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): October 1, 2009 (October 1,
2009)
Avis Budget Group,
Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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1-10308
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06-0918165
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification Number)
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6 Sylvan
Way
Parsippany,
NJ
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07054
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(Address
of Principal Executive Offices)
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(Zip
Code)
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(973)
496-4700
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(Registrant’s
telephone number, including area code)
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N/A
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(Former
name or former address, if changed since last
report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry into a Material
Definitive Agreement.
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On
October 1, 2009, our Avis Budget Rental Car Funding (AESOP) LLC subsidiary (the
“Issuer”) issued $450,000,000 aggregate principal amount of Series 2009-2 5.68%
Rental Car Asset Backed Notes (the “Series 2009-2 Notes”). The Issuer
issued the Series 2009-2 Notes under the Series 2009-2 Supplement (the
“Indenture Supplement”), dated October 1, 2009, between the Issuer and The Bank
of New York Mellon Trust Company, N.A., as trustee and as Series 2009-2 Agent,
to the Second Amended and Restated Base Indenture (the “Base Indenture”), dated
as of June 3, 2004, as amended, between the Issuer and The Bank of New York
Mellon Trust Company, N.A., as trustee.
The
Series 2009-2 Notes are secured under the Base Indenture primarily by vehicles
in our domestic fleet and other related assets. A copy of the Series
2009-2 Supplement is attached hereto as Exhibit 10.1 and is
incorporated by reference herein and a copy of the press release announcing the
closing is attached hereto as Exhibit 99.1 and
is incorporated by reference herein.
Certain of the purchasers of the Series
2009-2 Notes, and the trustee, and their respective affiliates, have performed
and may in the future perform, various commercial banking, investment banking
and other financial advisory services for us and our subsidiaries for which they
have received, and will receive, customary fees and expenses.
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Item
2.03
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Creation of a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement of a
Registrant.
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The
information described above under “Item 1.01 Entry into a Material Definitive
Agreement” is incorporated herein by reference.
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Item
9.01
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Financial Statements and
Exhibits.
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(d) Exhibits.
The following exhibits are filed as
part of this report:
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Exhibit
No.
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Description
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10.1
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Series
2009-2 Supplement, dated as of October 1, 2009, among Avis Budget Rental
Car Funding (AESOP) LLC and The Bank of New York Mellon Trust Company,
N.A., as trustee and as Series 2009-2 Agent.
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99.1
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Press
Release dated October 1, 2009.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereto
duly authorized.
AVIS BUDGET GROUP,
INC.
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By:
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/s/ Jean
M. Sera
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Name:
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Jean
M. Sera
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Title:
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Senior
Vice President and Secretary
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Date:
October 1, 2009
AVIS BUDGET GROUP,
INC.
CURRENT REPORT ON FORM
8-K
Report Dated October 1, 2009 (October 1,
2009)
EXHIBIT INDEX
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Exhibit
No.
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Description
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10.1
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Series
2009-2 Supplement, dated as of October 1, 2009, among Avis Budget Rental
Car Funding (AESOP) LLC and The Bank of New York Mellon Trust Company,
N.A., as trustee and as Series 2009-2 Agent.
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99.1
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Press
Release dated October 1, 2009.
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EXHIBIT
10.1
AVIS
BUDGET RENTAL CAR FUNDING (AESOP) LLC,
as
Issuer
and
THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A.,
as
Trustee and Series 2009-2 Agent
_____________________
SERIES
2009-2 SUPPLEMENT
dated as
of October 1, 2009
to
SECOND
AMENDED AND RESTATED BASE INDENTURE
dated as
of June 3, 2004
_____________________
Series
2009-2 5.68% Rental Car Asset Backed Notes
Table of
Contents
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ARTICLE
I DEFINITIONS
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1 |
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ARTICLE
II SERIES 2009-2 ALLOCATIONS
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18 |
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Section
2.1 Establishment of Series 2009-2 Collection Account, Series 2009-2
Excess Collection Account and Series 2009-2 Accrued Interest
Account
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18 |
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Section
2.2 Allocations with Respect to the Series 2009-2 Notes
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18 |
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Section
2.3 Payments to Noteholders
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22 |
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Section
2.4 Payment of Note Interest
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25 |
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Section
2.5 Payment of Note Principal
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25 |
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Section
2.6 Administrator’s Failure to Instruct the Trustee to Make a Deposit or
Payment
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29 |
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Section
2.7 Series-2009-2 Reserve Account
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29 |
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Section
2.8 Series 2009-2 Letters of Credit and Series 2009-2 Cash Collateral
Account
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31 |
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Section
2.9 Series 2009-2 Distribution Account
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35 |
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Section
2.10 [Reserved]
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37 |
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Section
2.11 Series 2009-2 Accounts Permitted Investments
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37 |
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Section
2.12 Series 2009-2 Demand Notes Constitute Additional Collateral for
Series 2009-2 Notes
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37 |
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ARTICLE
III AMORTIZATION EVENTS
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37 |
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ARTICLE
IV RIGHT TO WAIVE PURCHASE RESTRICTIONS
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39 |
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ARTICLE
V FORM OF SERIES 2009-2 NOTES
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40 |
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Section
5.1 Restricted Global Series 2009-2 Notes
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40 |
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Section
5.2 Temporary Global Series 2009-2 Notes; Permanent Global Series 2009-2
Notes
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40 |
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ARTICLE
VI GENERAL
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41 |
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Section
6.1 Optional Repurchase
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41 |
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Section
6.2 Information
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41 |
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Section
6.3 Exhibits
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41 |
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Section
6.4 Ratification of Base Indenture
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41 |
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Section
6.5 Counterparts
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42 |
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Section
6.6 Governing Law
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42 |
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Section
6.7 Amendments
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42 |
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Section
6.8 Discharge of Indenture
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42 |
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Section
6.9 Notice to Moody’s
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42 |
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Section
6.10 Capitalization of ABRCF
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42 |
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Section
6.11 [Reserved]
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42 |
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Section
6.12 Series 2009-2 Demand Notes
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42 |
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Section
6.13 Termination of Supplement
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43 |
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Section
6.14 Noteholder Consent to Certain Amendments
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43 |
(i)
Table of Contents
(continued)
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Section
6.15 Confidential Information.
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43 |
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Section
6.16 Capitalized Cost Covenant
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44 |
(ii)
SERIES
2009-2 SUPPLEMENT, dated as of October 1, 2009 (this “Supplement”), among
AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC, a special purpose limited liability
company established under the laws of Delaware (“ABRCF”), THE BANK OF
NEW YORK MELLON TRUST COMPANY, N.A. (formerly known as The Bank of New York), a
limited purpose national banking association with trust powers, as trustee (in
such capacity, and together with its successors in trust thereunder as provided
in the Base Indenture referred to below, the “Trustee”), and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A. (formerly known as The Bank of New
York), as agent (in such capacity, the “Series 2009-2 Agent”)
for the benefit of the Series 2009-2 Noteholders, to the Second Amended and
Restated Base Indenture, dated as of June 3, 2004, between ABRCF and the Trustee
(as amended, modified or supplemented from time to time, exclusive of
Supplements creating a new Series of Notes, the “Base
Indenture”).
PRELIMINARY
STATEMENT
WHEREAS,
Sections 2.2 and 12.1 of the Base Indenture provide, among other things, that
ABRCF and the Trustee may at any time and from time to time enter into a
supplement to the Base Indenture for the purpose of authorizing the issuance of
one or more Series of Notes;
NOW,
THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is
hereby created a Series of Notes to be issued pursuant to the Base Indenture and
this Supplement, and such Series of Notes shall be designated generally as the
Series 2009-2 5.68% Rental Car Asset Backed Notes.
The
proceeds from the sale of the Series 2009-2 Notes shall be deposited in the
Collection Account and shall be paid to ABRCF 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 2009-2 Notes are a non-Segregated Series of Notes (as more fully
described in the Base Indenture). Accordingly, all references in this
Supplement to “all” Series of Notes (and all references in this Supplement to
terms defined in the Base Indenture that contain references to “all” Series of
Notes) shall refer to all Series of Notes other than Segregated Series of
Notes.
ARTICLE I
DEFINITIONS
(a) All
capitalized terms not otherwise defined herein are defined in the Definitions
List attached to the Base Indenture as Schedule I thereto. All
Article, Section, Subsection or Exhibit references herein shall refer to
Articles, Sections, Subsections or Exhibits
-1-
of this
Supplement, except as otherwise provided herein. Unless otherwise
stated herein, as the context otherwise requires or if such term is otherwise
defined in the Base Indenture, each capitalized term used or defined herein
shall relate only to the Series 2009-2 Notes and not to any other Series of
Notes issued by ABRCF. In the event that a term used herein shall be
defined both herein and in the Base Indenture, the definition of such term
herein shall govern.
(b) The
following words and phrases shall have the following meanings with respect to
the Series 2009-2 Notes and the definitions of such terms are applicable to the
singular as well as the plural form of such terms and to the masculine as well
as the feminine and neuter genders of such terms:
“ABCR” means Avis
Budget Car Rental, LLC.
“Adjusted Net Book
Value” means, as of any date of determination, with respect to each
Adjusted Program Vehicle as of such date, the product of 0.965 and the Net Book
Value of such Adjusted Program Vehicle as of such date.
“Business Day” means
any day other than (a) a Saturday or a Sunday or (b) a day on which banking
institutions in New York City or in the city in which the corporate trust office
of the Trustee is located are authorized or obligated by law or executive order
to close.
“Certificate of Lease Deficit
Demand” means a certificate substantially in the form of Annex A to the Series
2009-2 Letters of Credit.
“Certificate of Termination
Date Demand” means a certificate substantially in the form of Annex D to the Series
2009-2 Letters of Credit.
“Certificate of Termination
Demand” means a certificate substantially in the form of Annex C to the Series
2009-2 Letters of Credit.
“Certificate of Unpaid Demand
Note Demand” means a certificate substantially in the form of Annex B to the Series
2009-2 Letters of Credit.
“Clearstream” is
defined in Section 5.2.
“Confirmation
Condition” means, with respect to any Bankrupt Manufacturer which is a
debtor in Chapter 11 Proceedings, a condition that shall be satisfied upon the
bankruptcy court having competent jurisdiction over such Chapter 11 Proceedings
issuing an order that remains in effect approving (i) the assumption of such
Bankrupt Manufacturer’s Manufacturer Program (and the related Assignment
Agreements) by such Bankrupt Manufacturer or the trustee in bankruptcy of such
Bankrupt Manufacturer under Section 365 of the Bankruptcy Code and at the time
of such assumption, the payment of all amounts due and payable by such Bankrupt
Manufacturer under such Manufacturer Program and the curing of all other
defaults by the Bankrupt Manufacturer thereunder or (ii) the execution, delivery
and performance by such Bankrupt Manufacturer of a new post-petition
Manufacturer Program (and the related assignment agreements) on the same terms
and covering the same Vehicles as such Bankrupt Manufacturer’s Manufacturer
Program (and the related Assignment Agreements) in effect on the date such
Bankrupt Manufacturer became subject to such Chapter 11 Proceedings
-2-
and, at
the time of the execution and delivery of such new post-petition Manufacturer
Program, the payment of all amounts due and payable by such Bankrupt
Manufacturer under such Manufacturer Program and the curing of all other
defaults by the Bankrupt Manufacturer thereunder; provided that
notwithstanding the foregoing, the Confirmation Condition shall be deemed
satisfied until the 90th calendar day
following the initial filing in respect of such Chapter 11
Proceedings.
“Consent” is defined
in Article IV.
“Consent Period Expiration
Date” is defined in Article IV.
“Demand Note Issuer”
means each issuer of a Series 2009-2 Demand Note.
“Designated Amounts”
is defined in Article IV.
“Disbursement” means
any Lease Deficit Disbursement, any Unpaid Demand Note Disbursement, any
Termination Date Disbursement or any Termination Disbursement under a Series
2009-2 Letter of Credit, or any combination thereof, as the context may
require.
“Euroclear” is defined
in Section 5.2.
“Excess Collections”
is defined in Section 2.3(f)(i).
“Excluded Receivable
Amount” means, as of any date of determination, the sum of the following
amounts with respect to each Series 2009-2 Non-Investment Grade Manufacturer as
of such date: the product of (i) to the extent such amounts are
included in the calculation of AESOP I Operating Lease Loan Agreement Borrowing
Base as of such date, all amounts receivable, as of such date, by AESOP Leasing
or the Intermediary from such Series 2009-2 Non-Investment Grade Manufacturer
and (ii) the Series 2009-2 Excluded Manufacturer Receivable Specified Percentage
for such Series 2009-2 Non-Investment Grade Manufacturer as of such
date.
“Finance Guide” means
the Black Book Official Finance/Lease Guide.
“Inclusion Date”
means, with respect to any Vehicle, the date that is three months after the
earlier of (i) the date such Vehicle became a Redesignated Vehicle and (ii) if
the Manufacturer of such Vehicle is a Bankrupt Manufacturer, the date upon which
the Event of Bankruptcy which caused such Manufacturer to become a Bankrupt
Manufacturer first occurred.
“Lease Deficit
Disbursement” means an amount drawn under a Series 2009-2 Letter of
Credit pursuant to a Certificate of Lease Deficit Demand.
“Market Value Average”
means, as of any day, the percentage equivalent of a fraction, the numerator of
which is the average of the Selected Fleet Market Value as of the preceding
Determination Date and the two Determination Dates precedent thereto and the
denominator of which is the sum of (a) the average of the aggregate Net Book
Value of all Non-Program Vehicles (excluding (i) any Unaccepted Program
Vehicles, (ii) any Excluded Redesignated Vehicles and (iii) any other
Non-Program Vehicles that are subject to a Manufacturer Program with an Eligible
Non-Program Manufacturer with respect to which no Manufacturer Event of Default
has occurred and is continuing) and (b) the average of the
-3-
aggregate
Adjusted Net Book Value of all Adjusted Program Vehicles, in the case of each of
clause (a) and (b) leased under the AESOP I Operating Lease and the Finance
Lease as of the preceding Determination Date and the two Determination Dates
precedent thereto.
“Monthly Total Principal
Allocation” means for any Related Month the sum of all Series 2009-2
Principal Allocations with respect to such Related Month.
“Past Due Rent
Payment” is defined in Section 2.2(g).
“Permanent Global Series
2009-2 Note” is defined in Section 5.2.
“Pre-Preference Period Demand
Note Payments” means, as of any date of determination, the aggregate
amount of all proceeds of demands made on the Series 2009-2 Demand Notes
included in the Series 2009-2 Demand Note Payment Amount as of the Series 2009-2
Letter of Credit Termination Date that were paid by the Demand Note Issuers more
than one year before such date of determination; provided, however, that if an Event of
Bankruptcy (or the occurrence of an event described in clause (a) of the
definition thereof, without the lapse of a period of sixty (60) consecutive
days) with respect to a Demand Note Issuer occurs during such one-year period,
(x) the Pre-Preference Period Demand Note Payments as of any date during the
period from and including the date of the occurrence of such Event of Bankruptcy
to and including the conclusion or dismissal of the proceedings giving rise to
such Event of Bankruptcy without continuing jurisdiction by the court in such
proceedings shall equal the Pre-Preference Period Demand Note Payments as of the
date of such occurrence for all Demand Note Issuers and (y) the Pre-Preference
Period Demand Note Payments as of any date after the conclusion or dismissal of
such proceedings shall equal the Series 2009-2 Demand Note Payment Amount as of
the date of the conclusion or dismissal of such proceedings.
“Principal Deficit
Amount” means, as of any date of determination, the excess, if any, of
(i) the Series 2009-2 Invested Amount on such date (after giving effect to the
distribution of the Monthly Total Principal Allocation for the Related Month if
such date is a Distribution Date) over (ii) the Series 2009-2 AESOP I Operating
Lease Loan Agreement Borrowing Base on such date; provided, however that the
Principal Deficit Amount on any date occurring during the period commencing on
and including the date of the filing by any of the Lessees of a petition for
relief under Chapter 11 of the Bankruptcy Code to but excluding the date on
which each of the Lessees shall have resumed making all payments of the portion
of Monthly Base Rent relating to Loan Interest required to be made under the
AESOP I Operating Lease, shall mean the excess, if any, of (x) the Series 2009-2
Invested Amount on such date (after giving effect to the distribution of Monthly
Total Principal Allocation for the Related Month if such date is a Distribution
Date) over (y) the sum of (1) the Series 2009-2 AESOP I Operating Lease Loan
Agreement Borrowing Base on such date and (2) the lesser of (a) the Series
2009-2 Liquidity Amount on such date and (b) the Series 2009-2 Required
Liquidity Amount on such date.
“Pro Rata Share”
means, with respect to any Series 2009-2 Letter of Credit Provider as of any
date, the fraction (expressed as a percentage) obtained by dividing (A) the
available amount under such Series 2009-2 Letter of Credit Provider’s Series
2009-2 Letter of
-4-
Credit as
of such date by (B) an amount equal to the aggregate available amount under all
Series 2009-2 Letters of Credit as of such date; provided, that only
for purposes of calculating the Pro Rata Share with respect to any Series 2009-2
Letter of Credit Provider as of any date, if such Series 2009-2 Letter of Credit
Provider has not complied with its obligation to pay the Trustee the amount of
any draw under its Series 2009-2 Letter of Credit made prior to such date, the
available amount under such Series 2009-2 Letter of Credit Provider’s Series
2009-2 Letter of Credit as of such date shall be treated as reduced (for
calculation purposes only) by the amount of such unpaid demand and shall not be
reinstated for purposes of such calculation unless and until the date as of
which such Series 2009-2 Letter of Credit Provider has paid such amount to the
Trustee and been reimbursed by the Lessee or the applicable Demand Note Issuer,
as the case may be, for such amount (provided that the
foregoing calculation shall not in any manner reduce the undersigned’s actual
liability in respect of any failure to pay any demand under its Series 2009-2
Letter of Credit).
“Requisite
Noteholders” means Series 2009-2 Noteholders holding more than 50% of the
Series 2009-2 Invested Amount.
“Restricted Global Series
2009-2 Note” is defined in Section 5.1.
“Selected Fleet Market
Value” means, with respect to all Adjusted Program Vehicles and all
Non-Program Vehicles (excluding (i) any Unaccepted Program Vehicles,
(ii) any Excluded Redesignated Vehicles and (iii) any other Non-Program
Vehicles that are subject to a Manufacturer Program with an Eligible Non-Program
Manufacturer with respect to which no Manufacturer Event of Default has occurred
and is continuing) as of any date of determination, the sum of the respective
Market Values of each such Adjusted Program Vehicle and each such Non-Program
Vehicle, in each case subject to the AESOP I Operating Lease or the Finance
Lease as of such date. For purposes of computing the Selected Fleet
Market Value, the “Market Value” of an Adjusted Program Vehicle or a Non-Program
Vehicle means the market value of such Vehicle as specified in the most recently
published NADA Guide for the model class and model year of such Vehicle based on
the average equipment and the average mileage of each Vehicle of such model
class and model year then leased under the AESOP I Operating Lease and the
Finance Lease; provided, that if the NADA
Guide is not being published or the NADA Guide is being published but such
Vehicle is not included therein, the Market Value of such Vehicle shall be based
on the market value specified in the most recently published Finance Guide for
the model class and model year of such Vehicle based on the average equipment
and the average mileage of each Vehicle of such model class and model year then
leased under the AESOP I Operating Lease or the Finance Lease; provided, further, that if the Finance
Guide is being published but such Vehicle is not included therein, the Market
Value of such Vehicle shall mean (x) in the case of an Adjusted Program Vehicle,
the Adjusted Net Book Value of such Adjusted Program Vehicle and (y) in the case
of a Non-Program Vehicle, the Net Book Value of such Non-Program Vehicle provided, further, that if the Finance
Guide is not being published, the Market Value of such Vehicle shall be based on
an independent third-party data source selected by the Administrator and
approved by each Rating Agency that is rating any Series of Notes, at the
request of ABRCF based on the average equipment and average mileage of each
Vehicle of such model class and model year then leased under the AESOP I
Operating Lease or the Finance Lease; provided, further, that if no such
third-party data source or methodology shall have been so approved or any such
third-party data source or
-5-
methodology
is not available, the Market Value of such Vehicle shall be equal to a
reasonable estimate of the wholesale market value of such Vehicle as determined
by the Administrator, based on the Net Book Value of such Vehicle and any other
factors deemed relevant by the Administrator.
“Series 2002-2 Notes”
means the Series of Notes designated as the Series 2002-2 Notes.
“Series 2003-4 Notes”
means the Series of Notes designated as the Series 2003-4 Notes.
“Series 2004-1 Notes”
means the Series of Notes designated as the Series 2004-1 Notes.
“Series 2005-1 Notes”
means the Series of Notes designated as the Series 2005-1 Notes.
“Series 2005-2 Notes”
means the Series of Notes designated as the Series 2005-2 Notes.
“Series 2005-4 Notes”
means the Series of Notes designated as the Series 2005-4 Notes.
“Series 2006-1 Notes”
means the Series of Notes designated as the Series 2006-1 Notes.
“Series 2007-2 Notes”
means the Series of Notes designated as the Series 2007-2 Notes.
“Series 2008-1 Notes”
means the Series of Notes designated as the Series 2008-1 Notes.
“Series 2009-1 Notes”
means the Series of Notes designated as the Series 2009-1 Notes.
“Series 2009-2
Accounts” means each of the Series 2009-2 Distribution Account, the
Series 2009-2 Reserve Account, the Series 2009-2 Collection Account, the Series
2009-2 Excess Collection Account and the Series 2009-2 Accrued Interest
Account.
“Series 2009-2 Accrued
Interest Account” is defined in Section 2.1(b).
“Series 2009-2 AESOP I
Operating Lease Loan Agreement Borrowing Base” means, as of any date of
determination, the product of (a) the Series 2009-2 AESOP I Operating Lease
Vehicle Percentage as of such date and (b) the excess of (i) the AESOP I
Operating Lease Loan Agreement Borrowing Base as of such date over (ii) the
Excluded Receivable Amount as of such date.
-6-
“Series 2009-2 AESOP I
Operating Lease Vehicle Percentage” means, as of any date of
determination, a fraction, expressed as a percentage (which percentage shall
never exceed 100%), the numerator of which is the Series 2009-2 Required AESOP I
Operating Lease Vehicle Amount as of such date and the denominator of which is
the sum of the Required AESOP I Operating Lease Vehicle Amounts for all Series
of Notes as of such date.
“Series 2009-2 Agent”
is defined in the recitals hereto.
“Series 2009-2 Available Cash
Collateral Account Amount” means, as of any date of determination, the
amount on deposit in the Series 2009-2 Cash Collateral Account (after giving
effect to any deposits thereto and withdrawals and releases therefrom on such
date).
“Series-2009-2 Available
Reserve Account Amount” means, as of any date of determination, the
amount on deposit in the Series 2009-2 Reserve Account (after giving effect to
any deposits thereto and withdrawals and releases therefrom on such
date).
“Series 2009-2 Carryover
Controlled Amortization Amount” means, with respect to any Related Month
during the Series 2009-2 Controlled Amortization Period, the amount, if any, by
which the portion of the Monthly Total Principal Allocation paid to the Series
2009-2 Noteholders pursuant to Section 2.5(e) for the previous Related Month was
less than the Series 2009-2 Controlled Distribution Amount for the previous
Related Month; provided, however, that for the
first Related Month in the Series 2009-2 Controlled Amortization Period, the
Series 2009-2 Carryover Controlled Amortization Amount shall be
zero.
“Series 2009-2 Cash
Collateral Account” is defined in Section 2.8(f).
“Series 2009-2 Cash
Collateral Account Collateral” is defined in
Section 2.8(a).
“Series 2009-2 Cash
Collateral Account Surplus” means, with respect to any Distribution Date,
the lesser of (a) the Series 2009-2 Available Cash Collateral Account Amount and
(b) the lesser of (A) the excess, if any, of the Series 2009-2 Liquidity Amount
(after giving effect to any withdrawal from the Series 2009-2 Reserve Account on
such Distribution Date) over the Series 2009-2 Required Liquidity Amount on such
Distribution Date and (B) the excess, if any, of the Series 2009-2 Enhancement
Amount (after giving effect to any withdrawal from the Series 2009-2 Reserve
Account on such Distribution Date) over the Series 2009-2 Required Enhancement
Amount on such Distribution Date; provided, however that, on any
date after the Series 2009-2 Letter of Credit Termination Date, the Series
2009-2 Cash Collateral Account Surplus shall mean the excess, if any, of (x) the
Series 2009-2 Available Cash Collateral Account Amount over (y) the Series
2009-2 Demand Note Payment Amount minus the Pre-Preference
Period Demand Note Payments as of such date.
“Series 2009-2 Cash
Collateral Percentage” means, as of any date of determination, the
percentage equivalent of a fraction, the numerator of which is the Series 2009-2
Available Cash Collateral Amount as of such date and the denominator of which is
the Series 2009-2 Letter of Credit Liquidity Amount as of such
date.
“Series 2009-2 Closing
Date” means October 1, 2009.
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“Series 2009-2
Collateral” means the Collateral, each Series 2009-2 Letter of Credit,
each Series 2009-2 Demand Note, the Series 2009-2 Distribution Account
Collateral, the Series 2009-2 Cash Collateral Account Collateral and the Series
2009-2 Reserve Account Collateral.
“Series 2009-2 Collection
Account” is defined in Section 2.1(b).
“Series 2009-2 Controlled
Amortization Amount” means, with respect to any Related Month during the
Series 2009-2 Controlled Amortization Period, $75,000,000.
“Series 2009-2 Controlled
Amortization Period” means the period commencing at the opening of
business on August 1, 2012 (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 2009-2 Rapid Amortization Period, (ii) the date on
which the Series 2009-2 Notes are fully paid and (iii) the termination of the
Indenture.
“Series 2009-2 Controlled
Distribution Amount” means, with respect to any Related Month during the
Series 2009-2 Controlled Amortization Period, an amount equal to the sum of the
Series 2009-2 Controlled Amortization Amount and any Series 2009-2 Carryover
Controlled Amortization Amount for such Related Month.
“Series 2009-2 Demand
Note” means each demand note made by a Demand Note Issuer, substantially
in the form of Exhibit
C, as amended, modified or restated from time to time.
“Series 2009-2 Demand Note
Payment Amount” means, as of the Series 2009-2 Letter of Credit
Termination Date, the aggregate amount of all proceeds of demands made on the
Series 2009-2 Demand Notes pursuant to Section 2.5(b) or (c) that were
deposited into the Series 2009-2 Distribution Account and paid to the Series
2009-2 Noteholders during the one year period ending on the Series 2009-2 Letter
of Credit Termination Date; provided, however, that if an
Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the definition thereof, without the lapse of a period of sixty (60) consecutive
days) with respect to a Demand Note Issuer shall have occurred during such one
year period, the Series 2009-2 Demand Note Payment Amount as of the Series
2009-2 Letter of Credit Termination Date shall equal the Series 2009-2 Demand
Note Payment Amount as if it were calculated as of the date of such
occurrence.
“Series 2009-2 Deposit
Date” is defined in Section 2.2.
“Series 2009-2 Distribution
Account” is defined in Section 2.9(a).
“Series 2009-2 Distribution
Account Collateral” is defined in Section 2.9(d).
“Series 2009-2 Eligible
Letter of Credit Provider” means a Person satisfactory to ABCR and the
Demand Note Issuers and having, at the time of the issuance of the related
Series 2009-2 Letter of Credit, a long-term senior unsecured debt rating (or the
equivalent thereof) of at least “A1” from Moody’s and a short-term senior
unsecured debt rating of at least “P-1” from Moody’s that is (a) a commercial
bank having total assets in excess of $500,000,000, (b) a finance company,
insurance company or other financial institution that in the ordinary course of
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business
issues letters of credit and has total assets in excess of $200,000,000 or (c)
any other financial institution; provided, however, that if a
Person is not a Series 2009-2 Letter of Credit Provider (or a letter of credit
provider under the Supplement for any other Series of Notes), then such Person
shall not be a Series 2009-2 Eligible Letter of Credit Provider until ABRCF has
provided 10 days’ prior written notice to Moody’s that such Person has been
proposed as a Series 2009-2 Letter of Credit Provider.
“Series 2009-2
Enhancement” means the Series 2009-2 Cash Collateral Account Collateral,
the Series 2009-2 Letters of Credit, the Series 2009-2 Demand Notes, the Series
2009-2 Overcollateralization Amount and the Series 2009-2 Reserve Account
Amount.
“Series 2009-2 Enhancement
Amount” means, as of any date of determination, the sum of (i) the Series
2009-2 Overcollateralization Amount as of such date, (ii) the Series 2009-2
Letter of Credit Amount as of such date, (iii) the Series 2009-2 Available
Reserve Account Amount as of such date and (iv) the amount of cash and Permitted
Investments on deposit in the Series 2009-2 Collection Account (not including
amounts allocable to the Series 2009-2 Accrued Interest Account) and the Series
2009-2 Excess Collection Account as of such date.
“Series 2009-2 Enhancement
Deficiency” means, on any date of determination, the amount by which the
Series 2009-2 Enhancement Amount is less than the Series 2009-2 Required
Enhancement Amount as of such date.
“Series 2009-2 Excess
Collection Account” is defined in Section 2.1(b).
“Series 2009-2 Excluded
Manufacturer Receivable Specified Percentage” means, as of any date of
determination, with respect to each Series 2009-2 Non-Investment Grade
Manufacturer as of such date, the percentage (not to exceed 100%) most recently
specified in writing by Moody’s to ABRCF and the Trustee and consented to by the
Requisite Noteholders with respect to such Series 2009-2 Non-Investment Grade
Manufacturer; provided, however, that as of
the Series 2009-2 Closing Date the Series 2009-2 Excluded Manufacturer
Receivable Specified Percentage for each Series 2009-2 Non-Investment Grade
Manufacturer shall be 100%; provided further that
the initial Series 2009-2 Excluded Manufacturer Receivable Specified Percentage
with respect to any Manufacturer that becomes a Series 2009-2 Non-Investment
Grade Manufacturer after the Series 2009-2 Closing Date shall be
100%.
“Series 2009-2 Expected Final
Distribution Date” means the February 2013 Distribution
Date.
“Series 2009-2 Final
Distribution Date” means the February 2014 Distribution
Date.
“Series 2009-2 Highest
Enhanced Vehicle Percentage” means, as of any date
of determination, a fraction, expressed as a percentage, (a) the numerator of
which is the aggregate Net Book Value of all Vehicles leased under the AESOP I
Operating Lease that are either not subject to a Manufacturer Program or not
eligible for repurchase under a Manufacturer Program as of such date and (b) the
denominator of which is the aggregate Net Book Value of all Vehicles leased
under the AESOP I Operating Lease as of such date.
-9-
“Series 2009-2 Highest
Enhancement Rate” means, as of any date of determination, the greater of
(a) 62.75% and (b) the sum of (i) 62.75% 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 2009-2 Initial
Invested Amount” means the aggregate initial principal amount of the
Series 2009-2 Notes, which is $450,000,000.
“Series 2009-2 Interest
Period” means a period commencing on and including a Distribution Date
and ending on and including the day preceding the next succeeding Distribution
Date; provided,
however that
the initial Series 2009-2 Interest Period shall commence on and include the
Series 2009-2 Closing Date and end on and include October 19, 2009.
“Series 2009-2 Intermediate
Enhanced Vehicle Percentage” means, as of any date of determination, 100%
minus the sum
of (a) the Series 2009-2 Lowest Enhanced Vehicle Percentage and (b) the Series
2009-2 Highest Enhanced Vehicle Percentage.
“Series 2009-2 Intermediate
Enhancement Rate” means 62.75%.
“Series 2009-2 Invested
Amount” means, when used with respect to any date, an amount equal to (a)
the Series 2009-2 Initial Invested Amount minus (b) the amount
of principal payments made to Series 2009-2 Noteholders on or prior to such
date.
“Series 2009-2 Invested
Percentage” means as of any date of determination:
(a) when
used with respect to Principal Collections, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which shall
be equal to the sum of the Series 2009-2 Invested Amount and the Series 2009-2
Overcollateralization Amount, determined during the Series 2009-2 Revolving
Period as of the end of the Related Month (or, until the end of the initial
Related Month, on the Series 2009-2 Closing Date), or, during the Series 2009-2
Controlled Amortization Period and the Series 2009-2 Rapid Amortization Period,
as of the end of the Series 2009-2 Revolving Period, and the denominator of
which shall be the greater of (I) the Aggregate Asset Amount as of the end of
the Related Month or, until the end of the initial Related Month, as of the
Series 2009-2 Closing Date, and (II) as of the same date as in clause (I), the
sum of the numerators used to determine (i) invested percentages for allocations
with respect to Principal Collections (for all Series of Notes and all classes
of such Series of Notes) and (ii) overcollateralization percentages for
allocations with respect to Principal Collections (for all Series of Notes that
provide for credit enhancement in the form of overcollateralization);
and
(b) when
used with respect to Interest Collections, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which shall
be the Accrued Amounts with respect to the Series 2009-2 Notes on such date of
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determination,
and the denominator of which shall be the aggregate Accrued Amounts with respect
to all Series of Notes on such date of determination.
“Series 2009-2 Lease Interest
Payment Deficit” means, on any Distribution Date, an amount equal to the
excess, if any, of (a) the aggregate amount of Interest Collections which
pursuant to Section 2.2(a), (b), (c) or (d) would have been allocated to the
Series 2009-2 Accrued Interest Account if all payments of Monthly Base Rent
required to have been made under the Leases from and excluding the preceding
Distribution Date to and including such Distribution Date were made in full over
(b) the aggregate amount of Interest Collections which pursuant to Section
2.2(a), (b), (c) or (d) have been allocated to the Series 2009-2 Accrued
Interest Account (excluding any amounts paid into the Series 2009-2 Accrued
Interest Account pursuant to the proviso in Sections 2.2(c)(ii) and/or
2.2(d)(ii)) from and excluding the preceding Distribution Date to and including
the Business Day immediately preceding such Distribution Date.
“Series 2009-2 Lease Payment
Deficit” means either a Series 2009-2 Lease Interest Payment Deficit or a
Series 2009-2 Lease Principal Payment Deficit.
“Series 2009-2 Lease
Principal Payment Carryover Deficit” means (a) for the initial
Distribution Date, zero and (b) for any other Distribution Date, the excess of
(x) the Series 2009-2 Lease Principal Payment Deficit, if any, on the preceding
Distribution Date over (y) the amount
deposited in the Distribution Account on such preceding Distribution Date
pursuant to Section 2.5(b) on account of such Series 2009-2 Lease Principal
Payment Deficit.
“Series 2009-2 Lease
Principal Payment Deficit” means on any Distribution Date the sum of (a)
the Series 2009-2 Monthly Lease Principal Payment Deficit for such Distribution
Date and (b) the Series 2009-2 Lease Principal Payment Carryover Deficit for
such Distribution Date.
“Series 2009-2 Letter of
Credit” means an irrevocable letter of credit, if any, substantially in
the form of Exhibit
D issued by a Series 2009-2 Eligible Letter of Credit Provider in favor
of the Trustee for the benefit of the Series 2009-2 Noteholders.
“Series 2009-2 Letter of
Credit Amount” means, as of any date of determination, the lesser of (a)
the sum of (i) the aggregate amount available to be drawn on such date under
each Series 2009-2 Letter of Credit on which no draw has been made pursuant to
Section 2.8(c), as specified therein, and (ii) if the Series 2009-2 Cash
Collateral Account has been established and funded pursuant to Section 2.8, the
Series 2009-2 Available Cash Collateral Account Amount on such date and (b) the
aggregate outstanding principal amount of the Series 2009-2 Demand Notes on such
date.
“Series 2009-2 Letter of
Credit Expiration Date” means, with respect to any Series 2009-2 Letter
of Credit, the expiration date set forth in such Series 2009-2 Letter of Credit,
as such date may be extended in accordance with the terms of such Series 2009-2
Letter of Credit.
“Series 2009-2 Letter of
Credit Liquidity Amount” means, as of any date of determination, the sum
of (a) the aggregate amount available to be drawn on such date under each Series
2009-2 Letter of Credit on which no draw has been made pursuant to Section
2.8(c),
-11-
as
specified therein, and (b) if the Series 2009-2 Cash Collateral Account has been
established and funded pursuant to Section 2.8, the Series 2009-2 Available
Cash Collateral Account Amount on such date.
“Series 2009-2 Letter of
Credit Provider” means the issuer of a Series 2009-2 Letter of
Credit.
“Series 2009-2 Letter of
Credit Termination Date” means the first to occur of (a) the date on
which the Series 2009-2 Notes are fully paid and (b) the Series 2009-2
Termination Date.
“Series 2009-2 Limited
Liquidation Event of Default” means, so long as such event or condition
continues, any event or condition of the type specified in clauses (a) through
(g) of Article III; provided, however, that any
event or condition of the type specified in clauses (a) through (g) of Article
III shall not constitute a Series 2009-2 Limited Liquidation Event of Default if
the Trustee shall have received the written consent of the Requisite Noteholders
waiving the occurrence of such Series 2009-2 Limited Liquidation Event of
Default. The Trustee shall promptly (but in any event within two
days) provide Moody’s with written notice of such waiver.
“Series 2009-2 Liquidity
Amount” means, as of any date of determination, the sum of (a) the Series
2009-2 Letter of Credit Liquidity Amount on such date and (b) the Series 2009-2
Available Reserve Account Amount on such date.
“Series 2009-2 Lowest
Enhanced Vehicle Percentage” means, as of any date of determination, a
fraction, expressed as a percentage, (a) the numerator of which is the sum,
without duplication, of (1) the aggregate Net Book Value of all Program Vehicles
leased under the AESOP I Operating Lease that are manufactured by Eligible
Program Manufacturers having long-term senior unsecured debt ratings of “Baa2”
or higher from Moody’s as of such date, (2) so long as any Eligible
Non-Program Manufacturer has a long-term senior unsecured debt rating of “Baa2”
or higher from Moody’s and no Manufacturer Event of Default has occurred and is
continuing with respect to such Eligible Non-Program Manufacturer, the aggregate
Net Book Value of all Non-Program Vehicles leased under the AESOP I Operating
Lease manufactured by each such Eligible Non-Program Manufacturer that are
subject to a Manufacturer Program and remain eligible for repurchase thereunder
as of such date and (3) the lesser of (A) the sum of (x) if as of such date any
Eligible Program Manufacturer has a long-term senior unsecured debt rating of
“Baa3” from Moody’s, the aggregate Net Book Value of all Program Vehicles leased
under the AESOP I Operating Lease manufactured by each such Eligible Program
Manufacturer as of such date and (y) if as of such date any Eligible Non-Program
Manufacturer has a long-term senior unsecured debt rating of “Baa3” from Moody’s
and no Manufacturer Event of Default has occurred and is continuing with respect
to such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease manufactured by
each such Eligible Non-Program Manufacturer that are subject to a Manufacturer
Program and remain eligible for repurchase thereunder as of such date and
(B) 10% of the aggregate Net Book Value of all Vehicles leased under the
AESOP I Operating Lease as of such date and (b) the denominator of
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which is
the aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease as of such date.
“Series 2009-2 Lowest
Enhancement Rate” means 25.00%.
“Series 2009-2 Maximum
Amount” means any of the Series 2009-2 Maximum Manufacturer Amounts, the
Series 2009-2 Maximum Non-Eligible Manufacturer Amount, the Series 2009-2
Maximum Non-Program Vehicle Amount or the Series 2009-2 Maximum Specified States
Amount.
“Series 2009-2 Maximum Hyundai
Amount” means, as of any day, an amount equal to 20% of the aggregate Net
Book Value of all Vehicles leased under the Leases on such day.
“Series 2009-2 Maximum
Individual Isuzu/Subaru Amount” means, as of any day, with respect to
Isuzu or Subaru individually, an amount equal to 5% of the aggregate Net Book
Value of all Vehicles leased under the Leases on such day.
“Series 2009-2 Maximum Kia
Amount” means, as of any day, an amount equal to 10% of the aggregate Net
Book Value of all Vehicles leased under the Leases on such day.
“Series 2009-2 Maximum
Manufacturer Amount” means, as of any day, any of the Series 2009-2
Maximum Mitsubishi Amount, the Series 2009-2 Maximum Individual Isuzu/Subaru
Amount, the Series 2009-2 Maximum Hyundai Amount, the Series 2009-2 Maximum Kia
Amount or the Series 2009-2 Maximum Suzuki Amount.
“Series 2009-2 Maximum
Mitsubishi Amount” means, as of any day, an amount equal to 10% of the
aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
“Series 2009-2 Maximum
Non-Eligible Manufacturer Amount” means, as of any day, an amount
equal to 3% of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
“Series 2009-2 Maximum
Non-Program Vehicle Amount” means, as of any day, an amount equal to the
Series 2009-2 Maximum Non-Program Vehicle Percentage of the aggregate Net Book
Value of all Vehicles leased under the Leases on such day.
“Series 2009-2 Maximum
Non-Program Vehicle Percentage” means, as of any date of determination,
the sum of (a) 85% and (b) a fraction, expressed as a percentage, the numerator
of which is the aggregate Net Book Value of all Redesignated Vehicles
manufactured by a Bankrupt Manufacturer or a Manufacturer with respect to which
a Manufacturer Event of Default has occurred, and in each case leased under the
AESOP I Operating Lease or the Finance Lease as of such date, and the
denominator of which is the aggregate Net Book Value of all Vehicles leased
under the Leases as of such date.
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“Series 2009-2 Maximum
Specified States Amount” means, as of any day, an amount equal to 7.5% of
the aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
“Series 2009-2 Maximum Suzuki
Amount” means, as of any day, an amount equal to 7.5% of the aggregate
Net Book Value of all Vehicles leased under the Leases on such day.
“Series 2009-2 Monthly
Interest” means, with respect to (i) the initial Series 2009-2 Interest
Period, an amount equal to $1,349,000 and (ii) any other Series 2009-2 Interest
Period, an amount equal to the product of (A) one-twelfth of the Series 2009-2
Note Rate and (B) the Series 2009-2 Invested Amount on the first day of
such Series 2009-2 Interest Period, after giving effect to any principal
payments made on such date.
“Series 2009-2 Monthly Lease
Principal Payment Deficit” means, on any Distribution Date, an amount
equal to the excess, if any, of (a) the aggregate amount of Principal
Collections which pursuant to Section 2.2(a), (b), (c) or (d) would have been
allocated to the Series 2009-2 Collection Account if all payments required to
have been made under the Leases from and excluding the preceding Distribution
Date to and including such Distribution Date were made in full over (b) the
aggregate amount of Principal Collections which pursuant to Section 2.2(a), (b),
(c) or (d) have been allocated to the Series 2009-2 Collection Account (without
giving effect to any amounts paid into the Series 2009-2 Accrued Interest
Account pursuant to the proviso in Sections 2.2(c)(ii) and/or 2.2(d)(ii)) from
and excluding the preceding Distribution Date to and including the Business Day
immediately preceding such Distribution Date.
“Series 2009-2 Non-Investment
Grade Manufacturer” means, as of any date of determination, any
Manufacturer that (i) is not a Bankrupt Manufacturer and (ii) does not have a
long-term senior unsecured debt rating of at least “Baa3” from Moody’s; provided that any
Manufacturer whose long-term senior unsecured debt rating is downgraded from at
least “Baa3” to below “Baa3” by Moody’s after the Series 2009-2 Closing Date
shall not be deemed a Series 2009-2 Non-Investment Grade Manufacturer until the
thirtieth (30th) calendar day
following such downgrade.
“Series 2009-2 Note
Owner” means each beneficial owner of a Series 2009-2 Note.
“Series 2009-2 Note
Rate” means 5.68% per annum
“Series 2009-2
Noteholder” means the Person in whose name a Series 2009-2 Note is
registered in the Note Register.
“Series 2009-2 Notes”
means any one of the Series 2009-2 5.68% Rental Car Asset Backed Notes, executed
by ABRCF and authenticated by or on behalf of the Trustee, substantially in the
form of Exhibit
A-1, Exhibit
A-2 or Exhibit
A-3. Definitive Series 2009-2 Notes shall have such insertions
and deletions as are necessary to give effect to the provisions of Section 2.18
of the Base Indenture.
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“Series 2009-2
Overcollateralization Amount” means (i) as of any date on which no AESOP
I Operating Lease Vehicle Deficiency exists, the Series 2009-2 Required
Overcollateralization Amount as of such date and (ii) as of any date on which an
AESOP I Operating Lease Vehicle Deficiency exists, the excess, if any, of (x)
the Series 2009-2 AESOP I Operating Lease Loan Agreement Borrowing Base as of
such date over (y) the Series 2009-2 Invested Amount as of such
date.
“Series 2009-2 Past Due Rent
Payment” is defined in Section 2.2(g).
“Series 2009-2
Percentage” means, as of any date of determination, a fraction, expressed
as a percentage, the numerator of which is the Series 2009-2 Invested Amount as
of such date and the denominator of which is the Aggregate Invested Amount as of
such date.
“Series 2009-2 Principal
Allocation” is defined in Section 2.2(a)(ii).
“Series 2009-2 Rapid
Amortization Period” means the period beginning at the close of business
on the Business Day immediately preceding the day on which an Amortization Event
is deemed to have occurred with respect to the Series 2009-2 Notes and ending
upon the earliest to occur of (i) the date on which the Series 2009-2 Notes are
fully paid, (ii) the Series 2009-2 Final Distribution Date and (iii) the
termination of the Indenture.
“Series 2009-2 Reimbursement
Agreement” means any and each agreement providing for the reimbursement
of a Series 2009-2 Letter of Credit Provider for draws under its Series 2009-2
Letter of Credit as the same may be amended, supplemented, restated or otherwise
modified from time to time.
“Series 2009-2 Repurchase
Amount” is defined in Section 6.1.
“Series 2009-2 Required AESOP
I Operating Lease Vehicle Amount” means, as of any date of determination,
the sum of the Series 2009-2 Invested Amount and the Series 2009-2 Required
Overcollateralization Amount as of such date.
“Series 2009-2 Required
Enhancement Amount” means, as of any date of determination, the sum of
(i) the product of the Series 2009-2 Required Enhancement Percentage as of such
date and the Series 2009-2 Invested Amount as of such date, (ii) the Series
2009-2 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the Non-Program Vehicle Amount
as of such date over the Series 2009-2 Maximum Non-Program Vehicle Amount as of
such date, (iii) the Series 2009-2 AESOP I Operating Lease Vehicle Percentage as
of the immediately preceding Business Day of the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Mitsubishi and leased
under the Leases as of such date over the Series 2009-2 Maximum Mitsubishi
Amount as of such date, (iv) the Series 2009-2 AESOP I Operating Lease Vehicle
Percentage as of the immediately preceding Business Day of the excess, if any,
of the aggregate Net Book Value of all Vehicles manufactured by Isuzu or Subaru,
individually, and leased under the Leases as of such date over the Series 2009-2
Maximum Individual Isuzu/Subaru Amount as of such date, (v) the Series
2009-2 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the aggregate Net Book Value of
all Vehicles manufactured by Hyundai and leased under the Leases as of such date
over the Series 2009-2
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Maximum
Hyundai Amount as of such date, (vi) the Series 2009-2 AESOP I Operating Lease
Vehicle Percentage as of the immediately preceding Business Day of the excess,
if any, of the aggregate Net Book Value of all Vehicles manufactured by Kia and
leased under the Leases as of such date over the Series 2009-2 Maximum Kia
Amount as of such date, (vii) the Series 2009-2 AESOP I Operating Lease Vehicle
Percentage as of the immediately preceding Business Day of the excess, if any,
of the aggregate Net Book Value of all Vehicles manufactured by Suzuki and
leased under the Leases as of such date over the Series 2009-2 Maximum Suzuki
Amount as of such date, (viii) the Series 2009-2 AESOP I Operating Lease Vehicle
Percentage as of the immediately preceding Business Day of the excess, if any,
of the Specified States Amount as of such date over the Series 2009-2 Maximum
Specified States Amount as of such date and (ix) the Series 2009-2 AESOP I
Operating Lease Vehicle Percentage as of the immediately preceding Business Day
of the excess, if any, of the Non-Eligible Manufacturer Amount as of such date
over the Series 2009-2 Maximum Non-Eligible Manufacturer Amount as of such
date.
“Series 2009-2 Required
Enhancement Percentage” means, as of any date of determination, the sum
of (i) the product of (A) the Series 2009-2 Lowest Enhancement Rate and (B) the
Series 2009-2 Lowest Enhanced Vehicle Percentage as of such date, (ii) the
product of (A) the Series 2009-2 Intermediate Enhancement Rate and (B) the
Series 2009-2 Intermediate Enhanced Vehicle Percentage as of such date, and
(iii) the product of (A) the Series 2009-2 Highest Enhancement Rate as of such
date and (B) the Series 2009-2 Highest Enhanced Vehicle Percentage as of such
date.
“Series 2009-2 Required
Liquidity Amount” means, as of any date of determination, an amount equal
to the product of 3.50% and the Series 2009-2 Invested Amount as of such
date.
“Series 2009-2 Required
Overcollateralization Amount” means, as of any date of determination, the
excess, if any, of the Series 2009-2 Required Enhancement Amount over the sum of
(i) the Series 2009-2 Letter of Credit Amount as of such date, (ii) the Series
2009-2 Available Reserve Account Amount on such date and (iii) the amount of
cash and Permitted Investments on deposit in the Series 2009-2 Collection
Account (not including amounts allocable to the Series 2009-2 Accrued Interest
Account) and the Series 2009-2 Excess Collection Account on such
date.
“Series 2009-2 Required
Reserve Account Amount” means, for any date of determination, an amount
equal to the greater of (a) the excess, if any, of the Series 2009-2
Required Liquidity Amount as of such date over the Series 2009-2 Letter of
Credit Liquidity Amount as of such date and (b) the excess, if any, of the
Series 2009-2 Required Enhancement Amount over the Series 2009-2 Enhancement
Amount (excluding therefrom the Series 2009-2 Available Reserve Account Amount
and calculated after giving effect to any payments of principal to be made on
the Series 2009-2 Notes) as of such date.
“Series 2009-2 Reserve
Account” is defined in Section 2.7(a).
“Series 2009-2 Reserve
Account Collateral” is defined in Section 2.7(d).
-16-
“Series 2009-2 Reserve
Account Surplus” means, with respect to any Distribution Date, the
excess, if any, of the Series 2009-2 Available Reserve Account Amount over the
Series 2009-2 Required Reserve Account Amount on such Distribution
Date.
“Series 2009-2 Revolving
Period” means the period from and including the Series 2009-2 Closing
Date to the earlier of (i) the commencement of the Series 2009-2 Controlled
Amortization Period and (ii) the commencement of the Series 2009-2 Rapid
Amortization Period; provided that if the
Series 2009-2 Notes are paid in full on or prior to the Series 2009-2 Expected
Final Distribution Date, then the Series 2009-2 Revolving Period shall also
include the period from and including the first day of the calendar month during
which the Distribution Date on which the Series 2009-2 Notes are paid in full
occurs to the commencement of the Series 2009-2 Rapid Amortization
Period.
“Series 2009-2
Shortfall” is defined in Section 2.3(g).
“Series 2009-2 Termination
Date” means the February 2014 Distribution Date.
“Series 2009-2 Trustee’s
Fees” means, for any Distribution Date during the Series 2009-2 Rapid
Amortization Period on which there exists a Series 2009-2 Lease Interest Payment
Deficit, a portion of the fees payable to the Trustee in an amount equal to the
product of (i) the Series 2009-2 Percentage as of the beginning of the Series
2009-2 Interest Period ending on the day preceding such Distribution Date and
(ii) the fees owing to the Trustee under the Indenture; provided that the
Series 2009-2 Trustee’s Fees in the aggregate for all Distribution Dates shall
not exceed 1.1% of the Series 2009-2 Required AESOP I Operating Lease Vehicle
Amount as of the last day of the Series 2009-2 Revolving Period.
“Series 2009-2 Unpaid Demand
Amount” means, with respect to any single draw pursuant to Section 2.5(c)
or (d) on the Series 2009-2 Letters of Credit, the aggregate amount drawn by the
Trustee on all Series 2009-2 Letters of Credit.
“Supplement” is
defined in the preamble hereto.
“Temporary Global Series
2009-2 Note” is defined in Section 5.2.
“Termination Date
Disbursement” means an amount drawn under a Series 2009-2 Letter of
Credit pursuant to a Certificate of Termination Date Demand.
“Termination
Disbursement” means an amount drawn under a Series 2009-2 Letter of
Credit pursuant to a Certificate of Termination Demand.
“Trustee” is defined
in the recitals hereto.
“Unpaid Demand Note
Disbursement” means an amount drawn under a Series 2009-2 Letter of
Credit pursuant to a Certificate of Unpaid Demand Note Demand.
“Waivable Amount” is
defined in Article IV.
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“Waiver Event” means
the occurrence of the delivery of a Waiver Request and the subsequent waiver of
any Series 2009-2 Maximum Amount.
“Waiver Request” is
defined in Article IV.
(c) Any
amounts calculated by reference to the Series 2009-2 Invested Amount on any date
shall, unless otherwise stated, be calculated after giving effect to any payment
of principal made to the Series 2009-2 Noteholders on such date.
ARTICLE II
SERIES 2009-2
ALLOCATIONS
With
respect to the Series 2009-2 Notes, the following shall apply:
Section
2.1 Establishment of Series
2009-2 Collection Account, Series 2009-2 Excess Collection Account and Series
2009-2 Accrued Interest Account. (a) All
Collections allocable to the Series 2009-2 Notes shall be allocated to the
Collection Account.
(b) The
Trustee will create three administrative subaccounts within the Collection
Account for the benefit of the Series 2009-2 Noteholders: the Series
2009-2 Collection Account (such sub-account, the “Series 2009-2 Collection
Account”), the Series 2009-2 Excess Collection Account (such sub-account,
the “Series 2009-2
Excess Collection Account”) and the Series 2009-2 Accrued Interest
Account (such sub-account, the “Series 2009-2 Accrued
Interest Account”).
Section
2.2 Allocations with Respect to
the Series 2009-2 Notes. The
net proceeds from the initial sale of the Series 2009-2 Notes will be deposited
into the Collection Account. On each Business Day on which
Collections are deposited into the Collection Account (each such date, a “Series 2009-2 Deposit
Date”), the Administrator will direct the Trustee in writing pursuant to
the Administration Agreement to allocate all amounts deposited into the
Collection Account in accordance with the provisions of this Section
2.2:
(a) Allocations of Collections
During the Series 2009-2 Revolving Period. During the Series
2009-2 Revolving Period, the Administrator will direct the Trustee in writing
pursuant to the Administration Agreement to allocate on each day, prior to 11:00
a.m. (New York City time) on each Series 2009-2 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2009-2 Collection Account an amount equal to the Series 2009-2
Invested Percentage (as of such day) of the aggregate amount of Interest
Collections on such day. All such amounts allocated to the Series
2009-2 Collection Account shall be further allocated to the Series 2009-2
Accrued Interest Account; and
(ii) allocate
to the Series 2009-2 Excess Collection Account an amount equal to the sum of
(A) the Series 2009-2 Invested Percentage (as of such day) of
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the
aggregate amount of Principal Collections on such day (for any such day, the
“Series 2009-2
Principal Allocation”) and (B) the proceeds from the initial
issuance of the Series 2009-2 Notes; provided, however, if a Waiver
Event shall have occurred, then such allocation shall be modified as provided in
Article IV.
(b) Allocations of Collections
During the Series 2009-2 Controlled Amortization Period. With
respect to the Series 2009-2 Controlled Amortization Period, the Administrator
will direct the Trustee in writing pursuant to the Administration Agreement to
allocate, prior to 11:00 a.m. (New York City time) on any Series
2009-2 Deposit Date, all amounts deposited into the Collection Account as set
forth below:
(i) allocate
to the Series 2009-2 Collection Account an amount determined as set forth in
Section 2.2(a)(i) above for such day, which amount shall be further allocated to
the Series 2009-2 Accrued Interest Account; and
(ii) allocate
to the Series 2009-2 Collection Account an amount equal to the Series 2009-2
Principal Allocation for such day, which amount shall be used to make principal
payments in respect of the Series 2009-2 Notes; provided, however, that if the
Monthly Total Principal Allocation exceeds the Series 2009-2 Controlled
Distribution Amount, then the amount of such excess shall be allocated to the
Series 2009-2 Excess Collection Account and provided, further, that if a
Waiver Event shall have occurred, then such allocation shall be modified as
provided in Article IV.
(c) Allocations of Collections
During the Series 2009-2 Rapid Amortization Period. With
respect to the Series 2009-2 Rapid Amortization Period, other than after the
occurrence of an Event of Bankruptcy with respect to ABCR, any other Lessee or
any Permitted Sublessee, the Administrator will direct the Trustee in writing
pursuant to the Administration Agreement to allocate, prior to 11:00 a.m.
(New York City time) on any Series 2009-2 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2009-2 Collection Account an amount determined as set forth in
Section 2.2(a)(i) above for such day, which amount shall be further allocated to
the Series 2009-2 Accrued Interest Account; and
(ii) allocate
to the Series 2009-2 Collection Account an amount equal to the Series 2009-2
Principal Allocation for such day, which amount shall be used to make principal
payments in respect of the Series 2009-2 Notes, until the Series 2009-2 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
2009-2 Notes and other amounts available pursuant to Section 2.3 to pay the sum
of (x) the Series 2009-2 Monthly Interest for the next succeeding Distribution
Date and (y) any unpaid Series 2009-2 Shortfall on such Distribution Date
(together with interest on such Series 2009-2 Shortfall) will be less than the
sum of the Series 2009-2 Monthly Interest for such Distribution Date and such
Series 2009-2 Shortfall and
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(B) the
Series 2009-2 Enhancement Amount is greater than zero, then the Administrator
shall direct the Trustee in writing to reallocate a portion of the Principal
Collections allocated to the Series 2009-2 Notes during the Related Month equal
to the lesser of such insufficiency and the Series 2009-2 Enhancement Amount to
the Series 2009-2 Accrued Interest Account to be treated as Interest Collections
on such Distribution Date.
(d) Allocations of Collections
after the Occurrence of an Event of Bankruptcy. After the
occurrence of an Event of Bankruptcy with respect to ABCR, any other Lessee or
any Permitted Sublessee, the Administrator will direct the Trustee in writing
pursuant to the Administration Agreement to allocate, prior to 11:00
a.m. (New York City time) on any Series 2009-2 Deposit Date, all
amounts attributable to the AESOP I Operating Lease Loan Agreement deposited
into the Collection Account as set forth below:
(i) allocate
to the Series 2009-2 Collection Account an amount equal to the Series 2009-2
AESOP I Operating Lease Vehicle Percentage as of the date of the occurrence of
such Event of Bankruptcy of the aggregate amount of Interest Collections made
under the AESOP I Operating Lease Loan Agreement for such day. All
such amounts allocated to the Series 2009-2 Collection Account shall be further
allocated to the Series 2009-2 Accrued Interest Account;
(ii) allocate
to the Series 2009-2 Collection Account an amount equal to the Series 2009-2
AESOP I Operating Lease Vehicle Percentage as of the date of the occurrence of
such Event of Bankruptcy of the aggregate amount of Principal Collections made
under the AESOP I Operating Lease Loan Agreement, which amount shall be used to
make principal payments in respect of the Series 2009-2 Notes, until the Series
2009-2 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
2009-2 Notes and other amounts available pursuant to Section 2.3 to pay the sum
of (x) the Series 2009-2 Monthly Interest for the next succeeding Distribution
Date and (y) any unpaid Series 2009-2 Shortfall on such Distribution Date
(together with interest on such Series 2009-2 Shortfall) will be less than the
sum of the Series 2009-2 Monthly Interest for such Distribution Date and such
Series 2009-2 Shortfall and (B) the Series 2009-2 Enhancement Amount is greater
than zero, then the Administrator shall direct the Trustee in writing to
reallocate a portion of the Principal Collections allocated to the Series 2009-2
Notes during the Related Month equal to the lesser of such insufficiency and the
Series 2009-2 Enhancement Amount to the Series 2009-2 Accrued Interest Account
to be treated as Interest Collections on such Distribution Date.
(e) Series 2009-2 Excess
Collection Account. Amounts allocated to the Series 2009-2
Excess Collection Account on any Series 2009-2 Deposit Date will be
(w) first, deposited in the Series 2009-2 Reserve Account in an amount up
to the excess, if any, of the Series 2009-2 Required Reserve Account Amount for
such date over the Series 2009-2 Available Reserve Account Amount for such date,
(x) second, used to pay
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the
principal amount of other Series of Notes that are then in amortization, (y)
third, released to AESOP Leasing in an amount equal to the product of (A) the
Loan Agreement’s Share with respect to the AESOP I Operating Lease Loan
Agreement as of such date and (B) 100% minus the Loan
Payment Allocation Percentage with respect to the AESOP I Operating Lease Loan
Agreement as of such date and (C) the amount of any remaining funds and (z)
fourth, paid to ABRCF for any use permitted by the Related Documents including
to make Loans under the Loan Agreements to the extent the Borrowers have
requested Loans thereunder and Eligible Vehicles are available for financing
thereunder; provided, however, that in the
case of clauses (x), (y) and (z), that no Amortization Event, Series 2009-2
Enhancement Deficiency or AESOP I Operating Lease Vehicle Deficiency would
result therefrom or exist immediately thereafter. Upon the occurrence
of an Amortization Event and once a Trust Officer has actual knowledge of the
Amortization Event, funds on deposit in the Series 2009-2 Excess Collection
Account will be withdrawn by the Trustee, deposited in the Series 2009-2
Collection Account and allocated as Principal Collections to reduce the Series
2009-2 Invested Amount on the immediately succeeding Distribution
Date.
(f) Allocations From Other
Series. Amounts allocated to other Series of Notes that have
been reallocated by ABRCF to the Series 2009-2 Notes (i) during the Series
2009-2 Revolving Period shall be allocated to the Series 2009-2 Excess
Collection Account and applied in accordance with Section 2.2(e) and (ii) during
the Series 2009-2 Controlled Amortization Period or the Series 2009-2
Rapid Amortization Period shall be allocated to the Series 2009-2 Collection
Account and applied in accordance with Section 2.2(b) or 2.2(c), as applicable,
to make principal payments in respect of the Series 2009-2 Notes.
(g) Past Due Rent
Payments. Notwithstanding the foregoing, if in the case of
Section 2.2(a) or (b), after the occurrence of a Series 2009-2 Lease Payment
Deficit, the Lessees shall make payments of Monthly Base Rent or other amounts
payable by the Lessees under the Leases on or prior to the fifth Business Day
after the occurrence of such Series 2009-2 Lease Payment Deficit (a “Past Due Rent
Payment”), the Administrator shall direct the Trustee in writing pursuant
to the Administration Agreement to allocate to the Series 2009-2 Collection
Account an amount equal to the Series 2009-2 Invested Percentage as of the date
of the occurrence of such Series 2009-2 Lease Payment Deficit of the Collections
attributable to such Past Due Rent Payment (the “Series 2009-2 Past Due Rent
Payment”). The Administrator shall instruct the Trustee in
writing pursuant to the Administration Agreement to withdraw from the Series
2009-2 Collection Account and apply the Series 2009-2 Past Due Rent Payment in
the following order:
(i) if the
occurrence of such Series 2009-2 Lease Payment Deficit resulted in one or more
Lease Deficit Disbursements being made under the Series 2009-2 Letters of
Credit, pay to each Series 2009-2 Letter of Credit Provider who made such a
Lease Deficit Disbursement for application in accordance with the provisions of
the applicable Series 2009-2 Reimbursement Agreement an amount equal to the
lesser of (x) the unreimbursed amount of such Series 2009-2 Letter of
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Credit
Provider’s Lease Deficit Disbursement and (y) such Series 2009-2 Letter of
Credit Provider’s Pro Rata Share of the Series 2009-2 Past Due Rent
Payment;
(ii) if the
occurrence of such Series 2009-2 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2009-2 Cash Collateral Account, deposit in the Series
2009-2 Cash Collateral Account an amount equal to the lesser of (x) the amount
of the Series 2009-2 Past Due Rent Payment remaining after any payment pursuant
to clause (i) above and (y) the amount withdrawn from the Series 2009-2 Cash
Collateral Account on account of such Series 2009-2 Lease Payment
Deficit;
(iii) if the
occurrence of such Series 2009-2 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2009-2 Reserve Account pursuant to Section 2.3(d),
deposit in the Series 2009-2 Reserve Account an amount equal to the lesser of
(x) the amount of the Series 2009-2 Past Due Rent Payment remaining after any
payments pursuant to clauses (i) and (ii) above and (y) the excess, if any, of
the Series 2009-2 Required Reserve Account Amount over the Series 2009-2
Available Reserve Account Amount on such day;
(iv) allocate
to the Series 2009-2 Accrued Interest Account the amount, if any, by which the
Series 2009-2 Lease Interest Payment Deficit, if any, relating to such Series
2009-2 Lease Payment Deficit exceeds the amount of the Series 2009-2 Past Due
Rent Payment applied pursuant to clauses (i), (ii) and (iii) above;
and
(v) treat the
remaining amount of the Series 2009-2 Past Due Rent Payment as Principal
Collections allocated to the Series 2009-2 Notes in accordance with Section
2.2(a)(ii) or 2.2(b)(ii), as the case may be.
Section
2.3 Payments to
Noteholders. On
each Determination Date, as provided below, the Administrator shall instruct the
Paying Agent in writing pursuant to the Administration Agreement to withdraw,
and on the following Distribution Date the Paying Agent, acting in accordance
with such instructions, shall withdraw the amounts required to be withdrawn from
the Collection Account pursuant to Section 2.3(a) below in respect of all funds
available from Interest Collections processed since the preceding Distribution
Date and allocated to the holders of the Series 2009-2 Notes.
(a) Note Interest with Respect
to the Series 2009-2 Notes. On each Determination Date, the
Administrator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement as to the amount to be withdrawn and
paid pursuant to Section 2.4 from the Series 2009-2 Accrued Interest Account to
the extent funds are anticipated to be available from Interest Collections
allocable to the Series 2009-2 Notes processed from but not including the
preceding Distribution Date through the succeeding Distribution Date in respect
of (x) first, an amount equal to the Series 2009-2 Monthly Interest for the
Series 2009-2 Interest Period ending on the day preceding the related
Distribution Date, and (y) second, an amount equal to the amount of any unpaid
Series 2009-2 Shortfall as of the preceding Distribution Date (together with any
accrued interest on such Series 2009-2 Shortfall). On the
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following
Distribution Date, the Trustee shall withdraw the amounts described in the first
sentence of this Section 2.3(a) from the Series 2009-2 Accrued Interest
Account and deposit such amounts in the Series 2009-2 Distribution
Account.
(b) Lease Payment Deficit
Notice. On or before 3:00 p.m. (New York City time) on the
Business Day immediately preceding each Distribution Date, the Administrator
shall notify the Trustee of the amount of any Series 2009-2 Lease Payment
Deficit, such notification to be in the form of Exhibit E (each a
“Lease Payment Deficit
Notice”).
(c) Draws on Series 2009-2
Letters of Credit For Series 2009-2 Lease Interest Payment
Deficits. If the Administrator determines on the Business Day
immediately preceding any Distribution Date that on such Distribution Date there
will exist a Series 2009-2 Lease Interest Payment Deficit, the Administrator
shall, on or prior to 3:00 p.m. (New York City time) on such Business Day,
instruct the Trustee in writing to draw on the Series 2009-2 Letters of Credit,
if any, and, the Trustee shall, by 5:00 p.m. (New York City time) on such
Business Day draw an amount as set forth in such notice equal to the least of
(i) such Series 2009-2 Lease Interest Payment Deficit, (ii) the excess, if any,
of the sum of (A) the amounts described in clauses (x) and (y) of Section 2.3(a)
above for such Distribution Date and (B) during the Series 2009-2 Rapid
Amortization Period, the Series 2009-2 Trustee’s Fees for such Distribution
Date, over the amounts available from the Series 2009-2 Accrued Interest Account
and (iii) the Series 2009-2 Letter of Credit Liquidity Amount on the Series
2009-2 Letters of Credit by presenting to each Series 2009-2 Letter of Credit
Provider a draft accompanied by a Certificate of Lease Deficit Demand and shall
cause the Lease Deficit Disbursements to be deposited in the Series 2009-2
Distribution Account on such date; provided, however, that if the
Series 2009-2 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2009-2 Cash Collateral Account and
deposit in the Series 2009-2 Distribution Account an amount equal to the lesser
of (x) the Series 2009-2 Cash Collateral Percentage on such date of the least of
the amounts described in clauses (i), (ii) and (iii) above and (y) the Series
2009-2 Available Cash Collateral Account Amount on such date and draw an amount
equal to the remainder of such amount on the Series 2009-2 Letters of
Credit.
(d) Withdrawals from Series
2009-2 Reserve Account. If the Administrator determines on any
Distribution Date that the amounts available from the Series 2009-2 Accrued
Interest Account plus the amount, if
any, to be drawn under the Series 2009-2 Letters of Credit and /or withdrawn
from the Series 2009-2 Cash Collateral Account pursuant to Section 2.3(c) are
insufficient to pay the sum of (A) the amounts described in clauses (x) and (y)
of Section 2.3(a) above on such Distribution Date and (B) during the Series
2009-2 Rapid Amortization Period, the Series 2009-2 Trustee’s Fees for such
Distribution Date, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 2009-2 Reserve Account and deposit in the Series 2009-2
Distribution Account on such Distribution Date an amount equal to the lesser of
the Series 2009-2 Available Reserve Account Amount and such
insufficiency. The Trustee shall withdraw such amount from the Series
2009-2 Reserve Account and deposit such amount in the Series 2009-2 Distribution
Account.
(e) [RESERVED]
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(f) Balance. On
or prior to the second Business Day preceding each Distribution Date, the
Administrator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement to pay the balance (after making the
payments required in Section 2.4), if any, of the amounts available from the
Series 2009-2 Accrued Interest Account and the Series 2009-2 Distribution
Account, plus
the amount, if any, drawn under the Series 2009-2 Letters of Credit and/or
withdrawn from the Series 2009-2 Cash Collateral Account pursuant to Section
2.3(c) plus the
amount, if any, withdrawn from the Series 2009-2 Reserve Account pursuant to
Section 2.3(d) as follows:
(i) on each
Distribution Date during the Series 2009-2 Revolving Period or the Series 2009-2
Controlled Amortization Period, (1) first, to the Administrator, an amount equal
to the Series 2009-2 Percentage as of the beginning of the Series 2009-2
Interest Period ending on the day preceding such Distribution Date of the
portion of the Monthly Administration Fee payable by ABRCF (as specified in
clause (iii) of the definition thereof) for such Series 2009-2 Interest Period,
(2) second, to the Trustee, an amount equal to the Series 2009-2 Percentage as
of the beginning of such Series 2009-2 Interest Period of the fees owing to the
Trustee under the Indenture for such Series 2009-2 Interest Period, (3) third to
pay any Carrying Charges (other than Carrying Charges provided for above) to the
Persons to whom such amounts are owed, an amount equal to the Series 2009-2
Percentage as of the beginning of such Series 2009-2 Interest Period of such
Carrying Charges (other than Carrying Charges provided for above) for such
Series 2009-2 Interest Period, and (4) fourth, the balance, if any (“Excess Collections”),
shall be withdrawn by the Paying Agent from the Series 2009-2 Collection Account
and deposited in the Series 2009-2 Excess Collection Account; and
(ii) on each
Distribution Date during the Series 2009-2 Rapid Amortization Period, (1) first,
to the Trustee, an amount equal to the Series 2009-2 Percentage as of the
beginning of such Series 2009-2 Interest Period ending on the day preceding such
Distribution Date of the fees owing to the Trustee under the Indenture for such
Series 2009-2 Interest Period, (2) second, to the Administrator, an amount equal
to the Series 2009-2 Percentage as of the beginning of such Series 2009-2
Interest Period of the portion of the Monthly Administration Fee (as specified
in clause (iii) of the definition thereof) payable by ABRCF for such Series
2009-2 Interest Period, (3) third, to pay any Carrying Charges (other than
Carrying Charges provided for above) to the Persons to whom such amounts are
owed, an amount equal to the Series 2009-2 Percentage as of the beginning of
such Series 2009-2 Interest Period of such Carrying Charges (other than Carrying
Charges provided for above) for such Series 2009-2 Interest Period and (4)
fourth, so long as the Series 2009-2 Invested Amount is greater than the Monthly
Total Principal Allocations for the Related Month, an amount equal to the excess
of the Series 2009-2 Invested Amount over the Monthly Total Principal
Allocations for the Related Month shall be treated as Principal
Collections.
(g) Shortfalls. If
the amounts described in Section 2.3 are insufficient to pay the Series 2009-2
Monthly Interest on any Distribution Date, payments of interest to the Series
2009-2 Noteholders will be reduced on a prorata basis by the
amount of such deficiency. The aggregate amount, if any, of such
deficiency on any Distribution Date shall be referred to as the
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“Series 2009-2
Shortfall.” Interest shall accrue on the Series 2009-2
Shortfall at the Series 2009-2 Note Rate.
Section
2.4 Payment of Note
Interest. On
each Distribution Date, subject to Section 9.8 of the Base Indenture, the Paying
Agent shall, in accordance with Section 6.1 of the Base Indenture, pay to the
Series 2009-2 Noteholders from the Series 2009-2 Distribution Account the amount
due to the Series 2009-2 Noteholders deposited in the Series 2009-2 Distribution
Account pursuant to Section 2.3.
Section
2.5 Payment of Note
Principal. (a) Monthly Payments During
Controlled Amortization Period or Rapid Amortization
Period. On each Determination Date, commencing on the second
Determination Date during the Series 2009-2 Controlled Amortization Period or
the first Determination Date after the commencement of the Series 2009-2 Rapid
Amortization Period, the Administrator shall instruct the Trustee and the Paying
Agent in writing pursuant to the Administration Agreement and in accordance with
this Section 2.5 as to (i) the amount allocated to the Series 2009-2 Notes
during the Related Month pursuant to Section 2.2(b)(ii), (c)(ii) or (d)(ii), as
the case may be, (ii) any amounts to be drawn on the Series 2009-2 Demand Notes
and/or on the Series 2009-2 Letters of Credit (or withdrawn from the Series
2009-2 Cash Collateral Account) and (iii) any amounts to be withdrawn from the
Series 2009-2 Reserve Account and deposited into the Series 2009-2 Distribution
Account. On the Distribution Date following each such Determination
Date, the Trustee shall withdraw the amount allocated to the Series 2009-2 Notes
during the Related Month pursuant to Section 2.2(b)(ii), (c)(ii) or (d)(ii), as
the case may be, from the Series 2009-2 Collection Account and deposit such
amount in the Series 2009-2 Distribution Account, to be paid to the holders of
the Series 2009-2 Notes.
(b) Principal Draws on Series
2009-2 Letters of Credit. If the Administrator determines on
the Business Day immediately preceding any Distribution Date during the Series
2009-2 Rapid Amortization Period that on such Distribution Date there will exist
a Series 2009-2 Lease Principal Payment Deficit, the Administrator shall
instruct the Trustee in writing to draw on the Series 2009-2 Letters of Credit,
if any, as provided below. Upon receipt of a notice by the Trustee
from the Administrator in respect of a Series 2009-2 Lease Principal Payment
Deficit on or prior to 3:00 p.m. (New York City time) on the Business Day
immediately preceding a Distribution Date, the Trustee shall, by 5:00 p.m. (New
York City time) on such Business Day draw an amount as set forth in such notice
equal to the least of (i) such Series 2009-2 Lease Principal Payment
Deficit, (ii) the Principal Deficit Amount for such Distribution Date and
(iii) the Series 2009-2 Letter of Credit Liquidity Amount on the Series
2009-2 Letters of Credit by presenting to each Series 2009-2 Letter of Credit
Provider a draft accompanied by a Certificate of Lease Deficit Demand and shall
cause the Lease Deficit Disbursements to be deposited in the Series 2009-2
Distribution Account on such date; provided, however, that if the
Series 2009-2 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2009-2 Cash Collateral Account and
deposit in the Series 2009-2 Distribution Account an amount equal to the lesser
of (x) the Series 2009-2 Cash Collateral Percentage for such date of the lesser
of the Series 2009-2 Lease Principal Payment Deficit and the Principal Deficit
Amount for such Distribution Date and (y) the Series 2009-2 Available Cash
Collateral Account Amount on such date and draw an amount equal to the remainder
of such amount on the Series 2009-2 Letters of
Credit. Notwithstanding any of the preceding to the
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contrary,
during the period after the date of the filing by any of the Lessees of a
petition for relief under Chapter 11 of the Bankruptcy Code until the date on
which each of the Lessees shall have resumed making all payments of the portion
of Monthly Base Rent relating to Loan Interest required to be made under the
AESOP I Operating Lease, the Administrator shall only instruct the Trustee to
draw on the Series 2009-2 Letters of Credit (or withdraw from the Series 2009-2
Cash Collateral Account, if applicable) pursuant to this Section 2.5(b), and the
Trustee shall only draw (or withdraw), an amount equal to the lesser of (i) the
amount determined as provided in the preceding sentence and (ii) the excess, if
any, of (x) the Series 2009-2 Liquidity Amount on such date over (y) the Series
2009-2 Required Liquidity Amount on such date.
(c) Final Distribution
Date. The entire Series 2009-2 Invested Amount shall be due
and payable on the Series 2009-2 Final Distribution Date. In
connection therewith:
(i) Demand Note
Draw. If the amount to be deposited in the Series 2009-2
Distribution Account in accordance with Section 2.5(a) together with any amounts
to be deposited therein in accordance with Section 2.5(b) on the Series 2009-2
Final Distribution Date, is less than the Series 2009-2 Invested Amount and
there are any Series 2009-2 Letters of Credit on such date, then, prior to 10:00
a.m. (New York City time) on the second Business Day prior to such Series 2009-2
Final Distribution Date, the Administrator shall instruct the Trustee in writing
to make a demand (a “Demand Notice”)
substantially in the form attached hereto as Exhibit F on the
Demand Note Issuers for payment under the Series 2009-2 Demand Notes in an
amount equal to the lesser of (i) such insufficiency and (ii) the Series
2009-2 Letter of Credit Amount. The Trustee shall, prior to 12:00
noon (New York City time) on the second Business Day preceding such Series
2009-2 Final Distribution Date, deliver such Demand Notice to the Demand Note
Issuers; provided, however, that if an
Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred and be continuing, the
Trustee shall not be required to deliver such Demand Notice to such Demand Note
Issuer. The Trustee shall cause the proceeds of any demand on the
Series 2009-2 Demand Notes to be deposited into the Series 2009-2 Distribution
Account.
(ii) Letter of Credit
Draw. In the event that either (x) on or prior to 10:00 a.m.
(New York City time) on the Business Day immediately preceding the Series 2009-2
Final Distribution Date a Demand Notice has been transmitted by the Trustee to
the Demand Note Issuers pursuant to clause (i) of this Section 2.5(c) and
any Demand Note Issuer shall have failed to pay to the Trustee or deposit into
the Series 2009-2 Distribution Account the amount specified in such Demand
Notice in whole or in part or (y) due to the occurrence of an Event of
Bankruptcy (or the occurrence of an event described in clause (a) of the
definition thereof, without the lapse of a period of 60 consecutive days) with
respect to one or more of the Demand Note Issuers, the Trustee shall not have
delivered such Demand Notice to any Demand Note Issuer on the second Business
Day preceding the Series 2009-2 Final Distribution Date, then, in the case of
(x) or (y) the Trustee shall draw on the Series 2009-2 Letters of Credit by
12:00 noon (New York City time) on such Business Day an amount equal to the
lesser of (a) the amount that the Demand Note Issuers failed to pay under the
Series 2009-2 Demand
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Notes
(or, the amount that the Trustee failed to demand for payment thereunder) and
(b) the Series 2009-2 Letter of Credit Amount on such Business Day by
presenting to each Series 2009-2 Letter of Credit Provider a draft accompanied
by a Certificate of Unpaid Demand Note Demand; provided, however, that if the Series
2009-2 Cash Collateral Account has been established and funded, the Trustee
shall withdraw from the Series 2009-2 Cash Collateral Account and deposit in the
Series 2009-2 Distribution Account an amount equal to the lesser of (x) the
Series 2009-2 Cash Collateral Percentage on such Business Day of the amount that
the Demand Note Issuers failed to pay under the Series 2009-2 Demand Notes (or,
the amount that the Trustee failed to demand for payment thereunder) and (y) the
Series 2009-2 Available Cash Collateral Account Amount on such Business Day and
draw an amount equal to the remainder of the amount that the Demand Note Issuers
failed to pay under the Series 2009-2 Demand Notes (or, the amount that the
Trustee failed to demand for payment thereunder) on the Series 2009-2 Letters of
Credit. The Trustee shall deposit, or cause the deposit of, the
proceeds of any draw on the Series 2009-2 Letters of Credit and the proceeds of
any withdrawal from the Series 2009-2 Cash Collateral Account to be deposited in
the Series 2009-2 Distribution Account.
(iii) Reserve Account
Withdrawal. If, after giving effect to the deposit into the
Series 2009-2 Distribution Account of the amount to be deposited in accordance
with Section 2.5(a) and the amounts described in clauses (i) and (ii) of this
Section 2.5(c), the amount to be deposited in the Series 2009-2 Distribution
Account with respect to the Series 2009-2 Final Distribution Date is or will be
less than the Series 2009-2 Invested Amount, then prior to 12:00 noon (New York
City time) on the second Business Day prior to such Series 2009-2 Final
Distribution Date, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 2009-2 Reserve Account, an amount equal to the lesser
of the Series 2009-2 Available Reserve Account Amount and such remaining
insufficiency and deposit it in the Series 2009-2 Distribution Account on such
Series 2009-2 Final Distribution Date.
(d) Principal Deficit
Amount. On each Distribution Date, other than the Series
2009-2 Final Distribution Date, on which the Principal Deficit Amount is greater
than zero, amounts shall be transferred to the Series 2009-2 Distribution
Account as follows:
(i) Demand Note
Draw. If on any Determination Date, the Administrator
determines that the Principal Deficit Amount with respect to the next succeeding
Distribution Date will be greater than zero and there are any Series 2009-2
Letters of Credit on such date, prior to 10:00 a.m. (New York City time) on the
second Business Day prior to such Distribution Date, the Administrator shall
instruct the Trustee in writing to deliver a Demand Notice to the Demand Note
Issuers demanding payment of an amount equal to the lesser of (A) the Principal
Deficit Amount and (B) the Series 2009-2 Letter of Credit Amount. The
Trustee shall, prior to 12:00 noon (New York City time) on the second Business
Day preceding such Distribution Date, deliver such Demand Notice to the Demand
Note Issuers; provided, however, that if an
Event of Bankruptcy (or the occurrence of an event described in clause (a) of
the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred and be continuing, the
Trustee shall not be required to \
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deliver
such Demand Notice to such Demand Note Issuer. The Trustee shall
cause the proceeds of any demand on the Series 2009-2 Demand Note to be
deposited into the Series 2009-2 Distribution Account.
(ii) Letter of Credit
Draw. In the event that either (x) on or prior to 10:00 a.m.
(New York City time) on the Business Day prior to such Distribution Date, any
Demand Note Issuer shall have failed to pay to the Trustee or deposit into the
Series 2009-2 Distribution Account the amount specified in such Demand Notice in
whole or in part or (y) due to the occurrence of an Event of Bankruptcy (or the
occurrence of an event described in clause (a) of the definition thereof,
without the lapse of a period of 60 consecutive days) with respect to any Demand
Note Issuer, the Trustee shall not have delivered such Demand Notice to any
Demand Note Issuer on the second Business Day preceding such Distribution Date,
then, in the case of (x) or (y) the Trustee shall on such Business Day draw on
the Series 2009-2 Letters of Credit an amount equal to the lesser of
(i) Series 2009-2 Letter of Credit Amount and (ii) the aggregate
amount that the Demand Note Issuers failed to pay under the Series 2009-2 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
by presenting to each Series 2009-2 Letter of Credit Provider a draft
accompanied by a Certificate of Unpaid Demand Note Demand; provided, however, that if the
Series 2009-2 Cash Collateral Account has been established and funded, the
Trustee shall withdraw from the Series 2009-2 Cash Collateral Account and
deposit in the Series 2009-2 Distribution Account an amount equal to the lesser
of (x) the Series 2009-2 Cash Collateral Percentage on such Business Day of the
aggregate amount that the Demand Note Issuers failed to pay under the Series
2009-2 Demand Notes (or, the amount that the Trustee failed to demand for
payment thereunder) and (y) the Series 2009-2 Available Cash Collateral Account
Amount on such Business Day and draw an amount equal to the remainder of the
aggregate amount that the Demand Note Issuers failed to pay under the Series
2009-2 Demand Notes (or, the amount that the Trustee failed to demand for
payment thereunder) on the Series 2009-2 Letters of Credit. The
Trustee shall deposit into, or cause the deposit of, the proceeds of any draw on
the Series 2009-2 Letters of Credit and the proceeds of any withdrawal from the
Series 2009-2 Cash Collateral Account to be deposited in the Series 2009-2
Distribution Account.
(iii) Reserve Account
Withdrawal. If the Series 2009-2 Letter of Credit Amount will
be less than the Principal Deficit Amount on any Distribution Date, then, prior
to 12:00 noon (New York City time) on the second Business Day prior to such
Distribution Date, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 2009-2 Reserve Account, an amount equal to the lesser
of (x) the Series 2009-2 Available Reserve Account Amount and (y) the amount by
which the Principal Deficit Amount exceeds the amounts to be deposited in the
Series 2009-2 Distribution Account in accordance with clauses (i) and (ii) of
this Section 2.5(d) and deposit it in the Series 2009-2 Distribution Account on
such Distribution Date.
(e) Distribution. On
each Distribution Date occurring on or after the date a withdrawal is made from
the Series 2009-2 Collection Account pursuant to Section 2.5(a) or amounts are
deposited in the Series 2009-2 Distribution Account pursuant to Section 2.5(b),
(c) or (d) the Paying Agent shall, in accordance with Section 6.1 of the
Base Indenture, pay pro
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rata to each Series
2009-2 Noteholder from the Series 2009-2 Distribution Account the amount
deposited therein pursuant to Section 2.5(a), (b), (c) or (d), to the extent
necessary to pay the Series 2009-2 Controlled Amortization Amount during the
Series 2009-2 Controlled Amortization Period, or to the extent necessary to pay
the Series 2009-2 Invested Amount during the Series 2009-2 Rapid Amortization
Period.
Section
2.6 Administrator’s Failure to
Instruct the Trustee to Make a Deposit or Payment. If
the Administrator fails to give notice or instructions to make any payment from
or deposit into the Collection Account required to be given by the
Administrator, at the time specified in the Administration Agreement or any
other Related Document (including applicable grace periods), the Trustee shall
make such payment or deposit into or from the Collection Account without such
notice or instruction from the Administrator, provided that the
Administrator, upon request of the Trustee, promptly provides the Trustee with
all information necessary to allow the Trustee to make such a payment or
deposit. When any payment or deposit hereunder or under any other
Related Document is required to be made by the Trustee or the Paying Agent at or
prior to a specified time, the Administrator shall deliver any applicable
written instructions with respect thereto reasonably in advance of such
specified time.
Section
2.7 Series-2009-2 Reserve
Account. (a) Establishment of Series
2009-2 Reserve Account. ABRCF shall establish and maintain in
the name of the Series 2009-2 Agent for the benefit of the Series 2009-2
Noteholders, or cause to be established and maintained, an account (the “Series 2009-2 Reserve
Account”), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Series 2009-2
Noteholders. The Series 2009-2 Reserve Account shall be maintained
(i) with a Qualified Institution, or (ii) as a segregated trust account with the
corporate trust department of a depository institution or trust company having
corporate trust powers and acting as trustee for funds deposited in the Series
2009-2 Reserve Account; provided that, if at
any time such Qualified Institution is no longer a Qualified Institution or the
credit rating of any securities issued by such depositary institution or trust
company shall be reduced to below “BBB-” by Standard & Poor’s or “Baa2” by
Moody’s, then ABRCF shall, within thirty (30) days of such reduction,
establish a new Series 2009-2 Reserve Account with a new Qualified
Institution. If the Series 2009-2 Reserve Account is not maintained
in accordance with the previous sentence, ABRCF shall establish a new Series
2009-2 Reserve Account, within ten (10) Business Days after obtaining knowledge
of such fact, which complies with such sentence, and shall instruct the Series
2009-2 Agent in writing to transfer all cash and investments from the
non-qualifying Series 2009-2 Reserve Account into the new Series 2009-2 Reserve
Account. Initially, the Series 2009-2 Reserve Account will be
established with The Bank of New York Mellon Trust Company, N.A.
(b) Administration of the Series
2009-2 Reserve Account. The Administrator may instruct the
institution maintaining the Series 2009-2 Reserve Account to invest funds on
deposit in the Series 2009-2 Reserve Account from time to time in Permitted
Investments; provided, however, that any
such investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were received, unless
any Permitted Investment held in the Series 2009-2 Reserve Account is held with
the Paying Agent, then such investment may mature on such Distribution Date and
such funds shall be available for withdrawal on or prior to such Distribution
Date. All such Permitted Investments will be credited to the Series
2009-2 Reserve Account and any such Permitted Investments that
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constitute
(i) physical property (and that is not either a United States security
entitlement or a security entitlement) shall be physically delivered to the
Trustee; (ii) United States security entitlements or security entitlements
shall be controlled (as defined in Section 8-106 of the New York UCC) by
the Trustee pending maturity or disposition, and (iii) uncertificated
securities (and not United States security entitlements) shall be delivered to
the Trustee by causing the Trustee to become the registered holder of such
securities. The Trustee shall, at the expense of ABRCF, take such
action as is required to maintain the Trustee’s security interest in the
Permitted Investments credited to the Series 2009-2 Reserve
Account. ABRCF shall not direct the Trustee to dispose of (or permit
the disposal of) any Permitted Investments prior to the maturity thereof to the
extent such disposal would result in a loss of the purchase price of such
Permitted Investments. In the absence of written investment
instructions hereunder, funds on deposit in the Series 2009-2 Reserve Account
shall remain uninvested.
(c) Earnings from Series 2009-2
Reserve Account. All interest and earnings (net of losses and
investment expenses) paid on funds on deposit in the Series 2009-2 Reserve
Account shall be deemed to be on deposit therein and available for
distribution.
(d) Series 2009-2 Reserve
Account Constitutes Additional Collateral for Series 2009-2
Notes. In order to secure and provide for the repayment and
payment of ABRCF’s Obligations with respect to the Series 2009-2 Notes, ABRCF
hereby grants a security interest in and assigns, pledges, grants, transfers and
sets over to the Trustee, for the benefit of the Series 2009-2 Noteholders, all
of ABRCF’s right, title and interest in and to the following (whether now or
hereafter existing or acquired): (i) the Series 2009-2 Reserve
Account, including any security entitlement thereto; (ii) all funds on deposit
therein from time to time; (iii) all certificates and instruments, if any,
representing or evidencing any or all of the Series 2009-2 Reserve Account or
the funds on deposit therein from time to time; (iv) all investments made
at any time and from time to time with monies in the Series 2009-2 Reserve
Account, whether constituting securities, instruments, general intangibles,
investment property, financial assets or other property; (v) all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the Series
2009-2 Reserve Account, the funds on deposit therein from time to time or the
investments made with such funds; and (vi) all proceeds of any and all of the
foregoing, including, without limitation, cash (the items in the foregoing
clauses (i) through (vi) are referred to, collectively, as the “Series 2009-2 Reserve
Account Collateral”). The Trustee shall possess all right,
title and interest in and to all funds on deposit from time to time in the
Series 2009-2 Reserve Account and in all proceeds thereof, and shall be the only
person authorized to originate entitlement orders in respect of the Series
2009-2 Reserve Account. The Series 2009-2 Reserve Account Collateral
shall be under the sole dominion and control of the Trustee for the benefit of
the Series 2009-2 Noteholders. The Series 2009-2 Agent hereby agrees
(i) to act as the securities intermediary (as defined in Section 8-102(a)(14) of
the New York UCC) with respect to the Series 2009-2 Reserve Account; (ii)
that its jurisdiction as securities intermediary is New York; (iii) that each
item of property (whether investment property, financial asset, security,
instrument or cash) credited to the Series 2009-2 Reserve Account shall be
treated as a financial asset (as defined in Section 8-102(a)(9) of the
New York UCC) and (iv) to comply with any entitlement order (as defined in
Section 8-102(a)(8) of the New York UCC) issued by the
Trustee.
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(e) Series 2009-2 Reserve
Account Surplus. In the event that the Series 2009-2 Reserve
Account Surplus on any Distribution Date, after giving effect to all withdrawals
from the Series 2009-2 Reserve Account, is greater than zero, if no Series
2009-2 Enhancement Deficiency or AESOP I Operating Lease Vehicle Deficiency
would result therefrom or exist thereafter, the Trustee, acting in accordance
with the written instructions of the Administrator pursuant to the
Administration Agreement, shall withdraw from the Series 2009-2 Reserve Account
an amount equal to the Series 2009-2 Reserve Account Surplus and shall pay such
amount to ABRCF.
(f) Termination of Series 2009-2
Reserve Account. Upon the termination of the Indenture
pursuant to Section 11.1 of the Base Indenture, the Trustee, acting in
accordance with the written instructions of the Administrator, after the prior
payment of all amounts owing to the Series 2009-2 Noteholders and payable from
the Series 2009-2 Reserve Account as provided herein, shall withdraw from the
Series 2009-2 Reserve Account all amounts on deposit therein for payment to
ABRCF.
Section
2.8 Series 2009-2 Letters of
Credit and Series 2009-2 Cash Collateral Account. (a) Series 2009-2 Letters of
Credit and Series 2009-2 Cash Collateral Account Constitute Additional
Collateral for Series 2009-2 Notes. In order to secure and
provide for the repayment and payment of ABRCF’s Obligations with respect to the
Series 2009-2 Notes, ABRCF hereby grants a security interest in and assigns,
pledges, grants, transfers and sets over to the Trustee, for the benefit of the
Series 2009-2 Noteholders, all of ABRCF’s right, title and interest in and to
the following (whether now or hereafter existing or
acquired): (i) each Series 2009-2 Letter of Credit;
(ii) the Series 2009-2 Cash Collateral Account, including any security
entitlement thereto; (iii) all funds on deposit in the Series 2009-2 Cash
Collateral Account from time to time; (iv) all certificates and
instruments, if any, representing or evidencing any or all of the Series 2009-2
Cash Collateral Account or the funds on deposit therein from time to time;
(v) all investments made at any time and from time to time with monies in
the Series 2009-2 Cash Collateral Account, whether constituting securities,
instruments, general intangibles, investment property, financial assets or other
property; (vi) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for the Series 2009-2 Cash Collateral Account, the
funds on deposit therein from time to time or the investments made with such
funds; and (vii) all proceeds of any and all of the foregoing, including,
without limitation, cash (the items in the foregoing clauses (ii) through
(vii) are referred to, collectively, as the “Series 2009-2 Cash
Collateral Account Collateral”). The Trustee shall, for the
benefit of the Series 2009-2 Noteholders, possess all right, title and interest
in all funds on deposit from time to time in the Series 2009-2 Cash Collateral
Account and in all proceeds thereof, and shall be the only person authorized to
originate entitlement orders in respect of the Series 2009-2 Cash Collateral
Account. The Series 2009-2 Cash Collateral Account shall be under the
sole dominion and control of the Trustee for the benefit of the Series 2009-2
Noteholders. The Series 2009-2 Agent hereby agrees (i) to act as the
securities intermediary (as defined in Section 8-102(a)(14) of the New York
UCC) with respect to the Series 2009-2 Cash Collateral Account; (ii) that its
jurisdiction as a securities intermediary is New York, (iii) that each item of
property (whether investment property, financial asset, security, instrument or
cash) credited to the Series 2009-2 Cash Collateral Account shall be treated as
a financial asset (as defined in Section 8-102(a)(9) of the New York
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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 2009-2 Letter of
Credit Expiration Date. If prior to the date which is ten (10)
days prior to the then - scheduled Series 2009-2 Letter of Credit Expiration
Date with respect to any Series 2009-2 Letter of Credit, excluding the amount
available to be drawn under such Series 2009-2 Letter of Credit but taking into
account each substitute Series 2009-2 Letter of Credit which has been obtained
from a Series 2009-2 Eligible Letter of Credit Provider and is in full force and
effect on such date, the Series 2009-2 Enhancement Amount would be equal to or
more than the Series 2009-2 Required Enhancement Amount and the Series 2009-2
Liquidity Amount would be equal to or greater than the Series 2009-2 Required
Liquidity Amount, then the Administrator shall notify the Trustee in writing no
later than two (2) Business Days prior to such Series 2009-2 Letter of Credit
Expiration Date of such determination. If prior to the date which is
ten (10) days prior to the then-scheduled Series 2009-2 Letter of Credit
Expiration Date with respect to any Series 2009-2 Letter of Credit, excluding
the amount available to be drawn under such Series 2009-2 Letter of Credit but
taking into account a substitute Series 2009-2 Letter of Credit which has been
obtained from a Series 2009-2 Eligible Letter of Credit Provider and is in full
force and effect on such date, the Series 2009-2 Enhancement Amount would be
less than the Series 2009-2 Required Enhancement Amount or the Series 2009-2
Liquidity Amount would be less than the Series 2009-2 Required Liquidity Amount,
then the Administrator shall notify the Trustee in writing no later than two (2)
Business Days prior to such Series 2009-2 Letter of Credit Expiration Date of
(x) the greater of (A) the excess, if any, of the Series 2009-2 Required
Enhancement Amount over the Series 2009-2 Enhancement Amount, excluding the
available amount under such expiring Series 2009-2 Letter of Credit but taking
into account any substitute Series 2009-2 Letter of Credit which has been
obtained from a Series 2009-2 Eligible Letter of Credit Provider and is in full
force and effect, on such date, and (B) the excess, if any, of the Series 2009-2
Required Liquidity Amount over the Series 2009-2 Liquidity Amount, excluding the
available amount under such expiring Series 2009-2 Letter of Credit but taking
into account any substitute Series 2009-2 Letter of Credit which has been
obtained from a Series 2009-2 Eligible Letter of Credit Provider and is in full
force and effect, on such date, and (y) the amount available to be drawn on such
expiring Series 2009-2 Letter of Credit on such date. Upon receipt of
such notice by the Trustee on or prior to 10:00 a.m. (New York City time) on any
Business Day, the Trustee shall, by 12:00 noon (New York City time) on such
Business Day (or, in the case of any notice given to the Trustee after 10:00
a.m. (New York City time), by 12:00 noon (New York City time) on the next
following Business Day), draw the lesser of the amounts set forth in clauses (x)
and (y) above on such expiring Series 2009-2 Letter of Credit by presenting a
draft accompanied by a Certificate of Termination Demand and shall cause the
Termination Disbursement to be deposited in the Series 2009-2 Cash Collateral
Account.
If the
Trustee does not receive the notice from the Administrator described in the
first paragraph of this Section 2.8(b) on or prior to the date that is two (2)
Business Days prior to each Series 2009-2 Letter of Credit Expiration Date, the
Trustee shall, by 12:00 noon (New York City time) on such Business Day draw the
full amount of such Series 2009-2 Letter of Credit by presenting a draft
accompanied by a Certificate of Termination Demand and shall cause the
Termination Disbursement to be deposited in the Series 2009-2 Cash Collateral
Account.
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(c) Series 2009-2 Letter of
Credit Providers. The Administrator shall notify the Trustee
in writing within one (1) Business Day of becoming aware that (i) the long-term
senior unsecured debt credit rating of any Series 2009-2 Letter of Credit
Provider has fallen below “A1” as determined by Moody’s or (ii) the short-term
senior unsecured debt credit rating of any Series 2009-2 Letter of Credit
Provider has fallen below “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 2009-2 Required Enhancement Amount over
the Series 2009-2 Enhancement Amount, excluding the available amount under the
Series 2009-2 Letter of Credit issued by such Series 2009-2 Letter of Credit
Provider, on such date, and (B) the excess, if any, of the Series 2009-2
Required Liquidity Amount over the Series 2009-2 Liquidity Amount, excluding the
available amount under such Series 2009-2 Letter of Credit, on such date, and
(ii) the amount available to be drawn on such Series 2009-2 Letter of
Credit on such date. Upon receipt of such notice by the Trustee on or
prior to 10:00 a.m. (New York City time) on any Business Day, the Trustee shall,
by 12:00 noon (New York City time) on such Business Day (or, in the case of any
notice given to the Trustee after 10:00 a.m. (New York City time), by 12:00 noon
(New York City time) on the next following Business Day), draw on such Series
2009-2 Letter of Credit in an amount equal to the lesser of the amounts in
clause (i) and clause (ii) of the immediately preceding sentence on
such Business Day by presenting a draft accompanied by a Certificate of
Termination Demand and shall cause the Termination Disbursement to be deposited
in the Series 2009-2 Cash Collateral Account.
(d) Termination Date Demands on
the Series 2009-2 Letters of Credit. Prior to 10:00 a.m. (New
York City time) on the Business Day immediately succeeding the Series 2009-2
Letter of Credit Termination Date, the Administrator shall determine the Series
2009-2 Demand Note Payment Amount, if any, as of the Series 2009-2 Letter of
Credit Termination Date and, if the Series 2009-2 Demand Note Payment Amount is
greater than zero, instruct the Trustee in writing to draw on the Series 2009-2
Letters of Credit. Upon receipt of any such notice by the Trustee on
or prior to 11:00 a.m. (New York City time) on a Business Day, the Trustee
shall, by 12:00 noon (New York City time) on such Business Day draw an amount
equal to the lesser of (i) the Series 2009-2 Demand Note Payment Amount and
(ii) the Series 2009-2 Letter of Credit Liquidity Amount on the Series
2009-2 Letters of Credit by presenting to each Series 2009-2 Letter of Credit
Provider a draft accompanied by a Certificate of Termination Date Demand and
shall cause the Termination Date Disbursement to be deposited in the Series
2009-2 Cash Collateral Account; provided, however, that if the
Series 2009-2 Cash Collateral Account has been established and funded, the
Trustee shall draw an amount equal to the product of (a) 100% minus the Series
2009-2 Cash Collateral Percentage and (b) the lesser of the amounts referred to
in clause (i) and (ii) on such Business Day on the Series 2009-2 Letters of
Credit as calculated by the Administrator and provided in writing to the
Trustee.
(e) Draws on the Series 2009-2
Letters of Credit. If there is more than one Series 2009-2
Letter of Credit on the date of any draw on the Series 2009-2 Letters of Credit
pursuant to the terms of this Supplement, the Administrator shall instruct the
Trustee, in writing, to draw on each Series 2009-2 Letter of Credit in an amount
equal to the Pro Rata Share of the Series 2009-2 Letter of Credit Provider
issuing such Series 2009-2 Letter of Credit of the amount of such draw on the
Series 2009-2 Letters of Credit.
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(f) Establishment of Series
2009-2 Cash Collateral Account. On or prior to the date of any
drawing under a Series 2009-2 Letter of Credit pursuant to Section 2.8(b),
(c) or (d) above, ABRCF shall establish and maintain in the name of the Trustee
for the benefit of the Series 2009-2 Noteholders, or cause to be established and
maintained, an account (the “Series 2009-2 Cash
Collateral Account”), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 2009-2
Noteholders. The Series 2009-2 Cash Collateral Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segregated
trust account with the corporate trust department of a depository institution or
trust company having corporate trust powers and acting as trustee for funds
deposited in the Series 2009-2 Cash Collateral Account; provided, however, that if at
any time such Qualified Institution is no longer a Qualified Institution or the
credit rating of any securities issued by such depository institution or trust
company shall be reduced to below “BBB-” by Standard & Poor’s or “Baa3” by
Moody’s, then ABRCF shall, within thirty (30) days of such reduction, establish
a new Series 2009-2 Cash Collateral Account with a new Qualified Institution or
a new segregated trust account with the corporate trust department of a
depository institution or trust company having corporate trust powers and acting
as trustee for funds deposited in the Series 2009-2 Cash Collateral
Account. If a new Series 2009-2 Cash Collateral Account is
established, ABRCF shall instruct the Trustee in writing to transfer all cash
and investments from the non-qualifying Series 2009-2 Cash Collateral Account
into the new Series 2009-2 Cash Collateral Account.
(g) Administration of the Series
2009-2 Cash Collateral Account. ABRCF may instruct (by
standing instructions or otherwise) the institution maintaining the Series
2009-2 Cash Collateral Account to invest funds on deposit in the Series 2009-2
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 2009-2 Cash Collateral Account is
held with the Paying Agent, in which case such investment may mature on such
Distribution Date so long as such funds shall be available for withdrawal on or
prior to such Distribution Date. All such Permitted Investments will
be credited to the Series 2009-2 Cash Collateral Account and any such Permitted
Investments that constitute (i) physical property (and that is not either a
United States security entitlement or a security entitlement) shall be
physically delivered to the Trustee; (ii) United States security
entitlements or security entitlements shall be controlled (as defined in Section
8-106 of the New York UCC) by the Trustee pending maturity or disposition, and
(iii) uncertificated securities (and not United States security
entitlements) shall be delivered to the Trustee by causing the Trustee to become
the registered holder of such securities. The Trustee shall, at the
expense of ABRCF, take such action as is required to maintain the Trustee’s
security interest in the Permitted Investments credited to the Series 2009-2
Cash Collateral Account. ABRCF shall not direct the Trustee to
dispose of (or permit the disposal of) any Permitted Investments prior to the
maturity thereof to the extent such disposal would result in a loss of the
purchase price of such Permitted Investments. In the absence of
written investment instructions hereunder, funds on deposit in the Series 2009-2
Cash Collateral Account shall remain uninvested.
(h) Earnings from Series 2009-2
Cash Collateral Account. All interest and earnings (net of
losses and investment expenses) paid on funds on deposit in the Series 2009-2
Cash Collateral Account shall be deemed to be on deposit therein and available
for distribution.
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(i) Series 2009-2 Cash
Collateral Account Surplus. In the event that the Series
2009-2 Cash Collateral Account Surplus on any Distribution Date (or, after the
Series 2009-2 Letter of Credit Termination Date, on any date) is greater than
zero, the Trustee, acting in accordance with the written instructions of the
Administrator, shall withdraw from the Series 2009-2 Cash Collateral Account an
amount equal to the Series 2009-2 Cash Collateral Account Surplus and shall pay
such amount: first, to the Series
2009-2 Letter of Credit Providers to the extent of any unreimbursed drawings
under the related Series 2009-2 Reimbursement Agreement, for application in
accordance with the provisions of the related Series 2009-2 Reimbursement
Agreement, and, second, to ABRCF any
remaining amount.
(j) Termination of Series 2009-2
Cash Collateral Account. Upon the termination of this
Supplement in accordance with its terms, the Trustee, acting in accordance with
the written instructions of the Administrator, after the prior payment of all
amounts owing to the Series 2009-2 Noteholders and payable from the Series
2009-2 Cash Collateral Account as provided herein, shall withdraw from the
Series 2009-2 Cash Collateral Account all amounts on deposit therein (to the
extent not withdrawn pursuant to Section 2.8(i) above) and shall pay such
amounts: first, to the Series
2009-2 Letter of Credit Providers to the extent of any unreimbursed drawings
under the related Series 2009-2 Reimbursement Agreement, for application in
accordance with the provisions of the related Series 2009-2 Reimbursement
Agreement, and, second, to ABRCF any
remaining amount.
Section
2.9 Series 2009-2 Distribution
Account. (a) Establishment of Series
2009-2 Distribution Account. ABRCF shall establish and
maintain in the name of the Trustee for the benefit of the Series 2009-2
Noteholders, or cause to be established and maintained, an account (the “Series 2009-2 Distribution
Account”), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Series 2009-2
Noteholders. The Series 2009-2 Distribution Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segregated trust
account with the corporate trust department of a depository institution or trust
company having corporate trust powers and acting as trustee for funds deposited
in the Series 2009-2 Distribution Account; provided, however, that if at
any time such Qualified Institution is no longer a Qualified Institution or the
credit rating of any securities issued by such depositary institution or trust
company shall be reduced to below “BBB-” by Standard & Poor’s or “Baa3” by
Moody’s, then ABRCF shall, within thirty (30) days of such reduction, establish
a new Series 2009-2 Distribution Account with a new Qualified
Institution. If the Series 2009-2 Distribution Account is not
maintained in accordance with the previous sentence, ABRCF shall establish a new
Series 2009-2 Distribution Account, within ten (10) Business Days after
obtaining knowledge of such fact, which complies with such sentence, and shall
instruct the Series 2009-2 Agent in writing to transfer all cash and
investments from the non-qualifying Series 2009-2 Distribution Account into
the new Series 2009-2 Distribution Account. Initially, the Series
2009-2 Distribution Account will be established with The Bank of New York Mellon
Trust Company, N.A.
(b) Administration of the Series
2009-2 Distribution Account. The Administrator may instruct
the institution maintaining the Series 2009-2 Distribution Account to invest
funds on deposit in the Series 2009-2 Distribution Account from time to time in
Permitted Investments; provided, however, that any
such investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were
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received,
unless any Permitted Investment held in the Series 2009-2 Distribution Account
is held with the Paying Agent, then such investment may mature on such
Distribution Date and such funds shall be available for withdrawal on or prior
to such Distribution Date. All such Permitted Investments will be
credited to the Series 2009-2 Distribution Account and any such Permitted
Investments that constitute (i) physical property (and that is not either a
United States security entitlement or a security entitlement) shall be
physically delivered to the Trustee; (ii) United States security
entitlements or security entitlements shall be controlled (as defined in Section
8-106 of the New York UCC) by the Trustee pending maturity or disposition,
and (iii) uncertificated securities (and not United States security
entitlements) shall be delivered to the Trustee by causing the Trustee to become
the registered holder of such securities. The Trustee shall, at the
expense of ABRCF, take such action as is required to maintain the Trustee’s
security interest in the Permitted Investments credited to the Series 2009-2
Distribution Account. ABRCF shall not direct the Trustee to dispose
of (or permit the disposal of) any Permitted Investments prior to the maturity
thereof to the extent such disposal would result in a loss of the purchase price
of such Permitted Investments. In the absence of written investment
instructions hereunder, funds on deposit in the Series 2009-2 Distribution
Account shall remain uninvested.
(c) Earnings from Series 2009-2
Distribution Account. All interest and earnings (net of losses
and investment expenses) paid on funds on deposit in the Series 2009-2
Distribution Account shall be deemed to be on deposit and available for
distribution.
(d) Series 2009-2 Distribution
Account Constitutes Additional Collateral for Series 2009-2
Notes. In order to secure and provide for the repayment and
payment of ABRCF’s Obligations with respect to the Series 2009-2 Notes, ABRCF
hereby grants a security interest in and assigns, pledges, grants, transfers and
sets over to the Trustee, for the benefit of the Series 2009-2 Noteholders, all
of ABRCF’s right, title and interest in and to the following (whether now or
hereafter existing or acquired): (i) the Series 2009-2 Distribution
Account, including any security entitlement thereto; (ii) all funds on deposit
therein from time to time; (iii) all certificates and instruments, if any,
representing or evidencing any or all of the Series 2009-2 Distribution Account
or the funds on deposit therein from time to time; (iv) all investments made at
any time and from time to time with monies in the Series 2009-2 Distribution
Account, whether constituting securities, instruments, general intangibles,
investment property, financial assets or other property; (v) all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the Series
2009-2 Distribution Account, the funds on deposit therein from time to time or
the investments made with such funds; and (vi) all proceeds of any and all
of the foregoing, including, without limitation, cash (the items in the
foregoing clauses (i) through (vi) are referred to, collectively, as the “Series 2009-2 Distribution
Account Collateral”). The Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Series
2009-2 Distribution Account and in and to all proceeds thereof, and shall be the
only person authorized to originate entitlement orders in respect of the Series
2009-2 Distribution Account. The Series 2009-2 Distribution Account
Collateral shall be under the sole dominion and control of the Trustee for the
benefit of the Series 2009-2 Noteholders. The Series 2009-2 Agent
hereby agrees (i) to act as the securities intermediary (as defined in
Section 8-102(a)(14) of the New York UCC) with respect to the Series 2009-2
Distribution Account; (ii) that its jurisdiction as securities intermediary
is New York, (iii) that each item of property (whether investment property,
financial asset, security, instrument or cash) credited to the Series 2009-2
Distribution
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Section
2.10 [Reserved]
Section
2.11 Series 2009-2 Accounts
Permitted Investments. ABRCF
shall not, and shall not permit, funds on deposit in the Series 2009-2 Accounts
to be invested in:
(i) Permitted
Investments that do not mature at least one Business Day before the next
Distribution Date;
(ii) demand
deposits, time deposits or certificates of deposit with a maturity in excess of
360 days;
(iii) commercial
paper which is not rated “P-1” by Moody’s;
(iv) money
market funds or eurodollar time deposits which are not rated at least “AAA” by
Standard & Poor’s and “P-1” by Moody’s;
(v) eurodollar
deposits that are not rated “P-1” by Moody’s or that are with financial
institutions not organized under the laws of a G-7 nation; or
(vi) any
investment, instrument or security not otherwise listed in clause
(i) through (vi) of the definition of “Permitted Investments” in the Base
Indenture.
Section
2.12 Series 2009-2 Demand Notes
Constitute Additional Collateral for Series 2009-2 Notes. In
order to secure and provide for the repayment and payment of ABRCF’s Obligations
with respect to the Series 2009-2 Notes, ABRCF hereby grants a security interest
in and assigns, pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 2009-2 Noteholders, all of ABRCF’s right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2009-2 Demand Notes; (ii) all
certificates and instruments, if any, representing or evidencing the Series
2009-2 Demand Notes; and (iii) all proceeds of any and all of the
foregoing, including, without limitation, cash. On the date hereof,
ABRCF shall deliver to the Trustee, for the benefit of the Series 2009-2
Noteholders, each Series 2009-2 Demand Note, endorsed in blank. The
Trustee, for the benefit of the Series 2009-2 Noteholders, shall be the only
Person authorized to make a demand for payments on the Series 2009-2 Demand
Notes.
ARTICLE III
AMORTIZATION
EVENTS
In
addition to the Amortization Events set forth in Section 9.1 of the Base
Indenture, any of the following shall be an Amortization Event with respect to
the Series 2009-2 Notes and collectively shall constitute the Amortization
Events set forth in Section 9.1(n) of the
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Base
Indenture with respect to the Series 2009-2 Notes (without notice or other
action on the part of the Trustee or any holders of the Series 2009-2
Notes):
(a) a Series
2009-2 Enhancement Deficiency shall occur and continue for at least two (2)
Business Days; provided, however, that such
event or condition shall not be an Amortization Event if during such two (2)
Business Day period such Series 2009-2 Enhancement Deficiency shall have been
cured in accordance with the terms and conditions of the Indenture and the
Related Documents;
(b) the
Series 2009-2 Liquidity Amount shall be less than the Series 2009-2 Required
Liquidity Amount for at least two (2) Business Days; provided, however, that such
event or condition shall not be an Amortization Event if during such two (2)
Business Day period such insufficiency shall have been cured in accordance with
the terms and conditions of the Indenture and the Related
Documents;
(c) the
Collection Account, the Series 2009-2 Collection Account, the Series 2009-2
Excess Collection Account or the Series 2009-2 Reserve Account shall be subject
to an injunction, estoppel or other stay or a Lien (other than Liens permitted
under the Related Documents);
(d) all
principal of and interest on the Series 2009-2 Notes is not paid in full on or
before the Series 2009-2 Expected Final Distribution Date;
(e) any
Series 2009-2 Letter of Credit shall not be in full force and effect for at
least two (2) Business Days and (x) either a Series 2009-2 Enhancement
Deficiency would result from excluding such Series 2009-2 Letter of Credit from
the Series 2009-2 Enhancement Amount or (y) the Series 2009-2 Liquidity Amount,
excluding therefrom the available amount under such Series 2009-2 Letter of
Credit, would be less than the Series 2009-2 Required Liquidity
Amount;
(f) from and
after the funding of the Series 2009-2 Cash Collateral Account, the Series
2009-2 Cash Collateral Account shall be subject to an injunction, estoppel or
other stay or a Lien (other than Liens permitted under the Related Documents)
for at least two (2) Business Days and either (x) a Series 2009-2 Enhancement
Deficiency would result from excluding the Series 2009-2 Available Cash
Collateral Account Amount from the Series 2009-2 Enhancement Amount or (y) the
Series 2009-2 Liquidity Amount, excluding therefrom the Series 2009-2 Available
Cash Collateral Amount, would be less than the Series 2009-2 Required Liquidity
Amount; and
(g) an Event
of Bankruptcy shall have occurred with respect to any Series 2009-2 Letter of
Credit Provider or any Series 2009-2 Letter of Credit Provider repudiates its
Series 2009-2 Letter of Credit or refuses to honor a proper draw thereon and
either (x) a Series 2009-2 Enhancement Deficiency would result from excluding
such Series 2009-2 Letter of Credit from the Series 2009-2 Enhancement Amount or
(y) the Series 2009-2 Liquidity Amount, excluding therefrom the available amount
under such Series 2009-2 Letter of Credit, would be less than the Series 2009-2
Required Liquidity Amount.
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ARTICLE IV
RIGHT TO WAIVE PURCHASE
RESTRICTIONS
Other
than as set forth in Section 6.7 hereto, notwithstanding any provision to the
contrary in the Indenture or the Related Documents, upon the Trustee’s receipt
of notice from any Lessee, any Borrower or ABRCF that the Lessees, the Borrowers
and ABRCF have determined to increase any Series 2009-2 Maximum Amount, (such
notice, a “Waiver
Request”), each Series 2009-2 Noteholder may, at its option, waive any
Series 2009-2 Maximum Amount (collectively, a “Waivable Amount”) if
(i) no Amortization Event exists, (ii) the Requisite Noteholders consent to such
waiver and (iii) 60 days’ prior written notice of such proposed waiver is
provided to Moody’s by the Trustee.
Upon
receipt by the Trustee of a Waiver Request (a copy of which the Trustee shall
promptly provide to Moody’s), all amounts which would otherwise be allocated to
the Series 2009-2 Excess Collection Account (collectively, the “Designated Amounts”)
from the date the Trustee receives a Waiver Request through the Consent Period
Expiration Date will be held by the Trustee in the Series 2009-2 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 Series 2009-2 Noteholders, which notice
shall be accompanied by a form of consent (each a “Consent”) in the form
of Exhibit B by
which the Series 2009-2 Noteholders may, on or before the Consent Period
Expiration Date, consent to waiver of the applicable Waivable
Amount. If the Trustee receives Consents from the Requisite
Noteholders agreeing to waiver of the applicable Waivable Amount within
forty-five (45) days after the Trustee notifies the Series 2009-2 Noteholders of
a Waiver Request (the day on which such forty-five (45) day period expires, the
“Consent Period
Expiration Date”), (i) the applicable Waivable Amount shall be deemed
waived by the consenting Series 2009-2 Noteholders, (ii) the Trustee will
distribute the Designated Amounts as set forth below and (iii) the Trustee
shall promptly (but in any event within two days) provide Moody’s with written
notice of such waiver. Any Series 2009-2 Noteholder from whom the
Trustee has not received a Consent on or before the Consent Period Expiration
Date will be deemed not to have consented to such waiver.
If the
Trustee receives Consents from the Requisite Noteholders on or before the
Consent Period Expiration Date, then on the immediately following Distribution
Date, the Trustee will pay the Designated Amounts as follows:
(i) to the
non-consenting Series 2009-2 Noteholders, if any, prorata up to the amount
required to pay all Series 2009-2 Notes held by such non-consenting Series
2009-2 Noteholders in full; and
(ii) any
remaining Designated Amounts to the Series 2009-2 Excess Collection
Account.
If the
amount paid pursuant to clause (i) of the preceding paragraph is not paid in
full on the date specified therein, then on each day following such Distribution
Date, the
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Administrator
will allocate to the Series 2009-2 Collection Account on a daily basis all
Designated Amounts collected on such day. On each following
Distribution Date, the Trustee will withdraw a portion of such Designated
Amounts from the Series 2009-2 Collection Account and deposit the same in the
Series 2009-2 Distribution Account for distribution as follows:
(a) to
the non-consenting Series 2009-2 Noteholders, if any, prorata an amount equal
to the Designated Amounts in the Series 2009-2 Collection Account as of the
applicable Determination Date up to the aggregate outstanding principal balance
of the Series 2009-2 Notes held by the non-consenting Series 2009-2 Noteholders;
and
(b) any
remaining Designated Amounts to the Series 2009-2 Excess Collection
Account.
If the
Requisite Noteholders do not timely consent to such waiver, the Designated
Amounts will be re-allocated to the Series 2009-2 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 2009-2 Rapid
Amortization Period shall commence after receipt by the Trustee of a Waiver
Request, all such Designated Amounts will thereafter be considered Principal
Collections allocated to the Series 2009-2 Noteholders.
ARTICLE V
FORM OF SERIES 2009-2
NOTES
Section
5.1 Restricted Global Series
2009-2 Notes. The
Series 2009-2 Notes to be issued in the United States will be issued in
book-entry form and represented by one or more permanent global Notes in fully
registered form without interest coupons (each, a “Restricted Global Series
2009-2 Note”), substantially in the form set forth in Exhibit A-1, with
such legends as may be applicable thereto as set forth in the Base Indenture,
and will be sold only in the United States (1) initially to institutional
accredited investors within the meaning of Regulation D under the Securities Act
in reliance on an exemption from the registration requirements of the Securities
Act and (2) thereafter to qualified institutional buyers within the meaning of,
and in reliance on, Rule 144A under the Securities Act and shall be deposited on
behalf of the purchasers of the Series 2009-2 Notes represented thereby, with
the Trustee as custodian for DTC, and registered in the name of Cede as DTC’s
nominee, duly executed by ABRCF and authenticated by the Trustee in the manner
set forth in Section 2.4 of the Base Indenture.
Section
5.2 Temporary Global Series
2009-2 Notes; Permanent Global Series 2009-2 Notes. The
Series 2009-2 Notes to be issued outside the United States will be issued and
sold in transactions outside the United States in reliance on Regulation S under
the Securities Act, as provided in the applicable note purchase agreement, and
shall initially be issued in the form of one or more temporary notes in
registered form without interest coupons (each, a “Temporary Global Series
2009-2 Note”), substantially in the form set forth in Exhibit A-2, which
shall be deposited on behalf of the purchasers of the Series 2009-2 Notes
represented thereby with a custodian for, and registered in the name of a
nominee of DTC, for the account of Euroclear Bank S.A./N.V., as operator of the
Euroclear System (“Euroclear”) or for
Clearstream Banking, société anonyme (“Clearstream”), duly
executed by ABRCF and authenticated by the
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Trustee
in the manner set forth in Section 2.4 of the Base
Indenture. Interests in a Temporary Global Series 2009-2 Note will be
exchangeable, in whole or in part, for interests in one or more permanent global
notes in registered form without interest coupons (each, a “Permanent Global Series
2009-2 Note”), substantially in the form of Exhibit A-3, in
accordance with the provisions of such Temporary Global Series 2009-2 Note and
the Base Indenture (as modified by this Supplement). Interests in a
Permanent Global Series 2009-2 Note will be exchangeable for a definitive Series
2009-2 Note in accordance with the provisions of such Permanent Global Series
2009-2 Note and the Base Indenture (as modified by this
Supplement).
ARTICLE VI
GENERAL
Section
6.1 Optional
Repurchase. The
Series 2009-2 Notes shall be subject to repurchase by ABRCF at its option in
accordance with Section 6.3 of the Base Indenture on any Distribution Date after
the Series 2009-2 Invested Amount is reduced to an amount less than or equal to
10% of the Series 2009-2 Initial Invested Amount (the “Series 2009-2 Repurchase
Amount”). The repurchase price for any Series 2009-2 Note
shall equal the aggregate outstanding principal balance of such Series 2009-2
Note (determined after giving effect to any payments of principal and interest
on such Distribution Date), plus accrued and unpaid interest on such outstanding
principal balance.
Section
6.2 Information. The
Trustee shall provide to the Series 2009-2 Noteholders, or their designated
agent, copies of all information furnished to the Trustee or ABRCF pursuant to
the Related Documents, as such information relates to the Series 2009-2 Notes or
the Series 2009-2 Collateral.
Section
6.3 Exhibits. The
following exhibits attached hereto supplement the exhibits included in the
Indenture.
|
Exhibit
A-1:
|
Form
of Restricted Global Series 2009-2 Note
|
|
Exhibit
A-2:
|
Form
of Temporary Global Series 2009-2 Note
|
|
Exhibit
A-3:
|
Form
of Permanent Global Series 2009-2 Note
|
|
Exhibit
B:
|
Form
of Consent
|
|
Exhibit
C:
|
Form
of Series 2009-2 Demand Note
|
|
Exhibit
D:
|
Form
of Letter of Credit
|
|
Exhibit
E:
|
Form
of Lease Payment Deficit Notice
|
|
Exhibit
F:
|
Form
of Demand Notice
|
|
Exhibit
G:
|
Form
of Supplemental Indenture No. 3 to the Base Indenture
|
|
Exhibit
H:
|
Form
of Amendment to the Master Exchange
Agreement
|
Section
6.4 Ratification of Base
Indenture. As
supplemented by this Supplement, the Base Indenture is in all respects ratified
and confirmed and the Base Indenture as so supplemented by this Supplement shall
be read, taken, and construed as one and the same instrument.
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Section
6.5 Counterparts. This
Supplement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute but one and the same instrument.
Section
6.6 Governing
Law. This
Supplement shall be construed in accordance with the law of the State of New
York, and the obligations, rights and remedies of the parties hereto shall be
determined in accordance with such law.
Section
6.7 Amendments. This
Supplement may be modified or amended from time to time in accordance with the
terms of the Base Indenture; provided, however, that if,
pursuant to the terms of the Base Indenture or this Supplement, the consent of
the Required Noteholders is required for an amendment or modification of this
Supplement, such requirement shall be satisfied if such amendment or
modification is consented to by the Series 2009-2 Noteholders representing more
than 50% of the aggregate outstanding principal amount of the Series 2009-2
Notes; provided, further, that, so
long as (i) no Amortization Event has occurred and is continuing and (ii) the
Rating Agency Consent Condition is met with respect to the outstanding Series
2009-2 Notes, ABRCF shall be able to (x) increase the Series 2009-2 Maximum
Hyundai Amount up to an amount not to exceed 30% of the aggregate Net Book Value
of all Vehicles leased under the Leases and (y) increase the Series 2009-2
Maximum Kia Amount up to an amount not to exceed 15% of the aggregate Net Book
Value of all Vehicles leased under the Leases at any time without the
consent of the Series 2009-2 Noteholders by giving written notice of such
increase to the Trustee along with an Officer’s Certificate certifying that no
Amortization Event has occurred and is continuing.
Section
6.8 Discharge of
Indenture. Notwithstanding
anything to the contrary contained in the Base Indenture, no discharge of the
Indenture pursuant to Section 11.1(b) of the Base Indenture will be effective as
to the Series 2009-2 Notes without the consent of the Required
Noteholders.
Section
6.9 Notice to
Moody’s. The
Trustee shall provide to Moody’s a copy of each notice, opinion of counsel,
certificate or other item delivered to, or required to be provided by, the
Trustee pursuant to this Supplement or any other Related Document.
Section
6.10 Capitalization of
ABRCF. ABRCF
agrees that on the Series 2009-2 Closing Date it will have capitalization in an
amount equal to or greater than 3% of the sum of (x) the Series 2009-2 Invested
Amount and (y) the invested amount of the Series 2002-2 Notes, the Series 2003-4
Notes, the Series 2004-1 Notes, the Series 2005-1 Notes, the Series 2005-2
Notes, the Series 2005-4 Notes, the Series 2006-1 Notes, the Series 2007-2 Notes
the Series 2008-1 Notes and the Series 2009-1 Notes.
Section
6.11 [Reserved]
Section
6.12 Series 2009-2 Demand
Notes. Other
than pursuant to a demand thereon pursuant to Section 2.5, ABRCF shall not
reduce the amount of the Series 2009-2 Demand Notes or forgive amounts payable
thereunder so that the outstanding principal amount of the Series 2009-2 Demand
Notes after such reduction or forgiveness is less than the Series 2009-2 Letter
of Credit Liquidity Amount. ABRCF shall not agree to any amendment of
the
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Series
2009-2 Demand Notes without first satisfying the Rating Agency Confirmation
Condition and the Rating Agency Consent Condition.
Section
6.13 Termination of
Supplement. This
Supplement shall cease to be of further effect when all outstanding Series
2009-2 Notes theretofore authenticated and issued have been delivered (other
than destroyed, lost, or stolen Series 2009-2 Notes which have been replaced or
paid) to the Trustee for cancellation, ABRCF has paid all sums payable
hereunder, and, if the Series 2009-2 Demand Note Payment Amount on the Series
2009-2 Letter of Credit Termination Date was greater than zero, all amounts have
been withdrawn from the Series 2009-2 Cash Collateral Account in accordance with
Section 2.8(i).
Section
6.14 Noteholder Consent to
Certain Amendments. Each
Series 2009-2 Noteholder, upon any acquisition of a Series 2009-2 Note, will be
deemed to agree and consent to (i) the execution by ABRCF of a Supplemental
Indenture to the Base Indenture substantially in the form of Exhibit G hereto and
(ii) the execution of an amendment to the Master Exchange Agreement
substantially in the form of Exhibit H
hereto. Such deemed consent will apply to each proposed amendment set
forth in Exhibits
G and H
individually, and the failure to adopt any of the amendments set forth therein
will not revoke the consent with respect to any other amendment.
Section
6.15 Confidential
Information.(a) The
Trustee and each Series 2009-2 Note Owner agrees, by its acceptance and holding
of a beneficial interest in a Series 2009-2 Note, to maintain the
confidentiality of all Confidential Information in accordance with procedures
adopted by the Trustee or such Series 2009-2 Note Owner in good faith to protect
confidential information of third parties delivered to such Person; provided, that such
Person may deliver or disclose Confidential Information to: (i) such
Person’s directors, trustees, officers, employees, agents, attorneys,
independent or internal auditors and affiliates who agree to hold confidential
the Confidential Information substantially in accordance with the terms of this
Section 6.15; (ii) such Person’s financial advisors and other professional
advisors who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 6.15; (iii) any other
Series 2009-2 Note Owner; (iv) any Person of the type that would be, to
such Person’s knowledge, permitted to acquire an interest in the Series 2009-2
Notes in accordance with the requirements of the Indenture to which such Person
sells or offers to sell any such Series 2009-2 Note or any part thereof and that
agrees to hold confidential the Confidential Information substantially in
accordance with this Section 6.15 (or in accordance with such other
confidentiality procedures as are acceptable to ABRCF); (v) any federal or state
or other regulatory, governmental or judicial authority having jurisdiction over
such Person; (vi) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that requires
access to information about the investment portfolio of such Person, (vii) any
reinsurers or liquidity or credit providers that agree to hold confidential the
Confidential Information substantially in accordance with this Section 6.15 (or
in accordance with such other confidentiality procedures as are acceptable to
ABRCF); (viii) any other Person with the consent of ABRCF; or (ix) any other
Person to which such delivery or disclosure may be necessary or appropriate (A)
to effect compliance with any law, rule, regulation, statute or order applicable
to such Person, (B) in response to any subpoena or other legal process upon
prior notice to ABRCF (unless prohibited by applicable law, rule, order or
decree or other requirement having the force of law), (C) in connection with any
litigation to
-43-
which
such Person is a party upon prior notice to ABRCF (unless prohibited by
applicable law, rule, order or decree or other requirement having the force of
law) or (D) if an Amortization Event with respect to the Series 2009-2
Notes has occurred and is continuing, to the extent such Person may reasonably
determine such delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under the Series
2009-2 Notes, the Indenture or any other Related Document; and provided, further, however, that
delivery to any Series 2009-2 Note Owner of any report or information required
by the terms of the Indenture to be provided to such Series 2009-2 Note Owner
shall not be a violation of this Section 6.15. Each Series 2009-2
Note Owner agrees, by acceptance of a beneficial interest in a Series 2009-2
Note, except as set forth in clauses (v), (vi) and (ix) above, that it shall use
the Confidential Information for the sole purpose of making an investment in the
Series 2009-2 Notes or administering its investment in the Series 2009-2
Notes. In the event of any required disclosure of the Confidential
Information by such Series 2009-2 Note Owner, such Series 2009-2 Note Owner
agrees to use reasonable efforts to protect the confidentiality of the
Confidential Information.
(b) For
the purposes of this Section 6.15, “Confidential
Information” means information delivered to the Trustee or any Series
2009-2 Note Owner by or on behalf of ABRCF in connection with and relating to
the transactions contemplated by or otherwise pursuant to the Indenture and the
Related Documents; provided, that such
term does not include information that: (i) was publicly known or
otherwise known to the Trustee or such Series 2009-2 Note Owner prior to the
time of such disclosure; (ii) subsequently becomes publicly known through no act
or omission by the Trustee, any Series 2009-2 Note Owner or any person acting on
behalf of the Trustee or any Series 2009-2 Note Owner; (iii) otherwise is known
or becomes known to the Trustee or any Series 2009-2 Note Owner other than (x)
through disclosure by ABRCF or (y) as a result of the breach of a fiduciary duty
to ABRCF or a contractual duty to ABRCF; or (iv) is allowed to be treated as
non-confidential by consent of ABRCF.
Section
6.16 Capitalized Cost
Covenant. ABRCF
hereby agrees that it shall not permit the aggregate Capitalized Cost for all
Vehicles purchased in any model year that are not subject to a Manufacturer
Program to exceed 85% of the aggregate MSRP (Manufacturer Suggested Retail
Price) of all such Vehicles; provided, however, that ABRCF
shall not modify the customary buying patterns or purchasing criteria used
by the Administrator and its Affiliates with respect to the Vehicles if the
primary purpose of such modification is to comply with this
covenant.
-44-
IN
WITNESS WHEREOF, ABRCF and the Trustee have caused this Supplement to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
|
By:
|
AVIS
BUDGET RENTAL CAR FUNDING
(AESOP)
LLC
/s/
Rochelle Tarlowe
|
|||
|
Name: Rochelle
Tarlowe
Title: Vice
President and Treasurer
|
|
By:
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THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
/s/
Sally R. Tokich
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Title: Senior
Associate
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By:
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THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Series 2009-2
Agent
/s/
Sally R. Tokich
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Title: Senior
Associate
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Exhibit
99.1
Press Release
AVIS BUDGET GROUP ANNOUNCES
CLOSING
OF $450 MILLION TERM ASSET-BACKED
NOTES
PARSIPPANY, N.J., October 1, 2009 –
Avis Budget Group, Inc. (NYSE: CAR) announced today
that its Avis Budget Rental Car Funding (AESOP) LLC subsidiary has closed its
$450 million Series 2009-2 asset-backed term notes. The 5.68% notes
were priced to yield 5.75%, have an expected final payment date in February 2013
and are rated Aaa by Moody’s Investors Service.
“We are
pleased to be seeing continued strong investor interest in Avis Budget’s
securitization program, with this offering well over-subscribed,” said David B.
Wyshner, Avis Budget Group Executive Vice President and Chief Financial
Officer. “Between this transaction and the $450 million ABS issue we
completed in July, we have refinanced almost all of the $1 billion of domestic
ABS term debt maturities scheduled for 2010.”
Based on
the Company’s current fleet composition, the notes are expected to provide the
Company with an advance rate of more than 60% on applicable
collateral.
The
Series 2009-2 Notes have not been and will not be registered under the
Securities Act of 1933, as amended (the “Securities Act”), or any applicable
state securities laws, and may not be offered or sold in the United States
without registration under the Securities Act or pursuant to any applicable
exemption from such registration. This press release shall not
constitute an offer to sell or the solicitation of an offer to buy the Series
2009-2 Notes, nor shall it constitute an offer, solicitation or sale of the
Series 2009-2 Notes in any state in which such offer, solicitation or sale would
be unlawful.
Forward-Looking
Statements
Certain statements in this press
release constitute "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause the actual results, performance or achievements of
the Company to be materially different from any future results, performance or
achievements expressed or implied by such forward-looking
statements. Statements preceded by, followed by or that otherwise
include the words "believes", "expects", "anticipates", "intends", "projects",
"estimates", "plans", "may increase", "may fluctuate", "forecast" and similar
expressions or future or conditional verbs such as "will", "should", "would",
"may" and "could" are generally forward-looking in nature and not historical
facts. Any statements that refer to expectations or other
characterizations of future events, circumstances or results are forward-looking
statements.
Various risks that could cause
future results to differ from those expressed by the forward-looking statements
included in this press release include, but are not limited to, a
weaker-than-anticipated economic environment, the high level of competition in
the vehicle rental industry, greater-than-expected cost increases for new
vehicles, disposition of vehicles not covered by manufacturer repurchase
programs, the financial condition of the manufacturers of our cars, a
greater-than-anticipated downturn in airline passenger traffic, an occurrence or
threat of terrorism, our ability to obtain financing for our operations,
including the funding of our vehicle fleet via the asset-backed securities
market and the financial condition of financial-guaranty firms that have insured
a portion of our outstanding vehicle-backed debt, higher-than-expected fuel
costs, fluctuations related to the mark-to-market of derivatives which hedge our
exposure to exchange rates, interest rates and fuel costs, the Company’s ability
to meet or amend financial covenants associated with its borrowings and the
Company’s ability to accurately estimate its future results and implement its
strategy for cost savings and growth, particularly in the current
environment. Other unknown or unpredictable factors also could have
material adverse effects on Avis Budget Group’s performance or
achievements. In light of these risks, uncertainties, assumptions and
factors, the forward-looking events discussed in this press release may not
occur. You are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date stated, or if no
date is stated, as of the date of this press release. Important
assumptions and other important factors that could cause actual results to
differ materially from those in the forward-looking statements are specified in
Avis Budget Group's Annual Report on Form 10-K for the year ended December 31,
2008 and our Quarterly Report on Form 10-Q for the quarter ended June 30, 2009
included under headings such as "Forward-Looking Statements", "Risk Factors" and
"Management’s Discussion and Analysis of Financial Condition and Results of
Operations" and in other filings and furnishings made by the Company with the
SEC from time to time. Except for the Company's ongoing obligations
to disclose material information under the federal securities laws, the Company
undertakes no obligation to release publicly any revisions to any
forward-looking statements, to report events or to report the occurrence of
unanticipated events unless required by law.
About Avis Budget Group,
Inc.
Avis Budget Group is a leading
provider of vehicle rental services, with operations in more than 70 countries.
Through its Avis and Budget brands, the company is a leading general-use vehicle
rental company in each of North America, Australia, New Zealand and certain
other regions based on published airport statistics. Avis Budget Group is
headquartered in Parsippany, N.J. and has approximately 24,000
employees. For more information about Avis Budget Group, visit
www.avisbudgetgroup.com.
Media
Contact Investor
Contact
John
Barrows David
Crowther
(973)
496-7865 (973)
496-7277