[AMENDED AND RESTATED AESOP I
Operating Lease Loan Agreement]
AMENDED AND RESTATED
LOAN AGREEMENT
dated as of September 15, 1998
among
AESOP LEASING L.P.,
as Borrower,
PV HOLDING CORP.,
as a Permitted Nominee of the Borrower,
QUARTX FLEET MANAGEMENT, INC.
as a Permitted Nominee of the Borrower,
and
AESOP FUNDING II L.L.C.,
as Lender
TABLE OF CONTENTS
Page
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SECTION 1. CERTAIN DEFINITIONS 2
SECTION 1.1. Certain Definitions 2
SECTION 1.2. Accounting and Financial Determinations 2
SECTION 1.3. Cross References; Headings 3
SECTION 1.4. Interpretation 3
SECTION 2. LOAN COMMITMENT OF THE LENDER 3
SECTION 2.1. Loan Commitment 3
SECTION 2.2. Certain Waivers 4
SECTION 2.3. Conditions 4
SECTION 2.4. Use of Proceeds 4
SECTION 3. LOAN NOTE; LOAN PROCEDURE; RECORDKEEPING 4
SECTION 3.1. Loan Note 4
SECTION 3.2. Loan Procedure 4
SECTION 3.3. Recordkeeping 5
SECTION 4. INTEREST 5
SECTION 4.1. Interest Rate on Loans 5
SECTION 4.2. Supplemental Interest 5
SECTION 4.3. Loan Interest Payment Dates 6
SECTION 4.4. Setting of Rates 6
SECTION 4.5. Carrying Charges 6
SECTION 5. REPAYMENT OF LOAN PRINCIPAL AMOUNT 6
SECTION 5.1. Mandatory Repayment of Monthly Loan Principal
Amount of Loans 6
SECTION 5.2. Voluntary Prepayments of Loan Principal Amount 8
SECTION 6. MAKING OF PAYMENTS 9
SECTION 6.1. Making of Payments 9
SECTION 6.2. Due Date Extension 9
SECTION 6.3. Application of Sale Proceeds 9
SECTION 6.4. Payment Deficits 10
SECTION 7. LOAN COLLATERAL SECURITY 10
SECTION 7.1. Grant of Security Interest 10
SECTION 7.2. Certificates of Title 12
SECTION 7.3. Release of AESOP I Operating Lease Loan Collateral 12
SECTION 7.4. Change of Location or Name 13
SECTION 7.5. Deliveries; Further Assurances 14
SECTION 7.6. [RESERVED]. 14
SECTION 7.7. [RESERVED]. 14
SECTION 7.8. AESOP I Segregated Account 14
SECTION 8. REPRESENTATIONS AND WARRANTIES 15
SECTION 8.1. Organization; Ownership; Power; Qualification 15
SECTION 8.2. Authorization; Enforceability 15
SECTION 8.3. Compliance 15
SECTION 8.4. [RESERVED] 16
SECTION 8.5. Litigation 16
SECTION 8.6. Liens 16
SECTION 8.7. Employee Benefit Plans 16
SECTION 8.8. Investment Company Act 16
SECTION 8.9. Regulations T, U and X 17
SECTION 8.10. Proceeds 17
SECTION 8.11. Business Locations; Trade Names 17
SECTION 8.12. Taxes 17
SECTION 8.13. Governmental Authorizations 17
SECTION 8.14. Compliance with Laws 18
SECTION 8.15. Eligible Vehicles 18
SECTION 8.16. Manufacturer Programs 18
SECTION 8.17. Absence of Default 18
SECTION 8.18. No Security Interest; Title to Assets 18
SECTION 8.19. Accuracy of Information 19
SECTION 9. AFFIRMATIVE COVENANTS 19
SECTION 9.1. Existence; Foreign Qualification 19
SECTION 9.2. Books, Records and Inspections 20
SECTION 9.3. Insurance 20
SECTION 9.4. Manufacturer Programs 20
SECTION 9.5. Reporting Requirements 21
SECTION 9.6. Payment of Taxes; Removal of Liens 22
SECTION 9.7. Business 22
SECTION 9.8. Maintenance of the Vehicles 22
SECTION 9.9. Maintenance of Separate Existence 22
SECTION 9.10. Manufacturer Payments; Sales Proceeds 26
SECTION 9.11. Maintenance of Properties 26
SECTION 9.12. Verification of Title 26
SECTION 9.13. Legal Reserve Fund 27
SECTION 9.14. Delivery of Information 27
SECTION 9.15. Master Exchange Agreement 27
SECTION 9.16. Vehicles 27
SECTION 9.17. Assignments 27
SECTION 9.18. Notation of Liens 27
SECTION 9.19. [RESERVED]. 28
SECTION 9.20. [RESERVED]. 28
SECTION 9.21. [RESERVED] 28
SECTION 9.22. Non-Program Vehicle Report. 28
SECTION 9.23. Sale of Non-Program Vehicles Returned to AESOP
Leasing 28
SECTION 10. NEGATIVE COVENANTS 29
SECTION 10.1. Liens. 29
SECTION 10.2. Other Indebtedness 29
SECTION 10.3. Mergers, Consolidations 29
SECTION 10.4. Sales of Assets 29
SECTION 10.5. Acquisition of Assets 29
SECTION 10.6. Dividends, Officers' Compensation, etc 29
SECTION 10.7. Organizational Documents 29
SECTION 10.8. Investments 30
SECTION 10.9. Regulations T, U and X 30
SECTION 10.10. Other Agreements 30
SECTION 10.11. Use of Vehicles 30
SECTION 10.12. Use of Proceeds 30
SECTION 10.13. Limitations on the Acquisition or Redesignation
of Certain Vehicles 30
SECTION 10.14. Maximum Vehicle Age 30
SECTION 10.15. Transactions Pursuant to the Master Exchange
Agreement 31
SECTION 10.16. Master Exchange Agreement 31
SECTION 11. CONDITIONS 31
SECTION 11.1. Initial Loans Pursuant to Amended and Restated
Agreement 31
SECTION 11.2. All Loans 33
SECTION 11.3. All Transactions Under Master Exchange Agreement 34
SECTION 12. LOAN EVENTS OF DEFAULT AND THEIR EFFECT 34
SECTION 12.1. AESOP I Operating Lease Loan Events of Default 34
SECTION 12.1.1. Non-Payment of Loans 34
SECTION 12.1.2. Non-Payment of Other Amounts 35
SECTION 12.1.3. Bankruptcy, Insolvency, etc 35
SECTION 12.1.4. Non-Compliance With Provisions 35
SECTION 12.1.5. Warranties and Representations 35
SECTION 12.1.6. Lease Events of Default 35
SECTION 12.1.7. Loan Events of Default Under Other Loan Agreements 35
SECTION 12.1.8. Judgments 35
SECTION 12.2. Effect of AESOP I Operating Lease Loan Event of
Default or Liquidation Event of Default 36
SECTION 12.3. Rights of Trustee Upon Liquidation Event of
Default and Non-Performance of Certain Covenants 36
SECTION 12.4. Application of Proceeds 37
SECTION 12.5. Additional Agreements of AESOP Leasing 37
SECTION 13. GENERAL 38
SECTION 13.1. Waiver; Amendments 38
SECTION 13.2. Confirmations 38
SECTION 13.3. Notices 38
SECTION 13.4. Taxes 38
SECTION 13.5. Indemnification 39
SECTION 13.6. Bankruptcy Petition 39
SECTION 13.7. Submission to Jurisdiction 40
SECTION 13.8. Governing Law 41
SECTION 13.9. Jury Trial 41
SECTION 13.10. Successors and Assigns 41
SECTION 13.11. Tax Treatment of Loans 42
SECTION 13.12. No Recourse 42
SECTION 13.13. Effect of Amendment 42
EXHIBITS AND SCHEDULES
EXHIBIT A FORM OF LOAN NOTE
EXHIBIT B-1 FORM OF LOAN REQUEST
EXHIBIT B-2 FORM OF LOAN REQUEST RESPONSE
EXHIBIT C FORM OF PAYMENT DEFICIT NOTICE
SCHEDULE 8.11 BUSINESS LOCATIONS, TRADE NAMES
AMENDED AND RESTATED
LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT, dated as of September 15,
1998 (the "Agreement"), is entered into among AESOP LEASING L.P., a Delaware
limited partnership ("AESOP Leasing" or the "Borrower"), PV HOLDING CORP., a
Delaware corporation ("PVHC"), as a Permitted Nominee of the Borrower, QUARTX
FLEET MANAGEMENT, INC., a Delaware corporation ("Quartx"), as a Permitted
Nominee of the Borrower, and AESOP FUNDING II L.L.C., a Delaware limited
liability company ("AFC-II" or the "Lender").
BACKGROUND
AESOP Leasing purchases and finances Program Vehicles (such
capitalized term, together with all other capitalized terms used herein, shall
have the meaning assigned thereto in Section 1.1) and Non-Program Vehicles that
it leases to ARAC and certain other Eligible Rental Car Companies for use in
their respective daily vehicle rental businesses pursuant to the AESOP I
Operating Lease, and, pursuant to the Loan Agreement, dated as of July 30, 1997,
among AESOP Leasing, PVHC, Quartx and the Lender, as amended by Amendment No. 1
thereto dated as of July 31, 1998 (the "Original Loan Agreement") AESOP Leasing
obtained financing for such Vehicles from the Lender.
AESOP Leasing has appointed PVHC pursuant to the PVHC/BONY Nominee
Agreement and Quartx pursuant to the Quartx Nominee Agreement to act as nominee
titleholders for the sole purpose of holding registered title to certain
Vehicles acquired by AESOP Leasing.
AESOP Leasing now wishes to amend and restate the Original Loan
Agreement to permit it to engage, from time to time, in exchanges of property
pursuant to Section 1031 of the Code, and, in furtherance thereof, to enter into
a Master Exchange Agreement, of even date herewith, with Bank One, Texas,
National Association, as Intermediary, and otherwise to take such actions in
connection with such exchanges as are necessary and appropriate in order to
comply with Section 1031 of the Code and the regulations thereunder.
The Lender is willing to enter into this Amended and Restated Loan
Agreement and to make Loans to AESOP Leasing on the terms and conditions set
forth herein.
The Lender will utilize the proceeds of one or more Series of Notes
issued from time to time pursuant to the Indenture to make Loans to (i) AESOP
Leasing hereunder, (ii) to AESOP Leasing under the AESOP I Finance Lease Loan
Agreement and (iii) to AESOP Leasing II under the AESOP II Loan Agreement, in
each case to the extent Vehicles eligible to be financed hereunder and
thereunder are available for financing and,
in certain other circumstances, to pay amortizing Notes. In addition, the Lender
will utilize the proceeds of certain capital contributions from time to time to
make Loans to AESOP Leasing hereunder to the extent Vehicles eligible to be
financed hereunder are available for financing and, in certain other
circumstances, to pay amortizing Notes. In connection with the foregoing, the
Lender has assigned its rights hereunder and under the AESOP I Finance Lease
Loan Agreement and the AESOP II Loan Agreement to the Trustee to secure the
Lender's obligations to the Secured Parties.
Except as expressly provided herein otherwise with respect to
Relinquished Vehicles and related Relinquished Vehicle Property, and with
respect to Excluded Payments or any guaranty thereof, the Loans made to AESOP
Leasing hereunder will be secured by all of the right, title and interest of
AESOP Leasing, PVHC and Quartx in and to (a) the Vehicles leased under the AESOP
I Operating Lease, (b) the Manufacturer Programs as they relate to such Vehicles
that are Program Vehicles, (c) all monies due arising from the sale of such
Vehicles that are Non-Program Vehicles, (d) all payments under insurance
policies or warranties relating to such Vehicles, (e) all payments due from the
Lessees and ARC under the AESOP I Operating Lease and (f) all proceeds of the
foregoing.
Accordingly, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and subject to the terms and conditions hereof,
the parties hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
SECTION 1.1. Certain Definitions. As used in this Agreement and
unless the context requires a different meaning, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Definitions
List attached as Schedule I to the Base Indenture, dated as of July 30, 1997
(such agreement as it has been and may be further amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms,
the "Base Indenture"), between AFC-II and ▇▇▇▇▇▇ Trust and Savings Bank, as
trustee (the "Trustee"), as in effect on the date hereof pursuant to
Supplemental Indenture No. 2 and as such Schedule I may be further amended or
modified from time to time in accordance with the terms of the Base Indenture
(the "Definitions List").
SECTION 1.2. Accounting and Financial Determinations. Where the
character or amount of any asset or liability or item of income or expense is
required to be determined, or any accounting computation is required to be made,
for the purpose of this Agreement, such determination or calculation shall be
made, to the extent applicable and except as otherwise specified in this
Agreement, in accordance with GAAP. When used herein, the term "financial
statement" shall include the notes and schedules thereto.
SECTION 1.3. Cross References; Headings. The words "hereof",
"herein" and "hereunder" and words of a similar import when used in this
Agreement shall refer to
this Agreement as a whole and not to any particular provision of this Agreement.
Section, Schedule and Exhibit references contained in this Agreement are
references to Sections, Schedules and Exhibits in or to this Agreement unless
otherwise specified. Any reference in any Section or definition to any clause
is, unless otherwise specified, to such clause of such Section or definition.
The various headings in this Agreement are inserted for convenience only and
shall not affect the meaning or interpretation of this Agreement or any
provision hereof.
SECTION 1.4. Interpretation. In this Agreement, unless the context
otherwise requires:
(i) the singular includes the plural and vice versa;
(ii) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement, and reference to any Person in a particular
capacity only refers to such Person in such capacity;
(iii) reference to any gender includes the other gender;
(iv) reference to any Requirement of Law means such Requirement of
Law as amended, modified, codified or reenacted, in whole or in part, and
in effect from time to time;
(v) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding
such term; and
(vi) with respect to the determination of any period of time, "from"
means "from and including" and "to" and "until" means "to but excluding".
SECTION 2. LOAN COMMITMENT OF THE LENDER.
SECTION 2.1. Loan Commitment. Subject to the terms and conditions of
this Agreement, including Section 12.2, and further subject to the availability
of funds to the Lender pursuant to the Indenture, the Lender agrees to make
loans hereunder (the "Loans") to AESOP Leasing from time to time on or after the
Initial Closing Date and prior to the Loan Commitment Termination Date;
provided, that on any one date the Loan Principal Amount of all Loans made
hereunder to AESOP Leasing shall not exceed the AESOP I Operating Lease Loan
Agreement Borrowing Base. The foregoing commitment of the Lender is called the
"Loan Commitment".
SECTION 2.2. Certain Waivers. AESOP Leasing waives presentment,
demand for payment, notice of dishonor and protest, notice of the creation of
any of its Liabilities and all other notices whatsoever to AESOP Leasing with
respect to such Liabilities except notices required under Section 12.1. The
obligations of AESOP
Leasing under this Agreement and the Loan Note shall not be affected by (i) the
failure of the Trustee or the Lender or the holder of the Loan Note or any of
AESOP Leasing's Liabilities to assert any claim or demand or to exercise or
enforce any right, power or remedy against AESOP Leasing or the AESOP I
Operating Lease Loan Collateral or otherwise, (ii) any extension or renewal for
any period (whether or not longer than the original period) or exchange of any
of AESOP Leasing's Liabilities or the release or compromise of any obligation of
any nature of any Person with respect thereto, (iii) the surrender, release or
exchange of all or any part of any property (including the AESOP I Operating
Lease Loan Collateral) securing payment and performance of any of AESOP
Leasing's Liabilities or the compromise or extension or renewal for any period
(whether or not longer than the original period) of any obligations of any
nature of any Person with respect to any such property, and (iv) any other act,
matter or thing which would or might, in the absence of this provision, operate
to release, discharge or otherwise prejudicially affect the obligations of AESOP
Leasing.
SECTION 2.3. Conditions. The making of each Loan hereunder is
subject to the satisfaction of the applicable conditions set forth in Section
11.
SECTION 2.4. Use of Proceeds. AESOP Leasing shall apply the funds
received by it pursuant to Section 2.1 hereof solely to purchase Eligible
Vehicles that it will lease to ARAC and certain other Eligible Rental Car
Companies pursuant to the AESOP I Operating Lease for use in their respective
daily vehicle rental businesses.
SECTION 3. LOAN NOTE; LOAN PROCEDURE; RECORDKEEPING.
SECTION 3.1. Loan Note. The Loans made hereunder shall be evidenced
by the promissory note issued by AESOP Leasing pursuant to the Original Loan
Agreement (herein, as from time to time supplemented, extended or replaced, the
"Loan Note"), a copy of which is attached as Exhibit A, dated as of the Initial
Closing Date, payable to the order of the Lender and assigned to the Trustee
pursuant to the Indenture.
SECTION 3.2. Loan Procedure. AESOP Leasing shall deliver a Loan
Request to the Lender no later than 4:00 p.m., New York City time, on a day that
is not less than one, nor more than five, Business Days prior to the proposed
Borrowing Date (which shall be a Business Day). Each Loan Request shall be
irrevocable, and shall specify (i) the principal amount of the proposed Loan,
(ii) the Borrowing Date of the proposed Loan, (iii) a summary of the Vehicles
being financed (including for Program Vehicles subject to the GM Repurchase
Program, the Designated Period for each such Program Vehicle), (iv) whether each
Vehicle is a Program Vehicle or a Non-Program Vehicle, (v) the VIN for each
Vehicle to be financed, and (vi) the total Capitalized Cost thereof as of the
Borrowing Date. The aggregate requested borrowings hereunder on any Business Day
shall be for an initial aggregate principal amount that, together with the Loan
Principal Amount of Loans outstanding hereunder
and under the AESOP I Finance Lease Loan Agreement and the AESOP II Loan
Agreement on such date, shall not exceed the principal amount of Notes
outstanding on such date. On the terms and subject to the conditions of this
Agreement, on or before 2:00 p.m., New York City time, on the Borrowing Date
specified in the Loan Request, the Lender shall transfer same day or immediately
available funds to AESOP Leasing's account specified in such Loan Request in the
amount specified in such Loan Request. Each Loan Request made pursuant to this
Section 3.2 shall constitute AESOP Leasing's representation and warranty that
all of the applicable conditions contained in Section 11 will, after giving
effect to such Loan, be satisfied.
SECTION 3.3. Recordkeeping. The Lender shall record in its records,
or at its option on the schedule attached to the Loan Note, the date and
principal amount of each Loan made hereunder, each repayment thereof, and the
other information provided for thereon. The aggregate unpaid Loan Principal
Amount so recorded shall be rebuttable presumptive evidence of the Loan
Principal Amount owing and unpaid on the Loan Note. The failure to so record any
such information or any error in so recording any such information shall not,
however, limit or otherwise affect the actual obligations of AESOP Leasing
hereunder or under the Loan Note to repay the Loan Principal Amount, together
with all Loan Interest accruing thereon.
SECTION 4. INTEREST.
SECTION 4.1. Interest Rate on Loans. AESOP Leasing hereby promises
to pay interest on the unpaid principal amount of each Loan made to it hereunder
(the "Loan Interest"), for each Loan Interest Period commencing on the date such
Loan is made to AESOP Leasing until such Loan is paid in full at a rate not less
than the Lender's Carrying Cost Interest Rate for the applicable Loan Interest
Period. The applicable rate of Loan Interest on each Loan shall be specified in
a Loan Request Response provided by the Lender to AESOP Leasing on the date a
Loan Request is delivered; provided that if the Lender's Carrying Cost Interest
Rate for the applicable Loan Interest Period is higher than the rate of Loan
Interest specified in the Loan Request Response, Loan Interest payable shall be
determined using the higher rate.
SECTION 4.2. Supplemental Interest. AESOP Leasing agrees to pay to
the Lender, as an additional interest payment, an amount equal to the product of
(A) the applicable Loan Agreement's Share as of the beginning of each Loan
Interest Period times (B) the sum of (i) the Supplemental Carrying Charges for
such Loan Interest Period, minus (ii) any accrued earnings on Permitted
Investments in the Collection Account which earnings are available for
distribution on the last Business Day of such Loan Interest Period (the product
of the amounts described in clauses (A) and (B) above, "Supplemental Interest").
SECTION 4.3. Loan Interest Payment Dates. Accrued Loan Interest on
each Loan made hereunder shall be payable on each Payment Date (with respect to
the related Loan Interest Period), upon any prepayment and at maturity,
commencing with the first of such dates to occur after the date such Loan is
made. After maturity
(whether by acceleration or otherwise), all accrued Loan Interest and
Supplemental Interest on all Loans made hereunder shall be payable on demand.
Supplemental Interest in respect of each Loan Interest Period shall be payable
on each Payment Date and upon any prepayment and at maturity. All calculations
of Loan Interest and Supplemental Interest shall be based on a 360-day year and
the actual number of days elapsed in the related Loan Interest Period.
SECTION 4.4. Setting of Rates. The Lender's Carrying Cost Interest
Rate and Supplemental Carrying Charges used hereunder to compute Loan Interest
due on each Loan made hereunder on each Payment Date and the Supplemental
Interest due on each Payment Date shall be calculated from time to time by the
Lender in accordance with this Agreement (and written notice thereof shall be
provided to AESOP Leasing not later than ten days prior to the applicable
Payment Date). Such calculation shall be conclusive, absent demonstrable error.
SECTION 4.5. Carrying Charges. AESOP Leasing agrees to pay to the
Lender on each Payment Date an amount equal to the product of (A) the applicable
Loan Agreement's Share as of such Payment Date times (B) all accrued and unpaid
Carrying Charges that are accrued and unpaid as of each such Payment Date.
SECTION 5. REPAYMENT OF LOAN PRINCIPAL AMOUNT.
SECTION 5.1. Mandatory Repayment of Monthly Loan Principal Amount of
Loans. On each Payment Date, AESOP Leasing shall pay to the Lender, as a
repayment of the Loan Principal Amount, an amount equal to the product of (A)
the applicable Loan Payment Allocation Percentage as of the beginning of the
Related Month times (B) the excess of (I) over (II), where:
(I) is equal to the sum, without duplication, of (i) the accrued
Depreciation Charges for the Related Month for all Vehicles
(a) leased under the AESOP I Operating Lease at any time
during the Related Month or (b) described in clauses (iii),
(iv) or (v) of this Section 5.1, plus (ii) all upfront
incentive payments paid by Manufacturers during the Related
Month in respect of purchases of Non-Program Vehicles leased
under the AESOP I Operating Lease, plus (iii) the aggregate
Termination Values (each as of the date on which such Vehicle
becomes an Ineligible Vehicle, a Casualty or is sold, as
applicable) of all the Vehicles leased under the AESOP I
Operating Lease at any time during such Related Month that,
without double counting, while so leased either became
Ineligible Vehicles, suffered a Casualty or were sold by or on
behalf of AESOP Leasing (it being understood that AESOP
Leasing has agreed to sell, or cause to be sold, Vehicles only
in a manner consistent with the provisions hereof and of the
Related Documents) to any Person other than to a Manufacturer
pursuant to a Manufacturer Program or to a third party
pursuant to an auction conducted through a Guaranteed
Depreciation Program, in each case, during the Related Month,
plus (iv) the aggregate Termination Values, each as of the
applicable Turnback Date, of all Program Vehicles leased under
the AESOP I Operating Lease that while so leased were returned
to a Manufacturer pursuant to a Manufacturer Program with
respect to which either (x) the Repurchase Price has been paid
by such Manufacturer and/or the related auction dealers during
the Related Month or (y) a Manufacturer Event of Default has
occurred, plus (v) the aggregate Termination Values, each as
of the applicable Turnback Date, of all Relinquished Vehicles
as to which the amounts payable by the relevant Manufacturer
pursuant to its Manufacturer Program shall have become
Reconveyed Receivables and with respect to which either (x)
the Repurchase Price has been paid by such Manufacturer during
the Related Month or (y) a Manufacturer Event of Default has
occurred plus (vi) an amount equal to the aggregate of the
amounts receivable by the Intermediary from a Manufacturer
with respect to which a Manufacturer Event of Default has
occurred during the Related Month included in the Relinquished
Vehicle Borrowing Base Component plus (vii) the amount, if
any, on the last day of the Related Month by which the
Relinquished Vehicle Borrowing Base Component exceeded
$125,000,000 plus (viii) the amount, if any, on the last day
of the Related Month by which the Post-Identification Period
Component exceeded $25,000,000 plus (ix) with respect to (A)
each Group of Relinquished Vehicles the last Replacement
Vehicle with respect to which has been received by AESOP
Leasing and the Identification Period with respect to which
has ended during the Related Month and (B) each Group of
Relinquished Vehicles the Post-Identification Period
Termination Date for which has occurred during the Related
Month, the excess, if any, of the aggregate Termination
Values, each as of the applicable Turnback Date, of all of the
Relinquished Vehicles in such Group of Relinquished Vehicles
(excluding any such Relinquished Vehicles as to which the
amounts payable by the relevant Manufacturer pursuant to its
Manufacturer Program shall have become Reconveyed
Receivables), over the aggregate amount, if any, withdrawn
from the AESOP Trust Account for such Group of Relinquished
Vehicles by the Intermediary to pay the purchase price of
Replacement Vehicles for such Group of Relinquished Vehicles;
and
(II) is equal to the sum of (i) any amounts received by the Lender
or the Trustee, or deposited into the Collection Account,
during the Related Month, representing (a) Repurchase Prices
for repurchases of Program Vehicles leased under the AESOP I
Operating Lease at the applicable Turnback Date (other than
any such amounts paid by the Trustee to the Intermediary or
the Receivables Lender Agent
pursuant to the Intercreditor Agreement) including any such
amounts representing the proceeds of Reconveyed Receivables or
(b) the sales proceeds (including amounts paid by a
Manufacturer as a result of the sale of a Program Vehicle
during the Related Month outside such Manufacturer's
Manufacturer Program but excluding amounts released to AESOP
Leasing pursuant to the last sentence of Section 5.2(a) of the
Base Indenture) for sales of Vehicles leased under the AESOP I
Operating Lease at the time of such sale to a third party
other than (x) to a Manufacturer pursuant to a Repurchase
Program or (y) through an auction dealer pursuant to a
Guaranteed Depreciation Program or (c) amounts attributable to
Repurchase Prices for repurchases of Relinquished Vehicles
(including investment earnings thereon) released by the
Intermediary to the Trustee in accordance with the Master
Exchange Agreement and (ii) any amounts received in the
Related Month and applied to the Loan Principal Amount
pursuant to Section 6.3 (the product of the amounts described
in clauses (A) and (B) above, the "Monthly Loan Principal
Amount").
Unless otherwise required to be paid sooner pursuant to the terms of this
Agreement, the entire unpaid Loan Principal Amount of the Loans made hereunder
shall be payable on the last occurring Series Termination Date with respect to
the Notes. All Loans made hereunder shall be due on the maturity date therefor,
whether by acceleration or otherwise. Solely for determining the amounts payable
under this Section 5.1, with respect to a Program Vehicle that became a Casualty
during the Related Month as a result of such Program Vehicle being held beyond
the stated expiration date of the applicable Repurchase Period and not being
redesignated as a Non-Program Vehicle, such Vehicle will be deemed to have
become a Casualty upon such expiration date.
SECTION 5.2. Voluntary Prepayments of Loan Principal Amount. AESOP
Leasing may from time to time prepay the principal amount with respect to any
Loans made hereunder, in whole or in part, on any date; provided that, except
for any prepayment made pursuant to Section 6.3 hereof or any payment made to
comply with Section 10.13 hereof, AESOP Leasing shall give the Lender and the
Trustee not less than one (1) Business Day's prior notice of any such
prepayment, specifying the date and amount of such prepayment, and, if AESOP
Leasing is requesting a release of Vehicles from the Lien hereof pursuant to
Section 7.3, the Vehicles to which such prepayment relates.
SECTION 6. MAKING OF PAYMENTS.
SECTION 6.1. Making of Payments. All payments of the Monthly Loan
Principal Amount or Loan Interest hereunder, all prepayments of the Loan
Principal Amount hereunder, and all payments of Supplemental Interest, Carrying
Charges and of all other Liabilities shall be made by AESOP Leasing to, or for
the account of, the Lender in immediately available Dollars, without setoff,
counterclaim or deduction of any kind. All such payments shall be made to the
Collection Account (or such other account as the Lender may from time to time
specify with the consent of the Trustee), not later than 11:00 a.m., New York
City time, on the date due, and funds received after that hour shall be deemed
to have been received by the Lender on the next following Business Day. The
Lender hereby specifies that all (i) payments with respect to Program Vehicles
leased under the AESOP I Operating Lease made by the Manufacturers and related
auction dealers under the Manufacturer Programs (including any such amounts that
are the proceeds of Reconveyed Receivables), (ii) amounts representing the
proceeds from sales of Vehicles leased under the AESOP I Operating Lease
(including amounts paid by a Manufacturer as a result of the sale of such
Vehicle outside such Manufacturer's Manufacturer Program) to third parties
(other than under any related Manufacturer Program), (iii) amounts representing
Repurchase Prices for repurchases of Relinquished Vehicles released from the
Trust Accounts by the Intermediary to the Trustee and (iv) payments with respect
to any other AESOP I Operating Lease Loan Collateral shall be deposited in the
Collection Account; provided, however, that, subject to Section 5.2 of the Base
Indenture, insurance proceeds and warranty payments with respect to Vehicles
leased under the AESOP I Operating Lease will be deposited in the Collection
Account only if an Amortization Event or a Potential Amortization Event shall
have occurred and be continuing.
SECTION 6.2. Due Date Extension. If any (i) payment of the Monthly
Loan Principal Amount or Loan Interest hereunder or (ii) prepayments of the Loan
Principal Amount or Supplemental Interest with respect to any Loans made
hereunder falls due on a day which is not a Business Day, then such due date
shall be extended to the next following Business Day and Loan Interest or
Supplemental Interest, as applicable, shall accrue through such Business Day.
SECTION 6.3. Application of Sale Proceeds. AESOP Leasing agrees that
an amount equal to the product of (A) the applicable Loan Payment Allocation
Percentage as of the beginning of the Related Month times (B) the sum of (i) all
payments made by the Manufacturers and related auction dealers under the
Manufacturer Programs with respect to Vehicles leased under the AESOP I
Operating Lease (other than any such amounts payable by the Trustee to the
Intermediary or the Receivables Lender Agent pursuant to the Intercreditor
Agreement), plus (ii) proceeds from the sale of Vehicles leased under the AESOP
I Operating Lease to third parties (other than to the Manufacturer or pursuant
to a Guaranteed Depreciation Program), plus (iii) amounts representing
Repurchase Prices for repurchases of Relinquished
Vehicles released from the AESOP Trust Accounts by the Intermediary, in each
case deposited in the Collection Account on any date, shall be applied, upon
receipt thereof in the Collection Account, to prepay the Loan Principal Amount.
SECTION 6.4. Payment Deficits. At or before 11:30 a.m., New York
City time, on each Payment Date, AESOP Leasing shall notify the Trustee and the
related Enhancement Provider of the amount of the Lease Payment Deficit, if any,
with respect to each Series of Notes issued pursuant to the Indenture, such
notification to be in the form of Exhibit C.
SECTION 7. LOAN COLLATERAL SECURITY.
SECTION 7.1. Grant of Security Interest. (a) As security for the
prompt and complete payment and performance of its Liabilities, each of AESOP
Leasing, PVHC and Quartx hereby pledges, hypothecates, assigns, transfers and
delivers to the Lender, and hereby grants to the Lender, a continuing, security
interest in, all of the following, whether now owned or hereafter acquired:
(i) all Vehicles leased under the AESOP I Operating Lease, and all
Certificates of Title with respect thereto;
(ii) all right, title and interest of each of AESOP Leasing, PVHC
and Quartx in and to each Manufacturer Program, including any amendments
thereof, and all monies due and to become due under or in connection with
each such Manufacturer Program, in each case in respect of Vehicles leased
under the AESOP I Operating Lease, whether payable as Vehicle Repurchase
Prices, auction sales proceeds, fees, expenses, costs, indemnities,
insurance recoveries, damages for breach of the Manufacturer Programs or
otherwise (but excluding all incentive payments payable in respect of
purchases of vehicles under the Manufacturer Programs) and all rights to
compel performance and otherwise exercise remedies thereunder;
(iii) all right, title and interest of each of AESOP Leasing, PVHC
and Quartx in, to and under the AESOP I Operating Lease and the related
Lessee Agreements (other than any right, title and interest of any of
AESOP Leasing, PVHC and Quartx with respect to any Excluded Payments)
including, without limitation, all monies due and to become due to any of
AESOP Leasing, PVHC and Quartx from any of the Lessees or the Guarantor or
any of their assigns under or in connection with the AESOP I Operating
Lease and the related Lessee Agreements, whether payable as principal,
interest, rent, guaranty payments (other than guaranty payments with
respect to any Excluded Payments provided to any of AESOP Leasing, PVHC
and Quartx under the AESOP I Operating Lease), fees, expenses, costs,
indemnities, insurance recoveries, damages for the breach of any of the
AESOP I
Operating Lease and the related Lessee Agreements or otherwise, and all
rights, remedies, powers, privileges and claims of each of AESOP Leasing,
PVHC and Quartx against any other party under or with respect to the AESOP
I Operating Lease and the related Lessee Agreements (whether arising
pursuant to the terms of the AESOP I Operating Lease or the related Lessee
Agreements or otherwise available to AESOP Leasing, PVHC or Quartx at law
or in equity), the right to enforce the AESOP I Operating Lease and the
related Lessee Agreements as provided herein and to give or withhold any
and all consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to the AESOP I Operating Lease and the
related Lessee Agreements or the obligations of any party thereunder, and
all collateral pledged under the AESOP I Operating Lease;
(iv) all right, title and interest of each of AESOP Leasing, PVHC
and Quartx in, to and under the Vehicle Title and Lienholder Nominee
Agreements, the Cendant Indemnity and the Administration Agreement,
including any amendments thereof, and all monies due and to become due
thereunder, in each case in respect of Vehicles leased under the AESOP I
Operating Lease, whether payable as fees, expenses, costs, indemnities,
insurance recoveries, damages for the breach of any of the Vehicle Title
and Lienholder Nominee Agreements, the Cendant Indemnity and the
Administration Agreement or otherwise and all rights to compel performance
and otherwise exercise remedies thereunder;
(v) all payments under insurance policies (whether or not the
Lessor, the Lender or the Trustee is named as the loss payee thereof) or
any warranty payable by reason of loss or damage to, or otherwise with
respect to, any of the Vehicles leased under the AESOP I Operating Lease;
(vi) all right, title and interest of each of AESOP Leasing, PVHC
and Quartx in and to any proceeds from the sale of Vehicles leased under
the AESOP I Operating Lease (including, without limitation, Reconveyed
Receivables), including all monies due in respect of such Vehicles under
the AESOP I Operating Lease, whether payable as the purchase price of such
Vehicles, auction sales proceeds, or as fees, expenses, costs,
indemnities, insurance recoveries, or otherwise (including all upfront
incentive payments payable by Manufacturers in respect of purchases of
Non-Program Vehicles);
(vii) any assignment of a security interest in any Vehicle leased
under the AESOP I Operating Lease granted to any of AESOP Leasing, PVHC
and Quartx pursuant to the AESOP I Operating Lease or otherwise, and all
Certificates of Title with respect to each such Vehicle;
(viii) all right, title and interest of AESOP Leasing in, to and
under the Master Exchange Agreement, including any amendments thereof, all
monies due and to become due to AESOP Leasing thereunder, whether amounts
released from the Trust Accounts by the Intermediary and payable to AESOP
Leasing or payable as damages for breach of the Master Exchange Agreement
or otherwise, and all other property released or to be released by the
Intermediary to AESOP Leasing thereunder and all rights to compel
performance and otherwise exercise remedies thereunder; provided, however,
that in the case of any property and funds held in the Trust Accounts that
constitute Relinquished Vehicle Property, such property
shall not constitute part of the AESOP I Operating Lease Loan Collateral
until such property is available to be released by the Intermediary to the
Trustee pursuant to the Master Exchange Agreement in accordance with the
terms thereof; and
(ix) all products and proceeds of all of the foregoing;
provided, however, that (A) the AESOP I Segregated Account shall not be subject
to the grant of a security interest by each of AESOP Leasing, PVHC and Quartx
pursuant to this Section 7.1(a) and shall not constitute part of the AESOP I
Operating Lease Loan Collateral and (B) the property released from the security
interest pursuant to Section 7.3 shall not constitute part of the AESOP I
Operating Lease Loan Collateral.
(b) To secure the AFC-II Obligations, each of AESOP Leasing, PVHC
and Quartx hereby pledges, hypothecates, assigns, transfers and delivers to the
Trustee, on behalf of the Secured Parties, and hereby grants to the Trustee, on
behalf of the Secured Parties, a continuing, first priority security interest
in, all of the AESOP I Operating Lease Loan Collateral, whether now owned or
hereafter acquired. Upon the occurrence of a Liquidation Event of Default or a
Limited Liquidation Event of Default and subject to the provisions of the
Related Documents, the Trustee shall have all of the rights and remedies of a
secured party, including, without limitation, the rights and remedies granted
under the Uniform Commercial Code.
SECTION 7.2. Certificates of Title. AESOP Leasing shall take, or
shall cause to be taken, such action as shall be necessary to submit all of the
Certificates of Title for Vehicles leased under the AESOP I Operating Lease
(other than Certificates of Title with respect to the Initial PVT Vehicles, for
which BONY is noted as the first lienholder, and Certificates of Title with
respect to Vehicles titled in the states of Nebraska, Ohio and Oklahoma) to the
appropriate state authority for notation of the Trustee's lien thereon. The
original Certificates of Title shall be held by the Administrator, as agent for
AESOP Leasing, in trust for the benefit of the Lender and the Trustee.
SECTION 7.3. Release of AESOP I Operating Lease Loan Collateral. The
Lender shall request the Trustee in writing to release its Lien on a Vehicle
leased under the AESOP I Operating Lease and the Certificate of Title therefor
upon the earliest of (i) in the case of a Program Vehicle or a Non-Program
Vehicle subject to a Guaranteed Depreciation Program, the date of the sale of
such Vehicle by an auction dealer to a third party, and in the case of a Program
Vehicle or a Non-Program Vehicle subject to a Repurchase Program, the Turnback
Date for such Program Vehicle, (ii) in the case of a Program Vehicle designated
as an Identified Relinquished Vehicle, the date of the Transfer Notice
designating such Program Vehicle as an Identified Relinquished Vehicle (and, in
the case of an Identified Relinquished Vehicle, including in such release the
related Relinquished Vehicle Property), (iii) voluntary prepayment in full of
the principal amount of the Loan to which such Vehicle relates in accordance
with Section 5.2, as noted in records maintained by the Trustee, (iv) receipt of
proceeds from an ordinary course sale of such Vehicle in an amount at least
equal to
the Termination Value of such Vehicle, provided, however, that if such an
ordinary course sale occurs during the Repurchase Period with respect to a
Program Vehicle, AESOP Leasing shall only sell or permit a sale of such Program
Vehicle for a purchase price, together with any amounts payable by a
Manufacturer as a result of or in connection with such sale, equal to or greater
than the Repurchase Price that it would have received if it had turned back such
Program Vehicle to the Manufacturer and (v) receipt of proceeds from an ordinary
course sale of a Vehicle subject to a Casualty in an amount at least equal to
the Termination Value of such Vehicle. With respect to Vehicles leased under the
AESOP I Operating Lease, from and after the earliest of (a) in the case of a
Program Vehicle or a Non-Program Vehicle subject to a Guaranteed Depreciation
Program, the date of the sale of such Vehicle by an auction dealer to a third
party, and in the case of a Program Vehicle or a Non-Program Vehicle subject to
a Repurchase Program, the Turnback Date for such Program Vehicle, (b) subject to
the satisfaction of the conditions therefor set forth in Section 11.3, in the
case of a Program Vehicle designated as an Identified Relinquished Vehicle, the
date of the Transfer Notice designating such Program Vehicle as an Identified
Relinquished Vehicle, (c) a prepayment of the principal amount of the Loan to
which such Vehicle relates and (d) receipt of the purchase price for a Vehicle
by AESOP Leasing, or by the Trustee on the Lender's behalf, in the case of (c)
and (d), in an amount at least equal to the Termination Value of such Vehicle,
such Vehicle and such Certificate of Title (and in the case of clause (b), the
related Relinquished Vehicle Property) shall be deemed to be released from the
Lien of this Agreement, and the Lender and the Trustee shall execute such
documents and instruments as AESOP Leasing may reasonably request (including a
power of attorney of the Trustee appointing the Administrator to act as the
agent of the Trustee in releasing the Lien of the Trustee on Vehicles turned
back, sold or transferred to the Intermediary pursuant to the provisions of this
Section 7.3; which power of attorney shall be revocable by the Lender or the
Trustee at any time following the occurrence of a Liquidation Event of Default),
at AESOP Leasing's expense, to evidence and/or accomplish such release.
SECTION 7.4. Change of Location or Name. So long as any of its
Liabilities shall remain outstanding or the Lender shall continue to have any
Loan Commitment, none of AESOP Leasing, PVHC or Quartx will change (i) the
location of its principal place of business, chief executive office, major
executive office, chief place of business or its records concerning its business
and financial affairs, or (ii) its legal name or the name under or by which it
conducts its business, in each case without first giving the Trustee and the
Lender at least 30 days' advance written notice thereof and having taken any and
all action required to maintain and preserve the first priority perfected Lien
of the Lender or the Trustee on the AESOP I Operating Lease Loan Collateral
(except, (a) as to perfection and priority, with respect to Vehicles titled in
the states of Nebraska, Ohio and Oklahoma and (b) that the lien of the Trustee
shall not be noted on the Certificates of Title with respect to the Initial PVT
Vehicles), free and clear of any Lien whatsoever except for Permitted Liens;
provided, however, that notwithstanding the foregoing, none of AESOP Leasing,
PVHC or Quartx shall change the location of its principal place of business,
chief executive office, major executive
office, chief place of business or its records concerning its business and
financial affairs to any place outside the United States of America.
SECTION 7.5. Deliveries; Further Assurances. Each of AESOP Leasing,
PVHC and Quartx agrees that it will, at its sole expense, (i) immediately
deliver or cause to be delivered to the Lender (or the Trustee on behalf of the
Secured Parties), in due form for transfer (i.e., endorsed in blank), all
securities, chattel paper, instruments and documents, if any, at any time
representing all or any of the AESOP I Operating Lease Loan Collateral, other
than the Certificates of Title which shall be delivered to the Lender or the
Trustee, as applicable, after the occurrence of a Liquidation Event of Default,
if such delivery is reasonably necessary or appropriate to perfect or protect
the Lender's (or the Trustee's on behalf of the Secured Parties) security
interest in such AESOP I Operating Lease Loan Collateral, and (ii) execute and
deliver, or cause to be executed and delivered, to the Lender or the Trustee in
due form for filing or recording (and pay the cost of filing or recording the
same in all public offices reasonably deemed necessary or advisable by the
Lender or the Trustee), such assignments, security agreements, mortgages,
consents, waivers, financing statements and other documents, and do such other
acts and things, all as may from time to time be reasonably necessary or
desirable to establish and maintain to the satisfaction of the Lender (or the
Trustee) a valid perfected Lien on and security interest in all of the AESOP I
Operating Lease Loan Collateral (except, as to perfection, with respect to
Vehicles titled in the states of Nebraska, Ohio and Oklahoma) now or hereafter
existing or acquired (free of all other Liens whatsoever other than Permitted
Liens) to secure payment and performance of its Liabilities.
SECTION 7.6. [RESERVED].
SECTION 7.7. [RESERVED].
SECTION 7.8. AESOP I Segregated Account. AESOP Leasing shall
establish and maintain in its name an account entitled "AESOP Leasing L.P.
Account" (the "AESOP I Segregated Account"). The AESOP I Segregated 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 AESOP I Segregated Account. If the AESOP I Segregated Account
is not maintained in accordance with the previous sentence, then within 10
Business Days after obtaining knowledge of such fact, AESOP Leasing shall
establish a new AESOP I Segregated Account which complies with such sentence and
transfer into the new AESOP I Segregated Account all amounts then on deposit in
the non-qualifying AESOP I Segregated Account. The parties hereto acknowledge
and agree that the monies held in the AESOP I Segregated Account from time to
time (i) are property of AESOP Leasing, (ii) are not being pledged to secure any
obligation to, or otherwise held in trust for, the Lender or any of the persons
specified in this Section 7.8 and (iii) are available to satisfy the claims of
creditors of AESOP Leasing generally; provided, however, that if funds are
deposited into the AESOP I Segregated Account in accordance with Section 9.13
for the purpose
of paying legal fees and disbursements of counsel to AESOP Leasing or its
Permitted Nominees, AESOP Leasing shall use such funds solely for such purpose;
and provided further that nothing contained herein shall affect the rights of
the Lender to pursue all legal remedies available to it with respect to any
amounts payable by AESOP Leasing hereunder.
SECTION 8. REPRESENTATIONS AND WARRANTIES. To induce the Lender to
enter into this Agreement and to make Loans hereunder, AESOP Leasing represents
and warrants to the Lender as to itself, and each of PVHC and Quartx represents
and warrants to the Lender as to itself, as of the date hereof, as of the date
of each Loan made hereunder and as of each Series Closing Date that:
SECTION 8.1. Organization; Ownership; Power; Qualification. Each of
AESOP Leasing, PVHC and Quartx is (i) a limited partnership or a corporation, as
the case may be, duly organized, validly existing and in good standing under the
laws of the jurisdiction of its formation, (ii) has the power and authority to
own its properties and to carry on its business as now being and hereafter
proposed to be conducted and (iii) is duly qualified, in good standing and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its businesses requires such qualification or
authorization.
SECTION 8.2. Authorization; Enforceability. Each of AESOP Leasing,
PVHC and Quartx has the power and has taken all necessary action to authorize it
to execute, deliver and perform this Agreement and each of the other Related
Documents to which it is a party in accordance with their respective terms, and
to consummate the transactions contemplated hereby and thereby. This Agreement
has been duly executed and delivered by each of AESOP Leasing, PVHC and Quartx
and is, and each of the other Related Documents to which any of AESOP Leasing,
PVHC or Quartx is a party is, a legal, valid and binding obligation of such
party, enforceable in accordance with its terms.
SECTION 8.3. Compliance. The execution, delivery and performance by
each of AESOP Leasing, PVHC and Quartx of this Agreement and each other Related
Document to which it is a party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) require any consent,
approval, authorization or registration not already obtained or effected, (ii)
violate any applicable law with respect to AESOP Leasing, PVHC or Quartx, as the
case may be, which violation could result in a Material Adverse Effect, (iii)
conflict with, result in a breach of, or constitute a default under the
certificate of limited partnership or limited partnership agreement of AESOP
Leasing or under the certificate of incorporation, as amended, or by-laws of
each of PVHC and Quartx, or under any indenture, agreement, or other instrument
to which any of AESOP Leasing, PVHC or Quartx is a party or by which its
properties may be bound, or (iv) result in or require the creation or imposition
of any Lien upon or with respect to any property now owned or hereafter acquired
by any of AESOP Leasing, PVHC or Quartx except Permitted Liens.
SECTION 8.4. [RESERVED].
SECTION 8.5. Litigation. There is no action, suit or proceeding
pending against or, to the knowledge of any of AESOP Leasing, PVHC or Quartx,
threatened against or affecting any of AESOP Leasing, PVHC or Quartx before any
court or arbitrator or any Governmental Authority in which there is a reasonable
possibility of an adverse decision that could materially adversely affect the
consolidated financial position, consolidated results of operations, business,
properties, performance or condition (financial or otherwise) of AESOP Leasing,
PVHC or Quartx, as the case may be, or which in any manner draws into question
the validity or enforceability of this Agreement or any other Related Document
or the ability of any of AESOP Leasing, PVHC or Quartx to comply with any of the
respective terms hereunder or thereunder.
SECTION 8.6. Liens. The AESOP I Operating Lease Loan Collateral is
free and clear of all Liens other than (i) Permitted Liens and (ii) Liens in
favor of the Lender or the Trustee. The Lender (or the Trustee on behalf of the
Secured Parties) has obtained, as security for the Liabilities, a first priority
perfected Lien on all AESOP I Operating Lease Loan Collateral (except, with
respect to perfection and priority, Vehicles titled in the states of Nebraska,
Ohio and Oklahoma). All Vehicle Perfection and Documentation Requirements with
respect to all Vehicles leased under the AESOP I Operating Lease on or after the
date hereof have and will continue to be satisfied in accordance with the terms
of this Agreement.
SECTION 8.7. Employee Benefit Plans. None of AESOP Leasing, PVHC or
Quartx have established and maintain or contribute to any employee benefit plan
that is covered by Title IV of ERISA, and none of AESOP Leasing, PVHC or Quartx
will do so, so long as the Loan Commitment has not expired, or any amount is
owing to the Lender hereunder.
SECTION 8.8. Investment Company Act. None of AESOP Leasing, PVHC or
Quartx is or is controlled by an "investment company," within the meaning of the
Investment Company Act, and none of AESOP Leasing, PVHC or Quartx is subject to
any other statute which would impair or restrict its ability to perform its
obligations under this Agreement or the other Related Documents, and neither the
entering into or performance by any of AESOP Leasing, PVHC or Quartx of this
Agreement nor the issuance of the Loan Note violates any provision of such Act.
SECTION 8.9. Regulations T, U and X. None of AESOP Leasing, PVHC or
Quartx is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation T, U and X of the Board of Governors of
the Federal Reserve System). None of AESOP Leasing, PVHC or Quartx, any
Affiliate of any of AESOP Leasing, PVHC or Quartx or any Person acting on its or
their behalf has taken or will take action to cause the execution, delivery or
performance of this Agreement or the Loan Note, the making or existence of the
Loans or the use of proceeds of the Loans made hereunder to violate Regulation
T, U or X of the Board of Governors of the Federal Reserve System.
SECTION 8.10. Proceeds. The proceeds of the Loans made hereunder
will be used solely to purchase or finance Eligible Vehicles that will be leased
under the AESOP I Operating Lease.
SECTION 8.11. Business Locations; Trade Names. Schedule 8.11 lists
each of the locations where AESOP Leasing, PVHC or Quartx maintains a chief
executive office, principal place of business, or any records, and Schedule 8.11
also lists the legal name of each of AESOP Leasing, PVHC and Quartx and each
name under or by which it conducts its business.
SECTION 8.12. Taxes. Each of AESOP Leasing, PVHC and Quartx has
filed all tax returns which have been required to be filed by it (except where
the requirement to file such return is subject to a valid extension), and has
paid or provided adequate reserves for the payment of all taxes shown due on
such returns or required to be paid as a condition to such extension, as well as
all payroll taxes and federal and state withholding taxes, and all assessments
payable by it that have become due, other than those that are payable without
penalty or are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been established, and are being
maintained, in accordance with GAAP. As of the date hereof, to the best of AESOP
Leasing's, PVHC's and Quartx's knowledge, there is no unresolved claim by a
taxing authority concerning AESOP Leasing's, PVHC's or Quartx's tax liability
for any period for which returns have been filed or were due other than those
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been established, and are being maintained, in accordance
with GAAP.
SECTION 8.13. Governmental Authorizations. Each of AESOP Leasing,
PVHC and Quartx has all licenses, franchises, permits and other governmental
authorizations necessary for all businesses presently carried on by it
(including owning and leasing the real and personal property owned and leased by
it), except where failure to obtain such licenses, franchises, permits and other
governmental authorizations would not have a material adverse effect on its
business and properties or a Material Adverse Effect (as set forth in clauses
(ii) and (iii) of the definition thereof).
SECTION 8.14. Compliance with Laws. Each of AESOP Leasing, PVHC and
Quartx: (i) is not in violation of any law, ordinance, rule, regulation or order
of any Governmental Authority applicable to it or its property, which violation
would have a material adverse effect on its business and properties or a
Material Adverse Effect (as set forth in clauses (ii) and (iii) of the
definition thereof), and no such violation has been alleged, (ii) has filed in a
timely manner all reports, documents and other materials required to be filed by
it with any governmental bureau, agency or instrumentality (and the information
contained in each of such filings is true correct and complete in all material
respects), except where failure to make such filings would not have a material
adverse effect on its business and properties or a Material Adverse Effect (as
set forth in clauses (ii) and (iii) of the definition thereof) and (iii) has
retained all records and documents required to be retained by it pursuant to any
Requirement of Law, except where failure to retain such records would not have a
material adverse effect on its business and properties or a Material Adverse
Effect (as set forth in clauses (ii) and (iii) of the definition thereof).
SECTION 8.15. Eligible Vehicles. Each Vehicle leased under the AESOP
I Operating Lease was, on the date of purchase or financing thereof by AESOP
Leasing, an Eligible Vehicle.
SECTION 8.16. Manufacturer Programs. No Manufacturer Event of
Default has occurred and is continuing with respect to any Eligible Program
Manufacturer.
SECTION 8.17. Absence of Default. AESOP Leasing is in compliance
with all of the provisions of its certificate of limited partnership and limited
partnership agreement and each of PVHC and Quartx is in compliance with all
provisions of its certificate of incorporation, as amended, and by-laws and no
event has occurred or failed to occur which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, or with the passage of time
or giving of notice or both would constitute, (i) an AESOP I Loan Event of
Default or a Potential AESOP I Loan Event of Default or (ii) a default or event
of default by any of AESOP Leasing, PVHC or Quartx under any indenture,
agreement or other instrument, or any judgment, decree or final order to which
any of AESOP Leasing, PVHC or Quartx is a party or by which any of AESOP
Leasing, PVHC or Quartx or any of its properties may be bound or affected.
SECTION 8.18. No Security Interest; Title to Assets. (a) All action
necessary (including the filing of UCC-1 financing statements, the assignment of
rights under the Manufacturer Programs to the Trustee, the notation on
Certificates of Title for all Vehicles leased under the AESOP I Operating Lease
(other than the Initial PVT Vehicles, for which BONY is noted as the first
lienholder, and other than Vehicles titled in the states of Nebraska, Ohio and
Oklahoma) of the Trustee's lien for the benefit of the Noteholders) to protect
and perfect AFC-II's security interest in the AESOP I Operating Lease Loan
Collateral and the Trustee's security interest on behalf of the Secured Parties
in the Collateral now in existence and hereafter acquired or created has been
duly and effectively taken.
(b) Each of AESOP Leasing, PVHC and Quartx has good, legal and
marketable title to, or a valid leasehold interest in, all of its assets. None
of such properties or assets is subject to any Liens, except for Permitted
Liens. Except for financing statements or other filings with respect to or
evidencing Permitted Liens and except for financing statements filed with
respect to Relinquished Vehicle Property, no financing statement under the UCC
of any state, application for a Certificate of Title or certificate of
ownership, or other filing which names any of AESOP Leasing, PVHC or Quartx as
debtor or which covers or purports to cover any of the assets of any of AESOP
Leasing, PVHC or Quartx is on file in any state or other jurisdiction, and none
of AESOP Leasing, PVHC or Quartx has signed any such financing statement,
application or instrument authorizing any secured party or creditor of such
Person thereunder to file any such financing statement, application or filing
other than with respect to Permitted Liens.
SECTION 8.19. Accuracy of Information. All data, certificates,
reports, statements, opinions of counsel, documents and other information
furnished to the Lender or the Trustee by or on behalf of any of AESOP Leasing,
PVHC or Quartx pursuant to any provision of any Related Document, or in
connection with or pursuant to any amendment or modification of, or waiver
under, any Related Document, shall, at the time the same are so furnished, (i)
be complete and correct in all material respects to the extent necessary to give
the Lender or the Trustee, as the case may be, true and accurate knowledge of
the subject matter thereof, (ii) not contain any untrue statement of a material
fact and (iii) not omit to state a material fact necessary in order to make the
statements contained therein (in light of the circumstances in which they were
made) not misleading, and the furnishing of the same to the Lender or the
Trustee, as the case may be, shall constitute a representation and warranty by
AESOP Leasing, PVHC or Quartx, as the case may be, made on the date the same are
furnished to the Lender or the Trustee, as the case may be, to the effect
specified in clauses (i), (ii) and (iii) above.
SECTION 9. AFFIRMATIVE COVENANTS. Until the expiration or
termination of the Loan Commitment and thereafter until the Loan Note and all
other Liabilities are paid in full, each of AESOP Leasing, PVHC and Quartx
agrees that, unless at any time the Lender shall otherwise expressly consent in
writing:
SECTION 9.1. Existence; Foreign Qualification. Each of AESOP
Leasing, PVHC and Quartx will do and cause to be done at all times all things
necessary to (i) maintain and preserve its existence as a limited partnership or
a corporation, as the case may be, (ii) be, and ensure that it is, duly
qualified to do business and in good standing as a foreign limited partnership
or foreign corporation, as the case may be, in each jurisdiction where the
nature of its business makes such qualification necessary and the failure to so
qualify would have a material adverse effect on its business and properties or a
Material Adverse Effect (as set forth in clauses (ii) and (iii) of the
definition thereof) and (iii) comply with all Contractual Obligations and
Requirements of Law binding upon it, except to the extent that the failure to
comply therewith would not, in the aggregate, have a material adverse effect on
its business and properties or a Material Adverse Effect (as set forth in
clauses (ii) and (iii) of the definition thereof).
SECTION 9.2. Books, Records and Inspections. AESOP Leasing will
maintain complete and accurate books and records with respect to the AESOP I
Operating Lease Loan Collateral and each of AESOP Leasing, PVHC and Quartx will
permit any Person designated by the Lender or the Trustee in writing to visit
and inspect any of its properties, corporate books and financial records and to
discuss its affairs, finances and accounts with its officers, its agents and its
independent public accountants, all at such reasonable times and as often as the
Lender or the Trustee may reasonably request.
SECTION 9.3. Insurance. AESOP Leasing will obtain and maintain, or
cause to be obtained and maintained, with respect to all Vehicles leased under
the AESOP I Operating Lease (i) vehicle liability insurance to the full extent
required by law and in any event not less than $500,000 per Person and
$1,000,000 per occurrence, (ii) property damage insurance with a limit of
$1,000,000 per occurrence and (iii) excess coverage public liability insurance
with a limit of not less than $50,000,000 or the limit maintained from time to
time by the relevant Lessee at any time hereafter, whichever is higher, with
respect to all passenger cars and vans comprising such Lessee's rental fleet.
The Lender acknowledges and agrees that AESOP Leasing may, to the extent
permitted by applicable law, allow the relevant Lessees to self-insure with
respect to the Vehicles leased under the AESOP I Operating Lease for the first
$1,000,000 per occurrence, or a greater amount up to a maximum of $3,000,000,
with the consent of each Enhancement Provider, per occurrence, of vehicle
liability and property damage insurance which is otherwise required to be
insured hereunder. All such policies shall be from financially sound and
reputable insurers, shall name the Lender, Original AESOP, PVHC, Quartx and the
Trustee as additional insured parties and, in the case of catastrophic physical
damage insurance on such Vehicles, shall name the Trustee as loss payee as its
interest may appear and will provide that the Lender and the Trustee shall
receive at least 10 days' prior written notice of cancellation of such policies.
AESOP Leasing will notify promptly the Lender and the Trustee of any curtailment
or cancellation of any such Lessee's right to self-insure in any jurisdiction.
SECTION 9.4. Manufacturer Programs. AESOP Leasing will turn in, or
cause to be turned in, the Vehicles leased under the AESOP I Operating Lease
which are Program Vehicles (subject to the redesignation provisions of Section
2.7 of the AESOP I Operating Lease) to the relevant Manufacturer within the
Repurchase Period therefor, including in a transaction with respect to a
Relinquished Vehicle pursuant to the Master Exchange Agreement (unless AESOP
Leasing pays in full the Loan with respect to a Program Vehicle pursuant to
Section 5.2 or sells a Program Vehicle and, prior to the end of the Repurchase
Period therefor, receives sales proceeds thereof in cash in an amount equal to
or greater than the repurchase price under such Manufacturer Program); and will
comply with all of its obligations under each Manufacturer Program.
SECTION 9.5. Reporting Requirements. AESOP Leasing will furnish, or
cause to be furnished to the Lender and the Trustee and, in the case of items
(ii) and (iii) below, each Rating Agency and each Enhancement Provider:
(i) Reports. All reports of ARC and the Lessees required to be
delivered to AESOP Leasing pursuant to Section 31.5 of the AESOP I
Operating Lease;
(ii) AESOP I Loan Events of Default; Amortization Events; Exchange
Agreement Termination Events. As soon as possible but in any event within
two Business Days after the occurrence thereof, notice of (A) any
Potential AESOP I Loan Event of Default or AESOP I Loan Event of Default,
a written statement of an Authorized Officer describing such event and the
action that AESOP Leasing proposes to take with respect thereto; (B) any
Potential Amortization Event or Amortization Event; and (C) any Exchange
Agreement Termination Event;
(iii) Manufacturers. Promptly after obtaining actual knowledge
thereof, notice of any Manufacturer Event of Default or termination or
replacement of a Manufacturer Program;
(iv) Notice of Liens and Vicarious Liability Claims. On each
Determination Date, AESOP Leasing shall forward to AFC-II, the Trustee and
the Paying Agent, the Administrative Agent, the Rating Agencies and each
Enhancement Provider, (A) an Officer's Certificate of AESOP Leasing
certifying as to whether, to the knowledge of AESOP Leasing, (x) any Lien
exists on any of the AESOP I Operating Lease Loan Collateral or (y) any
vicarious liability claims shall have been made against AESOP Leasing as a
result of its ownership of the Vehicles leased under the AESOP I Operating
Lease or against PVHC or Quartx as a result of its holding legal title to
the Vehicles leased under the AESOP I Operating Lease and (B) a written
statement of an Authorized Officer summarizing each such Lien or claim and
the action that AESOP Leasing proposes to take with respect thereto; and
(v) Other. Promptly, from time to time, such other information,
documents, or reports respecting the AESOP I Loan Collateral or the
condition or operations, financial or otherwise, of any of AESOP Leasing,
PVHC or Quartx as the Lender or the Trustee may from time to time
reasonably request in order to protect the interests of the Lender or the
Trustee under or as contemplated by this Agreement or any other Related
Document.
SECTION 9.6. Payment of Taxes; Removal of Liens. Each of AESOP
Leasing, PVHC and Quartx will pay when due all taxes, assessments, fees and
governmental charges of any kind whatsoever that may be at any time lawfully
assessed or levied against or with respect to AESOP Leasing, PVHC or Quartx, as
the case may be, or its property and assets or any interest thereon.
Notwithstanding the previous sentence, but subject in any case to the other
requirements hereof and of the Related Documents, none of AESOP Leasing, PVHC or
Quartx shall be required to pay any tax, charge, assessment or imposition nor to
comply with any law, ordinance, rule, order, regulation or requirement so long
as AESOP Leasing, PVHC or Quartx, as the case may be, shall contest, in good
faith, the amount or validity thereof, in an appropriate manner or by
appropriate proceedings. Each such contest shall be promptly prosecuted to final
conclusion (subject to the right of AESOP Leasing, PVHC or Quartx, as the case
may be, to settle any such contest).
SECTION 9.7. Business. Each of AESOP Leasing, PVHC and Quartx will
engage only in businesses conducted on the date hereof.
SECTION 9.8. Maintenance of the Vehicles. AESOP Leasing will
maintain or cause to be maintained in good repair, working order, and condition
all of the Vehicles leased under the AESOP I Operating Lease, except to the
extent that any such failure to comply with such requirements does not, in the
aggregate, materially adversely affect the interests of the Lender under this
Agreement or the interests of the Secured Parties under the Indenture or the
likelihood of repayment of the Loans made hereunder. From time to time AESOP
Leasing will make or cause to be made all appropriate repairs, renewals, and
replacements with respect to the Vehicles leased under the AESOP I Operating
Lease.
SECTION 9.9. Maintenance of Separate Existence. AESOP Leasing will
do all things necessary to continue to be readily distinguishable from ARC,
ARAC, Original AESOP, AESOP Leasing II, AFC, AFC-II, the Affiliates of the
foregoing or any other affiliated or unaffiliated entity and to maintain its
existence as a limited partnership separate and apart from that of Original
AESOP, AESOP Leasing II, AFC, AFC-II, ARAC and ARC and Affiliates of ARC
including, without limitation:
(i) practicing and adhering to organizational formalities, such as
maintaining appropriate books and records;
(ii) observing all organizational formalities in connection with all
dealings between itself and ARC, ARAC, Original AESOP,
AESOP Leasing II, AFC, AFC-II, the Affiliates of the foregoing
or any other affiliated or unaffiliated entity;
(iii) observing all procedures required by its certificate of limited
partnership, its limited partnership agreement and the laws of
the State of Delaware;
(iv) acting solely in its name and through its duly authorized
officers or agents in the conduct of its businesses;
(v) managing its business and affairs by or under the direction of
its general partner;
(vi) ensuring that its general partner duly authorizes all of its
actions;
(vii) ensuring the receipt of proper authorization, when necessary,
from its limited partner(s) for its actions;
(viii) requiring its general partner to maintain at least two corporate
directors who are Independent Directors;
(ix) owning or leasing (including through shared arrangements with
Affiliates) all office furniture and equipment necessary to
operate its business;
(x) not (A) having or incurring any debt or obligations to any of
Original AESOP, AESOP Leasing II, AFC, AFC-II, ARC, ARAC, the
Affiliates of the foregoing or any other affiliated or
unaffiliated entity, except for, the obligations to AFC-II under
the AESOP I Loan Agreements; (B) other than as provided in the
Related Documents, guaranteeing or otherwise becoming liable for
any obligations of Original AESOP, AESOP Leasing II, AFC,
AFC-II, ARAC or ARC or any Affiliates of the foregoing; (C)
having obligations guaranteed by Original AESOP, AESOP Leasing
II, AFC, AFC-II, ARAC or ARC or any Affiliates of the foregoing;
(D) holding itself out as responsible for debts of Original
AESOP, AESOP Leasing II, AFC, AFC-II, ARAC or ARC or any
Affiliates of the foregoing or for decisions or actions with
respect to the affairs of Original AESOP, AESOP Leasing II, AFC,
AFC-II, ARAC or ARC or any Affiliates of the foregoing; (E)
failing to correct any known misrepresentation with respect to
the statement in subsection (C); (F) operating or purporting to
operate as an integrated, single economic unit with respect to
Original AESOP, AESOP Leasing II, AFC, AFC-II, ARAC, ARC, the
Affiliates of the foregoing or any other affiliated or
unaffiliated entity or any other affiliated or unaffiliated
entity; (G) seeking to obtain credit or incur any obligation to
any third party based upon the assets of
Original AESOP, AESOP Leasing II, AFC, AFC-II, ARAC, ARC, the
Affiliates of the foregoing or any other affiliated or
unaffiliated entity; (H) induce any such third party to
reasonably rely on the creditworthiness of Original AESOP, AESOP
Leasing II, AFC, AFC-II, ARAC, ARC, the Affiliates of the
foregoing or any other affiliated or unaffiliated entity; and
(I) being directly or indirectly named as a direct or contingent
beneficiary or loss payee on any insurance policy of Original
AESOP, AESOP Leasing II, AFC, AFC-II, ARAC or ARC or any
Affiliates of the foregoing other than as required by the
Related Documents with respect to insurance on the Vehicles;
(xi) other than as provided in the Related Documents, maintaining its
deposit and other bank accounts and all of its assets separate
from those of any other Person;
(xii) maintaining its financial records separate and apart from those
of any other Person;
(xiii) disclosing in its annual financial statements the effects of the
transactions contemplated by the Related Documents in accordance
with generally accepted accounting principles;
(xiv) setting forth clearly in its financial statements its separate
assets and liabilities and the fact that the Vehicles leased
under the AESOP I Operating Lease are owned by AESOP Leasing;
(xv) not suggesting in any way, within its financial statements, that
its assets are available to pay the claims of creditors of
Original AESOP, AESOP Leasing II, AFC, AFC-II, ARAC, ARC, the
Affiliates of the foregoing or any other affiliated or
unaffiliated entity;
(xvi) compensating all its employees, officers, consultants and agents
for services provided to it by such Persons out of its own
funds;
(xvii) maintaining office space separate and apart from that of
Original AESOP, AESOP Leasing II, AFC, AFC-II, ARAC or ARC or
any Affiliates of the foregoing (even if such office space is
subleased from or is on or near premises occupied by Original
AESOP, AESOP Leasing II, AFC, AFC-II, ARAC or ARC or any
Affiliates of the foregoing) and a telephone number separate and
apart from that of Original AESOP, AESOP Leasing II, AFC,
AFC-II, ARAC or ARC or any Affiliates of the foregoing;
(xviii) conducting all oral and written communications, including,
without limitation, letters, invoices, purchase orders,
contracts, statements, and applications solely in its own name;
(xix) having separate stationary from Original AESOP, AESOP Leasing
II, AFC, AFC-II, ARAC, ARC, the Affiliates of the foregoing or
any other affiliated or unaffiliated entity;
(xx) accounting for and managing all of its liabilities separately
from those of Original AESOP, AESOP Leasing II, AFC, AFC-II,
ARAC or ARC or any Affiliates of the foregoing;
(xxi) allocating, on an arm's-length basis, all shared operating
services, leases and expenses, including, without limitation,
those associated with the services of shared consultants and
agents and shared computer and other office equipment and
software; and otherwise maintaining an arm's-length relationship
with each of Original AESOP, AESOP Leasing II, AFC, AFC-II,
ARAC, ARC, the Affiliates of the foregoing or any other
affiliated or unaffiliated entity;
(xxii) refraining from filing or otherwise initiating or supporting the
filing of a motion in any bankruptcy or other insolvency
proceeding involving Original AESOP, AESOP Leasing II, AFC,
AFC-II, AESOP Leasing, ARAC, ARC or any Affiliate of ARC, to
substantively consolidate Original AESOP, AESOP Leasing II, AFC,
AFC-II or AESOP Leasing with ARAC, ARC or any Affiliate of ARC;
(xxiii) remaining solvent and assuring adequate capitalization for the
business in which it is engaged; and
(xxiv) conducting all of its business (whether written or oral) solely
in its own name so as not to mislead others as to the identity
of each of Original AESOP, AESOP Leasing II, AESOP Leasing, AFC,
AFC-II, ARAC, ARC and the Affiliates of the foregoing or any
other affiliated or unaffiliated entity.
AESOP Leasing acknowledges its receipt of a copy of those certain opinion
letters issued by Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP dated July 30, 1997
and the date hereof addressing the issue of substantive consolidation as they
may relate to any of ARAC, ARC and each affiliate of ARC on the one hand and any
of Original AESOP, AESOP Leasing II, AFC, AFC-II and AESOP Leasing on the other
hand and as among Original AESOP, AESOP Leasing II, AESOP Leasing, AFC-II and
AFC. AESOP Leasing hereby agrees to maintain in place all policies and
procedures, and
take and continue to take all action, described in the factual assumptions set
forth in such opinion letters and relating to it.
SECTION 9.10. Manufacturer Payments; Sales Proceeds. AESOP Leasing
will cause each Manufacturer and auction dealer to make all payments under the
Manufacturer Programs with respect to Program Vehicles, including all payments
with respect to Relinquished Vehicles, directly to the Collection Account. Any
such payments from Manufacturers or related auction dealers received directly by
AESOP Leasing, will be, within three Business Days of receipt, deposited into
the Collection Account. AESOP Leasing shall, within two Business Days of receipt
thereof, deposit into the Collection Account all amounts representing the
proceeds from sales of Program Vehicles by auction dealers under a Guaranteed
Depreciation Program and sales of Vehicles (including amounts paid by a
Manufacturer as a result of the sale of such Vehicle outside such Manufacturer's
Manufacturer Program) to third parties (other than under any related
Manufacturer Program) and all payments with respect to other AESOP I Loan
Collateral (other than the AESOP I Loan Collateral described in the last
sentence of this paragraph). Insurance proceeds and warranty payments with
respect to Vehicles will only be deposited into the Collection Account if an
Amortization Event or Potential Amortization Event shall have occurred and be
continuing. AESOP Leasing acknowledges that payments received from or on behalf
of Manufacturers under the Manufacturer Programs with respect to Relinquished
Vehicles shall be disbursed in accordance with the Intercreditor Agreement.
SECTION 9.11. Maintenance of Properties. Each of AESOP Leasing, PVHC
and Quartx will maintain or cause to be maintained in the ordinary course of
business in good repair, working order and condition (reasonable wear and tear
excepted) all properties, including, without limitation, vehicles necessary for
the operation of its businesses (whether owned or held under lease), and from
time to time make or cause to be made all needed and appropriate repairs,
renewals, replacements, additions, betterments and improvements thereto, except
to the extent no material adverse effect on its business and properties or a
Material Adverse Effect (as set forth in clauses (ii) and (iii) of the
definition thereof) could result, and maintain good, legal and marketable title
to, or a valid leasehold interest in, all of its assets, free and clear of all
Liens except for Permitted Liens, and except to the extent sold or otherwise
disposed of in accordance with this Agreement or any other Related Document.
SECTION 9.12. Verification of Title. AESOP Leasing will, on an
annual basis, cause a title check to be performed by an independent nationally
recognized firm of certified public accountants acceptable to the Trustee and
each Enhancement Provider on a statistical sample of all Vehicles leased under
the Leases designed to provide a ninety-five percent (95%) confidence level that
no more than five percent (5%) of the Certificates of Title for such Vehicles
did not correctly reference the Trustee or its Permitted Nominee, as first
lienholder, and the Lessor of such Vehicle or its Permitted Nominee or, in the
case of Financed Vehicles, ARAC or its Permitted Nominee, as owner, and cause
such party to deliver a report stating that, within the confidence level set
forth above, no more than five percent (5%) of the
Certificates of Title did not correctly reference the lienholder or owner of the
Vehicles described in the immediately preceding clause.
SECTION 9.13. Legal Reserve Fund. On and after the Legal Reserve
Funding Date and for so long as the Legal Reserve Release Condition is not met,
AESOP Leasing shall maintain a balance of $500,000 in the AESOP I Segregated
Account for the purpose of paying legal fees and disbursements of counsel to
AESOP Leasing or its Permitted Nominees for the defense of vicarious liability
claims.
SECTION 9.14. Delivery of Information. Each of AESOP Leasing, PVHC
and Quartx will provide to the Lender any information or materials necessary for
the Lender to comply with its obligations under the Indenture.
SECTION 9.15. Master Exchange Agreement. AESOP Leasing will comply
in all material respects with all of its obligations under the Master Exchange
Agreement.
SECTION 9.16. Vehicles. AESOP Leasing will maintain good and
marketable title to each Vehicle purchased by AESOP Leasing with the proceeds of
Loans made hereunder and leased under the AESOP I Operating Lease, free and
clear of all Liens and encumbrances, other than any Permitted Liens.
SECTION 9.17. Assignments. AESOP Leasing will deliver to the Trustee
on or prior to the Initial Closing Date, or such later date and thereafter, as
necessary to comply with the terms of the Related Documents, executed
counterparts of the Assignment Agreements related to the assignment of rights
under each Manufacturer Program, dated as of the Initial Closing Date, or such
later date, if delivered after the Initial Closing Date in accordance herewith,
duly executed by ARAC, each other Lessee, AESOP Leasing, AESOP Leasing II,
AFC-II, the Trustee and each applicable Manufacturer.
SECTION 9.18. Notation of Liens. AESOP Leasing will deliver to the
Lender and the Trustee on or prior to the Initial Closing Date and on an ongoing
basis, as applicable, evidence (which, in the case of the filing of financing
statements on form UCC-1, may be telephonic confirmation of such filing,
followed by prompt written confirmation) that it has caused or is causing the
Trustee's name to be noted on the Certificate of Title for each Vehicle leased
under the AESOP I Operating Lease (other than Certificates of Title for the
Initial PVT Vehicles, which Certificate of Title will show BONY as the first
lienholder, and Vehicles titled in the states of Nebraska, Ohio and Oklahoma) in
accordance herewith and all filings (including filings of financing statements
on form UCC-1) and recordings have been accomplished as may be required by law
to establish, perfect (other than perfection of the security interest of the
Trustee in Vehicles by notation of the lien of the Trustee on the Certificates
of Title for Vehicles titled in the States of Nebraska, Ohio and Oklahoma),
protect and preserve the rights, titles, interests, remedies, powers,
privileges, licenses and security interest of
the Trustee in such Vehicles and other AESOP I Operating Lease Loan Collateral
for the benefit of the Secured Parties.
SECTION 9.19. [RESERVED].
SECTION 9.20. [RESERVED].
SECTION 9.21. [RESERVED].
SECTION 9.22. Non-Program Vehicle Report. On or before the second
Determination Date immediately following June 30 and December 31 of each
calendar year, AESOP Leasing shall cause a firm of nationally recognized
independent public accountants (who may also render other services to AESOP
Leasing, ARC or ARAC and who is acceptable to the Rating Agencies and each
Enhancement Provider) to furnish a report to the Lender, the Trustee, each
Enhancement Provider and the Rating Agencies to the effect that they have
performed certain agreed upon procedures (which shall be acceptable to each
Enhancement Provider) with respect to the calculation of (i) the Disposition
Proceeds obtained from the sale or other disposition of all Non-Program Vehicles
(other than Casualties) sold or otherwise disposed of during each Related Month
in such period, (ii) the respective Net Book Values of such Non-Program
Vehicles, and (iii) the Non-Program Fleet Market Value and compared such
calculations with the corresponding amounts set forth in the Monthly
Certificates prepared pursuant to Section 4.1(b) of the Indenture and that on
the basis of such comparison such accountants are of the opinion that such
amounts are in agreement, except for such exceptions as they believe to be
immaterial and such other exceptions as shall be set forth in such report. With
respect to the calculations described in the foregoing clause (iii), such report
shall make the comparison described with respect to the Non-Program Fleet Market
Value only as of the last Determination Date in the period as to which the
report is made. On or before the second Determination Date immediately following
March 31 and September 30 of each calendar year, AESOP Leasing shall furnish an
Officer's Certificate of AESOP Leasing to the Lender, the Trustee, each
Enhancement Provider and the Rating Agencies to the effect that the officer
making such certification has compared or caused to be compared the calculations
described in clauses (i) and (ii) above with the corresponding amounts set forth
in the Monthly Certificates prepared pursuant to Section 4.1(b) of the
Indenture, and has compared or caused to be compared the calculation described
in clause (iii) above with the corresponding amount set forth in the Monthly
Certificate prepared pursuant to Section 4.1(b) of the Indenture as of the last
Determination Date in the period as to which the Officer's Certificate is given,
and that on the basis of such comparison such officer is of the opinion that
such amounts are in agreement, except for such exceptions as shall be set forth
in such Officer's Certificate.
SECTION 9.23. Sale of Non-Program Vehicles Returned to AESOP
Leasing. In the event that any Non-Program Vehicle leased under the AESOP I
Operating Lease is returned to AESOP Leasing in accordance with Section 2.6(c)
of the AESOP I Operating Lease, AESOP Leasing shall use commercially reasonable
efforts
to arrange for the sale of such Vehicle and to maximize the sale price thereof.
AESOP Leasing shall not return a Non-Program Vehicle to a Manufacturer under a
Manufacturer Program unless the conditions set forth in Section 2.6(b) of the
AESOP I Operating Lease would have been satisfied with respect to such
disposition.
SECTION 10. NEGATIVE COVENANTS. Until the expiration or termination
of the Loan Commitment and thereafter until the Loan Note and all other
Liabilities are paid in full, each of AESOP Leasing, PVHC and Quartx agrees
that, unless at any time the Lender shall otherwise expressly consent in
writing, it will not:
SECTION 10.1. Liens. Create, incur, assume or permit to exist any
Lien upon any of its Assets (including the AESOP I Collateral), other than
Permitted Liens.
SECTION 10.2. Other Indebtedness. Create, assume, incur, suffer to
exist or otherwise become or remain liable in respect of any Indebtedness other
than (i) Indebtedness hereunder and (ii) Indebtedness permitted under any other
Related Document.
SECTION 10.3. Mergers, Consolidations. Except as may be permitted by
the express written approval of the Trustee and the Lender, merge with or into,
enter into any joint venture or other association with, or consolidate with, any
other Person.
SECTION 10.4. Sales of Assets. Sell, lease, transfer, liquidate or
otherwise dispose of any Assets, except as contemplated by the Related
Documents.
SECTION 10.5. Acquisition of Assets. Acquire, by long-term or
operating lease or otherwise, any Assets except pursuant to the terms of the
Related Documents.
SECTION 10.6. Dividends, Officers' Compensation, etc. (i) Declare or
pay any distributions on any of its partnership interests or capital stock, as
the case may be, or make any other distribution on, or any purchase, redemption
or other acquisition of, any of its partnership interests or any shares of its
capital stock, as the case may be, except, in the case of AESOP Leasing, out of
funds in the AESOP I Segregated Account, or (ii) pay any wages or salaries or
other compensation to officers, employees or others except out of earnings
computed in accordance with GAAP and, in the case of AESOP Leasing, only from
funds in the AESOP I Segregated Account.
SECTION 10.7. Organizational Documents. Amend any of its
organizational documents, including its certificate of limited partnership or
limited partnership agreement or certificate of incorporation or by-laws, as the
case may be, unless prior to such amendment, each Rating Agency confirms that
after such
amendment the Rating Agency Consent Condition and the CP Rating Agency Condition
will be met.
SECTION 10.8. Investments. Make, incur, or suffer to exist any loan,
advance, extension of credit or other investment in any Person other than
pursuant to the Related Documents.
SECTION 10.9. Regulations T, U and X. Use or permit any proceeds of
the Loans made hereunder to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of "purchasing or carrying
margin stock" within the meaning of Regulations T, U and X of the Board of
Governors of the Federal Reserve System, as amended from time to time.
SECTION 10.10. Other Agreements. Enter into any agreement containing
any provision which would be violated or breached by the performance of its
obligations hereunder or under any instrument or document delivered or to be
delivered by it hereunder or in connection herewith.
SECTION 10.11. Use of Vehicles. Use or allow the Vehicles leased
under the AESOP I Operating Lease to be used in any manner (i) that would make
Program Vehicles ineligible for repurchase under an Eligible Manufacturer
Program, (ii) for any illegal purposes or (iii) that could subject the Vehicles
to confiscation.
SECTION 10.12. Use of Proceeds. Use or permit the proceeds of the
Loans made hereunder to be used for any purpose other than to purchase or
finance Eligible Vehicles that will be leased under the AESOP I Operating Lease.
SECTION 10.13. Limitations on the Acquisition or Redesignation of
Certain Vehicles. Unless otherwise specified in the related Supplement or unless
waived by the Required Noteholders as specified in the related Supplement,
permit (a) the Non-Eligible Manufacturer Amount as of any Payment Date to exceed
any applicable Maximum Non-Eligible Manufacturer Amount, (b) the Financed
Vehicle Amount as of any Payment Date to exceed any applicable Maximum Financed
Vehicle Amount, (c) the Non-Program Vehicle Amount as of any Payment Date to
exceed any applicable Maximum Non-Program Vehicle Amount, (d) the aggregate Net
Book Value of all Vehicles leased under the Leases and manufactured by a
particular Manufacturer or group of Manufacturers as of any Payment Date to
exceed any applicable Maximum Manufacturer Amount and (e) the Specified States
Amount as of any Payment Date to exceed any applicable Maximum Specified States
Amount.
SECTION 10.14. Maximum Vehicle Age. Permit at any time the age of
any Non-Program Vehicle leased under the AESOP I Operating Lease, calculated
from the date of the original manufacturer invoice for such Vehicle, to exceed
18 months.
SECTION 10.15. Transactions Pursuant to the Master Exchange
Agreement. (i) Designate any Program Vehicle as an Identified Relinquished
Vehicle, transfer any Vehicle to the Intermediary pursuant to the Master
Exchange Agreement or designate any Identified Replacement Vehicle without first
satisfying the conditions thereto set forth in Section 11.3, or (ii) transfer
any Vehicle to the Intermediary pursuant to the Master Exchange Agreement that
is not a Program Vehicle subject to the GM Repurchase Program (unless, with
respect to the transfer to the Intermediary pursuant to the Master Exchange
Agreement of Program Vehicles subject to any additional Eligible Manufacturer
Program, (x) an appropriate amendment to the Assignment Agreement in connection
with such Eligible Manufacturer Program, reflecting the consent of such
Manufacturer to sales and purchases by the Intermediary, has been executed and
delivered, (y) the Rating Agency Consent Condition has been satisfied, and (z)
if any Series of Notes supporting Commercial Paper Notes is outstanding, the CP
Rating Agency Condition has been satisfied and the approval of the Majority
Banks, as defined in the applicable Supplement, has been obtained).
SECTION 10.16. Master Exchange Agreement. (i) Consent to any
amendment or modification to, or waiver of, any provision of the Master Exchange
Agreement, the Intercreditor Agreement or any of the Receivables Funding
Documents, or (ii) appoint a successor to the Person acting as Intermediary
under the Master Exchange Agreement, except a Person satisfying the definition
of "Eligible Successor Intermediary" set forth therein, without (x) the prior
written consent of the Trustee, (y) the satisfaction of the Rating Agency
Consent Condition and (z) if any Series of Notes supporting Commercial Paper
Notes is outstanding, satisfaction of the CP Rating Agency Condition and the
approval of the Majority Banks (as defined in the applicable Supplement).
SECTION 11. CONDITIONS.
SECTION 11.1. Initial Loans Pursuant to Amended and Restated
Agreement. The effectiveness of this Agreement shall be subject to the prior or
concurrent (i) delivery of each of the following documents to the Lender and, if
not otherwise required to be delivered to the Trustee by any other Related
Document, to the Trustee and any Enhancement Provider, as applicable (in form
and substance satisfactory to the Lender and, if applicable, the Trustee and any
Enhancement Provider) and (ii) satisfaction of the following conditions, as
applicable:
(a) Certificate of Limited Partnership; Certificates of
Incorporation. The certificate of limited partnership of AESOP Leasing, duly
certified by the Secretary of State of the State of Delaware, together with a
copy of the limited partnership agreement of AESOP Leasing, duly certified by
the Secretary or an Assistant Secretary of Original AESOP. The certificate of
incorporation of each of Original AESOP, PVHC and Quartx, duly certified by the
Secretary of State of the State of Delaware, together with a copy of the by-laws
of each of Original AESOP, PVHC and Quartx, duly certified by the Secretary or
an Assistant Secretary of Original AESOP, PVHC and Quartx, as the case may be.
(b) Resolutions. Copies of resolutions of the Board of Directors of
each of Original AESOP, PVHC and Quartx, authorizing or ratifying the execution,
delivery and performance of those documents and matters required of it with
respect to this Agreement, duly certified by the Secretary or an Assistant
Secretary of Original AESOP, PVHC or Quartx, as the case may be;
(c) Consents, etc. Certified copies of all documents evidencing any
necessary limited partnership or corporate action, consents and governmental
approvals (if any) with respect to this Agreement;
(d) Incumbency and Signatures. A certificate of the Secretary or an
Assistant Secretary of each of Original AESOP, PVHC and Quartx certifying the
names of the individual or individuals authorized to sign this Agreement and the
other Related Documents to be executed by it, together with a sample of the true
signature of each such individual (the Lender may conclusively rely on each such
certificate until formally advised by a like certificate of any changes
therein);
(e) Opinions of Counsel. The opinions of counsel described in
Supplemental Indenture No. 2;
(f) Good Standing Certificates. Certificates of good standing for
each of AESOP Leasing, Original AESOP, PVHC and Quartx in the jurisdiction of
its formation and the jurisdiction of its principal place of business;
(g) Search Reports. A written search report from a Person
satisfactory to the Lender and the Trustee listing all effective financing
statements that name any of AESOP Leasing, PVHC or Quartx, as debtor or
assignor, and that are filed and the jurisdictions in which filings were made
pursuant to subsection (i) below, together with copies of such financing
statements, and tax and judgment lien search reports from a Person satisfactory
to the Lender and the Trustee showing no evidence of such liens filed against
AESOP Leasing, PVHC or Quartx;
(h) Evidence. Evidence (which may be telephonic, followed by prompt
written confirmation) of the filing of such UCC financing statements or
amendments to financing statements previously filed, naming (1) AESOP Leasing as
debtor, (2) PVHC as debtor and (3) Quartx as debtor, and the Lender as secured
party and the Trustee as assignee or other, similar instruments or documents, if
any, as may be necessary or, in the reasonable opinion of the Lender and the
Trustee, desirable under the UCC of all applicable jurisdictions to perfect the
Lender's and the Trustee's interest in the AESOP I Loan Collateral;
(i) Enhancement. The Enhancement Amount with respect to any Series
of Notes for which the Series Closing Date occurs on the Initial Closing Date is
equal to or exceeds the Required Enhancement Amount for such Series;
(j) Leases. An executed copy of the Amended and Restated AESOP I
Operating Lease and all documents required to be delivered by any relevant
Lessee and ARC to the Lessors pursuant thereto, and all conditions to the
effectiveness thereof shall have been satisfied;
(k) Assignment Agreement. An executed copy of the amendment to the
Assignment Agreement of General Motors Corporation;
(l) Indenture. Supplemental Indenture No. 2, dated the date hereof,
duly executed by the Lender and the Trustee, and all conditions to the
effectiveness thereof shall have been satisfied in all respects;
(m) Master Exchange Agreement and Related Documents. Executed copies
of the Master Exchange Agreement, the Intercreditor Agreement and the
Receivables Funding Documents and all conditions to the effectiveness thereof
shall have been satisfied.
(n) Other. Such other documents as the Trustee or the Lender may
reasonably request.
SECTION 11.2. All Loans. All Loans hereunder (including the initial
Loan) shall be subject to the further conditions precedent that (a) if the
amount of Enhancement with respect to any Series of Notes is increased or if the
current Enhancement with respect to any Series of Notes is replaced, to the
extent such additional or replacement Enhancement is in the form of an unfunded
commitment (including, without limitation, a letter of credit), AESOP Leasing
shall cause the delivery to the Lender, the Trustee, the Enhancement Providers,
if any, for any Series of Notes issued and outstanding on the date of such
opinion(s), Placement Agents, if any, the Rating Agencies and the Administrative
Agent (on behalf of the Liquidity Lenders) on or prior to the effectiveness of
such additional or replacement Enhancement of opinion(s) of counsel as to the
enforceability of such additional or replacement Enhancement substantially
similar to the original opinions delivered with respect to such Enhancement, (b)
the Lender shall have received a completed Loan Request therefor and a copy of
the related Vehicle Order, (c) all conditions precedent to the issuance of any
Series of Notes after the Initial Closing Date shall have been satisfied in
accordance with the related Supplement and (d) on the date of such Loan the
following statements shall be true (and AESOP Leasing, by accepting the amount
of such Loan, shall be deemed to have represented and warranted that): (i) the
representations and warranties contained in Section 8 are true and correct on
and as of such date with the same effect as though made on and as of such date
and shall be deemed to have made on such date and (ii) no Potential AESOP I
Operating Lease Loan Event of Default or AESOP I Operating Lease Loan Event of
Default has occurred and is continuing or would result from the making of such
Loan or from the application of the proceeds of such Loan.
SECTION 11.3. All Transactions Under Master Exchange Agreement. Each
designation by AESOP Leasing of a Program Vehicle as an Identified Relinquished
Vehicle, each transfer by AESOP Leasing of an Identified Relinquished Vehicle to
the Intermediary pursuant to the Master Exchange Agreement and each designation
by AESOP Leasing of an Identified Replacement Vehicle shall be subject to the
satisfaction of the following conditions: (a) in connection with the designation
of any Identified Replacement Vehicle, all conditions precedent to any borrowing
required hereunder in connection with the purchase of such Identified
Replacement Vehicle are satisfied; (b) no Manufacturer Event of Default with
respect to the Manufacturer Program pursuant to which such Vehicle is intended
to be transferred or acquired pursuant to the Master Exchange Agreement shall
have occurred and be continuing; (c) in connection with the designation of any
Program Vehicle as an Identified Relinquished Vehicle, AESOP Leasing shall have
contracted to sell such Identified Relinquished Vehicle pursuant to an Eligible
Manufacturer Program (under which the Manufacturer shall have consented to the
purchase and sale of Vehicles by the Intermediary, which consent shall not have
been revoked) and shall have directed the Intermediary to sell such Identified
Relinquished Vehicle pursuant to such Eligible Manufacturer Program on the date
such Identified Relinquished Vehicle is transferred to the Intermediary pursuant
to the Master Exchange Agreement; and (d) on the date of any such designation or
transfer, the following statements shall be true (and AESOP Leasing, by making
such designation or transfer, shall be deemed to have represented and warranted
that): the representations and warranties contained in Section 8 are true and
correct on and as of such date and shall be deemed to have been made on such
date with the same effect as though made on and as of such date and shall be
deemed to have been made on such date, (ii) no Potential Loan Event of Default
or Loan Event of Default, no Potential Amortization Event or Amortization Event
and no Liquidation Event has occurred and is continuing or would result from the
making of such designation or transfer and (iii) no Exchange Agreement
Termination Event or event or occurrence, which, with the passage of time or the
giving of notice thereof, or both, would become an Exchange Agreement
Termination Event has occurred and is continuing or would result from the making
of such designation or transfer.
SECTION 12. LOAN EVENTS OF DEFAULT AND THEIR EFFECT.
SECTION 12.1. AESOP I Operating Lease Loan Events of Default. Each
of the following shall constitute an AESOP I Operating Lease Loan Event of
Default under this Agreement:
SECTION 12.1.1. Non-Payment of Loans. Default in the payment when
due of the principal amount of any Loan made hereunder or the Monthly Loan
Principal Amount hereunder, and the continuance thereof for one (1) Business Day
after the occurrence thereof, or the default in the payment of any Loan Interest
on any Loan made hereunder, and the continuance thereof for five (5) Business
Days after the occurrence thereof; provided, however, that in the case of any
failure to pay an amount owing pursuant to Section 5.1(B)(iii) or 5.1(B)(iv)(y),
an AESOP I Operating Lease
Loan Event of Default shall occur only to the extent that at the end of the
applicable continuance period referred to above, an Enhancement Deficiency
exists with respect to any Series of Notes or an AESOP I Operating Lease Vehicle
Deficiency exists.
SECTION 12.1.2. Non-Payment of Other Amounts. Default, and
continuance thereof for five (5) Business Days after notice thereof by the
Lender to AESOP Leasing, in the payment when due of any amount payable hereunder
(other than any amount described in Section 12.1.1).
SECTION 12.1.3. Bankruptcy, Insolvency, etc. The occurrence of an
Event of Bankruptcy with respect to ARC, ARAC, any other Lessee under the AESOP
I Operating Lease, AESOP Leasing, Original AESOP, PVHC or Quartx.
SECTION 12.1.4. Non-Compliance With Provisions. Failure by AESOP
Leasing to comply with or to perform any provision of this Agreement (and not
constituting an AESOP I Operating Lease Loan Event of Default under any of the
other provisions of this Section 12.1) and, other than the failure to comply
with the provisions of Sections 10.1, 10.2 and 10.15 hereof, the continuance of
such failure for 30 days after the earlier of the date of the receipt of written
notice thereof from the Lender or the Trustee to AESOP Leasing and the date
AESOP Leasing learns of such failure.
SECTION 12.1.5. Warranties and Representations. Any warranty or
representation made by or on behalf of AESOP Leasing in connection herewith is
inaccurate or incorrect or is breached or false or misleading in any material
respect as of the date such warranty or representation is made; or any schedule,
certificate, financial statement, report, notice, or other writing furnished by
or on behalf of AESOP Leasing to the Lender is false or misleading in any
material respect on the date as of which the facts therein set forth are stated
or certified.
SECTION 12.1.6. Lease Events of Default. The occurrence of a Lease
Event of Default.
SECTION 12.1.7. Loan Events of Default Under Other Loan Agreements.
The occurrence of an AESOP I Finance Lease Loan Event of Default or an AESOP II
Loan Event of Default.
SECTION 12.1.8. Judgments. Any final and unappealable (or, if
capable of appeal, such appeal is not being diligently pursued or enforcement
thereof has not been stayed) judgment or order for the payment of money in
excess of $100,000 which is not fully covered by insurance shall be rendered
against AESOP Leasing and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days.
SECTION 12.2. Effect of AESOP I Operating Lease Loan Event of
Default or Liquidation Event of Default. If any AESOP I Operating Lease Loan
Event
of Default described in Section 12.1.1 or 12.1.3 or any Liquidation Event of
Default shall occur, the Loan Commitment (if not theretofore terminated) shall
immediately terminate and in the case of any other AESOP I Operating Lease Loan
Event of Default, the Lender may declare its Loan Commitment (if not theretofore
terminated) to be terminated and whereupon it shall immediately terminate and
may declare the Loan Note and all other Liabilities to be due and payable,
whereupon the Loan Note shall become immediately due and payable.
SECTION 12.3. Rights of Trustee Upon Liquidation Event of Default
and Non-Performance of Certain Covenants. (a) If a Liquidation Event of Default
shall have occurred and be continuing the Lender and the Trustee, to the extent
provided in the Indenture, shall have all the rights against AESOP Leasing, PVHC
and Quartx and the Loan Collateral provided in the Indenture upon a Liquidation
Event of Default, including the right to take (under the specified
circumstances) possession of all Vehicles immediately.
(b) If (i) AESOP Leasing shall default in the due performance and
observance of any of its obligations under Section 9.3, 9.4, 9.5(iii), 9.8, 10.1
or 10.11 hereof, or (ii) any Lessee shall default in the due performance and
observance of its obligations under Section 31.10 of the AESOP I Operating
Lease, and such default shall continue unremedied for a period of 30 days after
notice thereof shall have been given to AESOP Leasing by the Lender, the Lender
shall have the ability to exercise all rights, remedies, powers, privileges and
claims of AESOP Leasing, PVHC or Quartx against the Manufacturers under or in
connection with the Manufacturer Programs with respect to (A) Program Vehicles
leased under the AESOP I Operating Lease that AESOP Leasing has determined to
turn back to the Manufacturers under such Manufacturer Programs (excluding
Relinquished Vehicles), and (B) whether or not AESOP Leasing shall then have
determined to turn back such Program Vehicles, any Program Vehicles leased under
the AESOP I Operating Lease for which the applicable Repurchase Period will end
within one week or less.
(c) Upon a default in the performance (after giving effect to any
grace periods provided herein) by AESOP Leasing, PVHC or Quartx of its
obligations under Section 7.5 or 8.6 hereof with respect to certain Vehicles,
the Lender or the Trustee shall have the right to take actions reasonably
necessary to correct such default with respect to the subject Vehicles including
the execution of UCC financing statements with respect to Manufacturer Programs
and other general intangibles and the completion of Vehicle Perfection and
Documentation Requirements on behalf of AESOP Leasing, PVHC, Quartx or the
Lender, as applicable.
(d) Upon the occurrence of a Liquidation Event of Default, AESOP
Leasing will return all Program Vehicles leased under the AESOP I Operating
Lease to the related Manufacturer and shall sell all Non-Program Vehicles leased
under the AESOP I Operating Lease in accordance with the instructions of the
Lender. Upon the occurrence of a Limited Liquidation Event of Default with
respect to any Series of Notes, AESOP Leasing will return Program Vehicles
leased under the AESOP I
Operating Lease to the related Manufacturer, and shall sell Non-Program Vehicles
leased under the AESOP I Operating Lease in accordance with the instructions of
the Lender, to generate proceeds in an amount which, together with the proceeds
of Vehicles returned pursuant to the AESOP I Finance Lease Loan Agreement and
the AESOP II Loan Agreement, will be sufficient to pay all interest on and
principal of such Series of Notes. To the extent any Manufacturer fails to
accept any such Vehicles under the terms of the applicable Manufacturer Program,
the Lender shall have the right to otherwise dispose of such Vehicles and to
direct AESOP Leasing to dispose of such Vehicles in accordance with its
instructions. In addition, the Lender shall have all of the rights, remedies,
powers, privileges and claims vis-a-vis AESOP Leasing, PVHC and Quartx necessary
or desirable to allow the Trustee to exercise the rights, remedies, powers,
privileges and claims given to the Trustee pursuant to Sections 9.2 and 9.3 of
the Base Indenture and each of AESOP Leasing, PVHC and Quartx acknowledges that
it has hereby granted the Lender all of the rights, remedies, powers, privileges
and claims granted to the Trustee pursuant to Article 9 of the Base Indenture
and that, under certain circumstances set forth in the Base Indenture, the
Trustee may act in lieu of the Lender in the exercise of such rights, remedies,
powers, privileges and claims.
SECTION 12.4. Application of Proceeds. The proceeds of any sale or
other disposition on any date pursuant to Section 12.3 shall be applied in the
following order: (i) to the reasonable costs and expenses incurred by the Lender
in connection with such sale or disposition, including any reasonable costs
associated with repairing any Vehicles leased under the AESOP I Operating Lease,
and reasonable attorneys' fees in connection with the enforcement of this
Agreement; (ii) to the payment of accrued Loan Interest and outstanding Loan
Principal Amount, and all other amounts due hereunder in the Related Month; and
(iii) any remaining amounts to AESOP Leasing, or such Person as may be lawfully
entitled thereto.
SECTION 12.5. Additional Agreements of AESOP Leasing. Upon the
occurrence of any Loan Event of Default, any Lease Event of Default, any
Amortization Event, any Liquidation Event of Default or any Exchange Agreement
Termination Event, AESOP Leasing immediately shall rescind the identification of
any Identified Replacement Vehicles (to the extent permitted pursuant to Section
3.6 of the Master Exchange Agreement, and pursuant to the Receivables Funding
Documents), immediately shall revoke the identification of any Identified
Replacement Vehicles to the extent permitted pursuant to Section 4.2 of the
Master Exchange Agreement, and shall take any and all action available to it at
law or in equity to effect the release of any funds or other property then held
by the Intermediary pursuant to the Master Exchange Agreement, except to the
extent that such funds or property constitute Receivables Lender Collateral.
SECTION 13. GENERAL.
SECTION 13.1. Waiver; Amendments. No delay on the part of the Lender
or the holder of the Loan Note or other Liabilities in the exercise of any
right,
power or remedy shall operate as a waiver thereof, nor shall any single or
partial exercise by any of them of any right, power or remedy preclude other or
further exercise thereof, or the exercise of any other right, power or remedy.
No amendment, modification or waiver of, or consent with respect to, any
provision of this Agreement or the Loan Note shall in any event be effective
unless (i) the same shall be writing and signed and delivered by the Lender,
AESOP Leasing, PVHC and Quartx and consented to in writing by the Trustee, (ii)
the Lender shall have received in writing confirmation from each of the Rating
Agencies that its then current rating with respect to any outstanding Series of
Notes or the Commercial Paper Notes will not be reduced or withdrawn as a result
thereof and (iii) the Rating Agency Consent Condition shall have been satisfied;
provided that any amendment or modification of the Loan Note need only be signed
by AESOP Leasing.
SECTION 13.2. Confirmations. AESOP Leasing and the Lender (or the
holder of the Loan Note) agree from time to time, upon written request received
by it from the other, to confirm to the other in writing the aggregate unpaid
Loan Principal Amount.
SECTION 13.3. Notices. All notices, amendments, waivers, consents
and other communications provided to any party hereto under this Agreement shall
be in writing and addressed, delivered or transmitted to such party at its
address or facsimile number set forth below its signature hereto or at such
other address or facsimile number as may be designated by such party in a notice
to the other parties. Any notice, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any notice, if transmitted by facsimile, shall be
deemed given when transmitted upon receipt of electronic confirmation of
transmission.
SECTION 13.4. Taxes. AESOP Leasing agrees to pay, and to save the
Trustee and the Lender harmless from all liability for, any document, stamp,
filing, recording, mortgage or other taxes (other than net income taxes of the
Lender) which may be payable in connection with the borrowings hereunder or the
execution, delivery, recording or filing of this Agreement or of any other
instruments or documents provided for herein or delivered or to be delivered
hereunder or in connection herewith. All obligations provided for in this
Section 13.4 shall survive any termination of this Agreement.
SECTION 13.5. Indemnification. In consideration of the Lender's
execution and delivery of this Agreement and the Lender's extension of the Loan
Commitment, AESOP Leasing hereby agrees to:
(a) indemnify, exonerate and hold the Lender and its officers,
directors, stockholders, employees, and agents (herein collectively called
"Lender Parties" and individually called a "Lender Party") free and harmless
from and against any and all claims, demands, actions, causes of action, suits,
losses, costs, charges, liabilities, damages, and expenses in connection
therewith (irrespective of whether such Lender
Party is a party to the action for which indemnification hereunder is sought),
and including, without limitation, reasonable attorneys' fees and disbursements
(called in this paragraph the "Indemnified Liabilities"), incurred by Lender
Parties or any of them as a result of, or arising out of, or relating to (i) any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Loan made hereunder or involving any Loan
made hereunder, or (ii) the execution, delivery, performance or enforcement of
this Agreement and any instrument, document or agreement executed pursuant
hereto by any of the Lender Parties, or (iii) the ownership, operation,
maintenance, leasing, or titling of the Vehicles, except in each case, for any
such Indemnified Liabilities arising on account of the relevant Lender Party's
gross negligence or willful misconduct and, to the extent that the foregoing
undertaking may be unenforceable for any reason, AESOP Leasing agrees to make
the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law; and
(b) indemnify and hold harmless the Trustee (and its officers,
directors, employees and agents) from and against any loss, liability, expense,
damage or injury suffered or sustained by reason of, or arising out of or in
connection with: (i) any acts or omissions of AESOP Leasing pursuant to this
Agreement and (ii) the Trustee's appointment under the Indenture and the
Trustee's performance of its obligations thereunder, or any document pertaining
to any of the foregoing to which the Trustee is a signatory, including, but not
limited to any judgment, award, settlement, reasonable attorneys' fees and other
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim; provided, however, AESOP Leasing shall
have no duty to indemnify the Trustee to the extent such loss, liability,
expense, damage or injury suffered or sustained is due to the Trustee's
negligence or willful misconduct.
AESOP Leasing agrees that the indemnification provided for in this Section 13.5
shall run directly to and be enforceable by an indemnified party subject to the
limitations hereof. The indemnification provided for in this Section 13.5 shall
survive the termination of this Agreement, the Indenture and the resignation or
removal of the Trustee.
SECTION 13.6. Bankruptcy Petition. (a) Each of AESOP Leasing, PVHC
and Quartx hereby covenants and agrees that, prior to the date which is one year
and one day after the payment in full of (i) all Commercial Paper Notes
Outstanding and (ii) all Notes Outstanding, it will not institute against, or
join any other Person in instituting against, AFC-II any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States. In the event that AESOP Leasing, PVHC or Quartx takes action in
violation of this Section 13.6, AFC-II agrees, for the benefit of the
Noteholders and the Commercial Paper Note holders, respectively, that it shall
file an answer with the bankruptcy court or otherwise properly contest the
filing of such a petition by AESOP Leasing, PVHC or Quartx against AFC-II or
commencement of such action and raise the defense that each of
AESOP Leasing, PVHC and Quartx has agreed in writing not to take such action and
should be estopped and precluded therefrom and such other defenses, if any, as
its counsel advises that it may assert. The provisions of this Section 13.6
shall survive the termination of this Agreement.
(b) AFC-II hereby covenants and agrees that, prior to the date which
is one year and one day after the payment in full of (i) all Commercial Paper
Notes Outstanding, (ii) all Notes Outstanding and (iii) all Loans outstanding
under the AESOP I Loan Agreements, it will not institute against, or join any
other Person in instituting against, AESOP Leasing, Original AESOP, AESOP
Leasing II, AFC, PVHC or Quartx any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States. In the event that AFC-II
takes action with respect to AESOP Leasing, PVHC or Quartx in violation of this
Section 13.6, each of AESOP Leasing, PVHC and Quartx agrees, for the benefit of
the Noteholders and the Commercial Paper Note Holders, respectively, that it
shall file an answer with the bankruptcy court or otherwise properly contest the
filing of such a petition by AFC-II against AESOP Leasing, PVHC or Quartx or
commencement of such action and raise the defense that AFC-II has agreed in
writing not to take such action and should be estopped and precluded therefrom
and such other defenses, if any, as its counsel advises that it may assert. The
provisions of this Section 13.6 shall survive the termination of this Agreement.
SECTION 13.7. Submission to Jurisdiction. The Lender may enforce any
claim arising out of this Agreement or the Loan Note in any state or federal
court having subject matter jurisdiction and located in New York, New York. For
the purpose of any action or proceeding instituted with respect to any such
claim, AESOP Leasing hereby irrevocably submits to the jurisdiction of such
courts. Each of AESOP Leasing, PVHC and Quartx irrevocably consents to the
service of process out of said courts by mailing a copy thereof, by registered
mail, postage prepaid, to AESOP Leasing, PVHC or Quartx, as the case may be, and
agrees that such service, to the fullest extent permitted by law, (i) shall be
deemed in every respect effective service of process upon it in any such suit,
action or proceeding and (ii) shall be taken and held to be valid personal
service upon and personal delivery to it. Nothing herein contained shall affect
the right of the Trustee and the Lender to serve process in any other manner
permitted by law or preclude the Lender from bringing an action or proceeding in
respect hereof in any other country, state or place having jurisdiction over
such action. Each of AESOP Leasing, PVHC and Quartx hereby irrevocably waives,
to the fullest extent permitted by law, any objection which it may have or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court located in New York, New York and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum.
SECTION 13.8. Governing Law. THIS AGREEMENT AND THE LOAN NOTE SHALL
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW). Whenever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement. All obligations of
AESOP Leasing, PVHC and Quartx and rights of the Lender and the holder of the
Loan Note or Liability expressed herein shall be in addition to and not in
limitation of those provided by applicable law or in any other written
instrument or agreement relating to any of the Liabilities.
SECTION 13.9. JURY TRIAL. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES
ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS UNDER THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT TO WHICH IT IS A
PARTY, OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH OR ARISING FROM ANY
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED
TRANSACTION, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE
A COURT AND NOT BEFORE A JURY.
SECTION 13.10. Successors and Assigns. This Agreement shall be
binding upon AESOP Leasing, PVHC, Quartx, the Lender and their respective
successors and assigns, and shall inure to the benefit of AESOP Leasing, PVHC,
Quartx, the Lender, the Trustee as a third party beneficiary and their
respective successors and assigns; provided, however, that none of AESOP
Leasing, PVHC or Quartx shall have the right to assign its rights or delegate
its duties under this Agreement without (i) the Lender's and the Trustee's prior
written consent and (ii) receipt of written confirmation from each of the Rating
Agencies that its then current rating will not be reduced or withdrawn with
respect to the Commercial Paper Notes or any outstanding Series of Notes as a
result thereof. Each of AESOP Leasing, PVHC and Quartx acknowledges that this
Agreement and the Loan Note will be assigned by the Lender to the Trustee
pursuant to the Indenture, and hereby agrees that, subject to the terms of the
Indenture, the Trustee may exercise all of the Lender's rights hereunder. This
Agreement and the other Related Documents contain the entire agreement of the
parties hereto with respect to the matters covered hereby.
SECTION 13.11. Tax Treatment of Loans. It is the intention of the
parties hereto that for U.S. federal income tax purposes each Loan made
hereunder will constitute indebtedness of AESOP Leasing to the Lender and that
AESOP Leasing shall be the owner of the Vehicles that are subject to the AESOP I
Operating Lease. The parties agree to take no position in any tax return, filing
or proceeding inconsistent with this provision.
SECTION 13.12. No Recourse. The obligations of AFC-II, AESOP
Leasing, PVHC and Quartx under this Agreement are solely the corporate
obligations of AFC-II, AESOP Leasing, PVHC and Quartx, respectively. No recourse
shall be had for the payment of any obligation or claim arising out of or based
upon this Agreement against any shareholder, employee, officer, director,
partner or incorporator of AFC-II, AESOP Leasing, PVHC or Quartx.
SECTION 13.13. Effect of Amendment. Except to the extent amended
hereby, the Original Loan Agreement is in all respects ratified and confirmed
and in full force and effect. From and after the date hereof, all references in
the Related Documents to the AESOP I Operating Lease Loan Agreement shall mean
such agreement as amended and restated hereby, unless the context otherwise
requires.
Delivered at New York, New York as of the day and year first above
written.
AESOP LEASING L.P.
By: AESOP LEASING CORP.,
its general partner
By:
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Name:
Title:
Address: c/o Lord Securities Corporation
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
PV HOLDING CORP.
By:
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Name:
Title:
Address: c/o The Corporation Trust Company
Corporation Trust Center
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
QUARTX FLEET MANAGEMENT, INC.
By:
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Name:
Title:
Address: c/o The Corporation Trust Company
Corporation Trust Center
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AESOP FUNDING II L.L.C.
By:
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Name:
Title:
Address: c/o Lord Securities Corporation
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EXHIBIT A
TO THE LOAN
AGREEMENT
FORM OF LOAN NOTE
[Intentionally Omitted.]
EXHIBIT B-1
TO THE LOAN
AGREEMENT
FORM OF LOAN REQUEST
AESOP Funding II L.L.C.
c/o Lord Securities Corporation
Two Wall Street, 19th Floor
New York, New York 10005
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Ladies and Gentlemen:
This Loan Request is delivered to you pursuant to Section 3.2 of that
certain Amended and Restated AESOP I Operating Lease Loan Agreement, dated as of
September 15, 1998 (as further amended, supplemented, restated or otherwise
modified from time to time, the "Loan Agreement"), among AESOP Leasing L.P., a
Delaware limited partnership ("AESOP Leasing"), PV Holding Corp. and Quartx
Fleet Management, Inc., as Permitted Nominees of AESOP Leasing, and AESOP
Funding II L.L.C., a Delaware limited liability company (the "Lender"). Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in the Loan Agreement.
AESOP Leasing hereby requests that a Loan be made in the amount of
$______________ on _______________ , 19 __.
AESOP Leasing hereby acknowledges that the delivery of this Loan Request
and the acceptance by AESOP Leasing of the proceeds of the Loan requested hereby
constitute a representation and warranty by AESOP Leasing that, on the date of
such Loan, and before and after giving effect thereto and to the application of
the proceeds therefrom, all conditions set forth in Section 11.2 of the Loan
Agreement have been satisfied and all statements set forth in Section 11.2 of
the Loan Agreement are true and correct.
Attached hereto as Annex I is a true and correct copy of the schedule
required to be delivered in connection herewith pursuant to Section 3.2 of the
Loan Agreement.
AESOP Leasing agrees that if prior to the time of the Loan requested
hereby any matter certified to herein by it will not be true and correct at such
time as if then made, it will immediately so notify the Lender. Except to the
extent, if any, that prior to the time of the Loan requested hereby the Lender
shall receive written notice to the contrary from AESOP Leasing, each matter
certified to herein shall be deemed once again to be certified as true and
correct at the date of such Loan as if then made.
Please wire transfer the proceeds of the Loan to the account of AESOP
Leasing at the financial institution set forth below:
Amount to be
Account No. Person to be Paid Name, Address, etc. Transferred Name
----------- ----------------- ------------------------------- ----
$____________ __________________ ________________________________
________________________________
Attention: ______________________________________
AESOP Leasing has caused this Loan Request to be executed and delivered,
and the certification and warranties contained herein to be made, by its duly
Authorized Officer this day of , 19 .
AESOP LEASING L.P.
By:
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Name:
Title:
ANNEX I
Vehicle Acquisition Schedule and Related Information
1. Principal amount of proposed Loan
2. Borrowing Date of proposed Loan
3. Vehicle Identification Number (VIN)
4. Summary of Vehicles being financed (including, for Program Vehicles
subject to the GM Repurchase Program, the Designated Period for such
Program Vehicles)
5. Program or Non-Program Vehicles
6. Capitalized Cost (New Vehicles)
7. Net Book Value (Franchisee Vehicles)
EXHIBIT B-2
TO THE LOAN
AGREEMENT
FORM OF LOAN REQUEST RESPONSE
AESOP Leasing L.P.
c/o Lord Securities Corporation
Two Wall Street, 19th Floor
New York, New York 10005
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________, 199
Re: Loan Request Dated , 199
Ladies and Gentlemen:
This Loan Request Response is delivered to you pursuant to Section 4.1 of
that certain Amended and Restated AESOP I Operating Lease Loan Agreement, dated
as of September 15, 1998 (as further amended, supplemented, restated or
otherwise modified from time to time, the "Loan Agreement"), among AESOP Leasing
L.P., a Delaware limited partnership ("AESOP Leasing"), PV Holding Corp. and
Quartx Fleet Management, Inc., as Permitted Nominees of AESOP Leasing, and AESOP
Funding II L.L.C., a Delaware limited liability company (the "Lender"). Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings assigned to such terms in the Loan Agreement.
Reference is hereby made to the Loan Request delivered to us today by
AESOP Leasing (the "Loan Request"). The applicable rate of Loan Interest on each
Loan requested in the Loan Request is _%; provided, however, if the Lender's
Carrying Cost Interest Rate for the Related Month is higher than the rate of
Loan Interest specified herein, the Loan Interest payable on such Loans shall be
determined using the higher rate.
Very truly yours,
AESOP FUNDING II L.L.C.
By:
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Name:
Title:
EXHIBIT C
TO THE LOAN
AGREEMENT
FORM OF PAYMENT
DEFICIT NOTICE
▇▇▇▇▇▇ Trust and Savings Bank, as Trustee
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Attn: Indenture Trust Administration
[Related Enhancement Provider]
[Address]
[ ], 19 _
Ladies and Gentlemen:
This Payment Deficit Notice is delivered to you pursuant to Section
6.4 of the Amended and Restated AESOP I Operating Lease Loan Agreement, dated as
of September 15, 1998 (as further amended or modified from time to time, the
"Loan Agreement") among AESOP Funding II L.L.C., a Delaware limited liability
company, as Lender, PV Holding Corp. and Quartx Fleet Management, Inc., as
Permitted Nominees of the Borrower, and AESOP Leasing L.P. ("AESOP Leasing"), a
Delaware limited partnership, as Borrower. Terms used herein have the meanings
provided in the Loan Agreement.
AESOP Leasing hereby notifies the Trustee and [Related Enhancement
Provider] that [a Lease Payment Deficit did not exist on ________, 199_] [there
was a Lease Payment Deficit on ________, 199_ as follows:
Series______: $______________
Series______: $______________
AESOP LEASING L.P.
By:
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Name:
Title:
SCHEDULE 8.11
Business Locations, Trade Names
State of
Principal
Place of States in which
Business Location Business Conducts Business
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AESOP Leasing ▇/▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
L.P. Corporation
Two ▇▇▇▇ ▇▇▇▇▇▇
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