Section 3.8(h) above) and
shall pay such amounts: first, to the
Series 2005-3 Letter of Credit Providers to the extent of any unreimbursed
drawings under the related Series 2005-3 Reimbursement Agreement, for
application in accordance with the provisions of the related Series 2005-3
Reimbursement Agreement, and, second, to CRCF
any remaining amount.
(j) Termination
Date Demands on the Series 2005-3 Letters of Credit. Prior
to 10:00 a.m. (New York City time) on the Business Day immediately
succeeding the Series 2005-3 Letter of Credit Termination Date, the
Administrator shall determine the Series 2005-3 Demand Note Payment Amount as of
the Series 2005-3 Letter of Credit Termination Date. If the Series 2005-3 Demand
Note Payment Amount is greater than zero, then the Administrator shall instruct
the Trustee in writing to draw on the Series 2005-3 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 excess of the Series 2005-3 Demand Note Payment Amount
over the Series 2005-3 Available Reserve Account Amount (prior to giving effect
to any transfer
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to the
Series 2005-3 Cash Collateral Account pursuant to Section 3.7(e) on such date)
and (ii) the Series 2005-3 Letter of Credit Liquidity Amount on the Series
2005-3 Letters of Credit by presenting to each Series 2005-3 Letter of Credit
Provider a draft accompanied by a Certificate of Termination Date Demand;
provided,
however, that if
the Series 2005-3 Cash Collateral Account has been established and funded, the
Trustee shall draw an amount equal to the product of (a) 100% minus the Series
2005-3 Cash Collateral Percentage and (b) the lesser of the amounts referred to
in clause (i) or (ii) on such Business Day on the Series 2005-3 Letters of
Credit as calculated by the Administrator and provided in writing to the
Trustee. The Trustee shall cause the Termination Date Disbursement to be
deposited in the Series 2005-3 Cash Collateral Account.
Section
3.9. Series
2005-3 Distribution Account.
(a) Establishment
of Series 2005-3 Distribu-tion Account. The
Trustee shall establish and maintain in the name of the Trustee for the benefit
of the Series 2005-3 Noteholders, or cause to be established and maintained, an
account (the “Series
2005-3 Distribution Account”),
bearing a designa-tion clearly indicating that the funds deposited therein are
held for the benefit of the Series 2005-3 Noteholders. The Series 2005-3
Distribution Account shall be maintained (i) with a Qualified Institu-tion, or
(ii) as a segregated trust account with the corporate trust department of a
depository institution or trust company having corporate trust powers and acting
as trustee for funds deposited in the Series 2005-3 Distri-bution Account;
provided that, if
at any time such Quali-fied Institution is no longer a Qualified Institution or
the credit rating of any securities issued by such depos-itary institution or
trust company shall be reduced to below “BBB-” by Standard & Poor’s or
“Baa3” by Moody’s, then CRCF shall, within 30 days of such reduction, establish
a new Series 2005-3 Distribution Account with a new Qualified Institu-tion. If
the Series 2005-3 Distribution Account is not maintained in accordance with the
previous sen-tence, CRCF shall establish a new Series 2005-3 Distribution
Account, within ten (10) Business Days after obtaining knowledge of such fact,
which complies with such sentence, and shall instruct the Trustee in writing to
transfer all cash and investments from the non-qualify-ing Series 2005-3
Distribution Account into the new Series 2005-3 Distribution Account. Initially,
the Series 2005-3 Distribu-tion Account will be established with The Bank of
New York.
(b) Administration
of the Series 2005-3 Dis-tribution Account. The
Administrator may instruct the institution maintaining the Series 2005-3
Distribution Account to invest funds on deposit in the Series 2005-3
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 2005-3 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
2005-3 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.
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(c) Earnings
from Series 2005-3 Distribution Account. All
interest and earn-ings (net of losses and investment expenses) paid on funds on
deposit in the Series 2005-3 Distribution Account shall be deemed to be on
deposit and available for distribution.
(d) Series
2005-3 Distribution Account Constitutes Additional Collateral for Series 2005-3
Notes. In
order to secure and provide for the repayment and payment of the CRCF
Obligations with respect to the Series 2005-3 Notes, CRCF hereby grants a
security interest in and assigns, pledges, grants, transfers and sets over to
the Trustee, for the benefit of the Series 2005-3 Noteholders, all of CRCF’s
right, title and interest in and to the following (whether now or hereafter
existing or acquired): (i) the Series 2005-3 Distri-bution 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 2005-3 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 2005-3 Distribution Account, whether
constituting securities, instruments, general intangibles, invest-ment property,
financial assets or other property; (v) all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the Series 2005-3
Distribution Account, the funds on deposit therein from time to time or the
invest-ments made with such funds; and (vi) all proceeds of any and all of the
fore-going, including, without limitation, cash (the items in the foregoing
clauses (i) through (vi) are referred to, collec-tively, as the “Series
2005-3 Distribution Account Collateral”). The
Trustee shall possess all right, title and interest in all funds on deposit from
time to time in the Series 2005-3 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 2005-3 Distribution Account. The
Series 2005-3 Distribution Account Collateral shall be under the sole dominion
and control of the Trustee for the benefit of the Series 2005-3 Noteholders. The
Series 2005-3 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 2005-3 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 2005-3 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. The Trustee shall, at the expense of CRCF, take such
action as is required to maintain the Trustee’s security interest in the
Permitted Investments credited to the Series 2005-3 Distribution Account. CRCF
shall not direct the Trustee to dispose of (or permit the disposal of) any
Permitted Investments prior to the maturity thereof to the extent such disposal
would result in a loss of
purchase price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2005-3
Distribution Account shall remain uninvested.
Section
3.10. Series
2005-3 Demand Notes Constitute Additional Collateral for Series 2005-3
Notes. In
order to secure and provide for the repayment and payment of the obligations
with respect to the Series 2005-3 Notes, CRCF hereby grants a security interest
in and assigns, pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 2005-3 Noteholders, all of CRCF’s right, title and
interest in and to the follow-ing (whether now or hereafter existing or
acquired): (i) the Series 2005-3 Demand Notes; (ii) all certificates
and instruments, if any, representing or evidencing the Series 2005-3 Demand
Notes; and (iii) all
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proceeds
of any and all of the foregoing, including, without limitation, cash. On the
date hereof, CRCF shall deliver to the Trustee, for the benefit of the Series
2005-3 Noteholders, each Series 2005-3 Demand Note, endorsed in blank. The
Trustee, for the benefit of the Series 2005-3 Noteholders, shall be the only
Person authorized to make a demand for payments on the Series 2005-3 Demand
Notes.
Section
3.11. Series
2005-3 Interest Rate Caps.
(a) Not later than 10 days following the Distribution Date
immediately following the first Series 2005-3 Interest Period with respect to
which the Series 2005-3 Note Rate exceeds 7% (the “Series
2005-3 Interest Rate Cap Acquisition Date”), CRCF
shall acquire one or more interest rate caps (each a “Series
2005-3 Interest Rate Cap”),
substantially in the form of Exhibit J, from a Qualified Interest Rate Cap
Counterparty and having an aggregate notional amount equal to the Series 2005-3
Maximum Invested Amount as of such Series 2005-3 Interest Rate Cap Acquisition
Date. The aggregate notional amount of all Series 2005-3 Interest Rate Caps may
be reduced pursuant to the related Series 2002-1 Interest Rate Cap to the extent
that the Series 2005-3 Maximum Invested Amount is reduced after the Series
2005-3 Interest Rate Cap Acquisition Date. In addition, CRCF shall acquire one
or more additional Series 2005-3 Interest Rate Caps in connection with any
increase of the Series 2005-3 Maximum Invested Amount after the Series 2005-3
Interest Rate Cap Acquisition Date such that the aggregate notional amounts of
all Series 2005-3 Interest Rate Caps shall equal the Series 2005-3 Maximum
Invested Amount after giving effect to such increase. The strike rate of each
Series 2005-3 Interest Rate Cap shall not be greater than 8%. Each Series 2005-3
Interest Rate Cap shall have a term that shall extend to at least the Series
2005-3 Termination Date.
(b) If, at
any time, an Interest Rate Cap Counterparty is not a Qualified Interest Rate Cap
Counterparty, then CRCF shall cause the Interest Rate Cap Counterparty within 30
days following such occurrence, at the Interest Rate Cap Counterparty’s expense,
to do one of the following (the choice of such action to be determined by the
Interest Rate Cap Counterparty) (i) obtain a replacement interest rate cap on
the same terms as the Series 2005-3 Interest Rate Cap from a Qualified Interest
Rate Cap Counterparty and simultaneously with such replacement CRCF shall
terminate the Series 2005-3 Interest Rate Cap being replaced, (ii) obtain a
guaranty from, or contingent agreement of, another person who qualifies as a
Qualified Interest Rate Cap Counterparty to honor the Interest Rate Cap
Counterparty’s obligations under the Series 2005-3 Interest Rate Cap in form and
substance satisfactory to the Administrative Agent or (iii) post and maintain
collateral satisfactory to the Administrative Agent; provided that no
termination of the Series 2005-3 Interest Rate Cap shall occur until CRCF has
entered into a replacement Interest Rate Cap. Each Series 2005-3 Interest Rate
Cap must provide that if the Interest Rate Cap Counterparty is required to take
any of the actions described in clauses (i), (ii) or (iii) of the preceding
sentence and such action is not taken within 30 days, then the Interest Rate Cap
Counterparty must, until a replacement Series 2005-3 Interest Rate Cap is
executed and in effect, collateralize its obligations under such Series 2005-3
Interest Rate Cap in an amount equal to the greatest of (i) the marked to market
value of such Series 2005-3 Interest Rate Cap, (ii) the next payment due from
the Interest Rate Cap Counterparty and (iii) 1% of the notional amount of such
Series 2005-3 Interest Rate Cap.
(c) To secure
payment of all obligations to the Series 2005-3 Noteholders, CRCF grants a
security interest in, and assigns, pledges, grants, transfers and sets over to
the
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Trustee,
for the benefit of the Series 2005-3 Noteholders, all of CRCF’s right, title and
interest in the Series 2005-3 Interest Rate Caps, if any, and all proceeds
thereof (the “Series
2005-3 Interest Rate Cap Collateral”). CRCF
shall require all Series 2005-3 Interest Rate Cap Proceeds to be paid to, and
the Trustee shall allocate all Series 2005-3 Interest Rate Cap Proceeds to, the
Series 2005-3 Accrued Interest Account of the Series 2005-3 Collection
Account.
Section
3.12. Payments
to Funding Agents or Purchaser Groups.
Notwithstanding anything to the contrary herein or in the Base Indenture,
amounts distributable by CRCF, the Trustee, the Paying Agent or the
Administrative Agent to a Funding Agent for the account of its related Purchaser
Group (or amounts distributable by any such Person directly to such Purchaser
Group) shall be paid by wire transfer of immediately available funds no later
than 3:00 p.m. (New York time) for credit to the account or accounts
designated by such Funding Agent. Notwithstanding the foregoing, the
Administrative Agent shall not be so obligated unless the Administrative Agent
shall have received the funds by 12:00 noon (New York City
time).
ARTICLE
IV
AMORTIZATION
EVENTS
In
addition to the Amortization Events set forth in Section 9.1 of the Base
Indenture, any of the following shall be an Amortization Event with respect to
the Series 2005-3 Notes and collectively shall constitute the Amortization
Events set forth in Section 9.1(n) of the Base Indenture with respect to the
Series 2005-3 Notes (without notice or other action on the part of the Trustee
or any holders of the Series 2005-3 Notes):
(a) a Series
2005-3 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 2005-3 Enhancement Deficiency shall have
been cured in accordance with the terms and condi-tions of the Indenture and the
Related Documents;
(b) either
the Series 2005-3 Liquidity Amount shall be less than the Series 2005-3
Re-quired Liquidity Amount or the Series 2005-3 Available Reserve Account Amount
shall be less than the Series 2005-3 Required Reserve Account Amount for at
least two (2) Busi-ness Days; provided,
however, that
such event or condi-tion 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 condi-tions of the Indenture and the Related
Documents;
(c) an AESOP
I Operating Lease Vehicle Deficiency shall occur and continue for at least two
(2) Business Days;
(d) the
Collection Account, the Series 2005-3 Collection Account, the Series 2005-3
Excess Collection Account or the Series 2005-3 Reserve Account shall be subject
to an injunction, estop-pel or other stay or a Lien (other than Liens permitted
under the Related Docu-ments);
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(e) all
principal of and interest on the Series 2005-3 Notes is not paid on the Series
2005-3 Expected Final Distribution Date;
(f) any
Series 2005-3 Letter of Credit shall not be in full force and effect for at
least two (2) Business Days and (x) either a Series 2005-3 Enhancement
Deficiency would result from excluding such Series 2005-3 Letter of Credit from
the Series 2005-3 Enhancement Amount or (y) the Series 2005-3 Liquidity Amount,
excluding therefrom the available amount under such Series 2005-3 Letter of
Credit, would be less than the Series 2005-3 Required Liquidity
Amount;
(g) from and
after the funding of the Series 2005-3 Cash Collateral Account, the Series
2005-3 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 2005-3 Enhancement
Deficiency would result from excluding the Series 2005-3 Available Cash
Collateral Account Amount from the Series 2005-3 Enhancement Amount or (y) the
Series 2005-3 Liquidity Amount, excluding therefrom the Series 2005-3 Available
Cash Collateral Amount, would be less than the Series 2005-3 Required Liquidity
Amount;
(h) an Event
of Bankruptcy shall have occurred with respect to any Series 2005-3 Letter of
Credit Provider or any Series 2005-3 Letter of Credit Provider repudi-ates its
Series 2005-3 Letter of Credit or refuses to honor a proper draw thereon and
either (x) a Series 2005-3 Enhancement Deficiency would result from excluding
such Series 2005-3 Letter of Credit from the Series 2005-3 Enhancement Amount or
(y) the Series 2005-3 Liquidity Amount, excluding therefrom the available amount
under such Series 2005-3 Letter of Credit, would be less than the Series 2005-3
Required Liquidity Amount;
(i) the
occurrence of an Event of Bankruptcy with respect to Cendant or any Permitted
Sublessee;
(j) a Change
in Control shall have occurred;
(k) CRCF
fails to acquire or maintain in force Series 2005-3 Interest Rate Caps when and
as required by the terms of Section 3.11; and
(l) (x) on
the October 2005 Distribution Date, the Purchaser Group Invested Amount with
respect to any Purchaser Group exceeds the Maximum Purchaser Group Invested
Amount with respect to such Purchaser Group as of the September 2005
Distribution Date, or (y) on the November 2005 Distribution Date, the Purchaser
Group Invested Amount with respect to any Purchaser Group exceeds the Maximum
Purchaser Group Invested Amount with respect to such Purchaser Group as of the
October 2005 Distribution Date, or (z) on any date after the Scheduled Expiry
Date, the Series 2005-3 Invested Amount exceeds zero.
In the
case of any event described in clauses (j) or (k) above, an Amortization Event
shall have occurred with respect to the Series 2005-3 Notes only if either the
Trustee or the Requisite Noteholders declare that an Amortization Event has
occurred. In the case of an
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event
described in clause (a), (b), (c), (d), (e), (f), (g), (h), (i) or (l), an
Amortization Event with respect to the Series 2005-3 Notes shall have occurred
without any notice or other action on the part of the Trustee or any Series
2005-3 Noteholders, immediately upon the occurrence of such event. Amortization
Events with respect to the Series 2005-3 Notes described in clause (a), (b),
(c), (d), (e), (f), (g), (h), (i) or (l) may be waived with the written consent
of the Purchaser Groups having Commitment Percentages aggregating 100%.
Amortization Events with respect to the Series 2005-3 Notes described in clause
(j) or (k) above may be waived in accordance with Section 9.5 of the Base
Indenture.
ARTICLE
V
RIGHT
TO WAIVE PURCHASE RESTRICTIONS
Notwithstanding
any provision to the contrary in the Indenture or the Related Docu-ments, upon
the Trustee’s receipt of notice from any Lessee, any Borrower or CRCF (i) to the
effect that a Manufacturer Program is no longer an Eligible Manufacturer Program
and that, as a result, either (a) the Series 2005-3 Maximum Non-Program Vehi-cle
Amount is or will be exceeded or (b) an excess will exist under clause (y) of
paragraph (ii) of the definition of Series 2005-3 Required Enhancement Amount or
(ii) that the Les-sees, the Borrowers and CRCF have determined to in-crease any
Series 2005-3 Maximum Amount or the percentage set forth in clause (y) of any of
paragraphs (iii), (iv), (v), (vi), (vii) or (viii) of the definition of Series
2005-3 Required Enhancement Amount, (such notice, a “Waiver
Request”), each
Series 2005-3 Note-holder may, at its option, waive the Series 2005-3 Maximum
Non-Program Vehicle Amount, any other Series 2005-3 Maximum Amount or any
increase in the Series 2005-3 Required Enhancement Amount based upon clause (y)
of any of paragraphs (iii), (iv), (v), (vi), (vii) or (viii) of the definition
of the Series 2005-3 Required Enhancement Amount (collectively, a “Waivable
Amount”) if (i)
no Amortization Event exists, (ii) the Requisite Noteholders consent to such
waiver and (iii) 60 days’ prior written notice of such proposed waiver is
provided to the Rating Agencies by the Trustee.
Upon
receipt by the Trustee of a Waiver Request (a copy of which the Trustee shall
promptly provide to the Rating Agencies), all amounts which would otherwise be
allocated to the Series 2005-3 Excess Collection Account (collectively, the
“Designated
Amounts”) from
the date the Trustee receives a Waiver Request through the Consent Period
Expiration Date will be held by the Trust-ee in the Series 2005-3 Collection
Account for ratable distribution as described below.
Within
ten (10) Business Days after the Trustee receives a Waiver Request, the Trustee
shall furnish notice thereof to the Administrative Agent, which notice shall be
accompanied by a form of consent (each a “Consent”) in the
form of Exhibit C hereto
by which the Series 2005-3 Noteholders may, on or before the Consent Period
Expiration Date, consent to waiver of the applicable Waivable Amount. Upon
receipt of notice of a Waiver Request, the Administrative Agent shall forward a
copy of such request together with the Consent to the Funding Agent with respect
to each Purchaser Group. If the Trustee receives the Consents from the Requisite
Noteholders agreeing to waiver of the applicable Waivable Amount within
forty-five (45) days after the Trustee notifies the Administrative Agent of a
Waiver Request (the day on which such forty-five (45) day period expires, the
“Consent
Period Expiration Date”), (i)
the
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applicable
Waivable Amount shall be deemed waived by the consenting Series 2005-3
Noteholders, (ii) the Trus-tee will distribute the Designated Amounts as set
forth below and (iii) the Trustee shall promptly (but in any event within
two (2) Business Days) provide the Rating Agency with notice of such waiver. Any
Purchaser Group from whom the Trustee has not received a Consent on or before
the Consent Period Expiration Date will be deemed not to have consented to such
waiver.
If the
Trustee receives Consents from the Requisite Noteholders on or before the
Consent Period Expiration Date, then on the immediately following Dis-tribution
Date, upon receipt of written direction from the Administrator the Trustee will
pay the Designated Amounts to the Administrative Agent for the accounts of the
non-consenting Purchaser Groups. Upon the receipt of funds from the Trustee
pursuant to this Article V, the Administrative Agent shall pay the Designated
Amounts as follows:
(i) to each
Funding Agent with respect to a non-consenting Purchaser Group, such Purchaser
Group’s pro rata share
based on the Purchaser Group Invested Amount with respect to such Purchaser
Group relative to the Purchaser Group Invested Amount with respect to all
non-consenting Purchaser Groups of the Designated Amounts up to the amount
required to reduce to zero the Purchaser Group Invested Amounts with respect to
all non-consenting Purchaser Groups; and
(ii) any
remaining Designated Amounts to the Series 2005-3 Excess Collection
Account.
If the
amount distributed pursuant to clause (i) of the preceding paragraph is not
sufficient to reduce the Purchaser Group Invested Amount with respect to each
non-consenting Purchaser Group to zero on the date specified therein, then on
each day following such Dis-tribution Date, the Admin-istrator will allocate to
the Series 2005-3 Collection Account on a daily basis all Designated Amounts
collected on such day. On each fol-lowing Distribution Date, the Trustee will
withdraw such Designated Amounts from the Series 2005-3 Collection Account and
deposit the same in the Series 2005-3 Distribution Account for distribution to
the Administrative Agent for the accounts of the non-consenting Purchaser
Groups. Upon the receipt of funds from the Trustee pursuant to this Article V,
the Administrative Agent shall pay the Designated Amounts as
follows:
(a) to each
Funding Agent with respect to a non-consenting Purchaser Group, such Purchaser
Group’s pro rata share
based on the Purchaser Group Invested Amount with respect to such Purchaser
Group relative to the Purchaser Group Invested Amount with respect to all
non-consenting Purchaser Groups of the Designated Amounts in the Series 2005-3
Collection Account as of the applicable Determination Date up to the amount
required to reduce to zero the Purchaser Group Invested Amounts with respect to
all non-consenting Purchaser Groups; and
(b) any
remaining Designated Amounts to the Series 2005-3 Excess Collection
Account.
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If the
Requisite Noteholders do not timely consent to such waiver, the Desig-nated
Amounts will be re-allocated to the Series 2005-3 Excess Collection Account for
allocation and distribution in accordance with the terms of the Indenture and
the Related Documents.
In the
event that the Series 2005-3 Rapid Amor-tization Period shall commence after
receipt by the Trustee of a Waiver Request, all such Designated Amounts will
thereafter be considered Principal Collections allo-cated to the Series 2005-3
Noteholders.
ARTICLE
VI
CONDITIONS
PRECEDENT
Section
6.1. Conditions
Precedent to Effectiveness of Supplement. This
Supplement shall become effective on the first date (the “Effective
Date”) on
which all of the following conditions precedent shall have been
satisfied:
(a) Documents. The
Administrative Agent shall have received copies for each CP Conduit Purchaser
and the Funding Agent and the APA Banks with respect to such CP Conduit
Purchaser, each executed and delivered in form and substance satisfactory to it
of (i) the Base Indenture, executed by a duly authorized officer of each of
CRCF and the Trustee, (ii) this Supplement, executed by a duly authorized
officer of each of CRCF, the Administrator, the Trustee, the Administrative
Agent, the Funding Agents, the CP Conduit Purchasers and the APA Banks, (iii)
each Lease, executed by a duly authorized officer of each of the Lessee party
thereto, the Administrator, and the Lessor party thereto, (iv) each Sublease
executed by a duly authorized officer of each Lessee party thereto and each
Permitted Sublessee party thereto, (v) each Loan Agreement, executed by a duly
authorized officer of each of CRCF, the Lessor party thereto and the Permitted
Nominees party thereto, (vi) each Vehicle Title and Lienholder Nominee
Agreement, executed by the duly authorized officer of each of the Permitted
Nominee party thereto, CCRG, the Lessor party thereto and the Trustee, (vii) the
Master Exchange Agreement, executed by a duly authorized officer of each of the
Intermediary, AESOP Leasing, ARAC, BRAC and
CCRG; (viii) the Escrow Agreement, executed by a duly authorized officer of each
of the Intermediary, J.P. Morgan Trust Company, N.A., JPMorgan Chase Bank, N.A.,
AESOP Leasing, ARAC, BRAC and CCRG; and (ix) the Administration Agreement,
executed by a duly authorized officer of each of CCRG, AESOP Leasing, AESOP
Leasing II, CRCF, ARAC, BRAC and the Trustee.
(b) Corporate
Documents; Proceedings of CRCF, the Administrator, AESOP Leasing, AESOP Leasing
II, Original AESOP and CCRG. The
Adminis-trative Agent shall have received, with a copy for each CP Conduit
Purchaser and the Funding Agent and the APA Banks with respect to such CP
Conduit Purchaser, from CRCF, the Administrator, AESOP Leasing, AESOP Leasing
II, Original AESOP, CCRG, ARAC and BRAC true and complete copies
of:
(i) to the
extent applicable, the certificate of incorporation or certificate of formation,
including all amendments thereto, of such Person, certified as of a recent date
by the Secretary of State or other appropriate authority
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of the
state of incorporation or organization, as the case may be, and a certificate of
compliance, of status or of good standing, as and to the extent applicable, of
each such Person as of a recent date, from the Secretary of State or other
appropriate authority of such jurisdiction;
(ii) a
certificate of the Secretary or an Assistant Secretary of such Person, dated on
or prior to the Effective Date and certifying (A) that attached thereto is a
true and complete copy of the bylaws, limited liability company agreement or
partnership agreement of such Person, as the case may be, as in effect on the
Series 2005-3 Closing Date and at all times since a
date prior to the date of the resolutions described in clause (B) below, (B)
that attached thereto is a true and complete copy of the resolutions, in form
and substance reasonably satisfac-tory to each Funding Agent, of the Board of
Directors or Managers of such Person or committees thereof authorizing the
execution, delivery and performance of this Supplement and the Related Documents
to which it is a party and the transactions contemplated thereby, and that such
resolutions have not been amended, modi-fied, revoked or rescinded and are in
full force and effect, (C) that the certificate of incorporation or certificate
of formation of such Person has not been amended since the date of the last
amendment thereto shown on the certificate of good standing (or its equivalent)
furnished pursuant to clause (i) above and (D) as to the incumbency and specimen
signature of each officer or authorized signatory executing this Supplement and
the Related Documents or any other document delivered in connection herewith or
therewith on behalf of such Person; and
(iii) a
certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
clause (ii) above.
(c) Representations
and Warranties. All
representations and warranties of each of CRCF, the Administrator, AESOP
Leasing, AESOP Leasing II, Original AESOP, each of the Permitted Nominees, each
of the Lessees, each of the Permitted Sublessees and the Intermediary and CCRG
contained in each of the Related Documents shall be true and correct as of the
Series 2005-3 Closing Date.
(d) No
Amortization Event, Potential Amortization Event or AESOP I Operating Lease
Vehicle Deficiency. No
Amortization Event or Potential Amortization Event in respect of the Series
2005-3 Notes or any other Series of Notes shall exist and no AESOP I Operating
Lease Vehicle Deficiency shall exist.
(e) Lien
Searches. The
Administrative Agent shall have received a written search report listing all
effective financing statements that name CRCF, AESOP Leasing, AESOP Leasing II,
Original AESOP, each of the Permitted Nominees or CCRG as debtor or assignor and
that are filed in the State of New York, the State of Delaware and in any
other jurisdictions that the Administrative Agent determines are necessary or
appropriate, together with copies of such financing statements, and tax and
judgment lien
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searches
showing no such liens that are not permitted by the Base Indenture, this
Supplement or the Related Documents.
(f) Legal
Opinions. The
Administrative Agent shall have received, with a counterpart addressed to each
CP Conduit Purchaser and the Funding Agent, the Program Support Provider and the
APA Banks with respect to such CP Conduit Purchaser and the Trustee, opinions of
counsel required by Section 2.2(f) of the Base Indenture and opinions of counsel
with respect to such other matters as may be reasonably requested by any Funding
Agent, in form and substance reasonably acceptable to the addressees thereof and
their counsel.
(g) Fees
and Expenses. Each
Funding Agent with respect to a CP Conduit Purchaser shall have received payment
of all fees, out-of-pocket expenses and other amounts due and payable to such CP
Conduit Purchaser or the APA Banks with respect to such CP Conduit Purchaser on
or before the Effective Date.
(h) Establishment
of Accounts. The
Administrative Agent shall have received evidence reasonably satisfactory to it
that the Series 2005-3 Collection Account, the Series 2005-3 Reserve Account and
the Series 2005-3 Distribution Account shall have been established in accordance
with the terms and provisions of the Indenture.
(i) Opinion. The
Administrative Agent shall have received, with a counterpart addressed to each
CP Conduit Purchaser and the Funding Agent, the Program Support Provider and the
APA Banks with respect such CP Conduit Purchaser, an opinion of counsel to the
Trustee as to the due authorization, execution and delivery by the Trustee of
this Supplement and the due execution, authentication and delivery by the
Trustee of the Series 2005-3 Notes.
(j) Rating
Letters. Each
Funding Agent shall have received a letter, in the form and substance
satisfactory to such Funding Agent, from each of Moody’s and Standard &
Poor’s confirming the commercial paper rating of the related CP Conduit
Purchaser after giving effect to such CP Conduit Purchaser’s purchase of the
Series 2005-3 Notes.
(k) UCC
Filings. The
Administrative Agent shall have received (i) executed originals of any documents
(including, without limitation, financing statements) required to be filed in
each jurisdiction necessary to perfect the security interest of the Trustee in
the Series 2005-3 Collateral and (ii) evidence reasonably satisfactory to it of
each such filing and reasonably satisfactory evidence of the payment of any
necessary fee or tax relating thereto.
(l) Proceedings. All
corporate and other proceedings and all other documents and legal matters in
connection with the transactions contemplated by the Related Documents shall be
satisfactory in form and substance to each Funding Agent and its
counsel.
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ARTICLE
VII
CHANGE
IN CIRCUMSTANCES
Section
7.1. Increased
Costs. (a) If any
Change in Law (except with respect to Taxes which shall be governed by Section
7.2) shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by,
any Affected Party (except any such reserve requirement reflected in the
Adjusted LIBO Rate); or
(ii) impose on
any Affected Party or the London interbank market any other condition affecting
the Indenture or the Related Documents or the funding of Eurodollar Tranches by
such Affected Party;
and the
result of any of the foregoing shall be to increase the cost to such Affected
Party of mak-ing, converting into, continuing or maintaining Eurodollar Tranches
(or maintaining its obliga-tion to do so) or to reduce any amount received or
receivable by such Affected Party hereunder or in connection herewith (whether
principal, interest or otherwise), then CRCF will pay to such Affected Party
such additional amount or amounts as will compensate such Affected Party for
such additional costs incurred or reduction suffered.
(b) If any
Affected Party determines that any Change in Law regarding capital requirements
has or would have the effect of reducing the rate of return on such Affected
Party’s capital or the capital of any corporation controlling such Affected
Party as a consequence of its obligations hereunder to a level below that which
such Affected Party or such corporation could have achieved but for such Change
in Law (taking into consideration such Affected Party’s or such corporation’s
policies with respect to capital adequacy), then from time to time, CRCF shall
pay to such Affected Party such additional amount or amounts as will compensate
such Affected Party for any such reduction suffered.
(c) A
certificate of an Affected Party setting forth the amount or amounts necessary
to compensate such Affected Party as specified in subsections (a) and (b) of
this Section 7.1 shall be delivered to CRCF (with a copy to the
Administrative Agent and the Funding Agent with respect to such Affected Party)
and shall be conclusive absent manifest error. Any payments made by CRCF
pursuant to this Section 7.1 shall be made solely from funds available in the
Series 2005-3 Distribution Account for the payment of Article VII Costs, shall
be non-recourse other than with respect to such funds, and shall not constitute
a claim against CRCF to the extent that insufficient funds exist to make such
payment. The agreements in this Section 7.1 shall survive the termination of
this Supplement and the Base Indenture and the payment of all amounts payable
hereunder and thereunder.
(d) Failure
or delay on the part of an Affected Party to demand compensation pursuant to
this Section 7.1 shall not constitute a waiver of such Affected Party’s
right to demand such compensation; provided that
CRCF shall not be required to compensate any Affected Party pursuant to this
Section 7.1 for any increased costs or reductions incurred more than 270
days
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prior to
the date that such Affected Party notifies CRCF of the Change in Law giving rise
to such increased costs or reductions and of such Affected Party’s intention to
claim compensation therefor; provided,
further, that,
if the Change in Law giving rise to such increased costs or reduc-tions is
retroactive, then the 270 day period referred to above shall be extended to
include the period of retroactive effect thereof.
Section
7.2. Taxes. (a) Any and
all payments by or on account of any obligation of CRCF here-under shall be made
free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided that if
CRCF shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) subject to Section 7.2(c) below, the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 7.2)
the recipient receives an amount equal to the sum that it would have received
had no such deductions been made, (ii) CRCF shall make such deduc-tions and
(iii) CRCF shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In
addition, CRCF shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) CRCF
shall indemnify the Administrative Agent, each Funding Agent, each Program
Support Provider and each member of each Purchaser Group within the later of 10
days after written demand therefor and the Distribution Date next following such
demand for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Funding Agent, such Program Support Provider or such
member of such Purchaser Group on or with respect to any payment by or on
account of any obligation of CRCF hereunder or under the Indenture (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 7.2) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not
such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority; provided that no
Person shall be indemnified pursuant to this Section 7.2(c) or entitled to
receive additional amounts under the proviso of Section 7.2(a) to the extent
that the reason for such indemnification results from the failure by such Person
to comply with the provisions of Section 7.2(e) or (g). A certificate as to the
amount of such payment or liability delivered to CRCF by the Administrative
Agent, any Funding Agent, any Program Support Provider or any member of any
Purchaser Group shall be conclusive absent manifest error. Any payments made by
CRCF pursuant to this Section 7.2 shall be made solely from funds available in
the Series 2005-3 Distribution Account for the payment of Article VII Costs,
shall be non-recourse other than with respect to such funds, and shall not
constitute a claim against CRCF to the extent that insufficient funds exist to
make such payment. The agreements in this Section 7.2 shall survive the
termination of this Supplement and the Base Indenture and the payment of all
amounts payable hereunder and thereunder.
(d) As soon
as practicable after any payment of Indemnified Taxes or Other Taxes by CRCF to
a Governmental Authority, CRCF shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
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(e) The
Administrative Agent, each Funding Agent, each member of each Purchaser Group
and each Program Support Provider, if entitled to an exemption from or reduction
of an Indemnified Tax or Other Tax with respect to payments made hereunder or
under the Indenture shall (to the extent legally able to do so) deliver to CRCF
(with a copy to the Administrative Agent) such properly completed and executed
documentation prescribed by applicable law and reason-ably requested by CRCF on
the later of (i) thirty (30) Business Days after such request is made and the
applicable forms are provided to the Administrative Agent, such Funding Agent,
such member of such Purchaser Group or such Program Support Provider or (ii)
thirty (30) Business Days before prescribed by applicable law as will permit
such payments to be made without withholding or with an exemption from or
reduction of Indemnified Taxes or Other Taxes.
(f) If the
Administrative Agent, any Funding Agent, any Program Support Provider or any
member of any Purchaser Group receives a refund solely in respect of Indemnified
Taxes or Other Taxes, it shall pay over such refund to CRCF to the extent that
it has already received indemnity payments or additional amounts pursuant to
this Section 7.2 with respect to such Indemnified Taxes or Other Taxes giving
rise to the refund, net of all out-of-pocket expenses and without interest
(other than interest paid by the relevant Governmental Authority with respect to
such refund); provided,
however, that
CRCF shall, upon request of the Administrative Agent, such Funding Agent, such
Program Support Provider or such member of such Purchaser Group, repay such
refund (plus interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Funding Agent, such Program Support
Provider or such member of such Purchaser Group if the Administrative Agent,
such Funding Agent, such Program Support Provider or such member of such
Purchaser Group is required to repay such refund to such Governmental Authority.
Nothing contained herein shall require the Administrative Agent, any Funding
Agent, any Program Support Provider or any member of any Purchaser Group to make
its tax returns (or any other information relating to its taxes which it deems
confidential) available to CRCF or any other Person.
(g) The
Administrative Agent, each Funding Agent, each Program Support Provider and each
member of each Purchaser Group (other than any such entity which is a domestic
corporation) shall:
(i) upon or
prior to becoming a party hereto, deliver to CRCF and the Administrative Agent
two (2) duly completed copies of IRS Form W-8BEN, W-8ECI or W-9, or successor
applicable forms, as the case may be, establishing a complete exemption from
withholding of United States federal income taxes or backup withholding taxes
with respect to payments under the Series 2005-3 Notes and this
Supplement;
(ii) deliver
to CRCF and the Administrative Agent two (2) further copies of any such form or
certification establishing a complete exemption from withholding of United
States federal income taxes or backup withholding taxes with respect to payments
under the Series 2005-3 Notes and this Supplement on or before the date that any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form previously delivered by
it to CRCF; and
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(iii) obtain
such extensions of time for filing and completing such forms or certifications
as may reasonably be requested by CRCF and the Administrative
Agent;
unless,
in any such case, any change in treaty, law or regulation has occurred after the
Series 2005-3 Closing Date (or, if later, the date the Administrative Agent,
such Funding Agent, such Program Support Provider or such member of such
Purchaser Group becomes an indemnified party hereunder) and prior to the date on
which any such delivery would otherwise be required which renders the relevant
form inapplicable or which would prevent the Administrative Agent, such Funding
Agent, such Program Support Provider or such member of such Purchaser Group from
duly completing and delivering the relevant form with respect to it, and the
Administrative Agent, such Funding Agent, such Program Support Provider or such
member of such Purchaser Group so advises CRCF and the Administrative
Agent.
(h) If a
beneficial or equity owner of the Administrative Agent, a Funding Agent, a
Program Support Provider or a member of a Purchaser Group (instead of the
Administrative Agent, the Funding Agent, the Program Support Provider or the
member of the Purchaser Group itself) is required under United States federal
income tax law or the terms of a relevant treaty to provide IRS Form W-8BEN,
W-8ECI or W-9, or any successor applicable forms, as the case may be, in order
to claim an exemption from withholding of United States federal income taxes or
backup withholding taxes, then each such beneficial owner or equity owner shall
be considered to be the Administrative Agent, a Funding Agent, a Program Support
Provider or a member of a Purchaser Group for purposes of Section
7.2(g).
Section
7.3. Break
Funding Payments. CRCF
agrees to indemnify each Purchaser Group and to hold each Purchaser Group
harmless from any loss or expense which such Purchaser Group may sustain or
incur as a consequence of (a) the failure by CRCF to accept any Increase after
CRCF has given irrevocable notice requesting the same in accordance with the
provisions of this Supplement, (b) the conversion into or continuation of a CP
Tranche or a Eurodollar Tranche that occurs other than on the last day of the
applicable CP Rate Period or Eurodollar Period, (c) default by CRCF in making
any prepay-ment in connection with a Decrease after CRCF has given irrevocable
notice thereof in accordance with the provisions of Section 2.5 or (d) the
mak-ing of a prepayment of a CP Tranche or a Eurodollar Tranche (including,
without limitation, any Decrease) prior to the termination of the CP Rate Period
for such CP Tranche or the Eurodollar Period for such Eurodollar Tranche, as the
case may be, or the making of a Decrease on a date other than as specified in
any notice of a Decrease or in a greater amount than contained in any notice of
a Decrease. Such indemnification shall include an amount determined by the
Funding Agent with respect to such Purchaser Group and shall equal (a) in the
case of the losses or expenses associated with a CP Tranche or a Eurodollar
Tranche, either (x) the excess, if any, of (i) such Purchaser Group’s cost of
funding the amount so prepaid or not so bor-rowed, converted or continued, for
the period from the date of such prepayment or of such failure to borrow,
convert or continue to the last day of the CP Rate Period or the Eurodollar
Period (or in the case of a failure to borrow, convert or continue, the CP Rate
Period or the Eurodollar Period that would have com-menced on the date of such
prepayment or of such failure), as the case may be, over (ii) the amount of
interest earned by such Purchaser Group upon redeployment of an amount of funds
equal to the amount prepaid or not borrowed, converted or continued for a
com-parable period or (y) if such Purchaser Group is able to terminate the
funding source before its scheduled maturity, any costs associated with such
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termination
and (b) in the case of the losses or expenses incurred by a Pooled Funding CP
Conduit Purchaser, the losses and expenses incurred by such Pooled Funding CP
Conduit Purchaser in connection with the liquidation or reemployment of deposits
or other funds acquired by such Pooled Funding CP Conduit Purchaser as a result
of the failure to accept an Increase, a default in the making of a Decrease or
the making of a Decrease in an amount or on a date not contained in a notice of
a Decrease. Notwithstanding the foregoing, any payments made by CRCF pursuant to
this subsection shall be made solely from funds available in the Series 2005-3
Distribution Account for the payment of Article VII Costs, shall be non-recourse
other than with respect to such funds, and shall not constitute a claim against
CRCF to the extent that such funds are insufficient to make such payment. This
covenant shall survive the termination of this Supplement and the Base Indenture
and the pay-ment of all amounts payable hereunder and thereunder. A certificate
as to any additional amounts payable pursuant to the foregoing sentence
submitted by any Funding Agent on behalf of a Purchaser Group to CRCF shall be
conclusive absent manifest error.
Section
7.4. Alternate
Rate of Interest. If
prior to the commencement of any Eurodollar Period:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate for such Eurodollar Period, or
(b) the
Administrative Agent is advised by any APA Bank that the Adjusted LIBO Rate for
such Eurodollar Period will not adequately and fairly reflect the cost to such
APA Bank of making or maintaining the Eurodollar Tranches during such Eurodollar
Period,
then the
Administrative Agent shall promptly give telecopy or telephonic notice thereof
to CRCF and the Trustee, whereupon until the Administrative Agent notifies CRCF
and the Trustee that the circumstances giving rise to such notice no longer
exist, the Available APA Bank Funding Amount with respect to any Purchaser Group
(in the case of clause (a) above) or with respect to the related Purchaser Group
(in the case of clause (b) above) shall not be allocated to any Eurodollar
Tranche.
Section
7.5. Mitigation
Obligations. If an
Affected Party requests compensation under Section 7.1, or if CRCF is required
to pay any additional amount to any Purchaser Group or any Governmental
Authority for the account of any Purchaser Group pursuant to Section 7.2, then,
upon written notice from CRCF, such Affected Party or Purchaser Group, as the
case may be, shall use commercially reasonable efforts to designate a different
lending office for funding or booking its obligations hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, which pays a price for such assignment which is acceptable to such
Purchaser Group and its assignee, in the judgment of such Affected Party or
Purchaser Group, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 7.1 or 7.2, as the case may be, in the
future and (ii) would not subject such Affected Party or Purchaser Group to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Affected Party or Purchaser Group. CRCF hereby agrees to pay all
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reasonable
costs and expenses incurred by such Affected Party or Purchaser Group in
connection with any such designation or assignment.
ARTICLE
VIII
REPRESENTATIONS
AND WARRANTIES, COVENANTS
Section
8.1. Representations
and Warranties of CRCF and the Administrator.
(a) CRCF and the Administrator each hereby represents and warrants to
the Trustee, the Administrative Agent, each Funding Agent, each CP Conduit
Purchaser and each APA Bank that:
(i) each and
every of their respective representations and warranties contained in the
Related Documents is true and correct as of the Series 2005-3 Closing Date and
true and correct in all material respects as of the date of each Increase;
and
(ii) as of the
Series 2005-3 Closing Date, they have not engaged, in connection with the
offering of the Series 2005-3 Notes, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities
Act.
(b) CRCF
hereby represents and warrants to the Trustee, the Administrative Agent, each
Funding Agent, each CP Conduit Purchaser and each APA Bank that each of the
Series 2005-3 Notes has been duly authorized and executed by CRCF and when duly
authenticated by the Trustee and delivered to the Funding Agents in accordance
with the terms of this Supplement will constitute legal, valid and binding
obligations of CRCF enforceable in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, or other
similar laws relating to or affecting generally the enforcement of creditors’
rights or by general equitable principles.
Section
8.2. Covenants
of CRCF and the Administrator. CRCF and
the Administrator hereby agree, in addition to their obligations hereunder,
that:
(a) they
shall observe in all material respects each and every of their respective
covenants (both affirmative and negative) contained in the Base Indenture and
all other Related Documents to which each is a party;
(b) they
shall afford each Funding Agent with respect to a Purchaser Group, the Trustee
or any representatives of any such Funding Agent or the Trustee access to all
records relating to the Leases, the Subleases, the Vehicles, the Manufacturer
Programs and the Loan Agreements at any reasonable time during regular business
hours, upon reasonable prior notice (and with one Business Day’s prior notice if
an Amortization Event with respect to the Series 2005-3 Notes shall have been
deemed to have occurred or shall have been declared to have occurred), for
purposes of inspection and shall permit such Funding Agent, the Trustee or any
representative of such Funding Agent or the Trustee to visit any of CRCF’s or
the Administrator’s, as the case may be, offices or properties during regular
business hours and as often as may reasonably be desired to discuss the
business, operations, properties, financial and other conditions of CRCF or
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the
Administrator with their respective officers and employees and with their
independent certified public accountants;
(c) they
shall promptly provide such additional financial and other information with
respect to the Related Documents, CRCF, the Lessors, the Permitted Nominees, the
Lessees, the Permitted Sublessees, the Related Documents or the Manufacturer
Programs as the Administrative Agent may from time to time reasonably request;
(d) they
shall provide to the Administrative Agent simultaneously with delivery to the
Trustee copies of information furnished to the Trustee or CRCF pursuant to the
Related Documents as such information relates to all Series of Notes generally
or specifically to the Series 2005-3 Notes or the Series 2005-3 Collateral. The
Administrative Agent shall distribute to the Funding Agents copies of all
information delivered to it pursuant to this Section 8.2(d);
(e) they
shall not agree to any amendment to the Base Indenture or any other Related
Document, which amendment requires the consent of the Requisite Investors,
without having received the prior written consent of the Requisite Noteholders;
and
(f) they
shall not agree to any replacement or successor to the Intermediary or the
addition of any new Manufacturer as an Eligible Program Manufacturer, in each
case without having received the prior written consent of the Requisite
Noteholders.
ARTICLE
IX
THE
ADMINISTRATIVE AGENT
Section
9.1. Appointment. Each of
the CP Conduit Purchasers, the APA Banks and the Funding Agents hereby
irrevocably designates and appoints the Administrative Agent as the agent of
such Person under this Supplement and irrevocably authorizes the Administrative
Agent, in such capacity, to take such action on its behalf under the provisions
of this Supplement and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Supplement,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Supplement, the
Administrative Agent shall not have any duties or responsibilities except those
expressly set forth herein, or any fiduciary relationship with any CP Conduit
Purchaser, any APA Bank or any Funding Agent, and no implied covenants,
functions, responsibilities, duties, obliga-tions or liabilities shall be read
into this Supplement or otherwise exist against the Administrative Agent.
Section
9.2. Delegation
of Duties. The
Administrative Agent may execute any of its duties under this Supplement by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
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Section
9.3. Exculpatory
Provisions. Neither
the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
the Base Indenture, this Supplement or any other Related Document (except
to the extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or such
Person’s own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the CP Conduit Purchasers, the APA Banks or
the Funding Agents for any recitals, statements, representations or warranties
made by CRCF, the Lessors, the Lessees, the Permitted Sublessees, the
Intermediary, the Administrator or any officer thereof contained in this
Supple-ment or any other Related Document or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administra-tive Agent under or in connection with, this Supplement or any other
Related Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Supplement, any other Related Document, or
for any failure of any of CRCF, the Lessors, the Lessees, the Permitted
Sublessees, the Intermediary or the Administrator to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any CP Conduit Purchaser, any APA Bank or any Funding Agent to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Supplement, any other Related
Document or to inspect the properties, books or records of CRCF, the Lessors,
the Lessees, the Permitted Sublessees, the Intermediary or the
Administrator.
Section
9.4. Reliance
by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (includ-ing, without limitation, counsel to CRCF or
the Administrator), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the registered
holder of any Series 2005-3 Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Supplement or any
other Related Document unless it shall first receive such advice or concurrence
of the Requisite Noteholders, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Funding Agents against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Supplement and the other Related Documents in accordance with a request of the
Requisite Noteholders (unless, in the case of any action relating to the giving
of consent hereunder, the giving of such consent requires the consent of all
Series 2005-3 Noteholders), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the CP Conduit Purchasers, the
APA Banks and the Funding Agents.
Section
9.5. Notice
of Administrator Default or Amortization Event or Potential Amortization
Event. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Amortization Event or Potential Amortization Event or any
Administrator Default unless the Administrative Agent has received written
notice from a CP Conduit Purchaser, an APA Bank, a Funding Agent, CRCF or the
Administrator referring to the
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Indenture
or this Supplement, describing such Amortization Event or Potential Amortization
Event, or Administrator Default and stating that such notice is a “notice of an
Amortization Event or Potential Amortization Event” or “notice of an
Administrator Default,” as the case may be. In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give notice thereof
to the Funding Agents, the Trustee, CRCF and the Administrator. The
Administrative Agent shall take such action with respect to such event as shall
be reasonably directed by the Requisite Noteholders, provided that
unless and until the Adminis-trative Agent shall have received such directions,
the Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such event as it shall deem
advisable in the best interests of the Purchaser Groups.
Section
9.6. Non-Reliance
on the Administrative Agent and Other Purchaser Groups. Each of
the CP Conduit Purchasers, the APA Banks and the Funding Agents expressly
acknowledges that neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of CRCF, the Lessors, the
Lessees, the Permitted Sublessees, the Intermediary or the Administrator shall
be deemed to constitute any representation or warranty by the Administrative
Agent to any such Person. Each of the CP Conduit Purchasers, the APA Banks and
the Funding Agents repre-sents to the Administrative Agent that it has,
independently and without reliance upon the Administra-tive Agent or any other
CP Conduit Purchaser, APA Bank or Funding Agent and based on such documents and
information as it has deemed appropriate, made its own apprai-sal of and
investi-ga-tion into the business, operations, property, financial and other
condi-tion and creditworthiness of CRCF, the Lessors, the Lessees, the Permitted
Sublessees, the Intermediary and the Administrator and made its own decision to
enter into this Supplement. Each of the CP Conduit Purchasers, the APA Banks and
the Funding Agents also represents that it will, independently and without
reliance upon the Administrative Agent or any other CP Conduit Purchaser, APA
Bank or Funding Agent, and based on such docu-ments and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and deci-sions in taking or not taking action under this Supplement
and the other Related Documents, and to make such investigation as it deems
necessary to inform itself as to the business, opera-tions, property, financial
and other condition and creditworthiness of CRCF, the Lessors, the Lessees, the
Permitted Sublessees, the Intermediary and the Adminis-trator. Except for
notices, reports and other documents expressly required to be furnished to the
Funding Agents by the Administrative Agent hereunder, the Administrative Agent
shall have no duty or responsibility to provide any CP Conduit Purchaser, any
APA Bank or any Funding Agent with any credit or other information concerning
the busi-ness, operations, property, condi-tion (financial or otherwise),
prospects or creditworthiness of CRCF, the Lessors, the Lessees, the Permitted
Sublessees, the Intermediary or the Administrator which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
Section
9.7. Indemnification. Each of
the APA Banks in a Purchaser Group agrees to indemnify the Administrative Agent
in its capacity as such (to the extent not reim-bursed by CRCF and the
Administrator and without limiting the obligation of CRCF and the Administrator
to do so), ratably according to their respective Commitment Percentages in
effect on the date on which indemnification is sought under this Section 9.7 (or
if indemnification is sought after the date upon which the Commitments shall
have terminated and the Purchaser
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Group
Invested Amounts shall have been reduced to zero, ratably in accordance with
their Commitment Percentages immediately prior to such date of payment) from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of this
Supplement, any of the other Related Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connec-tion with any of the foregoing; provided that no APA Bank or Funding
Agent shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the Administrative
Agent’s gross negligence or willful misconduct. The agreements in this Section
9.7 shall survive the payment of all amounts payable hereunder.
Section
9.8. The
Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with CRCF, the Administrator or any
of their Affiliates as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to any Series 2005-3 Note held by
the Administrative Agent, the Administrative Agent shall have the same rights
and powers under this Supplement and the other Related Documents as any APA Bank
or Funding Agent and may exercise the same as though it were not the
Administrative Agent, and the terms “APA Bank,” and “Funding Agent” shall
include the Administrative Agent in its individual capacity.
Section
9.9. Resignation
of Administrative Agent; Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent at any time by giving 30
days’ notice to the Funding Agents, the Trustee, CRCF and the Administrator. If
DBNY shall resign as Administrative Agent under this Supplement, then the
Requisite Noteholders shall appoint a successor administrative agent from among
the Funding Agents, which successor administrative agent shall be approved by
CRCF and the Administrator (which approval shall not be unreasonably withheld or
delayed) whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Supplement.
If no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is 10 days following a retiring Administrative Agent’s notice
of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Administrator shall assume and
perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Requisite Noteholders appoint a successor agent as provided for
above. After any retiring Administrative Agent’s resignation as Administrative
Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this
Supplement.
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ARTICLE
X
THE
FUNDING AGENTS
Section
10.1. Appointment. Each CP
Conduit Purchaser and each APA Bank with respect to such CP Conduit Purchaser
hereby irrevocably designates and appoints the Funding Agent set forth next to
such CP Conduit Purchaser’s name on Schedule I as the agent of such Person under
this Supplement and irrevocably authorizes such Funding Agent, in such capacity,
to take such action on its behalf under the provisions of this Supplement and to
exercise such powers and perform such duties as are expressly delegated to such
Funding Agent by the terms of this Supplement, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Supplement, each Funding Agent shall not have any
duties or responsibilities except those expressly set forth herein, or any
fiduciary relationship with any CP Conduit Purchaser or APA Bank and no implied
covenants, functions, responsibilities, duties, obliga-tions or liabilities
shall be read into this Supplement or otherwise exist against each Funding
Agent.
Section
10.2. Delegation
of Duties. Each
Funding Agent may execute any of its duties under this Supplement by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Each Funding Agent shall not
be responsible to the CP Conduit Purchaser or any APA Bank in its Purchaser
Group for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.
Section
10.3. Exculpatory
Provisions. Each
Funding Agent and any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall not be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
the Base Indenture, this Supplement or any other Related Document (except
to the extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or such
Person’s own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the CP Conduit Purchasers and/or APA Banks
for any recitals, statements, representations or warranties made by CRCF, the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary, the
Administrator, the Administrative Agent, or any officer thereof contained in
this Supple-ment or any other Related Document or in any certificate, report,
statement or other document referred to or provided for in, or received by such
Funding Agent under or in connection with, this Supplement or any other Related
Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Supplement, any other Related Document, or for any
failure of any of CRCF, the Lessors, the Lessees, the Permitted Sublessees, the
Intermediary, the Administrative Agent, or the Administrator to perform its
obligations hereunder or thereunder. Each Funding Agent shall not be under any
obligation to the CP Conduit Purchaser or any APA Bank in its Purchaser Group to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Supplement, any other Related
Document or to inspect the properties, books or records of CRCF, the Lessors,
the Lessees, the Permitted Sublessees, the Intermediary, the Administrative
Agent, or the Administrator.
Section
10.4. Reliance
by Each Funding Agent. Each
Funding Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice,
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consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (includ-ing, without limitation, counsel
to CRCF or the Administrator), independent accountants and other experts
selected by such Funding Agent. Each Funding Agent shall be fully justified in
failing or refusing to take any action under this Supplement or any other
Related Document unless it shall first receive such advice or concurrence of the
Related Purchaser Group, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Related Purchaser Group against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
Section
10.5. Notice
of Administrator Default or Amortization Event or Potential Amortization
Event. Each
Funding Agent shall not be deemed to have knowledge or notice of the occurrence
of any Amortization Event or Potential Amortization Event or any Administrator
Default unless such Funding Agent has received written notice from a CP Conduit
Purchaser, an APA Bank, CRCF, the Administrative Agent or the Administrator
referring to the Indenture or this Supplement, describing such Amortization
Event or Potential Amortization Event, or Adminis-tra-tor Default and stating
that such notice is a “notice of an Amortization Event or Potential Amortization
Event” or “notice of an Administrator Default,” as the case may be. In the event
that any Funding Agent receives such a notice, such Funding Agent shall give
notice thereof to the CP Conduit Purchaser and APA Banks in its Purchaser Group.
Such Funding Agent shall take such action with respect to such event as shall be
reasonably directed by the CP Conduit Purchaser and APA Banks in its Purchaser
Group, provided that
unless and until such Funding Agent shall have received such directions, such
Funding Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such event as it shall deem advisable
in the best interests of the CP Conduit Purchaser and APA Banks in its Purchaser
Group.
Section
10.6. Non-Reliance
on Each Funding Agent and Other Purchaser Groups. Each CP
Conduit Purchaser and each of the related APA Banks expressly acknowledge that
neither its Funding Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by such Funding Agent hereinafter taken, including any review of
the affairs of CRCF, the Lessors, the Lessees, the Permitted Sublessees, the
Intermediary, the Administrative Agent, or the Administrator shall be deemed to
constitute any representation or warranty by such Funding Agent to any such
Person. Each CP Conduit Purchaser and each of the related APA Banks repre-sents
to its Funding Agent that it has, independently and without reliance upon such
Funding Agent and based on such documents and information as it has deemed
appropriate, made its own apprai-sal of and investi-ga-tion into the business,
operations, property, financial and other condi-tion and creditworthiness of
CRCF, the Lessors, the Lessees, the Permitted Sublessees, the Intermediary, the
Administrative Agent, and the Administrator and made its own decision to enter
into this Supplement. Each CP Conduit Purchaser and each of the related APA
Banks also represents that it will, independently and without reliance upon its
Funding Agent and based on such docu-ments and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and deci-sions in taking or not taking action under this Supplement and the
other Related Documents, and to make such investigation as it deems necessary to
inform itself as to the business, opera-tions, property, financial and other
conditions and creditworthiness of CRCF,
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the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary, the
Administrative Agent, and the Administrator.
Section
10.7. Indemnification. Each
APA Bank in a Purchaser Group agrees to indemnify its Funding Agent in its
capacity as such (to the extent not reim-bursed by CRCF and the Administrator
and without limiting the obligation of CRCF and the Administrator to do so),
ratably according to its respective APA Bank Percentage in effect on the date on
which indemnification is sought under this Section 10.7 (or if indemnification
is sought after the date upon which the Commitments shall have been terminated,
ratably in accordance with its APA Bank Percentage at the time of termination)
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time be imposed on, incurred by or asserted
against such Funding Agent in any way relating to or arising out of this
Supplement, any of the other Related Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by such Funding Agent under or in
connec-tion with any of the foregoing; provided that no
APA Bank shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such related Funding
Agent’s gross negligence or willful misconduct. The agreements in this Section
10.7 shall survive the payment of all amounts payable hereunder.
ARTICLE
XI
GENERAL
Section
11.1. Successors
and Assigns.
(a) This
Supplement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that CRCF may not assign or
transfer any of its rights under this Supplement without the prior written
consent of all of the Series 2005-3 Noteholders, no CP Conduit Purchaser may
assign or transfer any of its rights under this Supplement other than in
accordance with the Asset Purchase Agreement with respect to such CP Conduit
Purchaser or otherwise to the APA Bank with respect to such CP Conduit Purchaser
or a Program Support Provider with respect to such CP Conduit Purchaser or
pursuant to clause (b) or (e) below of this Section 11.1 and no APA Bank may
assign or transfer any of its rights or obligations under this Supplement except
to a Program Support Provider or pursuant to clause (c), (d) or (e) below of
this Section 11.1.
(b) Without
limiting the foregoing, each CP Conduit Purchaser may assign all or a portion of
the Purchaser Group Invested Amount with respect to such CP Conduit Purchaser
and its rights and obli-ga-tions under this Supplement and any other Related
Documents to which it is a party to a Conduit Assignee with respect to such CP
Conduit Purchaser. Prior to or concurrently with the effectiveness of any such
assignment (or if impracticable, immediately thereafter), the assigning CP
Conduit Purchaser shall notify the Administrative Agent, CRCF, the Trustee and
the Administrator thereof. Upon such assignment by a CP Conduit Purchaser to a
Conduit Assignee, (A) such Conduit Assignee shall be the owner of the Purchaser
Group Invested Amount or such portion thereof with respect to such CP Conduit
Purchaser, (B) the related administrative or managing agent for such Conduit
Assignee will act as the
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administrative
agent for such Conduit Assignee hereunder, with all corresponding rights and
powers, express or implied, granted to the Funding Agent hereunder or under the
other Related Documents, (C) such Conduit Assignee and its liquidity support
provider(s) and credit support provider(s) and other related parties shall have
the benefit of all the rights and protections provided to such CP Conduit
Purchaser herein and in the other Related Documents (including, without
limitation, any limitation on recourse against such Conduit Assignee as provided
in this paragraph), (D) such Conduit Assignee shall assume all of such CP
Conduit Purchaser’s obligations, if any, hereunder or under the Base Indenture
or under any other Related Document with respect to such portion of the
Purchaser Group Invested Amount and such CP Conduit Purchaser shall be released
from such obligations, (E) all distributions in respect of the Purchaser Group
Invested Amount or such portion thereof with respect to such CP Conduit
Purchaser shall be made to the applicable agent or administrative agent, as
appli-cable, on behalf of such Conduit Assignee, (F) the definitions of the
terms “Monthly Funding Costs” and “Discount” shall be determined in the manner
set forth in the definition of “Monthly Funding Costs” and “Discount” applicable
to such CP Conduit Purchaser on the basis of the interest rate or discount
applicable to commercial paper issued by such Conduit Assignee (rather than such
CP Conduit Purchaser), (G) the defined terms and other terms and provisions
of this Supplement, the Base Indenture and the other Related Documents shall be
interpreted in accordance with the foregoing, and (H) if requested by the
Administrative Agent or the agent or administrative agent with respect to the
Conduit Assignee, the parties will execute and deliver such further agreements
and documents and take such other actions as the Administrative Agent or such
agent or administrative agent may reasonably request to evidence and give effect
to the foregoing. No assignment by any CP Conduit Purchaser to a Conduit
Assignee of the Purchaser Group Invested Amount with respect to such CP Conduit
Purchaser shall in any way diminish the obli-gations of the APA Bank with
respect to such CP Conduit Purchaser under Section 2.3 to fund any
Increase.
(c) Any APA
Bank may, in the ordinary course of its business and in accor-dance with
applicable law, at any time sell all or any part of its rights and obligations
under this Supplement and the Series 2005-3 Notes, with the prior written
consent of the Administrative Agent, CRCF and the Administrator (in each case,
which consent shall not be unreasonably withheld), to one or more banks (an
“Acquiring
APA Bank”)
pursuant to a transfer supplement, substantially in the form of Exhibit
H (the
“Transfer
Supplement”),
executed by such Acquiring APA Bank, such assigning APA Bank, the Funding Agent
with respect to such APA Bank, the Administrative Agent, CRCF and the
Administrator and delivered to the Administrative Agent. Notwithstanding the
foregoing, no APA Bank shall so sell its rights hereunder if such Acquiring APA
Bank is not an Eligible Assignee.
(d) Any APA
Bank may, in the ordinary course of its business and in accor-dance with
applicable law, at any time sell to one or more financial institutions or other
entities (“Participants”)
participations in its APA Bank Percentage of the Commitment Amount with respect
to it and the other APA Banks included in the related Purchaser Group, its
Series 2005-3 Note and its rights hereunder pur-suant to documentation in form
and substance satisfactory to such APA Bank and the Participant; provided,
however, that
(i) in the event of any such sale by an APA Bank to a Participant, (A) such APA
Bank’s obligations under this Supplement shall remain unchanged, (B) such APA
Bank shall remain solely responsible for the performance thereof and (C) CRCF
and the Administrative Agent shall continue to deal solely and directly with
such APA Bank in connection with its rights and obligations under this
Supplement and (ii)
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no APA
Bank shall sell any participating interest under which the Participant shall
have rights to approve any amend-ment to, or any consent or waiver with respect
to, this Supplement, the Base Indenture or any Related Document, except to the
extent that the approval of such amendment, consent or waiver otherwise would
require the unanimous consent of all APA Banks hereunder. A Participant shall
have the right to receive Article VII Costs but only to the extent that the
related selling APA Bank would have had such right absent the sale of the
related participation and, with respect to amounts due pursuant to Section 7.2,
only to the extent such Participant shall have complied with the provisions of
Section 7.2(e) and (g) as if such Participant were the Administrative Agent, a
Funding Agent, a Program Support Provider or a member of a Purchaser
Group.
(e) Any CP
Conduit Purchaser and the APA Bank with respect to such CP Conduit Purchaser may
at any time sell all or any part of their respective rights and obligations
under this Supplement and the Series 2005-3 Notes, with the prior written
consent of the Administrative Agent, CRCF and the Administrator (in each case,
which consent shall not be unreasonably withheld), to a multi-seller commercial
paper conduit and one or more banks providing support to such multi-seller
commercial paper conduit (an “Acquiring
Purchaser Group”)
pursuant to a transfer supplement, substantially in the form of Exhibit
I (the
“Purchaser
Group Supplement”),
executed by such Acquiring Purchaser Group, the Funding Agent with respect to
such Acquiring Purchaser Group (including the CP Conduit Purchaser and the APA
Banks with respect to such Purchaser Group), such assigning CP Conduit Purchaser
and the APA Banks with respect to such CP Conduit Purchaser, the Funding Agent
with respect to such assigning CP Conduit Purchaser and APA Banks, the
Administrative Agent, CRCF and the Administrator and delivered to the
Administrative Agent.
(f) CRCF
authorizes each APA Bank to disclose to any Participant or Acquiring APA Bank
(each, a “Transferee”) and
any prospective Transferee, in each case that has agreed to comply with the
confidentiality provisions of Section 11.20 hereof, any and all financial
information in such APA Bank’s possession concerning CRCF, the Collateral, the
Administrator and the Related Documents which has been delivered to such APA
Bank by CRCF or the Administrator in connection with such APA Bank’s credit
evaluation of CRCF, the Collateral and the Administrator.
Section
11.2. Securities
Law. Each CP
Conduit Purchaser and APA Bank hereby represents and warrants to CRCF that it is
an “accredited investor” as such term is defined in Rule 501(a) of Regulation D
under the Securities Act and has sufficient assets to bear the economic risk of,
and sufficient knowledge and exper-ience in financial and business matters to
evaluate the merits and risks of, its investment in a Series 2005-3 Note. Each
CP Conduit Purchaser and APA Bank agrees that its Series 2005-3 Note will be
acquired for invest-ment only and not with a view to any public distribution
thereof, and that such CP Conduit Purchaser and APA Bank will not offer to sell
or otherwise dispose of its Series 2005-3 Note (or any interest therein) in
violation of any of the registration requirements of the Securities Act, or any
appli-cable state or other securities laws. Each CP Conduit Purchaser and APA
Bank acknowledges that it has no right to require CRCF to register its Series
2005-3 Note under the Securities Act or any other securities law. Each CP
Conduit Purchaser and APA Bank hereby confirms and agrees that in connection
with any transfer by it of an interest in the Series 2005-3 Note, such CP
Conduit Purchaser or APA Bank has not engaged and will not engage in a general
solicitation or
-78-
general
advertising including advertisements, articles, notices or other communi-cations
published in any newspaper, magazine or similar media or broadcast over radio or
television, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
Section
11.3. Adjustments;
Set-off.
(a) If
any CP Conduit Purchaser or APA Bank in a Purchaser Group (a “Benefitted
Purchaser Group”) shall
at any time receive in respect of its Purchaser Group Invested Amount any
distribution of principal, interest, Commitment Fees or any interest thereon, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off or otherwise) in a greater propor-tion than any such distribution
received by any other Purchaser Group, if any, in respect of such other
Purchaser Group’s Purchaser Group Invested Amount, or interest thereon, the APA
Banks in such Benefitted Purchaser Group shall purchase for cash from the CP
Conduit Purchaser or APA Banks in the other Purchaser Group such portion of such
other CP Conduit Purchaser’s or APA Banks’ interest in the Series 2005-3 Notes,
or shall provide such other CP Conduit Purchaser or APA Bank with the benefits
of any such collateral, or the proceeds thereof, as shall be neces-sary to cause
such Benefitted Purchaser Group to share the excess payment or benefits of such
collateral or proceeds ratably with the other Purchaser Group; provided,
however, that if
all or any por-tion of such excess payment or benefits is thereafter recovered
from such Benefitted Purchaser Group, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest. CRCF agrees that any CP Conduit Purchaser or APA Bank so
purchasing a portion of another Purchaser Group’s Purchaser Group Invested
Amount may exercise all rights of payment (including, without limitation, rights
of set-off) with respect to such portion as fully as if such CP Conduit
Purchaser or APA Bank were the direct holder of such portion.
(b) In
addition to any rights and remedies of the Purchaser Groups provided by law,
each CP Conduit Purchaser and APA Bank shall have the right, without prior
notice to CRCF, any such notice being expressly waived by CRCF to the extent
permitted by applicable law, upon any amount becom-ing due and payable by CRCF
hereunder or under the Series 2005-3 Notes to set-off and appro-priate and apply
against any and all deposits (general or special, time or demand, provi-sional
or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Purchaser Group to or
for the credit or the account of CRCF. Each CP Conduit Purchaser and APA Bank
agrees promptly to notify CRCF, the Administrator and the Administrative Agent
after any such set-off and appli-ca-tion made by such CP Conduit Purchaser or
APA Bank; provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
Section
11.4. No
Bankruptcy Petition.
(a) Each
of the Administrative Agent, the CP Conduit Purchasers, the APA Banks and the
Funding Agents hereby covenants and agrees that, prior to the date which is one
year and one day after the later of payment in full of all Series of Notes, it
will not institute against, or join any other Person in instituting against,
CRCF any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other similar proceedings under any federal or state bankruptcy
or similar law.
(b) CRCF, the
Trustee, the Administrative Agent, each Funding Agent and each APA Bank hereby
covenants and agrees that, prior to the date which is one year and one
-79-
day after
the payment in full of all outstanding Commercial Paper issued by, or for the
benefit of, a CP Conduit Purchaser, it will not institute against, or join any
other Person in instituting against, such CP Conduit Purchaser (or the Person
issuing Commercial Paper for the benefit of such CP Conduit Purchaser) any
bankruptcy, reorganization, arrangement, insolvency or liquida-tion proceedings,
or other similar proceedings under any federal or state bankruptcy or similar
law.
(c) This
covenant shall survive the termination of this Supplement and the Base Indenture
and the payment of all amounts payable hereunder and thereunder.
Section
11.5. Limited
Recourse.
(a) Notwithstanding
anything to the contrary contained herein, any obligations of each CP Conduit
Purchaser hereunder to any party hereto are solely the corporate obligations of
such CP Conduit Purchaser and shall be payable at such time as funds are
received by or are available to such CP Conduit Purchaser in excess of funds
necessary to pay in full all of its outstanding Commercial Paper and, to the
extent funds are not available to pay such obligations, the claims relating
thereto shall not constitute a claim against such CP Conduit Purchaser but shall
continue to accrue. Each party hereto agrees that the payment of any claim (as
defined in Section 101 of Title 11 of the Bankruptcy Code) of any such party
against a CP Conduit Purchaser shall be subordinated to the payment in full of
all of its Commercial Paper.
(b) No
recourse under any obligation, covenant or agreement of any CP Conduit Purchaser
contained herein shall be had against any incorporator, stockholder, officer,
director, employee or agent of such CP Conduit Purchaser, its administrative
agent, the Funding Agent with respect to such CP Conduit Purchaser or any of
their Affiliates by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise; it being expressly
agreed and understood that this Supplement is solely a corporate obligation of
such CP Conduit Purchaser individually, and that no personal liability whatever
shall attach to or be incurred by any incorporator, stockholder, officer,
director, employee or agent of such CP Conduit Purchaser, its administrative
agent, the Funding Agent with respect to such CP Conduit Purchaser or any of its
Affiliates (solely by virtue of such capacity) or any of them under or by reason
of any of the obligations, covenants or agreements of such CP Conduit Purchaser
con-tained in this Agreement, or implied therefrom, and that any and all
personal liability for breaches by such CP Conduit Purchaser of any of such
obligations, covenants or agreements, either at common law or at equity, or by
statute, rule or regulation, of every such incorporator, stockholder, officer,
director, employee or agent is hereby expressly waived as a condition of and in
consideration for the execution of this Supplement; provided that the
foregoing shall not relieve any such Person from any liability it might
otherwise have as a result of fraudulent actions taken or omissions made by
them. The provisions of this Section 11.5 shall survive termi-nation of this
Supplement.
Section
11.6. Costs
and Expenses. CRCF
agrees to pay on demand (x) all reasonable out-of-pocket costs and expenses of
the Administrative Agent (including, without limitation, reasonable fees and
disbursements of counsel to the Administrative Agent) and of each Purchaser
Group (including in connection with the preparation, execution and delivery of
this Supplement the reasonable fees and disbursements of one counsel, other than
counsel to the Administrative Agent, for all such Purchaser Groups) in
connection with (i) the preparation,
-80-
execution
and delivery of this Supplement and the other Related Documents and any
amendments or waivers of, or consents under, any such documents and (ii) the
enforcement by the Administrative Agent or any Funding Agent of the obligations
and liabilities of CRCF, the Lessors, the Lessees, the
Permitted Sublessees, the Intermediary, and the
Administrator under the Indenture, this Supplement, the other Related Documents
or any related document and all costs and expenses, if any (including reasonable
counsel fees and expenses), in connection with the enforcement of this Agreement
and the other Related Documents and (y) all reasonable out of pocket costs and
expenses of the
Administrative Agent (including, without limitation, reasonable fees and
disbursements of counsel to the Administrative Agent) in connection with the
administration of this Supplement and the other Related Documents. Any
payments made by CRCF pursuant to this Section 11.6 shall be made solely from
funds available in the Series 2005-3 Distribution Account for the payment of
Article VII Costs, shall be non-recourse other than with respect to such funds,
and shall not constitute a claim against CRCF to the extent that insufficient
funds exist to make such payment. The agreements in this Section shall survive
the termination of this Supplement and the Base Indenture and the payment of all
amounts payable hereunder and thereunder.
Section
11.7. Exhibits. The
following exhibits attached hereto supplement the exhibits included in the Base
Indenture.
|
Exhibit
A: |
Form
of Variable Funding Note |
|
Exhibit
B: |
Form
of Increase Notice |
|
Exhibit
C: |
Form
of Consent |
|
Exhibit
D: |
Form
of Series 2005-3 Demand Note |
|
Exhibit
E: |
Form
of Series 2005-3 Letter of Credit |
|
Exhibit
F: |
Form
of Lease Payment Deficit Notice |
|
Exhibit
G: |
Form
of Demand Notice |
|
Exhibit
H: |
Form
of Transfer Supplement |
|
Exhibit
I: |
Form
of Purchaser Group Supplement |
|
Exhibit
J: |
Form
of Series 2005-3 Interest Rate Cap |
Section
11.8. Ratification
of Base Indenture. As
supplemented by this Supplement, the Base Indenture is in all respects ratified
and confirmed and the Base Indenture as so supple-mented by this Supplement
shall be read, taken, and construed as one and the same
instru-ment.
Section
11.9. Counterparts. This
Supplement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute but one and the same instrument.
Section
11.10. Governing
Law. This
Supplement shall be construed in accordance with the law of the State of
New York, and the obligations, rights and remedies of the parties hereto
shall be determined in accordance with such law.
Section
11.11. Amendments. This
Supplement may be modified or amended from time to time in accordance with the
terms of the Base Indenture; provided,
however, that
if, pursuant to the terms of the Base Indenture or this Supplement, the consent
of the Required
-81-
Noteholders
is required for an amendment or modifi-ca-tion of this Supplement, such
requirement shall be satisfied if such amendment or modification is consented to
by the Requisite Noteholders.
Section
11.12. Discharge
of Indenture.
Notwith-standing anything to the contrary contained in the Base Indenture, no
discharge of the Indenture pursuant to Section 11.1(b) of the Base Indenture
will be effective as to the Series 2005-3 Notes without the consent of the
Requisite Noteholders.
Section
11.13. Series
2005-3 Required Non-Program Enhancement Percentage. CRCF
agrees that it will not make any Loan under any Loan Agreement to finance the
acquisi-tion of any Vehicle by AESOP Leasing, AESOP Leas-ing II, CCRG, ARAC or
BRAC, as the case may be, if, after giving effect to the making of such Loan,
the acquisition of such Vehicle and the inclusion of such Vehicle under the
relevant Lease, the Series 2005-3 Required Non-Program Enhancement Percentage
would exceed 33.0%.
Section
11.14. Series
2005-3 Demand Notes. Other
than pursuant to a demand thereon pursuant to Section 3.5 of this
Supplement, CRCF shall not reduce the amount of the Series 2005-3 Demand Notes
or forgive amounts payable thereunder so that the outstanding principal amount
of the Series 2005-3 Demand Notes after such reduction or forgiveness is less
than the Series 2005-3 Letter of Credit Liquidity Amount. CRCF shall not agree
to any amend-ment of the Series 2005-3 Demand Notes without first satisfying the
Rating Agency Confirmation Condition and the Rating Agency Consent
Condition.
Section
11.15. Termination
of Supplement. This
Supplement shall cease to be of further effect when all outstanding Series
2005-3 Notes theretofore authenticated and issued have been delivered (other
than destroyed, lost, or stolen Series 2005-3 Notes which have been replaced or
paid) to the Trustee for cancellation and CRCF has paid all sums payable
hereunder and, if the Series 2005-3 Demand Note Payment Amount on the Series
2005-3 Letter of Credit Termination Date was greater than zero, the Series
2005-3 Cash Collateral Account Surplus shall equal zero, the Demand Note
Preference Payment Amount shall have been reduced to zero and all amounts have
been withdrawn from the Series 2005-3 Cash Collateral Account in accordance with
Section 3.8(h) of this Supplement.
Section
11.16. Collateral
Representations and Warranties of CRCF. CRCF
hereby represents and warrants to the Trustee, the Administrative Agent, each
Funding Agent and each Purchaser Group that:
(a) the Base
Indenture creates a valid and continuing security interest (as defined in the
applicable UCC) in the Collateral in favor of the Trustee for the benefit of the
Noteholders, which security interest is prior to all other liens, and is
enforceable as such as against creditors of and purchasers from CRCF. This
Supplement will create a valid and continuing security interest (as defined in
the applicable UCC) in the Series 2005-3 Collateral in favor of the Trustee for
the benefit of the Series 2005-3 Noteholders, which security interest is prior
to all other liens, and is enforceable as such as against creditors of and
purchasers from CRCF.
-82-
(b) The
Collateral and the Series 2005-3 Collateral (in each case, other than the
Vehicles) consist of “instruments,” “general intangibles” and “deposit accounts”
within the meaning of the applicable UCC.
(c) CRCF owns
and has good and marketable title to the Collateral and the Series 2005-3
Collateral free and clear of any lien, claim or encumbrance of any
Person.
(d) With
respect to the portion of the Collateral that consists of instruments, all
original executed copies of each instrument that constitute or evidence part of
the Collateral have been delivered to the Trustee. None of the instruments that
constitute or evidence the Collateral have any marks or notations indicating
that they have been pledged, assigned or otherwise conveyed to any Person other
than the Trustee.
(e) With
respect to the portion of the Collateral that consists of general intangibles,
CRCF has caused the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in order to
perfect the security interest in the Collateral granted to the Trustee under the
Base Indenture.
(f) With
respect to the portion of the Collateral and the Series 2005-3 Collateral that
consists of deposit or securities accounts maintained with a bank other than the
Trustee (collectively, the “Bank
Accounts”), CRCF
has delivered to the Trustee a fully executed agreement pursuant to which the
bank maintaining the Bank Accounts has agreed to comply with all instructions
originated by the Trustee directing disposition of the funds in the Bank
Accounts without further consent by CRCF. The Bank Accounts are not in the name
of any person other than CRCF or the Trustee. CRCF has not consented to the bank
maintaining the Bank Accounts to comply with instructions of any person other
than the Trustee.
(g) Other
than the security interest granted to the Trustee under the Base Indenture and
this Supplement, CRCF has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Collateral or the Series 2005-3
Collateral. CRCF has not authorized the filing of and is not aware of any
financing statements against CRCF that includes a description of collateral
covering the Collateral other than any financing statement under the Base
Indenture or that has been terminated. CRCF is not aware of any judgment or tax
lien filings against CRCF.
(h) CRCF has
not authorized the filing of and is not aware of any financing statements
against CRCF that include a description of collateral covering the
Collateral other
than any financing statements (i) relating to the security interest granted to
the Trustee in the Base Indenture or (ii) that has been terminated.
Section
11.17. No
Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising, on the part of the Trustee, the
Administrative Agent, any Funding Agent, any CP Conduit Purchaser or any APA
Bank, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other
-83-
right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
Section
11.18. Waiver
of Setoff.
Notwithstanding any other provision of this Supplement or any other agreement to
the contrary, all payments to the Administrative Agent, the Funding Agents, the
CP Conduit Purchasers and the APA Banks hereunder shall be made without set-off
or counterclaim.
Section
11.19. Notices. All
notices, requests, instructions and demands to or upon any party hereto to be
effective shall be given (i) in the case of CRCF, the Administrator and the
Trustee, in the manner set forth in Section 13.1 of the Base Indenture and (ii)
in the case of the Administrative Agent, the CP Conduit Purchasers, the APA
Banks and the Funding Agents, in writing, and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand or three days after being deposited in the mail, postage prepaid, in the
case of facsimile notice, when received, or in the case of overnight air
courier, one Business Day after the date such notice is delivered to such
overnight courier, addressed as follows in the case of the Administrative Agent
and to the addresses therefor set forth in Schedule I, in the case of the CP
Conduit Purchasers, the APA Banks and the Funding Agents; or to such other
address as may be hereafter notified by the respective parties
hereto:
Administrative
Agent:
Deutsche
Bank AG,
New York
Branch
60 Wall
Street, 19th
Floor
New York,
NY 10005
Attention:
Michael Cheng
Fax:
(212) 797-5160
Section
11.20. Confidential
Information. (a) The
Trustee, each CP Conduit Purchaser, each Funding Agent and each APA Bank (each a
“Recipient”) will
maintain the confidentiality of all Confidential Information in accordance with
procedures adopted by such Recipient in good faith to protect Confidential
Information of third parties delivered to such Recipient; provided, that
such Recipient may deliver or disclose Confidential Information to: (i) a
Recipient’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 11.20; (ii) such Recipient’s financial advisors and other professional
advisors who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 11.20; (iii) any
other APA Bank; (iv) any Person of the type that would be, to such Recipient’s
knowledge, permitted to acquire Series 2005-3 Notes in accordance with the
requirements of the Indenture to which such Recipient sells or offers to sell
any such Series 2005-3 Note or any part thereof or any participation therein and
that agrees to hold confidential the Confidential Information substantially in
accordance with this Section 11.20 (or in accordance with such other
confidentiality procedures as are acceptable to CRCF); (v) any federal or state
or other regulatory, governmental or judicial authority having jurisdiction over
such Recipient; (vi) the National Association of Insurance Commissioners or any
similar organiza-tion, or any nationally recognized rating agency that requires
access to
-84-
information
about the investment portfolio of such Recipient, (vii) any reinsurers or
liquidity or credit providers that agree to hold confidential the Confidential
Information substantially in accordance with this Section 11.20 (or in
accordance with such other confidentiality procedures as are acceptable to
CRCF); (viii) any Recipient acting as a placement agent or dealer with respect
to any commercial paper (provided that any Confidential Information provided to
any such placement agent or dealer does not reveal the identity of Cendant or
any of its Affiliates); (ix) any other Person with the consent of CRCF; or (x)
any other Person to which such delivery or disclosure may be necessary or
appropriate (A) to effect compliance with any law, rule, regulation, statute or
order applicable to such Recipient, (B) in response to any subpoena or other
legal process upon prior notice to CRCF (unless prohibited by appli-cable law,
rule, order or decree or other requirement having the force of law), (C) in
connec-tion with any litigation to which such Recipient is a party upon prior
notice to CRCF (unless prohi-bited by applicable law, rule, order or decree or
other requirement having the force of law) or (D) if an Amortization Event
with respect to the Series 2005-3 Notes has occurred and is continuing, to the
extent such Recipient may reason-ably determine such delivery and disclosure to
be necessary or appropriate in the enforcement or for the protection of the
rights and remedies under the Series 2005-3 Notes, the Indenture or any other
Related Document; and provided,
further,
however, that
delivery to any recipient of any report or information required by the terms of
the Indenture to be provided to a Recipient shall not be a viola-tion of this
Section 11.20. Each CP Conduit Purchaser, Funding Agent and APA Bank agrees,
except as set forth in clauses (v), (vi) and (x) above, that it shall use the
Confidential Information for the sole purpose of making an investment in the
Series 2005-3 Notes and/or administering its investment in the Series 2005-3
Notes. In the event of any required disclosure of the Confidential Information
by a Recipient, such Recipient agrees to use reasonable efforts to protect the
confiden-tiality of the Confidential Information.
(b) For the
purposes of this Section 11.20, “Confidential
Information” means
information delivered to a Recipient by or on behalf of CRCF in connection with
and relating to the transactions contemplated by or otherwise pursuant to the
Indenture and the Related Documents; provided, that
such term does not include information that: (i) was publicly known or otherwise
known by such Recipient prior to the time of such disclosure; (ii) subsequently
becomes publicly known through no act or omission by such Recipient or any
person acting on behalf of such Recipient; (iii) otherwise is known or becomes
known by such Recipient other than (x) through disclosure by CRCF or (y) as a
result of the breach of a fiduciary duty to CRCF or a contractual duty to CRCF;
or (iv) is allowed to be treated as non-confidential by consent of
CRCF.
-85-
IN
WITNESS WHEREOF, each of the parties hereto have caused this Supplement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
CENDANT
RENTAL CAR FUNDING (AESOP)
LLC, as
Issuer
By: /s/
Lori Gebron
Name:
Lori Gebron
Title:
Vice President
CENDANT
CAR RENTAL GROUP, INC.,
as
Administrator
By: /s/
Elizabeth R. Cohen
Name:
Elizabeth R. Cohen
Title:
Vice President and Assistant Treasurer
DEUTSCHE
BANK AG, NEW YORK BRANCH
as
Administrative Agent
By: /s/
Elizabeth A. Whalen
Name:
Elizabeth A. Whalen
Title:
Director
By: /s/
Michael Cheng
Name:
Michael Cheng
Title:
Director
NANTUCKET
FUNDING CORP., LLC, as a CP
Conduit
Purchaser
By: /s/
Lori Gebron
Name:
Lori Gebron
Title:
Vice President
DEUTSCHE
BANK AG, NEW YORK BRANCH
as a
Funding Agent and an APA Bank
By: /s/
Elizabeth A. Whalen
Name:
Elizabeth A. Whalen
Title:
Director
By: /s/
Michael Cheng
Name:
Michael Cheng
Title:
Director
THE BANK
OF NEW YORK, as Trustee
By: /s/
John Bobko
Name:
John Bobko
Title:
Assistant Vice President
THE BANK
OF NEW YORK, as Series 2005-3
Agent
By: /s/
John Bobko
Name:
John Bobko
Title:
Assistant Vice President
SCHEDULE
I TO SERIES 2005-3 SUPPLEMENT
|
CP
Conduit
|
APA
Banks
|
Funding
Agent
|
APA
Bank Percentage
|
Maximum
Purchaser
Group
Invested Amount
|
Match
Funding
| |
|
1.
|
Nantucket
Funding Corp., LLC
|
Deutsche
Bank AG, New York Branch
|
Deutsche
Bank AG, New York Branch
|
100%
|
$750,000,000
from the Series 2005-3 Closing Date to but excluding September 1, 2005
$375,000,000
from September 1, 2005 to but excluding October 1, 2005
$187,500,000
from October 1, 2005 to but excluding December 20, 2005
|
No
|
|
EXHIBIT
A
to
Series
2005-3
Supplement |
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
FORM OF
SERIES 2005-3 NOTE
VARIABLE
FUNDING RENTAL CAR ASSET
BACKED
NOTES SERIES 2005-3
CENDANT
RENTAL CAR FUNDING (AESOP) LLC, a Delaware limited liability company (herein
referred to as the “Company”), for
value received, hereby promises to pay to [______________________], as the
Funding Agent, or registered assigns, the principal sum of [_________________]
MILLION DOLLARS, or, if less, the aggregate unpaid principal amount hereof shown
on the records of the Administrative Agent pursuant to Section
2.2(b) of the
Series 2005-3 Supplement, which amount shall be payable in the amounts and at
the times set forth in the Indenture, provided, however, that the entire unpaid
principal amount of this Series 2005-3 Note shall be due on the Series 2005-3
Termination Date. The Company will pay interest on this Series 2005-3 Note as
provided in Sections
3.3 and
3.4 of the
Series 2005-3 Supplement. Such interest shall be payable on each
Distribution Date until the principal of this Series 2005-3 Note is paid or made
available for payment, to the extent funds will be available from Interest
Collections allocable to the Series 2005-3 Notes processed from but not
including the preceding Distribution Date through each such Distribution Date.
The principal amount of this Series 2005-3 Note shall be subject to Increases
and Decreases on any Business Day, and accordingly, such principal amount is
subject to prepayment at any time. Notwithstanding the foregoing, during the
Series 2005-3 Revolving Period, only interest payments on the outstanding
principal amount of the Series 2005-3 Note are required to be made to the holder
hereof. Beginning on the first Distribution Date following the commencement of
(x) the Series 2005-3 Controlled Amortization Period, the principal of this
Series 2005-3 Note shall be paid in installments as set forth in the
Series 2005-3 Supplement, and (y) the Series 2005-3 Rapid Amortization
Period, subject to Decreases on any Business Day, the principal of this Series
2005-3 Note shall be paid in installments on each subsequent Distribution Date
to the extent of funds available for payment therefor pursuant to the Indenture.
Such principal of and interest on this Series 2005-3 Note shall be paid in the
manner specified on the reverse hereof.
The
principal of and interest on this Series 2005-3 Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Company
with respect to this Series 2005-3 Note shall be applied first to interest due
and payable on this Series 2005-3 Note as provided above and then to the unpaid
principal of this Series 2005-3 Note. This Series 2005-3 Note does not represent
an interest in, or an obligation of, AESOP Leasing Corp., AESOP Leasing, AESOP
Leasing II, ARAC, BRAC, CCRG, or any affiliate of AESOP Leasing Corp., AESOP
Leasing, AESOP Leasing II, ARAC, BRAC or CCRG other than the
Company.
|
EXHIBIT
A
Page
2
|
Reference
is made to the further provisions of this Series 2005-3 Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Series 2005-3 Note. Although a summary of certain provisions of
the Indenture are set forth below and on the reverse hereof and made a part
hereof, this Series 2005-3 Note does not purport to summarize the Indenture and
reference is made to the Indenture for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and obligations of the Company, AESOP Leasing Corp.,
AESOP Leasing, AESOP Leasing II, ARAC, BRAC, CCRG and the Trustee. A copy of the
Indenture may be requested from the Trustee by writing to the Trustee at: The
Bank of New York, c/o BNY Midwest Trust Company, 2 North LaSalle Street,
10th Floor,
Chicago, Illinois 60602. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to them in the Indenture.
Unless
the certificate of authentication hereon has been executed by the Trustee whose
name appears below by manual signature, this Series 2005-3 Note shall not be
entitled to any benefit under the Indenture referred to on the reverse hereof,
or be valid or obligatory for any purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be signed, manually
or in facsimile, by its Authorized Officer.
Date: __________
|
CENDANT RENTAL CAR FUNDING (AESOP) LLC
By: ________________________
Name:
Title:
|
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Series 2005-3 Notes, a series issued under the within-mentioned
Indenture.
|
THE BANK OF NEW YORK, as Trustee
By: ________________________
Authorized Signatory |
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EXHIBIT
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REVERSE
OF VARIABLE FUNDING NOTE
This
Series 2005-3 Note is one of a duly authorized issue of Series 2005-3 Notes of
the Company, designated as its Variable Funding Rental Car Asset Backed Notes
(herein called the “Series
2005-3 Notes”), all
issued under (i) a Second Amended and Restated Base Indenture, dated as of June
3, 2004 (such Base Indenture, as amended, supplemented or modified in accordance
with its terms exclusive of any Supplements thereto creating a new Series of
Notes, is herein called the “Base
Indenture”),
between the Company and The Bank of New York, as trustee (in such capacity, the
“Trustee”, which
term includes any successor Trustee under the Base Indenture) and (ii) a Series
2005-3 Supplement, dated as of April 29, 2005 (such supplement, as may be
amended, supplemented or modified in accordance with its terms, is herein called
the “Series
2005-3 Supplement”), among
the Company, as Issuer, Cendant Car Rental Group, Inc. (“CCRG”), as
Administrator (in such capacity, the “Administrator”),
Deutsche Bank AG, New York Branch, as Administrative Agent (in such capacity,
the “Administrative
Agent”), the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent. The Base Indenture as
supplemented by the Series 2005-3 Supplement is referred to herein as the
“Indenture”. The
Series 2005-3 Notes are subject to all terms of the Indenture. All terms used in
this Series 2005-3 Note that are defined in the Indenture, shall have the
meanings assigned to them in or pursuant to the Indenture.
The
Series 2005-3 Notes are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture and the
Series 2005-3 Supplement.
“Distribution
Date” means
the 20th day of each month, or, if any such date is not a Business Day, the next
succeeding Business Day, commencing May 20, 2005.
As
described above, principal of this Series 2005-3 Note shall be payable in the
amounts and at the times set forth in the Indenture, provided, however, the
entire unpaid principal amount of this Series 2005-3 Note shall be due and
payable on the Series 2005-3 Termination Date. During the Series 2005-3
Controlled Amortization Period, the principal on the Series 2005-3 Notes will be
payable in installments as set forth in the Indenture. Notwithstanding the
foregoing, if an Amortization Event, Liquidation Event of Default, Waiver Event
or Series 2005-3 Limited Liquidation Event of Default shall have occurred and be
continuing then, in certain circumstances, principal on the Series 2005-3 Notes
may be paid earlier, as described in the Indenture. All principal payments on
the Series 2005-3 Notes shall be made pro rata to the Noteholders entitled
thereto.
Payments
of interest on this Series 2005-3 Note due and payable on each Distribution
Date, together with the installment of principal then due, if any, and any
payments of principal made on any Business Day in respect of any Decreases, to
the extent not in full payment of this Series 2005-3 Note, shall be made by wire
transfer to the Administrative Agent for the accounts of the Purchaser Groups.
Any reduction in the principal amount of this Series 2005-3 Note (or any one or
more predecessor Series 2005-3 Notes) effected by any payments made in
accordance with the terms hereof and of the Indenture shall be binding upon all
future Holders of this Series 2005-3 Note and of any Series 2005-3 Note issued
upon the registration of
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transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted
thereon.
The
Company shall pay interest on overdue installments of interest at a rate per
annum equal to the Alternate Base Rate, plus 2% per annum, to the extent
lawful.
This
Series 2005-3 Note is nontransferable except in accordance with the Series
2005-3 Supplement.
Each
Noteholder, by acceptance of a Series 2005-3 Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Company, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC, BRAC,
CCRG or the Trustee on the Series 2005-3 Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against (i) the
Trustee, Original AESOP, AESOP Leasing, AESOP Leasing II ARAC, BRAC or CCRG,
each in its individual capacity, (ii) any owner of a beneficial interest in the
Company or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Trustee, Original AESOP, AESOP Leasing, AESOP Leasing II ARAC,
BRAC or CCRG, each in its individual capacity, any holder of a beneficial
interest in the Company, Original AESOP, AESOP Leasing, AESOP Leasing II, ARAC,
BRAC, CCRG or the Trustee or of any successor or assign of Original AESOP, AESOP
Leasing, AESOP Leasing II, ARAC, BRAC, CCRG or the Trustee, each in its
individual capacity, except (a) as any such Person may have expressly agreed and
(b) any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity; provided,
however, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Company for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Series 2005-3 Note, subject
to Section
13.18 of the
Base Indenture.
Each
Noteholder, by acceptance of a Note, covenants and agrees that by accepting the
benefits of the Indenture that such Noteholder will not, for a period of one
year and one day following payment in full of all Notes institute against the
Company, or join in any institution against the Company of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under any
United States federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the Related
Documents.
Prior to
the due presentment for registration of transfer of this Series 2005-3 Note, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Series 2005-3 Note (as of the day of determination or
as of such other date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Series 2005-3 Note be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
It is the
intent of the Company and each Noteholder that, for federal, state and local
income and franchise tax purposes, the Series 2005-3 Notes will evidence
indebtedness of the Company secured by the Series 2005-3 Collateral. Each
Noteholder, by the acceptance of this Series 2005-3 Note, agrees to treat this
Series 2005-3 Note for federal, state and local income and franchise tax
purposes as indebtedness of the Company.
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The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Series 2005-3 Notes under the Indenture at any
time by the Company with the consent of Purchaser Groups having in the aggregate
Commitment Percentages in excess of 50%. The Indenture also contains provisions
permitting the Holders of Series 2005-3 Notes representing specified percentages
of the aggregate outstanding amount of the Series 2005-3 Notes, on behalf of the
Holders of all the Series 2005-3 Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Series 2005-3 Note (or any one or more predecessor Series 2005-3 Notes)
shall be conclusive and binding upon such Holder and upon all future Holders of
this Series 2005-3 Note and of any Series 2005-3 Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Series 2005-3 Note.
The Indenture also permits the Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Series 2005-3 Notes issued thereunder.
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Series 2005-3 Notes under the Indenture at any
time by the Company with the consent of Purchaser Groups having in the aggregate
Commitment Percentages in excess of 50%. The Indenture also contains provisions
permitting the Holders of Series 2005-3 Notes representing specified percentages
of the aggregate outstanding amount of the Series 2005-3 Notes, on behalf of the
Holders of all the Series 2005-3 Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Series 2005-3 Note (or any one or more predecessor Series 2005-3 Notes)
shall be conclusive and binding upon such Holder and upon all future Holders of
this Series 2005-3 Note and of any Series 2005-3 Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Series 2005-3 Note.
The Indenture also permits the Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Series 2005-3 Notes issued thereunder.
The term
“Company” as used
in this Series 2005-3 Note includes any successor to the Company under the
Indenture.
The
Series 2005-3 Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations set forth
therein.
This
Series 2005-3 Note and the Indenture shall be construed in accordance with the
law of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
law.
No
reference herein to the Indenture and no provision of this Series 2005-3 Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Series
2005-3 Note at the times, place, and rate, and in the coin or currency herein
prescribed, subject to any duty of the Company to deduct or withhold any amounts
as required by law, in-cluding any applicable U.S. withholding
taxes.
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ASSIGNMENT
Social
Security or taxpayer I.D. or other identifying number of assignee
_________________________________
FOR VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
_________________________________________________________________________
(name and
address of assignee)
the
within Series 2005-3 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ___________________, attorney, to transfer said Series
2005-3 Note on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ________________________________ ________________________________*
Signature
Guaranteed:
______________________________________
________________________________
* NOTE: The
signature to this assignment must correspond with the name of the registered
owner as it appears on the face of the within Note in every particular, without
alteration, enlargement or any change whatsoever.
|
EXHIBIT
B
to
Series
2005-3
Supplement |
FORM OF
NOTICE OF INCREASE
Deutsche
Bank AG, New York Branch
60 Wall
Street, 19th
Floor
New York,
New York 10005
Attention:
Michael Cheng
Fax:
(212) 797-5160:
Ladies
and Gentlemen:
Reference
is hereby made to the Series 2005-3 Supplement, dated as of April 29, 2005 (as
may be amended, supplemented or modified from time to time in accordance with
its terms, the “Series
2005-3 Supplement”), among
Cendant Rental Car Funding (AESOP) LLC (“CRCF”), as
Issuer, Cendant Car Rental Group, Inc., as Administrator, Deutsche Bank AG, New
York Branch, as Administrative Agent, the CP Conduit Purchasers, the Funding
Agents and the APA Banks named therein and The Bank of New York, as Trustee (in
such capacity, the “Trustee”) and as
Series 2005-3 Agent, to the Second Amended and Restated Base Indenture, dated as
of June 3, 2004, between CRCF and the Trustee. Capitalized terms used in this
Notice of Increase and not otherwise defined herein shall have the meanings
assigned thereto in the Series 2005-3 Supplement.
This
letter constitutes the notice required in connection with any Increase pursuant
to Section
2.3(a) of the
Series 2005-3 Supplement.
CRCF
hereby requests that an Increase be made by each Purchaser Group on ________ ___
in the aggregate amount equal to its Commitment Percentage of $__________. The
Series 2005-3 Invested Amount will equal $________ after giving effect thereto.
CRCF hereby represents and warrants as of the date of such Increase after giving
effect thereto, the conditions set forth in Sections
2.3(a) and
(c) of the
Series 2005-3 Supplement with respect to such Increase have been
satisfied.
IN
WITNESS WHEREOF, the undersigned has caused this Increase Notice to be executed
by its duly authorized officer as of the date first above written.
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
By:
________________________________
Name:
Title:
|
cc: |
The
Bank of New York, |
as
Trustee
|
EXHIBIT
C
to
Series
2005-3
Supplement |
FORM OF
CONSENT
The Bank
of New York, as Trustee
c/o BNY
Midwest Trust Company
2 North
LaSalle Street, 10th Floor
Chicago,
Illinois 60602
Attn: Indenture
Trust Administration
Cendant
Rental Car Funding (AESOP) LLC
c/o Lord
Securities Corporation
48 Wall
Street, 27th
Floor
New York,
New York 10005
Attn:
Benjamin Abedine
This
Consent is delivered pursuant to the Waiver Request dated ____________, __ (the
“Notice”) and
the Series 2005-3 Supplement, dated as of April 29, 2005 (as may be amended,
supplemented or modified from time to time in accordance with its terms, the
“Series
2005-3 Supplement”), among
Cendant Rental Car Funding (AESOP) LLC (“CRCF”), as
Issuer, Cendant Car Rental Group, Inc., as Administrator, Deutsche Bank AG, New
York Branch, as Administrative Agent, the CP Conduit Purchasers, the Funding
Agents and the APA Banks named therein and The Bank of New York, as Trustee (in
such capacity, the “Trustee”) and as
Series 2005-3 Agent, to the Second Amended and Restated Base Indenture, dated as
of June 3, 2004 (as may be amended, supplemented or modified from time to time
in accordance with its terms, the “Base
Indenture” and, as
supplemented by the Series 2005-3 Supplement, the “Indenture”),
between CRCF and the Trustee. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in the Series 2005-3
Supplement.
Pursuant
to Article
V of the
Series 2005-3 Supplement, the Trustee has delivered a Notice indicating that
[choose
which applies] [(i) the
Manufacturer Pro-gram[s] of [name of Manufacturer] [is/are] no longer [an]
Eligible Manufacturer Program[s] and that, as a result, the Series 2005-3
Maximum Non-Program Vehicle Amount [and/or] the Series 2005-3 Maximum
Non-Eligible Manufac-turer Amount is or will be exceeded or (ii) that the
Lessees, the Borrower and CRCF have determined to increase [the Series 2005-3
Maximum Non-Program Vehicle Amount] [the Series 2005-3 Maximum Manufacturer
Amount] [any Series 2005-3 Maximum Specified States Amount] [the Series 2005-3
Maximum Non-Eligible Manufacturer Amount]]. The undersigned hereby waives all
requirements that the [Series 2005-3 Maximum Non-Program Vehicle Amount] [Series
2005-3 Maximum Manufacturer Amount] [Series 2005-3 Maximum Specified States
Amount] [Series 2005-3 Maximum Non-Eligible Manufacturer Amount] not be exceeded
for all purposes of the Indenture and the Series 2005-3 Supplement. The
undersigned understands that this Consent will only be effective if the Trustee
receives Consents from Noteholders representing not less than 50% of the
aggregate unpaid Maximum Purchaser Group Invested Amount of the Series 2005-3
Notes on or before ____________, 20__.
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The
undersigned hereby represents and warrants that it is the beneficial owner of
$___________ in principal amount of Series 2005-3 Notes.
[Name]
By:
________________________________
Name:
Title:
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EXHIBIT
D
to
Series
2005-3
Supplement |
Cendant
Rental Car Funding (AESOP) LLC
Demand
Note
DEMAND
NOTE
(Series
2005-3)
New York,
New York
$[___________________][_____________]
FOR VALUE
RECEIVED, the undersigned, [________________], a [Delaware] corporation (the
“Demand
Note Issuer”),
promises to pay to the order of Cendant Rental Car Funding (AESOP) LLC, a
Delaware limited liability company (“CRCF”), or
its permitted assigns (“Holder”) on any
date of demand (each, a “Demand
Date”) the
principal sum of $[_________], together with interest thereon at a rate per
annum (the “Interest
Rate”) equal
to LIBOR plus [___]%, computed on the basis of a 360-day year for the actual
number of days elapsed (including the first day but excluding the last day).
Definitions.
Capitalized terms used, but not defined, in this Demand Note shall have the
respective meanings assigned to them in the Second Amended and Restated Base
Indenture, dated as of June 3, 2004 (as may be amended, restated, supplemented
or modified from time to time in accordance with its terms, exclusive of
supplements thereto creating a new series of notes, the “Base
Indenture”),
between CRCF, as Issuer and The Bank of New York, a New York banking
corporation, as trustee (in such capacity, the “Trustee”), as
supplemented by the Series 2005-3 Supplement, dated as of April 29, 2005 (as may
be amended, restated, supplemented or modified from time to time in accordance
with its terms, the “Series
2005-3 Supplement”), among
CRCF, as Issuer, Cendant Car Rental Group, Inc., as Administrator, Deutsche Bank
AG, New York Branch, as Administrative Agent, the CP Conduit Purchasers, the
Funding Agents and the APA Banks named therein, the Trustee and The Bank of New
York, as Series 2005-3 Agent.
Principal. The
outstanding principal balance (or any portion thereof) of this Demand Note shall
be due and payable on each Demand Date to the extent demand is made therefor by
Holder. No portion of the outstanding principal amount of this Demand Note may
be voluntarily prepaid.
Interest.
Interest shall be paid monthly on the 20th day (or
the first Business Day thereafter) of each calendar month commencing [_______,
____]. In addition, interest shall be paid on each Demand Date to the extent
demand is made therefor.
Calculation
of Principal and Interest. The
interest shall be computed on a monthly basis by applying the Interest Rate
effective for the Series 2005-3 Interest Period to the outstanding principal
balance for such Series 2005-3 Interest Period. The outstanding principal
balance as of any day shall be the outstanding principal balance as of the
beginning of such day, less any payments of principal credited to the Demand
Note Issuer’s account on that day. The records of
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EXHIBIT
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Holder
with respect to amounts due and payments received hereunder shall be presumed to
be correct evidence thereof.
Maturity
Date. On the
Demand Date on which payment of the remaining principal balance of this Demand
Note is to be made, or such earlier date as payment of the indebtedness
evidenced hereby shall be due, whether by mandatory prepayment, acceleration or
otherwise (the “Maturity
Date”), the
entire outstanding principal balance of this Demand Note, together with accrued
interest and any other sums then outstanding under this Demand Note, shall be
due and payable.
Payments. All
payments shall be made in lawful money of the United States of America by wire
transfer in immediately available funds and shall be applied first to fees and
costs, including collection costs, if any, next to interest and then to
principal. Payments shall be made to the account designated in the written
demand for payment.
Collection
Costs. The
Demand Note Issuer agrees to pay all costs of collection of this Demand Note,
including, without limitation, reasonable attorney’s fees, paralegal’s fees and
other legal costs (including court costs) incurred in connection with
consultation, arbitration and litigation (including trial, appellate,
administrative and bankruptcy proceedings) regardless of whether or not suit is
brought, and all other costs and expenses incurred by Holder exercising its
rights and remedies hereunder. Such costs of collection shall bear interest at
the Default Rate until paid.
Default. (a) If
the Demand Note Issuer shall fail to pay any principal, interest or other
amounts on the date of written demand for payment; provided that such demand is
made prior to 2:00 p.m. (New York City time) on a Business Day, or on the next
Business Day if written demand is made on or after 2:00 p.m. (New York City
time) on a Business Day, or (b) upon the occurrence of an Event of Bankruptcy
with respect to the Demand Note Issuer (each, an “Event
of Default”), the
entire outstanding principal balance of this Demand Note, together with all
accrued and unpaid interest, shall (x) in the case of an Event of Default under
clause (a) above, at the option of Holder and without further notice (any notice
of such event being hereby waived by the Demand Note Issuer), or (y) in the case
of an Event of Default under clause (b) above, automatically without notice (any
notice of any such event being waived by the Demand Note Issuer), become
immediately due and payable and may be collected forthwith, and Holder may
exercise any and all rights and remedies provided herein, in law or in
equity.
Default
Interest. After
the Maturity Date or the occurrence of an Event of Default, the outstanding
principal balance of this Demand Note and, to the extent permitted by applicable
law, accrued and unpaid interest, shall bear interest at the Interest Rate plus
two percent (2%) (the “Default
Rate”) until
paid in full; provided, however, in no event shall such rate exceed the highest
rate permissible under applicable law.
Waivers. The
Demand Note Issuer waives all applicable exemption rights and also waives
valuation and appraisement, demand, presentment, protest and demand, and notice
of protest, demand and dishonor, and nonpayment of this Demand Note, and agrees
that Holder shall have the right, without notice, to grant any extension or
extensions of time for payment of any of said indebtedness or any other
indulgences or forbearances whatsoever.
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No
Waiver. No
delay or omission on the part of Holder in exercising its rights under this
Demand Note, or delay or omission on the part of Holder in exercising its rights
hereunder, or course of conduct relating thereto, shall operate as a waiver of
such rights or any other right of Holder, nor shall any waiver by Holder of any
such right or rights on any one occasion be deemed a bar to, or waiver of, the
same right or rights on any future occasion. Acceptance by Holder of any payment
after its due date shall not be deemed a waiver of the right to require prompt
payment when due of all other sums, and acceptance of any payment after Holder
has declared the indebtedness evidenced by this Demand Note due and payable
shall not cure any Event of Default or operate as a waiver of any right of
Holder.
Modifications. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Demand Note shall in any event be effective unless (a) the same shall be
in writing and signed and delivered by each of Holder and the Demand Note
Issuer, and (b) all consents required for such actions under the Base Indenture
and the Related Documents shall have been received by the appropriate
Persons.
Binding
Effect. This
Demand Note shall be binding upon the Demand Note Issuer and its successors and
assigns, and shall inure to the benefit of Holder and its successors and
assigns.
Governing
Law. THIS
DEMAND NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
No
Negotiation. This
Demand Note is not negotiable other than to the Trustee for the benefit of the
secured parties under the Series 2005-3 Supplement. The parties intend that this
Demand Note will be pledged by the initial Holder to the Trustee for the benefit
of the secured parties under the Series 2005-3 Supplement and the Demand Note
Issuer consents and agrees thereto. Upon such pledge, this Demand Note shall be
subject to all of the rights and remedies of the Trustee in the Base Indenture,
the Series 2005-3 Supplement and the other Related Documents, and payments
hereunder shall be made only to said Trustee.
Reduction
of Principal. The
principal amount of this Demand Note may be reduced only in accordance with the
provisions of the Series 2005-3 Supplement.
Acknowledgment. The
Demand Note Issuer hereby acknowledges receipt of [cash/capital contribution] on
the date of the issuance of this Demand Note in the principal amount of
$[_____].
Captions.
Paragraph captions used in this Demand Note are provided solely for convenience
of reference only and shall not affect the meaning or interpretation of any
provision of this Demand Note.
[Remainder
of Page Intentionally Left Blank]
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EXHIBIT
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IN
WITNESS WHEREOF, the undersigned has executed this Demand Note or caused this
Demand Note to be duly executed by its officer thereunto duly authorized as of
the day and year first above written.
|
[DEMAND NOTE ISSUER]
By: ________________________
Name:
Title:
|
ENDORSEMENT
Pay to
the Order of ________________________________________, without
recourse
|
CENDANT RENTAL CAR FUNDING
(AESOP) LLC
By: ________________________
Name:
Title:
|
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EXHIBIT
D
Page
5 |
PAYMENT
GRID
|
Date
|
Principal
Amount
|
Amount
of Principal
Payment
|
Outstanding
Principal
Balance
|
Notation
Made
By
|
|
EXHIBIT
E
to
Series
2005-3
Supplement |
FORM OF
IRREVOCABLE SERIES 2005-3 LETTER OF CREDIT
No.[
]
April 29,
2005
The Bank
of New York, as Trustee
c/o BNY
Midwest Trust Company
2 North
LaSalle Street
10th
Floor
Chicago,
Illinois 60602
Attention:
Dear Sir
or Madam:
The
undersigned (“Series
2005-3 Letter of Credit Provider”) hereby
establishes, at the request and for the account of Cendant Corporation, a
Delaware corporation (“Cendant”),
pursuant to, and in accordance with, that certain Five Year Competitive Advance
and Revolving Credit Agreement, dated as of November 22, 2004 (as amended,
supple-mented, restated or otherwise modified from time to time in accordance
with the terms thereof, the “Credit
Agreement”), among
Cendant and the financial institutions party thereto (collectively, the
“Series
2005-3 Letter of Credit Providers”), in
accordance with the terms of such Credit Agreement (i) in your favor in respect
of Lease Deficit Demands (as defined below), (ii) in your favor in respect of
Unpaid Demand Note Demands (as defined below), (iii) in your favor in respect of
Termination Demands (as defined below) and (iv) in your favor in respect of
Termination Date Demands (as defined below), this Irrevocable Letter of Credit
No. [ ], in an
aggregate maximum amount of [___________________________] DOLLARS ($[________])
(such amount, as the same may be reduced and reinstated from time to time as
provided herein, being the “Letter
of Credit Amount”),
effective immediately and expiring at 4:00 p.m. (New York time) at our
[ ] office
located at [ ]
Attention: [ ],
Telephone No.: [__________], Facsimile No.: [ ] (such
office or any other office which may be designated by the Series 2005-3 Letter
of Credit Provider by written notice delivered to you, being the “Series
2005-3 Letter of Credit Provider’s Office”) on the
date (the “Expiration
Date”) that
is the earlier of (i) [___________] 200[_] or such later date to which the term
of this Series 2005-3 Letter of Credit is extended (or, if such date is not a
Business Day, the immediately succeeding Business Day) (the “Scheduled
Expiration Date”) and
(ii) the date on which we receive written notice from you that the Series 2005-3
Letter of Credit Termination Date shall have occurred. You are the trustee under
that certain Second Amended and Restated Base Indenture (the “Base
Indenture”), dated
as of June 3, 2004, between you, as Trustee (in such capacity, the “Trustee”) and
Cendant Rental Car Funding (AESOP) LLC (formerly known as AESOP Funding II
L.L.C.) (“CRCF”), as
the same may be amended, supplemented or otherwise modified from time to time.
“Series
2005-3 Supplement” means
the Series 2005-3 Supplement,
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dated as
of April 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc.
(“CCRG”), as
Administrator (in such capacity, the “Administrator”),
Deutsche Bank AG, New York Branch, as Administrative Agent, the CP Conduit
Purchasers, the Funding Agents and the APA Banks named therein, the Trustee and
The Bank of New York, as Series 2005-3 Agent, to the Base Indenture, as the same
may be amended, supplemented, restated or other-wise modified from time to time.
Capitalized terms used herein and in the Annexes hereto and not otherwise
defined herein shall have the meaning set forth in the Series 2005-3 Supplement
and the Base Indenture.
The
Series 2005-3 Letter of Credit Provider irrevocably authorizes you to draw on
it, in accordance with the terms and conditions and subject to the reductions in
amount as herein-after set forth, (1) in one or more drawings by the Trustee
pursuant to the Trustee’s written and completed certificate signed by the
Trustee substantially in the form of Annex
A attached
hereto (any such certificate being a “Lease
Deficit Demand”), each
presented to the Series 2005-3 Letter of Credit Provider at the Series 2005-3
Letter of Credit Provider’s Office, payable at sight on a Business Day (as
defined below), in each case, in an amount equal to the amount set forth in such
Lease Deficit Demand but in the aggregate not exceeding the Letter of Credit
Amount as in effect on such Business Day, (2) in one or more drawings by the
Trustee pursuant to the Trustee’s written and completed certificate signed by
the Trustee substantially in the form of Annex
B attached
hereto (any such certificate being an “Unpaid
Demand Note Demand”), each
presented to the Series 2005-3 Letter of Credit Provider at the Series 2005-3
Letter of Credit Provider’s Office, payable at sight on a Business Day, in each
case, in an amount equal to the amount set forth in such Unpaid Demand Note
Demand but in the aggregate not exceeding the Letter of Credit Amount as in
effect on such Business Day, (3) in a single drawing by the Trustee pursuant to
the Trustee’s written and completed certificate signed by the Trustee
substantially in the form of Annex
C attached
hereto (such certificate being a “Termination
Demand”),
presented to the Series 2005-3 Letter of Credit Provider at the Series 2005-3
Letter of Credit Provider’s Office, payable at sight on a Business Day, in an
amount equal to the amount set forth in such Termination Demand but not
exceeding the Letter of Credit Amount as in effect on such Business Day,
provided that only one such Termination Demand may be made hereunder and (4) in
a single drawing by the Trustee pursuant to the Trustee’s written and completed
certificate signed by the Trustee substantially in the form of Annex
D attached
hereto (such certificate being a “Termination
Date Demand”),
presented to the Series 2005-3 Letter of Credit Provider at the Series 2005-3
Letter of Credit Provider’s Office, payable at sight on a Business Day, in an
amount equal to the amount set forth in such Termination Date Demand but not
exceeding the Letter of Credit Amount as in effect on such Business Day,
provided that only one such Termination Date Demand may be made hereunder. In
the event that there is more than one draw request payable on the same Business
Day, the draw requests shall be honored in the following order: (1) the Lease
Deficit Demand; (2) the Unpaid Demand Note Demand; (3) the Termination Demand
and (4) the Termination Date Demand; provided that in no event shall the Series
2005-3 Letter of Credit Provider be required to honor any draw request to the
extent such draw request is in an amount greater than the Letter of Credit
Amount at such time after giving effect to all other draw requests honored on
such day. Upon the honoring of a Termination Date Demand in full, the Series
2005-3 Letter of Credit Provider shall have no obligation to honor any other
draw request. Any payments made by the Series 2005-3 Letter of Credit Provider
shall be paid from funds of the Series 2005-3 Letter of Credit Provider. Any
Lease Deficit Demand,
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Unpaid
Demand Note Demand, Termination Demand or Termination Date Demand may be
delivered by facsimile transmission to the Series 2005-3 Letter of Credit
Provider’s Office as herein provided. “Business
Day” means
any day other than a Saturday, Sunday or other day on which banks are required
or authorized by law to close in New York City, New York or Chicago, Illinois.
Upon the Series 2005-3 Letter of Credit Provider’s honoring any Lease Deficit
Demand, Unpaid Demand Note Demand, Termination Demand or Termination Date Demand
presented hereunder, the Letter of Credit Amount shall automatically be
decreased by an amount equal to the amount of the Lease Deficit Demand, Unpaid
Demand Note Demand, Termination Demand or Termination Date Demand paid by the
Series 2005-3 Letter of Credit Provider to the Trustee. In addition to the
fore-going reduction, upon the Series 2005-3 Letter of Credit Provider’s
honoring any Termination Date Demand presented to it hereunder in full, the
Letter of Credit Amount shall automatically be reduced to zero and this Series
2005-3 Letter of Credit shall be terminated.
The
Letter of Credit Amount shall be automatically reinstated when and to the
extent, but only when and to the extent, that (i) the Series 2005-3 Letter of
Credit Provider is reimbursed by CRCF, a Lessee, CCRG or Cendant for any amount
drawn hereunder as a Lease Deficit Demand or Unpaid Demand Note Demand, (ii) the
Series 2005-3 Letter of Credit Provider receives written notice from Cendant
substantially in the form of Annex
E hereto
that the Letter of Credit Amount should be reinstated in an amount set forth
therein (which shall equal the amount reimbursed pursuant to clause (i)) and
that no Event of Bankruptcy (as defined in Annex
E attached
hereto) with respect to Cendant, any Lessee or any Permitted Sublessee has
occurred and is continuing and (iii) this Series 2005-3 Letter of Credit has not
been terminated in accordance with the terms hereof. “Lessee” means,
as applicable, (i) CCRG, in its capacity as the lessee under the Second
Amended and Restated Master Motor Vehicle Operating Lease Agreement, dated as of
June 3, 2004, between AESOP Leasing L.P. (“AESOP
Leasing”), as
the lessor thereunder, and CCRG, as the lessee thereunder and as Administrator,
(ii)
CCRG, in its capacity as the lessee under the Amended
and Restated Master Motor Vehicle Operating Lease Agreement, dated as of June 3,
2004, between AESOP Leasing Corp. II, as the lessor thereunder, CCRG,
individually as the lessee and as Administrator and
(iii) each of Avis Rent A Car System, Inc. (“ARAC”),
Budget Rent A Car System, Inc. (“BRAC”) and
CCRG, in its capacity as a lessee under the Amended
and Restated Master Motor Vehicle Finance Lease Agreement, dated as of June 3,
2004, among AESOP Leasing, as the lessor thereunder, ARAC and BRAC, each as a
lessee thereunder, and CCRG, as a lessee, Administrator and Finance Lease
Guarantor thereunder.
Each
Lease Deficit Demand, Unpaid Demand Note Demand, Termination Demand and
Termination Date Demand shall be dated the date of its presentation, shall have
a cover letter clearly marked “PAYMENT DEMAND-IMMEDIATE ACTION REQUIRED” and
shall be presented to the Series 2005-3 Letter of Credit Provider at the Series
2005-3 Letter of Credit Provider’s Office. If the Series 2005-3 Letter of Credit
Provider receives any Lease Deficit Demand, Unpaid Demand Note Demand,
Termination Demand or Termination Date Demand at such office on or prior to the
Scheduled Expiration Date, all in conformity with the terms and conditions of
this Series 2005-3 Letter of Credit, not later than 12:00 noon (New York City
time) on a Business Day, the Series 2005-3 Letter of Credit Provider will make
such funds
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EXHIBIT
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available
by 4:00 p.m. (New York City time) on the same day in accordance with your
payment instructions. If the Series 2005-3 Letter of Credit Provider receives
any Lease Deficit Demand, Unpaid Demand Note Demand, Termination Demand or
Termination Date Demand at such office on or prior to the termination hereof,
all in conformity with the terms and conditions of this Letter of Credit, after
12:00 noon (New York City time) on a Business Day, the Series 2005-3 Letter of
Credit Provider will make the funds available by 4:00 p.m. (New York City time)
on the next succeeding Business Day in accordance with your payment
instructions. If you so request the Series 2005-3 Letter of Credit Provider,
payment under this Letter of Credit may be made by wire transfer of Federal
Reserve Bank of New York funds to your account in a bank on the Federal Reserve
wire system or by deposit of same day funds into a designated
account.
Upon the
earliest of (i) the date on which the Series 2005-3 Letter of Credit Provider
honors a Termination Date Demand presented hereunder, (ii) the date on
which the Series 2005-3 Letter of Credit Provider receives written notice from
you that this Series 2005-3 Letter of Credit has been replaced by an alternate
letter of credit and such alternate letter of credit has been received by you,
(iii) the date on which the Series 2005-3 Letter of Credit Provider receives
written notice from you substantially in the form attached hereto as
Annex
F, and
(iv) the Scheduled Expiration Date, this Series 2005-3 Letter of Credit shall
automatically terminate and you shall surrender this Series 2005-3 Letter of
Credit to the undersigned Series 2005-3 Letter of Credit Provider on such
day.
For
purposes of the certificates to be delivered by you in the form attached hereto
as Annexes
A
,B and
D:
“Pro
Rata Share” means,
with respect to any Series 2005-3 Letter of Credit Provider as of any date, the
fraction (expressed as a percentage) obtained by dividing (A) such Series 2005-3
Letter of Credit Provider’s Letter of Credit Amount as of such date by (B) an
amount equal to the aggregate amount of the Letter of Credit Amounts of all the
Series 2005-3 Letter of Credit Providers under their respective Series 2005-3
Letters of Credit as of such date; provided, that
only for purposes of calculating the Pro Rata Share with respect to any Series
2005-3 Letter of Credit Provider as of any date, if such Series 2005-3 Letter of
Credit Provider has not complied with its obligation to pay the Trustee the
amount of any Lease Deficit Demand, Unpaid Demand Note Demand, Termination
Demand or Termination Date Demand (as defined in the related Series 2005-3
Letter of Credit) made prior to such date, such Series 2005-3 Letter of Credit
Provider’s Letter of Credit Amount, as of such date shall be treated as reduced
(for calculation purposes only) by the amount of such unpaid Lease Deficit
Demand, Unpaid Demand Note Demand, Termination Demand or Termination Date
Demand, as the case may be, and shall not be reinstated for purposes of such
calculation unless and until the date as of which such Series 2005-3 Letter of
Credit Provider has paid such amount to the Trustee and been reimbursed by CRCF,
a Lessee, CCRG or Cendant, as the case may be, for such amount (provided that the
forego-ing calculation shall not in any manner reduce the undersigned’s actual
liability in respect of any failure to pay any Lease Deficit Demand, Unpaid
Demand Note Demand, Termination Demand or Termination Date Demand).
This
Letter of Credit is transferable in its entirety to any transferee(s) who you
certify to the Series 2005-3 Letter of Credit Provider has succeeded you, as
Trustee, and may be successively transferred. Transfer of this 2005-3 Letter of
Credit to such transferee shall be effected by the presentation to the Series
2005-3 Letter of Credit Provider of this Series 2005-3
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Letter of
Credit accompanied by a certificate substantially in the form of Annex
G attached
hereto. Upon such presentation the Series 2005-3 Letter of Credit Provider shall
forthwith transfer this 2005-3 Letter of Credit to the transferee.
This
Series 2005-3 Letter of Credit sets forth in full the undertaking of the Series
2005-3 Letter of Credit Provider, and such undertaking shall not in any way be
modified, amended, amplified or limited by reference to any document, instrument
or agreement referred to herein, except only the certificates referred to
herein; and any such reference shall not be deemed to incorporate herein by
reference any document, instrument or agreement except for such certificates. In
furtherance of the foregoing, with regard to any conflict between the terms
hereof and those contained in the Credit Agreement, the terms hereof shall
govern.
On the
Business Day immediately following any Business Day on which the Series 2005-3
Invested Amount shall have been reduced (each a “Decrease
Day”), the
Letter of Credit Amount may be reduced upon prior written notice (which may be
by facsimile transmission with telephone confirmation of receipt as herein
provided) delivered to the Series 2005-3 Letter of Credit Provider on or before
such Decrease Day purportedly signed by the Administrator by an amount (which
will be expressed in United States Dollars in such notice) set forth in such
notice equal to the lesser of the Pro Rata Share of (1) the excess, if any, of
the Series 2005-3 Enhancement Amount over the Series 2005-3 Required
Enhancement Amount and (2) the excess, if any, of the Series 2005-3
Liquidity Amount over the Series 2005-3 Required Liquidity Amount, in the
case of (1) and (2) calculated as of such Decrease Day after giving effect to
all payments of principal on such Decrease Day with respect to the Series 2005-3
Notes.
Making a
non-complying drawing, withdrawing a drawing or failing to make any drawing does
not waive or otherwise prejudice the right to make another timely drawing or a
timely redrawing. Article 41 of the Uniform Customs (as defined below) shall not
apply to this Series 2005-3 Letter of Credit.
This
Series 2005-3 Letter of Credit is subject to the Uniform Customs and Practice
for Documentary Credits, 1993 Revision, ICC Publication No. 500 (the
“Uniform
Customs”),
except as otherwise provided above and except that notwithstanding any
provisions of Article 17 of the Uniform Customs which contains provisions to the
contrary, if this Letter of Credit expires during an interruption of business
(as described in Article 17), we agree to effect payment under this Letter of
Credit, if a drawing which conforms to the terms and conditions of this Letter
of Credit is made within twenty (20) days after the resumption of business, and,
as to matters not covered by the Uniform Customs, shall be governed by the law
of the State of New York, including the Uniform Commercial Code as in effect in
the State of New York. Communications
with respect to this Series 2005-3 Letter of Credit shall be in writing and
shall be addressed to the Series 2005-3 Letter of Credit Provider at the Series
2005-3 Letter of Credit Provider’s Office, specifically referring to the number
of this Series 2005-3 Letter of Credit.
|
Very truly yours,
|
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[________________________]
By: ________________________
Name:
Title:
|
ANNEX
A
CERTIFICATE
OF LEASE DEFICIT DEMAND
[Series
2005-3 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Lease Deficit Demand under the Irrevocable Letter of Credit No.
[ ] (the “Series
2005-3 Letter of Credit”; the
terms defined therein and not otherwise defined herein being used herein as
therein defined), dated _______ __, 200_, issued by _______________, as the
Series 2005-3 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Series 2005-3 Supplement thereto (the
“Series
2005-3 Supplement”), dated
as of April 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent, the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent (the “Indenture”).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Series 2005-3 Letter of Credit Provider as follows:
| 1. |
[
]
is the Trustee under the Indenture. |
| 2. |
[The
Trustee is making a drawing under the Series 2005-3 Letter of Credit as
required by Section
3.3(d) of
the Series 2005-3 Supplement in an amount equal to $________ (the
“Interest
Lease Deficit Disbursement”),
which amount is equal to the lesser of (i) the product of the Series
2005-3 Letter of Credit Provider’s Pro Rata Share as of the date hereof
and the lesser of (x) the Series 2005-3 Lease Interest Payment Deficit and
(y) the excess, if any, of (A) the sum of (1) Series 2005-3 Monthly
Interest for the Series 2005-3 Interest Period ending on the day preceding
the date hereof, (2) an amount equal to the Commitment Fees for each
Purchaser Group for the Series 2005-3 Interest Period ending on the day
preceding the date hereof, and (3) any unpaid Series 2005-3 Shortfall as
of the preceding Distribution Date, together with accrued interest thereon
over (B) the sum of the amounts available from the Series 2005-3 Accrued
Interest Account on the date hereof and the amount to be withdrawn from
the Series 2005-3 Reserve Account pursuant to Section
3.3(b) of
the Series 2005-3 Supplement on the date hereof and (ii) the Letter of
Credit Amount as in effect on the date of this certificate.] [The Trustee
is making a drawing under the Series 2005-3 Letter of Credit as required
by Section
3.5(c)(ii) of
the Series 2005-3 Supplement in an amount equal to $_________ (the
|
|
Annex
A
Page
2 |
|
“Principal
Lease Deficit Disbursement”),
which amount is equal to the lesser of (i) the product of (A) the Series
2005-3 Letter of Credit Provider’s Pro Rata Share as of the date hereof
and (B) the lesser of (x) the Series 2005-3 Lease Principal Payment
Deficit on the date hereof and (y) the amount by which the Principal
Deficit Amount on the date hereof exceeds the amount to be deposited in
the Series 2005-3 Distribution Account in accordance with Section
3.5(c)(i) of the Series 2005-3 Supplement and (ii) the Letter of Credit
Amount as in effect on the date of this certificate.] The “Lease
Deficit Disbursement”
on any day shall be the sum of the Interest Lease Deficit Disbursement and
the Principal Lease Deficit Disbursement.
|
| 3. |
Concurrently
with the draw being demanded hereby, the undersigned is making a draw
under each of the other Series 2005-3 Letters of Credit in an amount equal
to the related other Series 2005-3 Letter of Credit Providers’ Pro Rata
Share of the amount to be drawn on the Series 2005-3 Letters of Credit
pursuant to Section
3.3(d)
and/or Section
3.5(c)(ii) of
the Series 2005-3 Supplement on the date
hereof. |
| 4. |
The
Series 2005-3 Lease Payment Deficit is attributable to the Lessee’s
failure to pay amounts due under the
Leases. |
| 5. |
You
are requested to deliver an amount equal to the Lease Deficit Disbursement
pursuant to the following instructions: |
[insert
payment instructions for wire to the
Trustee
and payment date]
| 6. |
The
Trustee acknowledges that, pursuant to the terms of the Series 2005-3
Letter of Credit, upon the Series 2005-3 Letter of Credit Provider’s
honoring in full the draw amount set forth in this certificate, the Letter
of Credit Amount shall be automatically reduced by an amount equal to the
amount paid by the Series 2005-3 Letter of Credit Provider in respect of
such draw. |
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of_________________, ____.
|
[________________________]
as Trustee
By: ________________________
Name:
Title:
|
ANNEX
B
CERTIFICATE
OF UNPAID DEMAND NOTE DEMAND
[Series
2005-3 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Unpaid Demand Note Demand under the Irrevocable Letter of Credit No.
[ ] (the “Series
2005-3 Letter of Credit”; the
terms defined therein and not other-wise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by _____________, as
the Series 2005-3 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Series 2005-3 Supplement thereto (the
“Series
2005-3 Supplement”), dated
as of April 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent, the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent (the “Indenture”).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Series 2005-3 Letter of Credit Provider as follows:
1. [
] is the
Trustee under the Indenture.
2. The
Trustee is making a drawing under the Series 2005-3 Letter of Credit as required
by Section
3.5[(c)(iv)][(d)(iii)] of the
Series 2005-3 Supplement in an amount equal to $_________ (the “Unpaid
Demand Note Disbursement”), which
amount is equal to the lesser of (i) the product of the Series 2005-3 Letter of
Credit Provider’s Pro Rata Share as of the date hereof and the Series 2005-3
Unpaid Demand Amount and (ii) the Letter of Credit Amount as in effect on the
date of this certificate.
3. Concurrently
with the draw being demanded hereby, the undersigned is making a draw under each
of the other Series 2005-3 Letters of Credit in an amount equal to the related
other Series 2005-3 Letter of Credit Providers’ Pro Rata
Share of the Series 2005-3 Unpaid Demand Amount.
4. You are
requested to deliver an amount equal to the Unpaid Demand Note Disbursement
pursuant to the following instructions:
[Insert
payment instructions for wire to the
Trustee
and payment date]
|
Annex
B
Page
2 |
5. The
Trustee acknowledges that, pursuant to the terms of the Series 2005-3 Letter of
Credit, upon the Series 2005-3 Letter of Credit Provider’s honoring in full the
draw amount set forth in this certificate, the Letter of Credit Amount shall be
automatically reduced by an amount equal to the amount paid by the Series 2005-3
Letter of Credit Providers in respect of such draw.
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of ___________________, ________.
|
[________________________]
as Trustee
By: ________________________
Name:
Title: |
|
By: ________________________
Name:
Title:
|
ANNEX
C
CERTIFICATE
OF TERMINATION DEMAND
[Series
2005-3 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Termination Demand under the Irrevocable Letter of Credit No.
[ ] (the “Series
2005-3 Letter of Credit”; the
terms defined therein and not otherwise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by ___________, as the
Series 2005-3 Letter of Credit Provider, in favor of The Bank of New York, as
the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Series 2005-3 Supplement thereto (the
“Series
2005-3 Supplement”), dated
as of April 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent, the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent (the “Indenture”).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Series 2005-3 Letter of Credit Provider as follows:
1. [
] is the
Trustee under the Indenture.
2. The
Trustee is making a drawing under the Series 2005-3 Letter of Credit as required
by Section
3.8[(b)][(c)] of the
Series 2005-3 Supplement in an amount equal to $___________ (the “Termination
Disbursement”), which
amount is equal to the lesser of (i) the greater of (A) the excess, if any, of
the Series 2005-3 Required Enhancement Amount over the Series 2005-3 Enhancement
Amount, excluding the Letter of Credit Amount as in effect on the date of this
certificate and (B) the excess, if any, of the Series 2005-3 Required Liquidity
Amount over the Series 2005-3 Liquidity Amount, excluding the Letter of Credit
Amount on the date of this certificate and (ii) the Letter of Credit Amount as
in effect on the date of this certificate.
3. You are
requested to deliver an amount equal to the Termination Disbursement pursuant to
the following instructions:
[Insert
payment instructions for wire to the
Trustee
and payment date]
|
Annex
C
Page
2 |
4. The
Trustee acknowledges that, pursuant to the terms of the Series 2005-3 Letter of
Credit, upon the Series 2005-3 Letter of Credit Provider’s honoring in full the
draw amount set forth in this certificate, the Letter of Credit Amount shall be
automatically reduced by an amount equal to the amount paid by the Series 2005-3
Letter of Credit Providers in respect of such draw.
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of ________________, ___.
|
[________________________]
as Trustee
By: ________________________
Name:
Title: |
|
By: ________________________
Name:
Title:
|
ANNEX
D
CERTIFICATE
OF TERMINATION DATE DEMAND
[Series
2005-3 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Termination Date Demand under the Irrevocable Letter of Credit No.
[ ] (the
“Series
2005-3 Letter of Credit”; the
terms defined therein and not other-wise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by _______________, as
the Series 2005-3 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Series 2005-3 Supplement thereto (the
“Series
2005-3 Supplement”), dated
as of April 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent, the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent (the “Indenture”).
The
undersigned, a duly authorized officer of the Trustee, hereby certifies to the
Series 2005-3 Letter of Credit Provider as follows:
1. [
] is the
Trustee under the Indenture.
2. The
Trustee is making a drawing under the Series 2005-3 Letter of Credit as required
by Section
3.8(j) of the
Series 2005-3 Supplement in an amount equal to $_________ (the “Termination
Date Disbursement”), which
amount is equal to the lesser of (i) the product of (A) the Series 2005-3 Letter
of Credit Provider’s Pro Rata Share as of the date hereof and (B) the excess of
the Series 2005-3 Demand Note Payment Amount over the Series 2005-3 Available
Reserve Account Amount (prior to giving effect to any transfer to the Series
2005-3 Cash Collateral Account pursuant to Section
3.8(j) of the
Series 2005-3 Supplement) on such date and (ii) the Letter of Credit Amount as
in effect on the date of this certificate.
3. Concurrently
with the draw being demanded hereby, the undersigned is making a draw under each
of the other Series 2005-3 Letters of Credit in an amount
equal to the related other Series 2005-3 Letter of Credit Providers’ Pro Rata
Share of the Series 2005-3 Demand Note Payment Amount.
4. You are
requested to deliver an amount equal to the Termination Date Disbursement
pursuant to the following instructions:
[insert
payment instructions for wire to the
Trustee
and payment date]
|
Annex
D
Page
2 |
5. The
Trustee acknowledges that, pursuant to the terms of the Series 2005-3 Letter of
Credit, upon the Series 2005-3 Letter of Credit Provider’s honoring in full the
draw amount set forth in this certificate, the Letter of Credit Amount shall be
automatically reduced to zero and the Series 2005-3 Letter of Credit shall
terminate and be immediately returned to the Series 2005-3 Letter of Credit
Provider.
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of ________________, ___.
|
[________________________]
as Trustee
By: ________________________
Name:
Title: |
|
By: ________________________
Name:
Title:
|
ANNEX
E
CERTIFICATE
OF REINSTATEMENT OF LETTER OF CREDIT AMOUNT
[Series
2005-3 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Reinstatement of Letter of Credit Amount under the Irrevocable Letter of
Credit No. [ ] (the
“Series
2005-3 Letter of Credit”; the
terms defined therein and not otherwise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by _______________, as
the Series 2005-3 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (in such capacity, the “Trustee”), under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
Issuer, as supplemented by that certain Series 2005-3 Supplement thereto, dated
as of April 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent, the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent.
The
undersigned, a duly authorized officer of Cendant Corporation (“Cendant”),
hereby certifies to the Series 2005-3 Letter of Credit Provider as
follows:
1. As of the
date of this certificate, the Series 2005-3 Letter of Credit Provider has been
reimbursed by [ ] in the
amount of $[] (the
“Reimbursement
Amount”) in
respect of the [Lease Deficit Demand] [Unpaid Demand Note Demand] made on
____________, ____.
2. Cendant
hereby notifies you that, pursuant to the terms and conditions of the Series
2005-3 Letter of Credit, the Letter of Credit Amount of the Series 2005-3 Letter
of Credit Provider is hereby reinstated in the amount of $[] (the
“Reinstatement Amount”) [NOT TO EXCEED REIMBURSEMENT AMOUNT] so that the Letter
of Credit Amount of the Series 2005-3 Letter of Credit Provider after taking
into account such reinstatement is in an amount equal to $[] [NOT TO
EXCEED MAXIMUM AMOUNT OF LETTER OF CREDIT PRIOR TO DRAWING].
3. As of the
date of this Certificate, no Event of Bankruptcy with respect to Cendant, any
Lessee or any Permitted Sublessee has occurred and is continuing. “Event
of Bankruptcy”, with
respect to Cendant, any Lessee or any Permitted Sublessee, means (a) a case or
other proceeding shall be commenced, without the appli-cation or consent of such
Person, in any court, seeking the liquidation, reorganization, debt arrangement,
dissolution, winding up, or composition or readjustment of debts of such Person,
the appointment of a trustee, receiver, custodian, liquidator, assignee,
seques-trator or the like for such Person or all or any substantial part of its
assets, or any similar action with respect to such Person under
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Annex
E
Page
2 |
any law
relating to bankruptcy, insolv-ency, reorganization, winding up or composition
or adjustment of debts, and such case or proceeding shall continue undismissed,
or unstayed and in effect, for a period of 60 consecu-tive days; or an order for
relief in respect of such Person shall be entered in an involuntary case under
the federal bankruptcy laws or other similar laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other proceeding under any
applicable bankruptcy, insolvency, reorganization, debt arrange-ment,
dissolution or other similar law now or hereafter in effect, or shall consent to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) for such Person or
for any substantial part of its property, or shall make any general assignment
for the benefit of creditors; or (c) the board of directors of such Person (if
such Person is a corporation or similar entity) shall vote to implement any of
the actions set forth in clause (b) above.
IN
WITNESS WHEREOF, Cendant has executed and delivered this certificate on this ___
day of _____________, ___.
|
CENDANT CORPORATION
By: ________________________
Name:
Title: |
Acknowledged
and Agreed:
The
undersigned hereby acknowledges receipt of the Reimbursement Amount (as defined
above) in the amount set forth above and agrees for the benefit of the Trustee
that the undersigned’s Letter of Credit Amount is in an amount equal to
$__________ as of the date hereof after taking into account the reinstatement of
the undersigned’s Letter of Credit Amount by an amount equal to the
Reinstatement Amount.
[Series
2005-3 Letter of Credit Provider]
By: ________________________
Name:
Title:
ANNEX
F
CERTIFICATE
OF TERMINATION
[Series
2005-3 Letter of Credit Provider]
[Address]
Attention:
[ ]
Certificate
of Termination of Letter of Credit Amount under the Irrevocable Letter of Credit
No. [ ] (the
“Series
2005-3 Letter of Credit”; the
terms defined therein and not otherwise defined herein being used herein as
therein defined), dated as of __________ __, 200_, issued by _______________, as
the Series 2005-3 Letter of Credit Provider, in favor of The Bank of New York,
as the trustee (the “Trustee”) under
that certain Second Amended and Restated Base Indenture, dated as of June 3,
2004, between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly
known as AESOP Funding II L.L.C.) (“CRCF”), as
supplemented by that certain Series 2005-3 Supplement thereto (the “Series
2005-3 Supplement”), dated
as of April 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent, the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent (the “Indenture”).
The
undersigned, duly authorized officers of the Trustee, hereby certify to the
Series 2005-3 Letter of Credit Provider as follows:
1. [
] is the
Trustee under the Indenture.
2. As of the
date of this certificate, the Series 2005-3 Letter of Credit Termination Date
has occurred under the Series 2005-3 Supplement.
3. The
Trustee hereby notifies the Series 2005-3 Letter of Credit Provider that as a
result of the occurrence of the Series 2005-3 Letter of Credit Termination Date,
the undersigned is returning the Series 2005-3 Letter of Credit Provider’s
Series 2005-3 Letter of Credit to the Series 2005-3 Letter of Credit
Provider.
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Annex
F
Page
2 |
IN
WITNESS WHEREOF, the Trustee has executed and delivered this certificate on this
____ day of_________________.
|
[________________________]
as Trustee
By: ________________________
Name:
Title: |
|
By: ________________________
Name:
Title:
|
ANNEX
G
INSTRUCTION
TO TRANSFER
______________
__, ____
[Series
2005-3 Letter of Credit Provider]
[Address]
Attention:
[ ]
Re: Irrevocable
Letter of Credit No. [ ]
Ladies
and Gentlemen:
For value
received, the undersigned beneficiary hereby irrevocably transfers
to:
________________________________
(Name of
Transferee]
________________________________
[Address]
all
rights of the undersigned beneficiary to draw under the above-captioned Series
2005-3 Letter of Credit (the “Series
2005-3 Letter of Credit”) issued
by the Series 2005-3 Letter of Credit Provider named therein in favor of the
undersigned. The transferee has succeeded the under-signed as Trustee under that
certain Second Amended and Restated Base Indenture, dated as of June 3, 2004,
between the Trustee and Cendant Rental Car Funding (AESOP) LLC (formerly known
as AESOP Funding II L.L.C.) (“CRCF”), as
supplemented by that certain Series 2005-3 Supplement thereto, dated as of April
29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent, the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent.
By this
transfer, all rights of the undersigned beneficiary in the Series 2005-3 Letter
of Credit are transferred to the transferee and the transferee shall hereafter
have the sole rights as beneficiary thereof; provided,
however, that no
rights shall be deemed to have been transferred to the transferee until such
transfer complies with the requirements of the Series 2005-3 Letter of Credit
pertaining to transfers.
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Annex
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The
Series 2005-3 Letter of Credit is returned herewith and in accordance therewith
we ask that this transfer be effective and that the Series 2005-3 Letter of
Credit Provider transfer the Series 2005-3 Letter of Credit to our transferee or
that, if so requested by the transferee, the Series 2005-3 Letter of Credit
Provider issue a new irrevocable letter of credit in favor of the transferee
with provisions consistent with the Series 2005-3 Letter of Credit.
|
[________________________]
as Trustee
By: ________________________
Name:
Title: |
|
By: ________________________
Name:
Title:
|
|
EXHIBIT
F
to
Series
2005-3
Supplement |
FORM OF
LEASE PAYMENT DEFICIT NOTICE
[DATE]
The Bank
of New York, as Trustee
c/o BNY
Midwest Company
2 North
LaSalle Street, 10th
Floor
Chicago,
IL 60602
Attn:
Corporate Trust Officer
Reference
is made to that certain Second Amended and Restated Base Indenture, dated as of
June 3, 2004, between The Bank of New York, as Trustee (in such capacity, the
“Trustee”) and
Cendant Rental Car Funding (AESOP) LLC (“CRCF”), as
Issuer, as supplemented by that certain Series 2005-3 Supplement thereto (the
“Series
2005-3 Supplement”), dated
as of April 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent, the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent. Capitalized terms used
herein and not defined herein have the meanings set forth in the Series 2005-3
Supplement.
Pursuant
to Section
3.3(c) of the
Series 2005-3 Supplement, Cendant Car Rental Group, Inc., in its capacity as
Administrator under the Series 2005-3 Supplement and the Related Documents,
hereby provides notice of a Series 2005-3 Lease Payment Deficit in the amount of
$[ ].
CENDANT
CAR RENTAL GROUP, INC.
By_____________________________
Name:
Title:
|
EXHIBIT
G
to
Series
2005-3
Supplement |
FORM OF
DEMAND NOTICE
[DATE]
[Insert
Demand Note Issuer]
Ladies
and Gentlemen:
Reference
is made to that certain Second Amended and Restated Base Indenture, dated as of
June 3, 2004, between Cendant Rental Car Funding (AESOP) LLC (“CRCF”), as
Issuer, and The Bank of New York, as Trustee (in such capacity, the “Trustee”),
as supplemented by that certain Series 2005-3 Supplement thereto (the
“Series
2005-3 Supplement”), dated
as of April 29, 2005, among CRCF, as Issuer, Cendant Car Rental Group, Inc., as
Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent, the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent. Capitalized terms used
herein and not defined herein have the meanings set forth in the Series 2005-3
Supplement.
Pursuant
to Section
3.5[(c)(iii)][(d)(ii)] of the
Series 2005-3 Supplement, the Trustee under the Series 2005-3 Supplement hereby
makes a demand for payment on the Series 2005-3 Demand Notes in the amount of
$[ ].
THE BANK
OF NEW YORK, as Trustee
By_____________________________
Name:
Title:
|
EXHIBIT
H
to
Series
2005-3
Supplement |
[FORM OF
TRANSFER SUPPLEMENT]
TRANSFER
SUPPLEMENT, dated as of ____________, ____ among [NAME OF APA BANK] (the
“Transferor”), each
purchaser listed as an Acquiring APA Bank on the signature pages hereof (each,
an “Acquiring
APA Bank”), each
Funding Agent with respect to each such Acquiring APA Bank listed in the
signature pages hereof (each, a “Funding
Agent”),
Cendant Rental Car Funding (AESOP) LLC, a Delaware limited liability company
(the “Company”) and
Deutsche Bank AG, New York Branch, as Administrative Agent (in such capacity,
the “Administrative
Agent”) and
Cendant Car Rental Group, Inc., as Administrator (the “Administrator”).
W I T
N E S S E T H:
WHEREAS,
this Transfer Supplement is being executed and delivered in accordance with
Section
11.1(c) of the
Series 2005-3 Supplement, dated as of April 29, 2005 (as may from time to time
be amended, supplemented or otherwise modified in accordance with the terms
thereof, the “Series
2005-3 Supplement”; terms
defined therein being used herein as therein defined), among the Company, the
Administrator, the CP Conduit Purchasers, the Funding Agents and the APA Banks
named therein, the Administrative Agent and The Bank of New York, as trustee (in
such capacity, the “Trustee”) and as
Series 2005-3 Agent, to the Second Amended and Restated Base Indenture, dated as
of June 3, 2004 (as may from time to time be amended, supplemented or otherwise
modified in accordance with the terms thereof, the “Base
Indenture” and the
Base Indenture as supplemented by the Series 2005-3 Supplement, the
“Indenture”),
between the Company and the Trustee;
WHEREAS,
each Acquiring APA Bank (if it is not already an existing APA Bank) wishes to
become an APA Bank party to the Series 2005-3 Supplement; and
WHEREAS,
the Transferor is selling and assigning to each Acquiring APA Bank, rights,
obligations and commitments under the Series 2005-3 Supplement and the Series
2005-3 Notes;
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. Upon the
execution and delivery of this Transfer Supplement by each Acquiring APA Bank,
each Funding Agent, the Transferor, the Company, the Administrator and the
Administrative Agent (the date of such execution and delivery, the “Transfer
Issuance Date”), each
Acquiring APA Bank shall be an APA Bank party to the Series 2005-3 Supplement
for all purposes thereof.
2. The
Transferor acknowledges receipt from each Acquiring APA Bank of an amount equal
to the purchase price, as agreed between the Transferor and such Acquiring APA
Bank (the “Purchase
Price”), of
the portion being purchased by such Acquiring APA Bank (such Acquiring APA
Bank’s “Purchased
Percentage”) of the
Transferor’s Commitment under the Series 2005-3 Supplement [ADD IF APPLICABLE:
and the Transferor’s Purchaser Group Invested Amount]. The Transferor hereby
irrevocably sells, assigns and transfers to each
|
EXHIBIT
H
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Acquiring
APA Bank, without recourse, representation or warranty, and each Acquiring APA
Bank hereby irrevocably purchases, takes and assumes from the Transferor, such
Acquiring APA Bank’s Purchased Percentage of the Transferor’s Commitment under
the Series 2005-3 Supplement [ADD IF APPLICABLE: and the Transferor’s Purchaser
Group Invested Amount].
3. The
Transferor has made arrangements with each Acquiring APA Bank with respect to
(i) the portion, if any, to be paid, and the date or dates for payment, by the
Transferor to such Acquiring APA Bank of any Commitment Fees heretofore received
by the Transferor pursuant to the Series 2005-3 Supplement prior to the Transfer
Issuance Date and (ii) the portion, if any, to be paid, and the date or dates
for payment, by such Acquiring APA Bank to the Transferor of Commitment Fees or
Series 2005-3 Monthly Interest received by such Acquiring APA Bank pursuant to
the Series 2005-3 Supplement from and after the Transfer Issuance
Date.
4. From and
after the Transfer Issuance Date, amounts that would otherwise by payable to or
for the account of the Transferor pursuant to the Series 2005-3 Supplement
shall, instead, be payable to or for the account of the Transferor and the
Acquiring APA Banks, as the case may be, in accordance with their respective
interests as reflected in this Transfer Supplement, whether such amounts have
accrued prior to the Transfer Issuance Date or accrue subsequent to the Transfer
Issuance Date.
5. Each of
the parties to this Transfer Supplement agrees that at any time and from time to
time upon the written request of any other party, it will execute and deliver
such further documents and do such further acts and things as such other party
may reasonably request in order to effect the purposes of this Transfer
Supplement.
6. By
executing and delivering this Transfer Supplement, the Transferor and each
Acquiring APA Bank confirm to and agree with each other and the APA Banks as
follows: (i) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free and clear of any
adverse claim, the Transferor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Series 2005-3 Supplement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Indenture, the Series 2005-3 Notes, the Related Documents or any instrument or
document furnished pursuant thereto; (ii) the Transferor makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Company or the performance or observance by the Company of any
of the Company’s obligations under the Indenture, the Related Documents or any
other instrument or document furnished pursuant hereto; (iii) each Acquiring APA
Bank confirms that it has received a copy of the Indenture and such other
Related Documents and other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Transfer Supplement; (iv) each Acquiring APA Bank will, independently and
without reliance upon the Administrative Agent, the Transferor or any other
Purchaser Group and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Indenture; (v) each Acquiring APA Bank appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Series 2005-3 Supplement as are delegated
to the Administrative Agent by the
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EXHIBIT
H
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terms
thereof, together with such powers as are reasonably incidental thereto, all in
accordance with Article IX of the Series 2005-3 Supplement; (vi) each Acquiring
APA Bank appoints and authorizes a Funding Agent to take such action as agent on
its behalf and to exercise such powers under the Series 2005-3 Supplement as are
delegated to such Funding Agent by the terms thereof, together with such powers
as are reasonably incidental thereto, all in accordance with Article X of the
Series 2005-3 Supplement; (vii) each Acquiring APA Bank agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Indenture are required to be performed by it as an Acquiring APA Bank and
(viii) each Acquiring APA Bank confirms that it is an Eligible
Assignee.
7. Schedule
I hereto sets forth the revised Commitment Percentages of the Transferor and
each Acquiring APA Bank as well as administrative information with respect to
each Acquiring APA Bank and its Funding Agent.
8. This
Transfer Supplement shall be governed by, and construed in accordance with, the
laws of the State of New York.
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IN
WITNESS WHEREOF, the parties hereto have caused this Transfer Supplement to be
executed by their respective duly authorized officers as of the date first set
forth above.
[NAME OF
SELLING APA BANK], as
Transferor
By:______________________________
Title:
[NAME OF
ACQUIRING APA BANK], as
Acquiring
APA Bank
By:______________________________
Title:
[NAME OF
FUNDING AGENT FOR
ACQUIRING
APA BANK], as
Funding
Agent
By:______________________________
Title:
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EXHIBIT
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CONSENTED
AND ACKNOWLEDGED:
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
By:
_______________________________
Title:
CENDANT
CAR RENTAL GROUP, INC.,
as
Administrator
By:
_______________________________
Title:
DEUTSCHE
BANK AG, NEW YORK BRANCH,
as
Administrative Agent
By:
_______________________________
Title:
By:
_______________________________
Title:
|
SCHEDULE
I
|
LIST OF
ADDRESSES FOR NOTICES
AND OF
COMMITMENT PERCENTAGES
DEUTSCHE
BANK AG, NEW YORK BRANCH, as
Administrative
Agent
_________________________________
_________________________________
New York,
New York
Attention:
Telecopier:
[TRANSFEROR]
Address:
Prior
Commitment Percentage:
Revised
Commitment Percentage:
Prior
Purchaser Group Invested Amount:
Revised
Purchaser Group Invested Amount:
| [ACQUIRING APA BANK] | [FUNDING AGENT] | |
| Address: | Address: |
[Prior]
Commitment Percentage:
[Revised
Commitment Percentage:]
[Prior
Purchaser Group Invested Amount]
[Revised]
Purchaser Group Invested Amount:
|
EXHIBIT
I
to
Series
2005-3
Supplement |
[FORM OF
PURCHASER GROUP SUPPLEMENT]
PURCHASER
GROUP SUPPLEMENT, dated as of _____________, ____ among [NAME OF CP CONDUIT
PURCHASER] and [NAME OF APA BANK] (collectively, the “Transferor
Purchaser Group”), the
CP Conduit Purchaser and the APA Bank or APA Banks listed on the signature pages
hereof (collectively, the “Acquiring
Purchaser Group”), the
Funding Agent with respect to such Acquiring Purchaser Group listed in the
signature pages hereof (each, a “Funding
Agent”),
CENDANT
RENTAL CAR FUNDING (AESOP) LLC, a
Delaware limited liability company (the “Company”),
DEUTSCHE BANK AG, NEW YORK BRANCH, as Administrative Agent (in such capacity,
the “Administrative
Agent”) and
CENDANT CAR RENTAL GROUP, INC., as Administrator (the “Administrator”).
W I T
N E S S E T H:
WHEREAS,
this Purchaser Group Supplement is being executed and delivered in accordance
with Section
11.1(e) of the
Series 2005-3 Supplement, dated as of April 29, 2005 (as may from time to time
be amended, supplemented or otherwise modified in accordance with the terms
thereof, the “Series
2005-3 Supplement”; terms
defined therein being used herein as therein defined), among the Company, the
Administrator, the CP Conduit Purchasers, the Funding Agents and the APA Banks
from time to time parties thereto, the Administrative Agent and The Bank of New
York, as trustee (in such capacity, the “Trustee”) and as
Series 2005-3 Agent, to the Second Amended and Restated Base Indenture, dated as
of June 3, 2004 (as may from time to time be amended, supplemented or otherwise
modified in accordance with the terms thereof, the “Base
Indenture” and,
the Base Indenture as supplemented by the Series 2005-3 Supplement, the
“Indenture”),
between the Company and the Trustee;
WHEREAS,
the Acquiring Purchaser Group wishes to become a CP Conduit Purchaser and the
APA Banks with respect to such CP Conduit Purchaser; and
WHEREAS,
the Transferor Purchaser Group is selling and assigning to the Acquiring
Purchaser Group its respective rights, obligations and commitments under the
Series 2005-3 Supplement and the Series 2005-3 Notes;
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. Upon the
execution and delivery of this Purchaser Group Supplement by the Acquiring
Purchaser Group, the Funding Agent with respect thereto, the Transferor
Purchaser Group, the Company, the Administrator and the Administrative Agent
(the date of such execution and delivery, the “Transfer
Issuance Date”), the
CP Conduit Purchaser and the APA Banks with respect to such Acquiring Purchaser
Group shall be parties to the Series 2005-3 Supplement for all purposes
thereof.
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2. The
Transferor Purchaser Group acknowledges receipt from the Acquiring Purchaser
Group of an amount equal to the purchase price, as agreed between the Transferor
Purchaser Group and such Acquiring Purchaser Group (the “Purchase
Price”), of
the portion being purchased by such Acquiring Purchaser Group (such Acquiring
Purchaser Group’s “Purchased
Percentage”) of the
Commitment Amount with respect to the APA Banks included in the Transferor
Purchaser Group under the Series 2005-3 Supplement [ADD IF APPLICABLE: and the
Transferor Purchaser Group’s Purchaser Group Invested Amount]. The Transferor
Purchaser Group hereby irrevocably sells, assigns and transfers to the Acquiring
Purchaser Group, without recourse, representation or warranty, and the Acquiring
Purchaser Group hereby irrevocably purchases, takes and assumes from the
Transferor Purchaser Group, such Acquiring Purchaser Group’s Purchased
Percentage of the Commitment with respect to the APA Banks included in the
Transferor Purchaser Group under the Series 2005-3 Supplement [ADD IF
APPLICABLE: and the Transferor Purchaser Group’s Purchaser Group Invested
Amount].
3. The
Transferor Purchaser Group has made arrangements with the Acquiring Purchaser
Group with respect to (i) the portion, if any, to be paid, and the date or dates
for payment, by the Transferor Purchaser Group to such Acquiring Purchaser Group
of any Commitment Fees heretofore received by the Transferor Purchaser Group
pursuant to the Series 2005-3 Supplement prior to the Transfer Issuance Date and
(ii) the portion, if any, to be paid and the date or dates for payment, by such
Acquiring Purchaser Group to the Transferor Purchaser Group of Commitment Fees
or Series 2005-3 Monthly Interest received by such Acquiring Purchaser Group
pursuant to the Series 2005-3 Supplement from and after the Transfer Issuance
Date.
4. From and
after the Transfer Issuance Date, amounts that would otherwise by payable to or
for the account of the Transferor Purchaser Group pursuant to the Series 2005-3
Supplement shall, instead, be payable to or for the account of the Transferor
Purchaser Group and the Acquiring Purchaser Group, as the case may be, in
accordance with their respective interests as reflected in this Purchaser Group
Supplement, whether such amounts have accrued prior to the Transfer Issuance
Date or accrue subsequent to the Transfer Issuance Date.
5. Each of
the parties to this Purchaser Group Supplement agrees that at any time and from
time to time upon the written request of any other party, it will execute and
deliver such further documents and do such further acts and things as such other
party may reasonably request in order to effect the purposes of this Purchaser
Group Supplement.
6. By
executing and delivering this Purchaser Group Supplement, the Transferor
Purchaser Group and the Acquiring Purchaser Group confirm to and agree with each
other as follows: (i) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free and clear
of any adverse claim, the Transferor Purchaser Group makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Series 2005-3
Supplement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Indenture, the Series 2005-3 Notes, the Related
Documents or any instrument or document furnished pursuant thereto; (ii) the
Transferor Purchaser Group makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Company or the
performance or observance by the Company of any of the Company’s obligations
under the
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EXHIBIT
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Indenture,
the Related Documents or any other instrument or document furnished pursuant
hereto; (iii) the Acquiring Purchaser Group confirms that it has received a copy
of the Indenture and such other Related Documents and other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Purchaser Group Supplement; (iv) the Acquiring
Purchaser Group will, independently and without reliance upon the Administrative
Agent, the Transferor Purchaser Group or any other Person and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the
Indenture; (v) the Acquiring Purchaser Group appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Series 2005-3 Supplement as are delegated to the
Administrative Agent by the terms thereof together with such powers as are
reasonably incidental thereto, all in accordance with Article IX of the Series
2005-3 Supplement; (vi) each member of the Acquiring Purchaser Group appoints
and authorizes the Funding Agent to take such action as agent on its behalf and
to exercise such powers under the Series 2005-3 Supplement as are delegated to
such Funding Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Article X of the Series
2005-3 Supplement; (vii) each member of the Acquiring Purchaser Group agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the Indenture are required to be performed by it as a member of
the Acquiring Purchaser Group and (viii) each member of the Acquiring Purchaser
Group confirms that it is an Eligible Assignee.
7. Schedule
I hereto sets forth the revised Commitment Percentages of the Transferor
Purchaser Group and each Acquiring Purchaser Group as well as administrative
information with respect to the Acquiring Purchaser Group and its Funding
Agent.
8. This
Purchaser Group Supplement shall be governed by, and construed in accordance
with, the laws of the State of New York.
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IN
WITNESS WHEREOF, the parties hereto have caused this Purchaser Group Supplement
to be executed by their respective duly authorized officers as of the date first
set forth above.
[NAME OF
SELLING CP CONDUIT
PURCHASER],
as
Transferor
Purchaser Group
By:
____________________________
Title:
[NAME OF
SELLING APA BANK], as
Transferor
Purchaser Group
By:
____________________________
Title:
[NAME OF
ACQUIRING CP CONDUIT
PURCHASER],
as
Acquiring
Purchaser Group
[NAME OF
ACQUIRING APA BANK],
as
Acquiring Purchaser Group
By:
____________________________
Title:
[NAME OF
FUNDING AGENT FOR
ACQUIRING
PURCHASER GROUP], as Funding
Agent
By:
____________________________
Title:
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CONSENTED
AND ACKNOWLEDGED:
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
By:
____________________________________
Title:
CENDANT
CAR RENTAL GROUP, INC.,
as
Administrator
By:
____________________________________
Title:
DEUTSCHE
BANK AG, NEW YORK BRANCH,
as
Administrative Agent
By:
____________________________________
Title:
By:
____________________________________
Title:
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to
Series
2005-3
Supplement |
FORM
OF INTEREST RATE CAP AGREEMENT
FORM OF
SCHEDULE
to
the
Master
Agreement
(Multicurrency-Cross
Border)
dated as
of
[_______]
between
[_______]
(“Party
A”)
and
CENDANT
RENTAL CAR FUNDING (AESOP) LLC, a
limited liability company
organized
under the laws of Delaware
(“Party
B”)
Part
1
Definitions
Reference
is hereby made to that certain Second Amended and Restated Base Indenture (as
the same may be amended from time to time, the “Base
Indenture”), dated
as of June 3, 2004, between Party B, as Issuer and The Bank of New York, as
Trustee (in such capacity, the “Trustee”), and
the Series 2005-3 Supplement to the Base Indenture (as the same may be amended
from time to time, the “Series
2005-3 Supplement” and,
together with the Base Indenture, the “Indenture”), dated
as of April 29, 2005, among Party B, as Issuer, Cendant Car Rental Group, Inc.,
as Administrator, Deutsche Bank AG, New York Branch, as Administrative Agent
(the “Administrative
Agent”), the
CP Conduit Purchasers, the Funding Agents and the APA Banks named therein, the
Trustee and The Bank of New York, as Series 2005-3 Agent. For the avoidance of
doubt, references herein to a particular “Section” of this Agreement are
references to the corresponding sections of the Master Agreement (the
“Master
Agreement”), dated
the date hereof, between Party A and Party B, relating to the Series 2005-3
Notes. Any terms used herein which are not defined in the Master Agreement shall
have the meaning given to them in the Base Indenture or the Series 2005-3
Supplement, as applicable. In the event of any inconsistency between the terms
of the Master Agreement and the terms of the Base Indenture or the Series 2005-3
Supplement, as applicable, the terms of the Master Agreement shall govern. Any
Transaction entered into hereunder shall constitute a Series 2005-3 Interest
Rate Cap.
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Termination
Provisions
In this
Agreement:
(a) “Specified
Entity” means in
relation to Party A for the purpose of:
|
Section 5(a)(v),
Section 5(a)(vi),
Section 5(a)(vii),
Section 5(b)(ii),
Section 5(b)(iv),
|
Not Applicable
Not Applicable
Not Applicable
Not Applicable
Not Applicable |
in
relation to Party B for the purpose of:
|
Section 5(a)(v),
Section 5(a)(vi),
Section 5(a)(vii),
Section 5(b)(ii),
Section 5(b)(iv),
|
Not Applicable
Not Applicable
Not Applicable
Not Applicable
Not Applicable |
(b) “Specified
Transaction” will
have the meaning specified in Section 14 of this Agreement.
(c) The
Events
of Default
specified under Sections 5(a)(ii), 5(a)(iii), 5(a)(iv), 5(a)(v) and 5(a)(vi) of
the Agreement will not apply to Party B.
The
“Cross-Default” provisions of Section 5(a)(vi) (as amended in Part 5 hereof)
shall apply to Party A.
In
connection therewith, “Specified Indebtedness” will have the meaning specified
in Section 14 of this Agreement, except that such term shall not include
obligations in respect of deposits received in the ordinary course of a party’s
banking business.
“Threshold
Amount” means, with respect to Party A, an amount equal to four percent of the
Shareholders’ Equity of Party A.
“Shareholders’
Equity” means with respect to an entity, at any time, the sum (as shown in the
most recent annual audited financial statements of such entity) of (i) its
capital stock (including preferred stock) outstanding, taken at par value, (ii)
its capital surplus and (iii) its retained earnings, minus (iv) treasury stock,
each to be determined in accordance with generally accepted accounting
principles.
(d)
(i)
The
“Credit
Event Upon Merger”
provisions of Section 5(b)(iv) will not apply to Party A and Party
B.
(ii) The
provisions of Sections 5(b)(ii) and 5(b)(iii) will not apply to Party
B.
(e)
The
“Automatic
Early Termination”
provision of Section 6(a) will not apply to either Party A or to
Party B.
(f)
Payments
on Early Termination. For the
purpose of Section 6(e) of this Agreement:
(i)
Market
Quotation will apply.
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(ii)
The
Second Method will apply.
(g) “Termination
Currency” means
United States Dollars.
(h) Additional
Termination Event.
(i)
Amendments
Made Without Consent of Party A. It
shall be an Additional Termination Event if any amendment and/or supplement to
the Indenture or any other Related Document is made without the prior written
consent of Party A (such consent not to be unreasonably withheld), if such
amendment and/or supplement would: (a) adversely affect any of Party A’s rights
or obligations under this Agreement with respect to the receipt of payment(s);
or (b) modify the obligations of, or impair the ability of, Party B to fully
perform any of Party B’s payment obligations under this Agreement. In connection
with such Additional Termination Event, Party B shall be the sole Affected
Party.
(i) Downgrade
of Party A.
If Party
A does not have at any time (i) a short-term senior unsecured debt, deposit,
credit, claims paying or other similar rating of at least “A-1” from Standard
& Poor’s Ratings Service or any successor thereto (“Standard
& Poor’s”) or a
long-term senior unsecured debt, deposit, credit, claims paying or other similar
rating of at least “BBB+” from Standard & Poor’s and (ii) a short-term
senior unsecured debt, deposit, credit, claims paying or other similar rating of
“P-1” from Moody’s Investors Service, Inc. or any successor thereto
(“Moody’s”) or a
long-term senior unsecured debt, deposit, credit, claims paying or other similar
rating of at least “Baa1” from Moody’s, it shall be an Additional Termination
Event if Party A fails at its own expense within 30 days to take one of the
actions described in clauses (A), (B), (C) or (D) below:
|
(A) |
obtain
a replacement interest rate cap agreement on substantially the same terms
as the Transaction which this Agreement governs from a Qualified Interest
Rate Cap Counterparty (as defined below);
or |
|
(B) |
collateralize
its obligations with Permitted Investments (as defined in the Base
Indenture) under the Transaction which this Agreement governs pursuant to
a Credit Support Annex in an amount equal to the greater of (A) zero and
(B) the sum of (1) Party B’s marked-to-market value of the Transaction
which this Agreement governs (calculated in accordance with the Standard
& Poor’s Hedge Marking Procedures (defined below)) and (2) the product
of the Volatility Buffer Percentage (as defined below) and the then
current Notional Amount of the Transaction which this Agreement governs
and provide an opinion of counsel, subject to customary assumptions and
qualifications, stating in substance that in the event of a bankruptcy,
insolvency, or receivership of Party A, Party B would not be prohibited
from enforcing Party A’s obligations against the collateral; provided,
that if at any time Party A does not have a long-term senior
unsecured debt, deposit, credit, claims paying or other similar rating of
at least “BBB+” from Standard & Poor’s) and of at least “Baa1” from
Moody’s, Party A must take one of the actions described in clauses
(A), (C) or (D) of this Part I, paragraph (i) and clause (B) of this Part
I, paragraph (i) shall no longer be
available; |
|
(C) |
obtain
a guaranty from, or contingent agreement of, another person who qualifies
as a Qualified Interest Rate Cap Counterparty to honor Party A’s
obligations hereunder in form and substance satisfactory (in the exercise
of its reasonable judgment) to the Required Noteholders;
or |
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(D) |
enter
into any other arrangement which is sufficient to maintain or restore the
immediately prior rating; |
provided,
however, that no
termination of any Transaction shall occur pursuant to clause (A) or (D) until
Party B has entered into a replacement interest rate cap agreement with a
Qualified Interest Rate Cap Counterparty (as defined below).
In
connection with such Additional Termination Event, Party A shall be the sole
Affected Party.
“Qualified
Interest Rate Cap Counterparty” means a
counterparty to a Series 2005-3 Interest Rate Cap that is a bank or other
financial institution, which has, or which has all of its obligations under its
Series 2005-3 Interest Rate Cap guaranteed by a Person that has, (i) a
short-term senior, unsecured debt, deposit, claims paying or credit (as the case
may be) rating of at least “A-1”, or if such bank or financial institution or
Person does not have a short-term senior, unsecured debt rating, then a
long-term senior, unsecured debt, deposit, claims paying or credit (as the case
may be) rating of at least “A+”, in each case, from Standard & Poor’s and
(ii) a short-term senior, unsecured debt, deposit, claims paying or credit (as
the case may be) rating of “P-1”, or if such bank or financial institution or
Person does not have a short-term senior, unsecured debt rating, then a
long-term senior, unsecured debt, deposit, claims paying or credit (as the case
may be) rating of at least “A1”, in each case, from Moody’s.
“Standard
& Poor’s Hedge Marking Procedures” means
marking-to-market the collateral posted by Party A once a week using Party A’s
internal mark-to-market valuations; provided, that
the marked-to-market value of the collateral must be verified monthly by an
independent mark which shall be equal to the higher of two bids received from
Qualified Interest Rate Cap Counterparties capable of replacing the Transaction
which this Agreement governs; provided,
further, such
independent mark may not have a verifying mark from the same third-party
Qualified Interest Rate Cap Counterparty more than 4 times in any 12 month
period.
“Volatility
Buffer Percentage” means
(i) for so long as Party A has a short-term senior unsecured debt, deposit,
credit, claims paying or other similar rating of at least “A-2” from Standard
& Poor’s, 3.25%, (ii) for so long as Party A has a short-term senior
unsecured debt, deposit, credit, claims paying or other similar rating of at
least “A-3” from Standard & Poor’s, 4.00%, and (iii) for so long as
Party A has a long-term senior unsecured debt, deposit, credit, claims
paying or other similar rating of at least “BB+” or lower from Standard &
Poor’s, 4.50%.
Party A
agrees that if Party B has a right to designate an Early Termination Date
pursuant to this Part I, paragraph (i), then, upon the request of Party B, Party
A shall use reasonable efforts to procure a replacement interest rate cap at its
own expense (and at no expense to Party B) with a cap counterparty that is a
Qualified Interest Rate Cap Counterparty on substantially the same terms as this
Agreement, or else with such amendments to the terms of this Agreement as have
been approved by Party B (in the exercise of its reasonable judgment). If a
replacement interest rate cap counterparty assumes the obligations hereunder or
a replacement interest rate cap is obtained at the expense of Party A, no
payments other than Unpaid Amounts shall be made by either Party A or Party B
pursuant to Section 6(e) of this Agreement.
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(j) No
Suspension of Payments.
Notwithstanding
Section 2(a)(iii) of this Agreement, Party A shall not suspend any payments due
under Section 2(a)(iii) of this Agreement unless an Early Termination Date in
respect of the relevant Transaction has occurred or has been
designated.
Part
2
Tax
Representations
| (a) |
Payer
Representations.
For the purpose of Section 3(e) of this Agreement, Party A and Party B
make the following representation: |
It is not
required by any applicable law, as modified by the practice of any relevant
governmental revenue authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from any payment (other
than interest under Section 2(e), 6(d)(ii), or 6(e) of this Agreement) to be
made by it to the other party under this Agreement. In making this
representation, it may rely on (i) the accuracy of any representations made by
the other party pursuant to Section 3(f) of this Agreement, (ii) the
satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this
Agreement, and the accuracy and effectiveness of any document provided by the
other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement, and
(iii) the satisfaction of the agreement of the other party contained in Section
4(d) of this Agreement, provided that it
shall not be a breach of this representation where reliance is placed on clause
(ii) and the other party does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or commercial
position.
| (b) |
Payee
Representations.
For the purpose of Section 3(f) of this Agreement, Party A and Party B
make the following representations: |
| (i) |
The
following representation applies to Party A: Party A is
[_________________]. |
| (ii) |
The
following representation applies to Party B: Party B is a limited
liability company organized under the laws of
Delaware. |
Part
3
Agreement
to Deliver Documents
For the
purpose of Section 4(a)(i) and (ii) of this Agreement, each Party agrees to
deliver the following documents as applicable:
(a) Tax
forms, documents or certificates to be delivered are:
|
Party
Required to deliver
Document |
Form/Document/Certificate |
Date
by which to be Delivered |
|
Party
A and Party B.
|
An
executed U.S. Internal Revenue Service Form W -9 or W-8EC1, as applicable,
(or any successor thereto).
|
(i)
Before the first Payment Date under this Agreement, (ii) promptly upon
reasonable demand and (iii) promptly upon learning that any such form
previously provided to Party A has become obsolete or
incorrect.
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(b) Other
documents to be delivered are:
Party
Required to deliver Document |
Form/Document/
Certificate |
Date
by which to be Delivered |
Covered
by Section 3(d) Representation |
|
Party
B.
|
Credit
Support Document, if any, specified in Part 4 of this Schedule, such
Credit Support Document being duly executed if required.
|
Concurrently
with the execution of this Agreement (or, in the case of the Series 2005-3
Supplement, upon execution).
|
Yes.
|
|
Party
B.
|
Copy
of each report delivered under the Indenture.
|
Upon
availability.
|
Yes.
|
|
Party
A/Party B.
|
Copy
of any form or document reasonably requested by the other party,
including, without limitation, any form or document required to enable
such other party to make payments hereunder without withholding for or on
account of any Tax or with such withholding at a reduced
rate.
|
As
soon as practicable following request.
|
No.
|
Part
4
Miscellaneous
(a) Addresses
for Notices: For the
purpose of Section 12(a) of this Agreement:
Address
for notices or communications to Party
A:
[_______________________]
[_______________________]
[_______________________]
Attention: [_______________________]
Facsimile
No.: [______________]
Telephone
No.: [______________]
(For all
purposes).
with a
copy to:
[_______________________]
[_______________________]
[_______________________]
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Address
for notices or communications to Party
B:
Cendant
Car Rental Group, Inc.,
1 Campus
Drive
Parsippany,
NJ 07054
Attention:
Treasury Operations
Facsimile
No.: 973-496-5852
Telephone
No.: 973-496-2795
with a
copy to:
[_______________________]
[_______________________]
[_______________________]
(For all
purposes).
(b) Process
Agent. For the
purpose of Section 13(c):
Party A
appoints as its Process Agent: Not
Applicable.
Party B
appoints as its Process Agent: Not
Applicable.
(c) Offices. The
provisions of Section 10(a) will apply to this Agreement.
(d)
Multibranch
Party. For the
purpose of Section 10(c) of this Agreement:
Party A
is [not] a Multibranch Party and for the purposes of this
Agreement.
Party B
is not a Multibranch Party.
(e)
Calculation
Agent. The
Calculation Agent is Party A, unless otherwise specified in a Confirmation in
relation to the relevant Transaction, and unless an Event of Default has
occurred (and is continuing) with respect to Party A, in which case a third
party shall be appointed by Party A with consent of Party B (such
consent not be unreasonably withheld or delayed).
(f)
Credit
Support Document. Details
of any Credit Support Document:
Party A:
Not Applicable; provided,
however, that in
the event Party A executes a Credit Support Annex (as contemplated in Part 1(i)
hereof), such Credit Support Annex shall be a Credit Support Document once
attached hereto and made a part hereof.
Party B:
Not Applicable.
(g) Credit
Support Provider.
Credit
Support Provider means in relation to Party A, [Not Applicable].
Credit
Support Provider means in relation to Party B, Not Applicable.
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(h)
Governing
Law. This
Agreement, each Credit Support Document (if any) and each Transaction will be
governed by, and construed in accordance with, the laws of the State of New York
without reference to its conflict of laws provisions (except for Sections 5-1401
and 5-1402 of the New York General Obligations Law).
(i)
Netting
of Payments. The
election in the last paragraph of Section 2(c) of this Agreement shall not
apply. Accordingly, there shall be no multi-Transaction netting.
(j)
“Affiliate” will
have the meaning specified in Section 14 of this Agreement.
Part
5
Other
Provisions
| (1) |
Representations.
Section 3(a)(iii) is hereby amended by inserting the words “or investment
policies, or guidelines, procedures, or restrictions,” immediately
following the word “documents.” |
| (2) |
Financial
Statements.
Section 3(d) is hereby amended by adding in the third line thereof after
the word “respect” and before the period: |
“or, in
the case of financial statements, a fair presentation of the financial condition
of the relevant party.”
| (3) |
Additional
Representations.
For purposes of Section 3, the following shall be added, immediately
following paragraph (f) thereto: |
(g)
It is an
“eligible contract participant” within the meaning of Section 1(a)(12) of the
Commodity Exchange Act, as amended.
(h)
It
has entered into this Agreement (including each Transaction evidenced hereby) in
conjunction with its line of business (including financial intermediation
services) or the financing of its business.
In
addition, the parties each represent that:
(i)
Non-Reliance. Each
party represents to the other party (which representation will be deemed to be
repeated by each party on each date on which a Transaction is entered into or
amended, extended or otherwise modified) that it is acting for its own account,
and has made its own independent decisions to enter into this Agreement and any
Transaction hereunder and as to whether this Agreement and any Transaction
hereunder is appropriate or proper for it based on its own judgment and upon
advice from such advisors as it has deemed necessary. It is not relying on any
communication (written or oral) of the other party as investment advice or as a
recommendation to enter into this Agreement or any Transaction hereunder, it
being understood that information and explanations related to the terms and
conditions of this Agreement and any Transaction hereunder shall not be
considered investment advice or a recommendation to enter into this Agreement or
any Transaction hereunder. No communication (written or oral) received from the
other party shall be deemed to be an assurance or guarantee as to the expected
results of any Transaction hereunder.
(4) Method
of Notice. Section
12(a)(ii) of this Agreement is deleted in its entirety.
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(5)
Set-off. Without
affecting the provisions of this Agreement requiring the calculation of certain
net payment amounts, as a result of an Event of Default or Additional
Termination Event or otherwise, all payments under this Agreement will be made
without setoff or counterclaim.
(6)
Escrow. If by
reason of the time difference between the cities in which payments are to be
made, it is not possible for simultaneous payments to be made on any date on
which both parties are required to make payments hereunder, either party may, at
its option and in its sole discretion, notify the other party that payments on
that date are to be made in escrow. In this case, deposit of the payment due
earlier on that date shall be made by 2:00 p.m. (local time at the place for the
earlier payment) on that date with an escrow agent selected by the notifying
party (and reasonably acceptable to the notified party), accompanied by
irrevocable payment instructions (i) to release the deposited payment to the
intended recipient upon receipt by the escrow agent of the required deposit of
the corresponding payment from the other party on the same date accompanied by
irrevocable payment instructions to the same effect or (ii) if the required
deposit of the corresponding payment is not made on that same date, to return
the payment deposited to the party that paid it in escrow. The party that elects
to have payments made in escrow shall pay the costs of the escrow arrangements
and shall cause those arrangements to provide that the intended recipient of the
payment due to be deposited first shall be entitled to interest on that
deposited payment for each day in the period of its deposit at the rate offered
by the escrow agent for that day for overnight deposits in the relevant currency
in the office where it holds that deposited payment (at 11:00 a.m. local time on
that day) if that payment is not released by 5:00 p.m. local time on the date it
is deposited for any reason, other than the intended recipient’s failure to make
the escrow deposit it is required to make hereunder in a timely
fashion.
(7)
Consent
to Recording. The
parties agree that each may electronically record all telephonic conversations
between marketing and trading personnel in connection with this Agreement and
that any such recordings may be submitted in evidence in any Proceedings
relating to the Agreement.
(8)
Waiver
of Jury Trial. Each Party hereby irrevocably waives any and all right to trial
by jury with respect to any legal proceeding arising out of or relating to this
Agreement or any Transaction contemplated hereunder.
(9) Additional
Acknowledgments and Agreements of the Parties.
|
(a) |
Consent
by Party A to Amendments to Certain Documents.
Before any amendment or supplement is made to the Indenture and/or any
other Related Document, which would adversely affect any of Party A’s
rights or obligations under this Agreement or modify the obligations of,
or impair the ability of Party B to fully perform any of Party B’s
obligations under, this Agreement, Party B shall provide Party A with a
copy of the proposed amendment or supplement and shall obtain the written
consent of Party A (which consent shall not be unreasonably withheld) to
such amendment or supplement prior to its adoption. For the avoidance of
doubt any Related Document may be amended, supplemented or otherwise
modified in accordance with the terms thereof without the consent of Party
A to cure any ambiguity, to correct or supplement any provision which may
be inconsistent with any other provision therein or any of the other
Related Documents with respect to matters or questions arising thereunder
which shall not be materially inconsistent with the provisions thereof,
provided that such actions shall not adversely affect in any respects the
interests of Party A. |
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(10) Notices to Series 2005-3 Noteholders. Party B shall provide Party A with copies of all notices given to the Series 2005-3 Noteholders, and upon request, shall provide Party A with any other notices which could be requested by the Series 2005-3 Noteholders.
(11) Further
Representations of Party B:
|
(a) |
Party
B is a limited liability company validly existing under the laws of
Delaware. |
|
(b) |
As
of the Series 2005-3 Closing Date (as defined in the Series 2005-3
Supplement), all conditions precedent to the issuance of the Series 2005-3
Notes under the Indenture have been satisfied or
waived. |
|
(c) |
Each
of the Related Documents to which it is a party has been duly authorized,
executed and delivered by it. |
|
(d) |
Assuming
the due authorization, execution and delivery thereof by the other parties
thereto, each of the Indenture and the other Related Documents to which
Party B is a party constitutes the legal, valid and binding obligations of
Party B, enforceable against Party B in accordance with the terms thereof,
subject to applicable bankruptcy, insolvency and similar laws or legal
principles affecting creditors’ rights generally, and subject, as to
enforceability, to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at
law. |
|
(e) |
The
Indenture and the other Related Documents to which Party B is a party are
in full force and effect on the date hereof and there
have been no amendments or waivers or modifications of any of the terms
thereof since the original execution and delivery of the Indenture and the
other Related Documents to which Party B is a party, except such as may
have been delivered to Party B. |
|
(f) |
To
the best of its knowledge, no event of default (or event which would, with
the passage of time or the giving of notice, constitute an
event of default) has occurred and is continuing under any of the Related
Documents to which Party B is a party. |
(12)
Transfer. Each
party hereby acknowledges and agrees that Party B has agreed to assign, as
security, all of its rights hereunder to The Bank of New York, as Trustee under
the Series 2005-3 Supplement.
(13)
Non-Petition. Party A
hereby agrees that it will not, prior to the date which is one year and one day
after all Notes (as such term is defined in the Indenture) issued by Party B
pursuant to the Indenture have been paid in full, acquiesce, petition or
otherwise invoke or cause Party B, AESOP Leasing L.P., AESOP Leasing Corp. II,
AESOP Exchange Corporation, AESOP Leasing Corp., PV Holding Corp. or Quartx
Fleet Management Inc. to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against Party B,
AESOP Leasing L.P., AESOP Leasing Corp. II, AESOP Exchange Corporation, AESOP
Leasing Corp., PV Holding Corp. or Quartx Fleet Management Inc. under any
federal or state bankruptcy, insolvency or similar law or for the purpose of
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official for Party B, AESOP Leasing L.P., AESOP Leasing Corp. II,
AESOP Exchange Corporation, AESOP Leasing Corp., PV Holding Corp. or Quartx
Fleet Management Inc. or any substantial part of the property of Party B, AESOP
Leasing L.P., AESOP Leasing Corp. II, AESOP Exchange Corporation, AESOP Leasing
Corp., PV Holding Corp. or Quartx Fleet Management Inc. or for the purpose of
ordering the winding up or
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liquidation
of the affairs of Party B, AESOP Leasing L.P., AESOP Leasing Corp. II, AESOP
Exchange Corporation, AESOP Leasing Corp., PV Holding Corp. or Quartx Fleet
Management Inc. Nothing herein shall prevent Party A from participating in any
such proceeding once commenced. This provision shall survive the termination of
this Agreement.
(14)
Limited
Recourse. The
obligations of Party B under this Agreement are limited recourse obligations of
Party B, payable solely from the Collateral (as such term is defined in the
Indenture), subject to and in accordance with the terms of the Indenture, and,
following realization of the Collateral, any claims of Party A against Party B
shall be extinguished. It is understood that the foregoing provisions shall not
(i) prevent recourse to the Collateral or the sums due or to become due under
any security, instrument or agreement which is part of the Collateral (subject
to the priority of payments set forth in the Indenture) or (ii) constitute a
waiver, release or discharge of any obligation of Party B arising under this
Agreement until the Collateral have been realized and the proceeds applied in
accordance with the Indenture, whereupon any outstanding obligation of Party B
under this Agreement shall be extinguished. Notwithstanding the foregoing (or
anything to the contrary in this Agreement), Party B shall be liable for its own
negligence, willful misconduct, bad faith and/or fraud.
(15)
Master
Agreement. The
parties hereto intend that this Agreement shall be a “master agreement” for
purposes of 11 U.S.C. § 101(53B) and 12 U.S.C. § 1821(e)(8)(D).
(16)
Granting
Clauses. Party A
consents to the pledge to the Trustee by Party B of Party B’s rights hereunder
pursuant to the “granting clauses” set forth in the Indenture.
(17)
Notices. Each of
Party A and Party B acknowledges and agrees that a copy of each written default
and/or termination notice sent to the other party hereto with respect to this
Agreement shall be sent to the Administrative Agent at its address as set forth
herein.
(18)
Delivery. Party A
agrees to deliver to Party B and the Administrative Agent (which may include by
facsimile and/or electronic mail) an executed copy of this Agreement (including
the Schedule hereto) and each Transaction confirmation that forms a part of this
Agreement as soon as practicable following execution of same by all applicable
parties (but in no event more than three Business Days following such
execution). Each of Party A and Party B acknowledges and agrees that failure by
Party A to comply with the foregoing shall not constitute a default (howsoever
defined) under this Agreement.
(19)
Cross
Default. Section
5(a)(vi) of this Agreement is hereby amended by adding the following after the
semicolon at the end thereof:
“provided,
however, that
notwithstanding the foregoing (but subject to any provision to the contrary
contained in any such agreement or instrument), an Event of Default shall not
occur under either (1) or (2) above if the default, event of default or other
similar condition or event referred to in (1) or the failure to pay referred to
in (2) is caused not (even in part) by the unavailability of funds but is caused
solely due to a technical or administrative error which has been remedied within
three Business Days after notice of such failure is given to the
party.”
(20) Additional
Representations.
|
(a) |
Each
party represents to the other party (which representation will be deemed
to be repeated by each party on each date on which a Transaction is
entered into or amended, extended or otherwise modified) that it is
capable of evaluating and understanding (on its
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own
behalf or through independent professional advice), and understands and
accepts, the terms, conditions and risks of that Transaction. It is also
capable of assuming, and assumes, the financial and other risks of that
Transaction. |
|
(b) |
For
purposes of Section 3, the following shall be added immediately following
the final paragraph thereof: |
|
(j) |
It
is entering into this Agreement, any Credit Support Document to which it
is a party, each Transaction and any other documentation relating to this
Agreement or any Transaction as principal (and not as agent or in any
other capacity, fiduciary or otherwise). |
(21)
No
Gross Up. Neither
party will be required to pay additional amounts in respect of any Indemnifiable
Tax or be under any obligations to pay to the other party any amount in respect
of any liability of such other party for or on account of any Tax and Section
2(d)(i)(4) of this Agreement shall be construed accordingly.
(22)
USA
PATRIOT Act Notice. Party A
hereby notifies Party B that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it is
required to obtain, verify and record information that identifies Party B, which
information includes the name and address of Party B and other information that
will allow Party A to identify Party B in accordance with the Act.
(23)
Limited
Transactions. Party A
and Party B each agrees and acknowledges that the only Transaction that is
or will be governed by this Agreement is the Transaction evidenced by the
one Confirmation dated on or about the date hereof (it being understood that, in
the event such Confirmation shall be amended (in any respect), such amendment
shall not constitute (for purposes of this paragraph) a separate Transaction or
a separate Confirmation).
[remainder
of page intentionally left blank]Accepted
and Agreed:
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[_______________________]
By:
______________________________
Name:
Title:
Date:
|
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
By:
________________________________
Name:
Title:
Date:
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Floating
Rate Rental Car Asset Backed Notes
Series
2005-3
FORM
OF CONFIRMATION FOR U.S. DOLLAR INTEREST RATE CAP
TRANSACTION
UNDER
1992 MASTER AGREEMENT
TO: CENDANT
RENTAL CAR FUNDING (AESOP) LLC (“Party
B”)
c/o
Cendant Car Rental Group Inc., as Administrator
1 Campus
Drive
Parsippany,
NJ 07054
Attn:
Robert Canone, Treasury Operations
tel.: (973)
496-2795
fax: (973)
496-5852
|
FROM: |
[________________________]
(“Party
A”) |
[________________________]
[________________________]
Attention:
[________________________]
Facsimile
No.: [________________________]
Telephone
No.: [________________________]
DATE:
[______________]
Our
Reference Numbers: [_____________]
The
purpose of this letter agreement is to confirm the terms and conditions of the
Cap Transaction entered into between us on the Trade Date specified below (the
“Cap
Transaction”). This
letter agreement constitutes a “Confirmation” as referred to in the Master
Agreement specified below.
1. The
definitions and provisions contained in the 2000 ISDA Definitions (as published
by the International Swaps and Derivatives Association, Inc., the “Definitions”) are
incorporated into this Confirmation. Certain of the defined terms used herein
shall have the meanings set forth in the Second Amended and Restated Base
Indenture (as the same may be amended from time to time, the “Base
Indenture”), dated
as of June 3, 2004, between Party B and The Bank of New York, as Trustee (in
such capacity, the “Trustee”), or
the Series 2005-3 Supplement (as the same may be amended from time to time, the
“Series
2005-3 Supplement” and,
together with the Base Indenture, the “Indenture”) to the
Base Indenture, dated as of April 29, 2005, among Party B, as Issuer, Cendant
Car Rental Group, Inc., as Administrator, Deutsche Bank AG, New York Branch, as
Administrative Agent, the CP Conduit Purchasers, the Funding Agents and the APA
Banks named therein, the Trustee and The Bank of New York, as Series 2005-3
Agent. In the event of any inconsistency between the terms of this Confirmation
and the terms of the Definitions, the Base Indenture or the Series 2005-3
Supplement as applicable, the terms of this Confirmation shall govern. Each
party represents and warrants to the other that (a) it is duly authorized to
enter into this Cap Transaction and to perform its obligations hereunder, (b)
the Cap Transaction and the performance of its obligations hereunder do not
violate any material obligation of such party, and (c) the person executing this
Confirmation is duly authorized to execute and deliver it.
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This
Confirmation supplements, forms part of, and is subject to, the ISDA Master
Agreement between us and you dated [__________], relating to the Series 2005-3
Notes (the “Agreement”). This
Confirmation shall supplement, form part of, and be subject to that Agreement,
and all provisions contained or incorporated by reference in the Agreement shall
govern this Confirmation except as expressly modified below.
In the
event of any inconsistency between the provisions of the Agreement and this
Confirmation, the terms of the Confirmation will prevail for the purposes of
this Cap Transaction.
2. The terms
of the particular Cap Transaction to which this Confirmation relates are as
follows:
|
Trade
Date:
|
[_________]
|
|
Effective
Date:
|
[_________]
|
|
Termination
Date:
|
[_________],
subject to the Modified Following Business Day Convention.
|
|
Calculation
Periods:
|
For
each Distribution Date, the period from and including the immediately
preceding Distribution Date to, but excluding, such Distribution Date
without regard to any Business Day adjustment in respect of Distribution
Dates, during the Term of this Cap Transaction, except that (a) the
initial Calculation Period will commence on, and include, the Effective
Date, and (b) the final Calculation Period will end on, but exclude, the
Termination Date.
|
|
Floating
Rate Calculation Periods correspond to the “Series 2005-3 Interest
Periods” under the Series 2005-3 Supplement.
| |
|
Notional
Amount:
|
$[_________]
|
|
Fixed
Amounts:
|
|
|
Fixed
Rate Payer:
|
Party
B
|
|
Fixed
Rate Payer Distribution Date:
|
[_________]
|
|
Fixed
Rate Payer Payment Amount:
|
$[_________]
|
|
Floating
Amounts:
|
|
|
Floating
Rate Payer:
|
Party
A
|
|
Floating
Rate Payer Distribution Dates:
|
The
20th
day of each calendar month, commencing [____], subject to the Modified
Following Business Day Convention, corresponding
to “Distribution Dates” under the Indenture.
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Floating
Rate:
|
USD-LIBOR-BBA
(set two London Banking Days prior to the first day of each Calculation
Period).
|
|
Designated
Maturity:
|
One
month.
|
|
Initial
Floating Rate
|
$[_________] |
|
Cap
Rate
|
8.0% |
|
Floating
Rate Day Count Fraction:
|
Actual/360
|
|
Floating
Rate Payer Payment
Amounts:
|
For
each Floating Rate Payer Payment Date in respect of a Floating Rate
Calculation Period, the product of (a) the excess of the Floating Rate
over the 8.0% Cap Rate, (b) the Floating Rate Day Count Fraction, and (c)
the Notional Amount.
|
|
Reset
Dates:
|
On
each Floating Rate Payer Payment Date beginning with the December 20, 2005
Floating Rate Payer Distribution Date, the Floating Rate (as determined
two London Banking Days prior to each such Floating Rate Payer
Distribution Date) will reset for the Floating Rate Calculation Period
commencing on each such Floating Rate Payer Distribution
Date.
|
|
Compounding:
|
Inapplicable
|
|
Business
Days:
|
Any
day other than a Saturday, Sunday or other day on which banks are
authorized or required by law to be closed in New York City, New York, or
Chicago, Illinois.
|
|
Business
Day Convention:
|
Modified
Following (in respect of Distribution Dates and Floating Rate Calculation
Period End Dates only).
|
|
Calculation
Agent:
|
Party
A.
|
3. Market
Quotation.
Notwithstanding
the definition of “Market
Quotation” in the
Agreement, for purposes of determining Market Quotations in respect of this
Transaction, Market Quotation shall mean a quotation from a Dealer (as defined
herein) acceptable to Party A, in the exercise of its reasonable judgment (it
being understood that, as applicable, Party A will first use reasonable efforts
to seek quotations from Dealers other than Party A), of the amount, if any, that
such Dealer would demand to receive or would offer to pay in consideration of
such Dealer entering into an agreement with the Requesting Party (as defined
herein), with such documentation as the Dealer and the Requesting Party may in
good faith agree, which would have the effect of preserving for the Requesting
Party the economic equivalent of the parties’ rights and obligations under the
Agreement; provided that, any such quotation shall not constitute a Market
Quotation hereunder unless the Dealer shall have submitted, in connection with
such quotation, a Dealer Certification (as defined herein).
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If at
least one Market Quotation from a Dealer other than Party A is provided, the
Requesting Party shall then have the option to either: (i) accept the arithmetic
mean of the Market Quotations (“Option
One”); or
(ii) require the party to the Agreement that is not the Requesting Party (the
“Non-Requesting
Party”) to
assign, at the cost of the Non-Requesting Party, its rights and obligations
under the Agreement to one of the Dealers providing Market Quotations
(“Option
Two”);
provided that (a) such assignment must be pursuant to documentation that is
reasonably acceptable to the Requesting Party, and (b) the Requesting Party must
receive such opinions and assurances as it reasonably requests in connection
with such assignment. Notwithstanding the foregoing, in the event that the
Requesting Party is Party B, then the Requesting Party shall not have the option
set forth in the preceding sentence, but rather, shall be required to accept
Option One; provided,
however, that if
Option One is unavailable, then the Requesting Party shall be required to accept
Option Two.
In the
event that no other Market Quotations are obtained, Party A may be the sole
source of Market Quotations, so long as its calculations are made in a
commercially reasonable manner on the basis of a hypothetical transaction of
like terms.
For
purposes of this Section:
“Dealer” means a
leading dealer in the relevant markets (and will include Party A).
“Dealer
Certification” means a
certificate, executed by a Dealer, representing that: (i) the Dealer is
qualified and authorized to enter into an assignment of the Agreement; (ii) the
Dealer has reviewed the terms of the Agreement in full and has provided a bid on
the basis of such terms; and (iii) upon the request of the Requesting Party, the
Dealer will accept an assignment of the Non-Requesting Party’s rights and
obligations under the Agreement in exchange for or by payment of the amount of
its bid.
“Requesting
Party” means:
(i) Party B in the case of an Event of Default where Party A is the Defaulting
Party or a Termination Event where Party A is the Affected Party; and (ii) Party
A in the case of an Event of Default where Party B is the Defaulting Party or a
Termination Event where Party B is the Affected Party.
4. Account
Details.
Payments
to Party A:
Name: [___________]
ABA#: [___________]
G/L: [___________]
Attn.: [___________]
Payments
to Party B:
Name: The Bank
of New York
City: New York,
New York
ABA#: 021 000
018
GLA# 111-565
TAS#
156364
Ref:
Cendant
Rental Car Funding (AESOP) LLC
Attn:
Marian
Onischak—312-827-8569
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Further
Credit to Cendant Rental Car Funding (AESOP) LLC Series 2005-3 Collection
Account
Party A
agrees to make all payments hereunder (as applicable) by wire transfer to the
above-referenced account.
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Please
confirm that the foregoing correctly sets forth the terms and conditions of our
agreement by responding within three (3) Business Days by either returning this
Confirmation in person or via telecopier to [___________]. Failure to respond
within such period shall not affect the validity or enforceability of this Cap
Transaction, and shall be deemed to be an affirmation of the terms and
conditions contained herein, absent manifest error.
Yours
sincerely,
[____________]
By:________________________
Name:
Title:
Confirmed
as of the date above:
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
By:________________________
Name:
Title:
Yours
sincerely
[_________]
By:________________________
Name:
Title:
Accepted
and confirmed as of the date first written:
CENDANT
RENTAL CAR FUNDING (AESOP) LLC
By:________________________
Name:
Title:
ENDORSEMENT
Pay to
the Order of ________________________________________, without
recourse
CENDANT
RENTAL CAR FUNDING (AESOP)
LLC
By:
________________________
Name:
Title: