Exhibit 4.11
EXECUTION COPY
MASTER EXCHANGE AGREEMENT
BETWEEN
AESOP LEASING L.P.
AND
BANK ONE, TEXAS, NATIONAL ASSOCIATION
SEPTEMBER 15, 1998
ii
TABLE OF CONTENTS
Page
SECTION I: DEFINITIONS .........................................................
Section 1.1 Definitions .........................................
SECTION II: APPOINTMENT AND DUTIES OF THE INTERMEDIARY ..........................
Section 2.1 Appointment of Intermediary .........................
Section 2.2 Duties and Authority of the Intermediary ............
Section 2.3 Capacity of Intermediary ............................
Section 2.4 Restrictions on Rights of AESOP Leasing; Release of
Trust Account Property; Reconveyance of Property ....
Section 2.5 Notice of Group Closing Event .......................
Section 2.6 Notice of Intermediary Exchange Agreement
Termination Event ...................................
SECTION III: IDENTIFICATION AND TRANSFER OF RELINQUISHED VEHICLES ................
Section 3.1 Transfer of Relinquished Vehicles by AESOP Leasing ..
Section 3.2 Disposition of Relinquished Vehicles under
Manufacturer Purchase Agreement .....................
Section 3.3 Certificates of Title for Relinquished Vehicles .....
Section 3.4 Proceeds of Sale ....................................
Section 3.5 Receipt of Funds In Error; Other Trust Funds. .......
Section 3.6 Rescission of Identification ........................
Section 3.7 Other Duties of AESOP Leasing .......................
SECTION IV: IDENTIFICATION AND ACQUISITION OF REPLACEMENT VEHICLES ..............
Section 4.1 Identification ......................................
Section 4.2 Revocation of Identification ........................
Section 4.3 Assignment of Purchase Rights;
Acquisition of Replacement Vehicles .................
Section 4.4 Funding for Purchases ...............................
Section 4.5 Certificates of Title ...............................
SECTION V: TRUST ACCOUNTS ......................................................
Section 5.1 Trust Accounts ......................................
Section 5.2 Trust Account Deposits and Disbursements ............
Section 5.3 Trust Account Earnings ..............................
Section 5.4 Accounting for Trust Accounts .......................
Section 5.5 Power of Attorney ...................................
Section 5.6 No Right of Offset. .................................
Section 5.7 Good Funds. .........................................
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SECTION VI: RIGHTS OF THE SECURED PARTIES .......................................
Section 6.1 Payments to AESOP Leasing ...........................
Section 6.2 The Fleet Financing Documents .......................
Section 6.3 Transfer Free of Liens ..............................
Section 6.4 Restrictions on Pledges by the Intermediary .........
SECTION VII: OTHER RIGHTS AND DUTIES OF THE INTERMEDIARY .........................
Section 7.1 General .............................................
Section 7.2 Indemnification of the Intermediary .................
Section 7.3 Exclusions from Indemnity ...........................
Section 7.4 Compensation and Reimbursement of the Intermediary ..
Section 7.5 No Bond .............................................
SECTION VIII:MISCELLANEOUS .......................................................
Section 8.1 Termination by the Intermediary .....................
Section 8.2 Termination by AESOP Leasing ........................
Section 8.3 Receipt of Property Following Termination. ..........
Section 8.4 Survival of Certain Provisions. .....................
Section 8.5 No Assignment .......................................
Section 8.6 Further Assurances ..................................
Section 8.7 Entire Agreement ....................................
Section 8.8 Notices .............................................
Section 8.9 Company Representations .............................
Section 8.10 Section 1031 Exchange ...............................
Section 8.11 Representations of the Intermediary .................
Section 8.12 Confidentiality .....................................
Section 8.13 No Bankruptcy Petition Against AESOP Leasing or
Certain Other Persons ...............................
Section 8.14 No Recourse .........................................
Section 8.15 Counterparts ........................................
Section 8.16 Governing Law .......................................
EXHIBITS:
Exhibit A Form of Administrator Representation Letter
Exhibit A-1 Form of Administrator Representation Certificate
Exhibit B Form of AESOP Leasing Representation Letter
Exhibit B-1 Form of AESOP Leasing Representation Certificate
Exhibit C Form of Reconveyance of Relinquished Vehicle Receivables
ii
SCHEDULES:
Schedule 1 Intermediary Fees and Expenses
Schedule 2 Authorized Representatives
Schedule 3 Trust Account Deposits
Schedule 4 Payment Instructions for Trust Account Disbursements
Schedule 5 Permitted Trust Account Investments
ANNEXES:
Annex 1 Notice of Relinquished Vehicle Identification and Transfer
Annex 2 Rescission of Relinquished Vehicle Identification and Transfer
Annex 3 Notice of Designation of Replacement Vehicles and Partial
Assignment of Manufacturer Purchase Agreement
Annex 4 Revocation of Designation and Partial Assignment of
Manufacturer Purchase Agreement
Annex 5 Notice of Acceptance: Group Closing
Annex 6 Notice of Release of Funds Following Termination
iii
MASTER EXCHANGE AGREEMENT
THIS
MASTER EXCHANGE AGREEMENT (this "Agreement") is entered into as of
September 15, 1998, by and between AESOP LEASING L.P., a Delaware limited
partnership ("AESOP Leasing"), and BANK ONE, TEXAS, National Association, a
national banking association ("Bank One"), acting in the capacity of
intermediary, as provided herein.
BACKGROUND
AESOP Leasing maintains a fleet of Vehicles (as hereinafter defined) in
carrying on its business of leasing cars.
AESOP Leasing from time to time disposes of used Vehicles and acquires new
Vehicles for its fleet.
AESOP Leasing wishes from time to time to exchange Vehicles in
transactions qualifying for nonrecognition of gain or loss under Code Section
1031 and the Treasury Regulations thereunder.
AESOP Leasing wishes to retain Bank One to act as a "Qualified
Intermediary" (within the meaning of Treasury Regulation Section 1.1031(k)-1)
with respect to such exchange transactions and Bank One is willing to act in
such capacity, all subject to the terms and conditions of this Agreement.
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 I: DEFINITIONS
Section 1.1 DEFINITIONS.
The following terms shall have the respective meanings assigned to
them below (such meanings to be applicable equally to both the singular and
plural forms of such terms):
"ADMINISTRATION AGREEMENT" means the Amended and Restated
Administration Agreement, dated as of September 15, 1998, pursuant to which ARAC
performs various administrative duties on behalf of AESOP Leasing and certain
other entities.
"ADMINISTRATOR" means ARAC in its capacity as administrator of AESOP
Leasing, pursuant to the Administration Agreement.
"ADMINISTRATOR REPRESENTATION CERTIFICATE" means a certificate of
the Administrator, substantially in the form of Exhibit A-1 hereto.
"ADMINISTRATOR REPRESENTATION LETTER" means a letter, substantially
in the form of Exhibit A hereto, executed and delivered by the Administrator as
of the date of this Agreement.
"AESOP EXCHANGE AGREEMENT TERMINATION EVENT" means that a Loan Event
of Default, a Lease Event of Default, an Amortization Event or a Liquidation
Event of Default (each such term as defined in the Indenture) has occurred and
remains continuing.
"AESOP REPRESENTATION CERTIFICATE" means a certificate of AESOP
Leasing, substantially in the form of Exhibit B-1 hereto.
"AESOP REPRESENTATION LETTER" means a letter, substantially in the
form of Exhibit B hereto, executed and delivered by AESOP Leasing as of the date
of this Agreement.
"AESOP TRUST ACCOUNT(S)" has the meaning assigned to such term in
Section 5.1 of this Agreement.
"AGREEMENT" means this
Master Exchange Agreement, together with all
exhibits, schedules and annexes attached hereto, as hereafter amended, modified
or supplemented in accordance with its terms.
"ARAC" means Avis Rent A Car System, Inc., a Delaware corporation.
"ARC" means Avis Rent A Car, Inc., a Delaware corporation.
"ASSIGNED SPECIAL DEFAULT PAYMENTS" means "Program Vehicle Special
Default Payments" to which AESOP Leasing is entitled pursuant to the Lease
Agreement with respect to any Relinquished Vehicle, including any guaranty in
respect thereof pursuant to the Lease Agreement and any rights to exercise
remedies to enforce collection thereof, but only to the extent that a Loan was
made under the Receivables Financing Agreement with respect to Designated
Receivables arising from the sale of any Vehicles included in the Group of
Relinquished Vehicles in which such Relinquished Vehicle is included and such
Loan has not been paid in full.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which banks in ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ or Dallas,
Texas are authorized or required by law to be closed.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time.
"COLLECTION ACCOUNT" means the segregated trust account maintained
by the Trustee pursuant to the Indenture for the benefit of the Secured Parties.
"DESIGNATED RECEIVABLES" means, with respect to any Loan that was
made pursuant to the Receivables Financing Agreement and has not been paid in
full, the Relinquished Vehicle Receivables against which such Loan was made,
which, in each case, shall be all of the Relinquished Vehicle Receivables
outstanding in connection with one Group of Relinquished Vehicles on or after
the date such Loan was made.
"DISQUALIFIED PERSON" means a person bearing a relationship to AESOP
Leasing described in Treasury Regulation ss. 1.1031(k)-1(k).
"ELIGIBLE SUCCESSOR INTERMEDIARY" means the trust department of a
United States bank, that (a) has a combined capital and surplus of at least
$500,000,000 as set forth in its most recent published annual report of
condition, (b) has the Requisite Rating, (c) satisfies the requirements set
forth in the definition of "Qualified Intermediary", (d) is selected by AESOP
Leasing, subject to satisfaction of the Rating Agency Consent Condition and the
CP Rating Agency Condition (or, following notice by the Trustee of an AESOP
Exchange Agreement Termination Event, is selected by the Trustee with the
approval of each Enhancement Provider) and (e) so long as any obligations remain
outstanding pursuant to the Receivables Funding Documents or the commitments
thereunder remain in effect or any of the Receivables Funding Documents are
otherwise in effect, has received the prior written approval of the Lender Agent
and has agreed, pursuant to documentation satisfactory to the Lender Agent, to
be bound by the Receivables Funding Documents, the Intercreditor Agreement and
this Agreement (or an agreement substantially in the form hereof).
"EXCHANGE PERIOD" means, with respect to any Group of Relinquished
Vehicles, the period beginning on the date AESOP Leasing first transfers any
Vehicle included in such Group of Relinquished Vehicles to the Intermediary and
ending at midnight on the earlier of the 180th day thereafter or on the due date
(including extensions) for AESOP Leasing's U.S. federal income tax return for
the taxable year in which the first transfer of any Vehicle included in such
Group of Relinquished Vehicles occurs, as provided in Treasury Regulation
ss. 1.1031(k)-1(b)(2).
"FLEET FINANCING DOCUMENTS" means, in addition to the Loan
Agreement, the Lease Agreement and the Indenture, each loan, lease, security
agreement or other agreement pursuant to which AESOP Leasing finances its
acquisition of Vehicles and/or grants security interests in such Vehicles or
related property.
"GROUP CLOSING EVENT" shall mean, with respect to each Group of
Relinquished Vehicles:
(a) the expiration of the Identification Period for such Group of
Relinquished Vehicles, if AESOP Leasing has not identified any
Identified Replacement Vehicles with respect to such Group of
Relinquished Vehicles by the end of the Identification Period;
(b) the receipt by AESOP Leasing of the last Replacement Vehicle
with respect to such Group of Relinquished Vehicles but not
earlier than expiration of the Identification Period with
respect to such Group of Relinquished Vehicles;
(c) the expiration of the Exchange Period with respect to such
Group of Relinquished Vehicles; or
(d) the occurrence of a Material and Substantial Contingency with
respect to such Group of Relinquished Vehicles.
"GROUP OF RELINQUISHED VEHICLES" means those Relinquished Vehicles
grouped together by AESOP Leasing in accordance with Section 3.1 of this
Agreement to be exchanged from time to time for Replacement Vehicles in a
transaction or series of transactions collectively constituting a separate and
independent exchange for purposes of Section 1031 of the Code.
"GUARANTOR" means ARC in its capacity as guarantor pursuant to the
Lease Agreement.
"IDENTIFICATION PERIOD" means with respect to any Group of
Relinquished Vehicles, the period beginning on the date AESOP Leasing first
transfers any Vehicle included in such Group of Relinquished Vehicles to the
Intermediary and ending at midnight on the 45th day thereafter, as provided in
Treasury Regulation ss. 1.1031(k)-1(b)(2).
"IDENTIFIED RELINQUISHED VEHICLES" means designated Vehicles owned
by AESOP Leasing that AESOP Leasing intends to exchange for Replacement
Vehicles, pursuant to the terms and conditions of this Agreement.
"IDENTIFIED REPLACEMENT VEHICLES" means designated Vehicles that
AESOP Leasing intends to acquire in exchange for Relinquished Vehicles, pursuant
to the terms and conditions of this Agreement.
"INDENTURE" means the Amended and Restated Base Indenture, dated as
of July 30, 1997, as amended by Supplemental Indenture No. 1, dated as of July
31, 1998, and Supplemental Indenture No. 2, dated as of September 15, 1998, and
as it may be
from time to time further amended, between AESOP Funding II L.L.C., as Issuer,
and ▇▇▇▇▇▇ Trust and Savings Bank, as Trustee.
"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated
as of September 15, 1998, among the Trustee, AESOP Funding II L.L.C., AESOP
Leasing, ARAC, the Intermediary and the Lender Agent.
"INTERMEDIARY" means Bank One or any successor acting in such
capacity under this Agreement.
"INTERMEDIARY EXCHANGE AGREEMENT TERMINATION EVENT" has the meaning
assigned to such term in Section 8.2 of this Agreement.
"LEASE AGREEMENT" means the Amended and Restated Master Motor
Vehicle Operating Lease Agreement, dated as of September 15, 1998, among AESOP
Leasing as Lessor, ARAC as a Lessee and as Administrator, the other Lessees from
time to time parties thereto, and ARC, as guarantor.
"LENDER AGENT" means the financial institution from time to time
lender agent for the Receivables Lender, which initially shall mean Credit
Lyonnais New York Branch. Any references in this Agreement to amounts payable to
the Lender Agent shall mean amounts payable to the Lender Agent in such capacity
either for its own account or for the benefit of the Receivables Lender.
"LENDER TRUST ACCOUNT(S)" has the meaning assigned to such term in
Section 5.1 of this Agreement.
"LESSEE" means ARAC and each other permitted lessee pursuant to the
Lease Agreement.
"LOAN" has the meaning assigned to such term in the Receivables
Financing Agreement. Each reference herein to a Loan having been "paid in full,"
or being "no longer outstanding" or words of like import shall mean a Loan any
and all principal of, interest accrued or owing on, and breakage amounts payable
in respect of which, shall have been paid in full.
"LOAN AGREEMENT" means the Amended and Restated Loan Agreement,
dated as of September 15, 1998, among AESOP Leasing, PV Holding Corp., Quartx
Fleet Management, Inc. and AESOP Funding II L.L.C.
"MANUFACTURER" means a manufacturer of Vehicles.
"MANUFACTURER PURCHASE AGREEMENT" means any purchase agreement with
a Manufacturer pursuant to which AESOP Leasing may sell a Vehicle owned by AESOP
Leasing to such Manufacturer for a price determined in accordance with such
agreement.
"MATERIAL AND SUBSTANTIAL CONTINGENCY" means, with respect to a
particular Group of Relinquished Vehicles, after expiration of the
Identification Period for such Group of Relinquished Vehicles, the first to
occur of (a) AESOP Leasing receiving written notification from one or more
Manufacturers of Identified Replacement Vehicles, or (b) information coming to
the attention of an officer of AESOP Leasing, in each case indicating that such
Manufacturers of Identified Replacement Vehicles will not be delivering, before
the end of the Exchange Period, Replacement Vehicles identified for such Group
of Relinquished Vehicles with aggregate purchase prices of at least 80% of the
aggregate proceeds of sale of such Group of Relinquished Vehicles; PROVIDED,
that such failure to deliver identified vehicles is due to circumstances beyond
the control of AESOP Leasing.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NOTICE ADDRESS" shall mean, for either party to this Agreement and
each other Person whose address is shown below, the address shown below (or such
other address that such party or other Person shall specify to each other party
or other Person by a notice sent in accordance herewith):
BANK ONE, TEXAS, National Association
ATTN: Corporate Trust Department
P.O. Box 25900
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
AESOP LEASING L.P.
c/o Lord Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
AVIS RENT A CAR SYSTEM, INC.,
as Administrator
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT LYONNAIS NEW YORK BRANCH
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
"NOTICE OF ACCEPTANCE" has the meaning assigned to such term in
Section 4.3 of this Agreement.
"OTHER TRUST FUNDS" shall mean any amounts or proceeds received by
the Intermediary that are not proceeds of (or derived from the proceeds of) the
sale of Relinquished Vehicles.
"PERMITTED INVESTMENTS" means the investment instruments described
in Schedule 5 to this Agreement.
"PERSON" means any individual, corporation, partnership, limited
liability company, trust, unincorporated organization, governmental authority or
any other form of entity.
"PURCHASE AGREEMENT" has the meaning assigned to such term in
Section 4.3 of this Agreement.
"PURCHASE AGREEMENT ASSIGNMENT" has the meaning assigned to such
term in Section 4.3 hereof.
"QUALIFIED INTERMEDIARY" means a Person that (a) is not AESOP
Leasing or a Disqualified Person, (b) enters into a written agreement with AESOP
Leasing, substantially in the form hereof, pursuant to which it is treated as
acquiring Relinquished Vehicles from AESOP Leasing, transferring such
Relinquished Vehicles, acquiring
Replacement Vehicles, and transferring the Replacement Vehicles to AESOP
Leasing, and (c) otherwise meets the requirements of Treasury Regulation
ss. 1.1031(k)-1(g)(4).
"RECEIVABLES FINANCING AGREEMENT" means the receivables financing
agreement dated as of September 15, 1998, among the Intermediary and Atlantic
Asset Securitization Corp., Lyon Short Term Funding Corp., each other lender
party thereto from time to time, and Credit Lyonnais New York Branch, as a
lender and as Lender Agent, and any substitute facility therefor that receives
the necessary approvals pursuant to the Fleet Financing Documents, in each
instance, as any such agreement may be from time to time amended.
"RECEIVABLES FUNDING DOCUMENTS" means the Receivables Financing
Agreement and each note, letter agreement or certificate executed and delivered
pursuant thereto.
"RECEIVABLES LENDER" means each financial institution that from time
to time pursuant to the Receivables Financing Agreement provides financing to
the Intermediary for the purchase of Replacement Vehicles, and initially shall
mean, collectively, Atlantic Asset Securitization Corp., Lyon Short Term Funding
Corp., Credit Lyonnais New York Branch, each other lender from time to time
party to the Receivables Financing Agreement, and their respective successors
and assigns.
"RECEIVABLES LENDER COLLATERAL" means, (i) subject to the
limitations set forth in the Receivables Financing Agreement and the
Intercreditor Agreement, the Designated Receivables with respect to each Loan
made pursuant to the Receivables Financing Agreement, the proceeds of such
Designated Receivables and the investment earnings thereon; (ii) the Assigned
Special Default Payments; and (iii) except to the extent paid or payable to the
Intermediary as indemnity amounts for its own account or as compensation for its
services or to reimburse the Intermediary for fees and expenses incurred by the
Intermediary pursuant to this Agreement, the obligations of AESOP Leasing to the
Intermediary under Section 7.4(b) hereof and Special Service Charges (including
any guaranty in respect thereof pursuant to the Lease Agreement) and any rights
to exercise remedies to enforce collection of the foregoing.
"RELINQUISHED VEHICLE" means each Vehicle transferred by AESOP
Leasing to the Intermediary in contemplation of the exchange thereof for
Replacement Vehicles (which transfer is not rescinded pursuant to Section 3.6 of
this Agreement).
"RELINQUISHED VEHICLE RECEIVABLES" means the amounts payable by the
respective Manufacturers of Relinquished Vehicles as the purchase price thereof
pursuant to the relevant Manufacturer Purchase Agreements.
"REPLACEMENT VEHICLES" means Vehicles acquired by AESOP Leasing in
exchange for Relinquished Vehicles, pursuant to the terms and conditions of this
Agreement.
"REQUISITE RATING" means a minimum rating issued by Moody's of at
least A2 on long-term unsecured debt obligations and of at least P-1 on
short-term debt, and a minimum rating issued by Standard & Poor's of at least A
on long-term unsecured debt obligations and of at least A-1 on short-term debt.
"SECURED PARTY" means AESOP Funding II L.L.C., each Person on whose
behalf the Trustee holds a security interest in Vehicles and related property
owned by AESOP Leasing pursuant to the Indenture and any other Person who has a
security interest in such property pursuant to the Fleet Financing Documents.
"SPECIAL SERVICE CHARGES" means any and all charges assessed to the
Lessees pursuant to Section 4.2 of the Lease Agreement with respect to the fees,
expenses, indemnities and other amounts payable by AESOP Leasing to the
Intermediary pursuant to this Agreement, including, in any event, amounts
payable under Section 7.4(b) hereof.
"STANDARD & POOR'S" means Standard & Poor's Ratings Service, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"TRANSFER NOTICE" has the meaning assigned to such term in Section
3.1 of this Agreement.
"TRANSFERRED PROPERTY" has the meaning assigned to such term in
Annex 1 attached hereto.
"TREASURY REGULATION" means the applicable regulation adopted by the
Department of the Treasury under the Code as of the date of this Agreement, as
the same may be amended, modified or renumbered from time to time.
"TRUSTEE" means ▇▇▇▇▇▇ Trust and Savings Bank, an Illinois banking
corporation, as trustee pursuant to the Indenture, and any successor Trustee
appointed pursuant to the Indenture.
"TRUST ACCOUNT" has the meaning assigned to such term in Section 5.1
of this Agreement.
"VEHICLE" means a passenger car or van and all related equipment,
accessories and tires attached thereto.
SECTION II: APPOINTMENT AND DUTIES OF THE INTERMEDIARY
Section 2.1 APPOINTMENT OF INTERMEDIARY. AESOP Leasing hereby appoints
Bank One, and Bank One hereby accepts the appointment, to act in the capacities
of trustee and of Qualified Intermediary with respect to the Relinquished
Vehicles and the other Transferred Property described in each Transfer Notice
delivered pursuant hereto, and the Replacement Vehicles (in such capacities,
collectively, the "Intermediary") for the purposes set forth in, and subject to
the terms and conditions of this Agreement, and further, in accordance with
Treasury Regulation ss. 1.1031(k)-1(g)(4).
Section 2.2 DUTIES AND AUTHORITY OF THE INTERMEDIARY.
(a) Subject to the terms and conditions of this Agreement Bank One,
in its capacity as Intermediary, hereby agrees to perform the following duties:
to acquire in trust the Groups of Relinquished Vehicles and the other
Transferred Property described in each Transfer Notice delivered pursuant
hereto; to transfer the Groups of Relinquished Vehicles as directed by AESOP
Leasing; to establish and administer the Trust Accounts pursuant to this
Agreement; to receive in trust all proceeds of the sales of each Group of
Relinquished Vehicles and Other Trust Funds, if any, for deposit into the Trust
Accounts; to hold in trust the Trust Accounts pursuant to this Agreement; to
acquire Replacement Vehicles in trust upon terms and conditions negotiated and
provided by AESOP Leasing, and to make payment therefor; and to transfer the
Replacement Vehicles to AESOP Leasing.
(b) In connection with the acquisition of Replacement Vehicles
pursuant hereto, if the Intermediary shall not have received payments for
Relinquished Vehicles under the applicable Manufacturer Purchase Agreements in
the amount necessary to purchase all or any part of the Identified Replacement
Vehicles related thereto or shall not have other funds relating to such Group of
Relinquished Vehicles available in the AESOP Trust Accounts for such purpose,
the Intermediary shall have authority to accept advances from AESOP Leasing and
to obtain a Loan pursuant to the Receivables Financing Agreement when so
directed by AESOP Leasing. Funds so obtained pursuant to the Receivables
Financing Agreement or from AESOP Leasing shall be used for the sole purpose of
purchasing Replacement Vehicles with respect to a Group of Relinquished
Vehicles. To the extent any such funds are not used for such purpose on the date
received, such advances and/or Loans shall be treated as contributions to the
relevant AESOP Trust Account(s) as Other Trust Funds which shall not be repaid
or otherwise released to AESOP Leasing, the Trustee, any Secured Party or a
person related to AESOP Leasing except as provided below in Section 2.4 with
respect to the release of funds held by the Intermediary. The Intermediary shall
have no obligation to advance its own funds and shall not be required to
purchase any Identified Replacement Vehicle until it has received sufficient
funds under applicable Manufacturer Purchase Agreements or as otherwise
contemplated above.
(c) Without limiting the foregoing, the Intermediary is hereby
authorized and directed by AESOP Leasing as follows: (i) to enter into the
Receivables Funding Documents and in connection therewith to transfer and assign
to the Lender Agent all rights with respect to Special Service Charges (other
than Special Service Charges paid or payable to the Intermediary as indemnity
amounts for its own account or as compensation for its services hereunder, or to
reimburse the Intermediary for fees and expenses incurred by the Intermediary
pursuant to this Agreement); (ii) from time to time, pursuant to the terms
thereof and for the purpose of acquiring Replacement
Vehicles pursuant hereto, to seek Loans under the Receivables Financing
Agreement when so directed by AESOP Leasing; (iii) in connection with each Loan
under the Receivables Financing Agreement, to assign and pledge to the Lender
Agent the Designated Receivables with respect to such Loan, the related rights
constituting Receivables Lender Collateral transferred and assigned by AESOP
Leasing to the Intermediary pursuant to each Transfer Notice with respect to the
Group of Relinquished Vehicles to which such Loan relates and the other
Receivables Lender Collateral for such Loan pursuant to the Receivables Funding
Documents; and (iv) to enter into the Intercreditor Agreement.
(d) The Intermediary shall have no obligation to enter into the
Receivables Financing Agreement unless, on the date of execution thereof, it
shall receive, duly executed and delivered by the Administrator and AESOP
Leasing, respectively, the Administrator Representation Letter and the AESOP
Representation Letter; and the Intermediary shall have no obligation to obtain
any Loan pursuant to the Receivables Financing Agreement, unless on the date
such Loan is to be requested by the Intermediary, it shall receive, duly
executed and delivered by the Administrator and AESOP Leasing, respectively, an
Administrator Representation Certificate and an AESOP Representation
Certificate.
(e) AESOP Leasing agrees that the execution by AESOP Leasing of an
AESOP Representation Certificate shall in any event constitute AESOP Leasing's
authorization and direction to the Intermediary to obtain the Loan for which
such certificate is being delivered to the Lender Agent and to grant the
security interest in the Receivables Lender Collateral intended, pursuant to the
terms of the Receivables Funding Documents, to secure such Loan and each of the
Intermediary and the Lender Agent may conclusively rely on such certificate as
evidence of such authorization and direction by AESOP Leasing.
Section 2.3 CAPACITY OF INTERMEDIARY. The terms "acquire" and "transfer",
when used in the foregoing Section 2.2 and elsewhere in this Agreement, shall
have the meanings contemplated by Treasury Regulation ss. 1.1031(k)-1(g)(4).
Accordingly, such terms, when used in relation to the acquisition of Vehicles by
the Intermediary, or transfer of Vehicles to the Intermediary, mean that the
Intermediary is acting solely in its capacity as a Qualified Intermediary,
within the meaning of the Treasury Regulations, and as trustee, to effect the
acquisition or transfer of Replacement Vehicles or Relinquished Vehicles. The
Intermediary will not at any time take delivery of, or otherwise have possession
of, any Vehicles; nor shall the Intermediary at any time have possession of, or
be named as owner or lienholder on, the certificate of title for any Vehicle.
Furthermore, any reference in this Agreement or any other Fleet Financing
Document or Receivables Funding Document to "Intermediary" shall mean Bank One,
or any Eligible Successor Intermediary, acting in all of its capacities under
this Agreement.
Section 2.4 RESTRICTIONS ON RIGHTS OF AESOP LEASING; RELEASE OF TRUST
ACCOUNT PROPERTY; RECONVEYANCE OF PROPERTY. Except with respect to directing the
purchase of Replacement Vehicles and as otherwise expressly provided in this
Agreement, AESOP Leasing has no right to receive, pledge, borrow or otherwise
obtain the benefits of any funds or property held by the Intermediary in trust
for the benefit of AESOP Leasing pursuant to this Agreement. Notwithstanding the
preceding sentence, the Intermediary shall deliver or cause to be delivered to
the Trustee (in accordance with the directions set forth in SCHEDULE 4), with
respect to each Group of Relinquished Vehicles, on the Business Day following
the receipt by the Intermediary from AESOP Leasing of written notice of the
occurrence of any one or more of the Group Closing Events with respect to such
Group of Relinquished Vehicles, the following property: all proceeds of such
Group of Relinquished Vehicles (excluding any portion thereof that constitutes
Receivables Lender Collateral), including, without limitation, all Relinquished
Vehicle Receivables and all funds and other property held in the AESOP Trust
Account corresponding to such Group of Relinquished Vehicles, including the
proceeds of any loans made with respect to such Group of Relinquished Vehicles.
In connection with each such release of property to the Trustee, the
Intermediary also shall deliver to each of AESOP Leasing and the Trustee an
instrument, substantially in the form of Exhibit C hereto, conveying to AESOP
Leasing all right, title and interest of the Intermediary in any and all
Relinquished Vehicle Receivables then remaining outstanding in respect of each
Group of Relinquished Vehicles as to which such a release is made, unless such
receivables at such time continue to constitute part of the Receivables Lender
Collateral (in which case, the conveyance shall be delivered on such later date
as the related Loan shall have been determined to have been paid in full
pursuant to Section 6(c) of the Intercreditor Agreement, if any such receivables
then continue to remain outstanding).
Section 2.5 NOTICE OF GROUP CLOSING EVENT. AESOP Leasing agrees that
it shall give prompt written notice to the Intermediary and the Trustee of the
occurrence of a Group Closing Event with respect to any Group of Relinquished
Vehicles.
Section 2.6 NOTICE OF INTERMEDIARY EXCHANGE AGREEMENT TERMINATION
EVENT. The Intermediary agrees that it shall give prompt written notice to AESOP
Leasing, the Trustee and the Lender Agent if at any time the Intermediary ceases
to have the Requisite Rating and of any other Intermediary Exchange Agreement
Termination Event.
SECTION III: IDENTIFICATION AND TRANSFER OF RELINQUISHED VEHICLES
Section 3.1 TRANSFER OF RELINQUISHED VEHICLES BY AESOP LEASING. From
time to time, AESOP Leasing may transfer, at its sole discretion, certain
Vehicles owned by it to the Intermediary for exchange pursuant to this
Agreement. Each such transfer shall be made by a "Notice of Relinquished Vehicle
Identification and Transfer", substantially in the form of ANNEX 1 hereto (a
"TRANSFER NOTICE"). Each such Transfer Notice also shall designate such
Identified Relinquished Vehicles as constituting all or part of a particular
Group of Relinquished Vehicles, and shall specify the identifying number of the
relevant Group of Relinquished Vehicles. The transfer of each Identified
Relinquished Vehicle pursuant to this Agreement, whereupon the Intermediary
shall be treated as "acquiring" such Vehicle for purposes of Treasury
Regulation ss. 1.1031(k)-
1(g)(4), shall be effective upon the last to occur of the following: (a) AESOP
Leasing has identified such Vehicle as an Identified Relinquished Vehicle by
delivery of a Transfer Notice; (b) AESOP Leasing has caused such Vehicle to be
released from the lien of the Loan Agreement; (c) AESOP Leasing has delivered
possession of such Vehicle to the location specified by the relevant
Manufacturer; and (d) the Vehicle has been accepted for purchase or sold in an
auction pursuant to the relevant Manufacturer Purchase Agreement.
Section 3.2 DISPOSITION OF RELINQUISHED VEHICLES UNDER MANUFACTURER
PURCHASE AGREEMENT. Prior to the transfer of any Vehicle to the Intermediary,
AESOP Leasing shall have contracted to sell such Identified Relinquished Vehicle
pursuant to a Manufacturer Purchase Agreement, and, simultaneously with the
transfer of any Vehicle to the Intermediary, AESOP Leasing shall assign to the
Intermediary its rights under such Manufacturer Purchase Agreement to the extent
relating to each such Identified Relinquished Vehicle, pursuant to the relevant
Transfer Notice, and shall notify the relevant Manufacturer of such assignment
by delivery of a copy of such Transfer Notice. The Intermediary hereby consents
to and assumes all such assignments in accordance with this Agreement. The
Intermediary shall sell each Identified Relinquished Vehicle in accordance with
the Manufacturer Purchase Agreement rights so assigned, and shall not
compromise, release, settle or otherwise adjust the terms of any such contract
to sell without the prior written consent of AESOP Leasing.
Section 3.3 CERTIFICATES OF TITLE FOR RELINQUISHED VEHICLES. AESOP
Leasing and the Intermediary hereby agree that, with respect to each
Relinquished Vehicle, AESOP Leasing shall assign and deliver, or shall cause its
nominee to assign and deliver, the certificate of title therefor directly to the
transferee of the Intermediary.
Section 3.4 PROCEEDS OF SALE. All proceeds of the sale of
Relinquished Vehicles received by the Intermediary shall be, upon the Business
Day received by the Intermediary, (i) deposited in the appropriate Lender Trust
Account or Accounts, or applied to outstanding borrowings in accordance with the
Receivables Funding Documents, to the extent constituting Receivables Lender
Collateral, or (ii) deposited in the appropriate AESOP Trust Account or Account
to the extent not constituting Receivables Lender Collateral. Except as
permitted by Section 2.4 hereof, under no circumstances shall AESOP Leasing
receive funds from any sales of Relinquished Vehicles for its own account.
Accordingly, AESOP Leasing agrees that it shall direct the purchasers of
Relinquished Vehicles to make such payments to the Intermediary pursuant to this
Agreement; PROVIDED, HOWEVER, that so long as the Indenture is in effect,
payments made by a Manufacturer pursuant to a Manufacturer Purchase Agreement
shall be made to the Collection Account and disbursed to the Intermediary or the
Lender Agent in accordance with the terms of the Intercreditor Agreement, except
as may be otherwise directed by AESOP Leasing with the prior written consent of
the Trustee and each Enhancement Provider, and, so long as any of the
Receivables Funding Documents are in effect, the prior written consent of the
Lender Agent. Absent actual receipt of written notice from the Trustee or the
Lender Agent contesting the application of funds to an AESOP Trust Account, a
Lender Trust Account, or a borrowing under the Receivables Financing Agreement,
as the case may be, the Intermediary shall be entitled to rely on a certificate
provided by the Administrator pursuant to the Intercreditor Agreement in
determining which amounts are to be credited to an AESOP Trust Account and which
amounts are to be credited to a Lender Trust Account or applied to outstanding
borrowings under the Receivables Funding Documents. In the event of the receipt
by the Intermediary of any such notice, and failure to resolve the matter in
dispute within two Business Days thereafter, then, if the amount in controversy
is greater than $1,000,000, the parties agree that the dispute resolution
procedures set forth in the Intercreditor Agreement shall apply.
Section 3.5 RECEIPT OF FUNDS IN ERROR; OTHER TRUST FUNDS. In the
event the Intermediary receives funds in error that are not intended to be
received by it pursuant to this Agreement or otherwise receives Other Trust
Funds, the Intermediary shall: (1) if so instructed in writing by AESOP Leasing,
promptly return such funds to the remitter thereof; (2) deposit such funds into
the Trust Accounts as directed in writing by AESOP Leasing; (3) in the absence
of written instructions from AESOP Leasing, deposit such funds into a suspense
account that is a segregated trust account maintained by the Intermediary in the
name of AESOP Leasing, indicating that such funds are held in trust for AESOP
Leasing, pending instructions from AESOP Leasing as to the Trust Account into
which such funds should be deposited; or (4) if it receives funds that pursuant
to the Intercreditor Agreement or this Agreement are to be paid directly to the
Lender Agent and not the Intermediary, promptly deliver such funds to the Lender
Agent, and, if such delivery cannot practicably be made on the date such funds
are received, pending such delivery, shall deposit such funds into a suspense
account that is a segregated trust account maintained by the Intermediary in the
name of the Lender Agent.
Section 3.6 RESCISSION OF IDENTIFICATION. From time to time an
Identified Relinquished Vehicle subject to a Manufacturer Purchase Agreement may
be identified for transfer to the Intermediary pursuant to Sections 3.1 and 3.2
of this Agreement and it may subsequently be determined that the Intermediary is
not able to dispose of such Identified Relinquished Vehicle as intended under
such Manufacturer Purchase Agreement. In such event, prior to the expiration of
the relevant Identification Period, AESOP Leasing, pursuant to a written notice
substantially in the form of ANNEX 2 attached hereto, may rescind the prior
identification to the Intermediary of such Identified Relinquished Vehicle (and
the assignment of related rights pursuant to the relevant Manufacturer Purchase
Agreement). AESOP Leasing also shall deliver a copy of any such notice of
rescission to the relevant Manufacturer under the relevant Manufacturer Purchase
Agreement. AESOP Leasing acknowledges that the determination of the effect any
such rescission may have on the identification of Replacement Vehicles under
Section 4.1 of this Agreement is solely its responsibility.
Section 3.7 OTHER DUTIES OF AESOP LEASING. With respect to each
Group of Relinquished Vehicles, AESOP Leasing shall notify the Intermediary in
writing of the expiration date of the Exchange Period therefor and the
expiration date of the Identification Period therefor. In each case, such
notification may be made in the first Transfer Notice given with respect to a
Group of Relinquished Vehicles.
SECTION IV: IDENTIFICATION AND ACQUISITION OF REPLACEMENT VEHICLES
Section 4.1 IDENTIFICATION. AESOP Leasing acknowledges that it is
required, under Code Section 1031(a)(3) and Treasury Regulation
ss. 1.1031(k)-1(c), to
have designated vehicles as Identified Replacement Vehicles with respect to a
Group of Relinquished Vehicles prior to the expiration of the relevant
Identification Period. AESOP Leasing expressly acknowledges and agrees that the
Intermediary has no duty to monitor compliance with such identification
requirements and AESOP Leasing hereby assumes sole responsibility for
identifying Replacement Vehicles.
Section 4.2 REVOCATION OF IDENTIFICATION. By a written notice to the
Intermediary, substantially in the form of ANNEX 4 attached hereto, AESOP
Leasing may revoke a prior identification of one or more Identified Replacement
Vehicles before the end of the Identification Period with respect to a Group of
Relinquished Vehicles, in accordance with Treasury Regulation
ss. 1.1031(k)-1(c)(6); PROVIDED, HOWEVER, that such a revocation may not be made
with respect to a particular Identified Replacement Vehicle after AESOP Leasing,
in accordance with its customary operating procedures, has accepted such
Identified Replacement Vehicle and delivered a Notice of Acceptance to the
Intermediary in connection therewith.
Section 4.3 ASSIGNMENT OF PURCHASE RIGHTS; ACQUISITION OF
REPLACEMENT VEHICLES. AESOP Leasing may designate Vehicles as Identified
Replacement Vehicles with respect to each Group of Relinquished Vehicles, and,
with respect to any such Identified Replacement Vehicles, shall negotiate the
terms of purchase thereof and shall execute or cause to be executed a Purchase
Agreement for such Identified Replacement Vehicles (a "PURCHASE AGREEMENT").
AESOP Leasing shall assign a Purchase Agreement to the Intermediary in whole or
in part, to the extent that any Vehicles covered by such Purchase Agreement are
to be Replacement Vehicles. Prior to or simultaneously with the acceptance by
AESOP Leasing of any Identified Replacement Vehicles (in accordance with its
ordinary procedures for the acceptance of Vehicles from a dealer), AESOP Leasing
will execute a Partial Assignment of Manufacturer Purchase Agreement
substantially in the form of ANNEX 3 attached hereto (a "PURCHASE AGREEMENT
ASSIGNMENT"), assigning to the Intermediary all of AESOP Leasing's right, title
and interest in and to such Manufacturer Purchase Agreement to the extent
relating to such Identified Replacement Vehicles. AESOP Leasing shall deliver a
copy of each Purchase Agreement Assignment to the relevant Manufacturer. The
Intermediary hereby consents to and assumes all such assignments made by AESOP
Leasing without further acknowledgment by the Intermediary. Prior to the
acceptance by AESOP Leasing of any Identified Replacement Vehicles pursuant to
any such Purchase Agreement, all parties to such agreement, including the
seller, shall be notified in writing of such assignment by AESOP Leasing by copy
of the relevant Purchase Agreement Assignment. Each Purchase Agreement with
respect to a Replacement Vehicle shall be deemed to have closed, and the
Intermediary shall be deemed to have acquired from the seller thereof and
transferred to AESOP Leasing the Replacement Vehicles subject thereto within the
meaning of Treasury Regulation ss. 1.1031(k)-1(g)(4)(iv)(C), upon receipt by the
Intermediary of verbal advice from AESOP Leasing that AESOP Leasing has accepted
delivery of such Replacement Vehicles, such advice to be promptly confirmed by
delivery to the Intermediary of a Notice of Acceptance substantially in the form
of Annex 5 hereto ("Notice of Acceptance").
Section 4.4 FUNDING FOR PURCHASES. The Intermediary may use all or
any portion of the funds available in the AESOP Trust Account corresponding to a
Group
of Relinquished Vehicles for the acquisition of Replacement Vehicles for such
Group of Relinquished Vehicles; PROVIDED, that the Intermediary shall not be
required to acquire Replacement Vehicles for a Group of Relinquished Vehicles,
if the amount required for such acquisition, including all costs and expenses,
is greater than the amount of funds available for such acquisition in the AESOP
Trust Account corresponding to such Group of Relinquished Vehicles, unless a sum
at least equal to the difference between the funds so available and the funds
required is provided by AESOP Leasing, or is advanced to the Intermediary
pursuant to the Receivables Funding Documents, in each case as contemplated by
Section 2.2 hereof. Payments by the Intermediary for Replacement Vehicles shall
be made as set forth in SCHEDULE 4 attached hereto. The Intermediary agrees to
promptly notify AESOP Leasing if it becomes aware that the purchase price
(including expenses) for any Replacement Vehicles, as set forth in the Notice of
Acceptance for such Replacement Vehicles, exceeds the funds held by the
Intermediary in the AESOP Trust Accounts that are available for such purchase.
Section 4.5 CERTIFICATES OF TITLE. All Replacement Vehicles shall be
titled in the name of AESOP Leasing (or its permitted nominee, pursuant to the
Fleet Financing Documents) together with a notation of a lien in favor of the
Trustee. With respect to each Replacement Vehicle, AESOP Leasing shall take or
cause to be taken all action necessary for the certificate of title therefor to
be promptly so applied for and so issued. Further, AESOP Leasing shall cause and
direct to be caused the title certificates for the Replacement Vehicles to be
promptly delivered to the Trustee (or its permitted custodian, pursuant to the
Fleet Financing Documents). The Intermediary shall cooperate with AESOP Leasing
to the extent necessary to effect or to assist AESOP Leasing in effecting such
titling.
SECTION V: TRUST ACCOUNTS
Section 5.1 TRUST ACCOUNTS.
(a) The Intermediary shall deposit all funds or property received or
held by it in its capacity as Intermediary, other than amounts payable to it as
fees for its services or reimbursement of expenses, or payable to it as
indemnities pursuant to this Agreement, and other than amounts paid by any
Lessee as Special Service Charges or amounts paid by ARC as guarantee payments
thereof, in one or more Trust Accounts (each, a "Trust Account") established and
maintained by the Intermediary within its corporate trust department as
segregated trust accounts pursuant to this Agreement, in the name and for the
benefit of AESOP Leasing (the "AESOP Trust Accounts"), or, to the extent such
funds or property constitute collections on Designated Receivables, Assigned
Special Default Payments or investment earnings thereon, in the name and for the
benefit of the Lender Agent (the "Lender Trust Account(s)"). Absent actual
receipt by the Intermediary of written notice from the Trustee or the Lender
Agent contesting the application of amounts to an AESOP Trust Account, or a
Lender Trust Account, or a borrowing under the Receivables Financing Agreement,
the Intermediary shall be entitled to rely upon a certificate of the
Administrator, pursuant to the Intercreditor Agreement, in determining whether
amounts are to be credited to an AESOP Trust Account or a Lender Trust Account
or applied to outstanding borrowings under the Receivables Financing Agreement
as provided in Section 3.4 hereof. In the event of the receipt by the
Intermediary of any such notice, and failure to resolve the matter in dispute
within two
Business Days thereafter, then, if the amount in controversy is greater than
$1,000,000, the parties agree that the dispute resolution procedures set forth
in the Intercreditor Agreement shall apply. The funds from time to time in the
Trust Account(s) shall be invested by the Intermediary in Permitted Investments
as directed in writing by AESOP Leasing. In the absence of written direction
from AESOP Leasing or of standing instructions to the contrary, the Intermediary
shall invest the Trust Accounts in The One Group U.S. Treasury Money Market
Fund. The Intermediary shall not be liable for losses on any investments made by
it pursuant to and in compliance with the provisions of this Agreement.
(b) Amounts payable by any Lessee as Special Service Charges that
represent fees, expenses, indemnity amounts or other amounts payable to the
Lender Agent, shall, if so requested by the Lender Agent by a notice delivered
to each of the Intermediary, AESOP Leasing and the Administrator, be paid
directly to the Lender Agent. Otherwise, any such amounts paid to the
Intermediary shall be paid by the Intermediary to the Lender Agent on the date
received; PROVIDED, that to the extent such amounts cannot practicably be paid
by the Intermediary to the Lender Agent on the date received, the Intermediary
shall deposit such funds into a suspense account that is a segregated trust
account maintained by the Intermediary in the name of the Lender Agent pending
their payment to the Lender Agent.
(c) The Lender Agent shall have sole dominion and control over all
Lender Trust Accounts and all monies, investments and other properties therein
or thereof and all proceeds of any of the foregoing, and no such monies,
investments, other properties or proceeds may be withdrawn or transferred
therefrom without the prior written consent or direction of the Lender Agent
(except as otherwise expressly provided pursuant to Section 6(c) of the
Intercreditor Agreement); PROVIDED, that (x) prior to (i) the actual receipt by
the Intermediary of written notice from the Lender Agent that an Event of
Default under and as defined in any of the Receivables Funding Documents has
occurred or (ii) the Intermediary otherwise having actual knowledge of the
occurrence of any such Event of Default, the Administrator may request the
Intermediary to remit directly to the Lender Agent (and only directly to the
Lender Agent) by wire transfer amounts held in any such Lender Trust Account for
the purpose of applying such amounts to the payment of principal and interest
(and breakage amounts, if any) owing under the Receivables Funding Documents and
(y) monies in any Lender Trust Account may, until intended to be withdrawn
therefrom, be invested in Permitted Investments as provided above. The
Intermediary agrees that, upon either (1) the written request of the Lender
Agent made concurrently with or after sending to the Intermediary notice of the
occurrence of any such Event of Default or (2) receipt of notice of any
termination of the Intermediary pursuant to Section 8.2 hereof, the Intermediary
shall promptly remit to the Lender Agent all monies, investments and other
property in the Lender Trust Accounts.
Section 5.2 TRUST ACCOUNT DEPOSITS AND DISBURSEMENTS. The
Intermediary agrees to deposit into the appropriate Trust Accounts from time to
time, in each case, on the Business Day received, the funds described in
SCHEDULE 3 hereto. After
receipt, the Intermediary shall deliver funds, or portions thereof, held in the
Trust Accounts, in accordance with the provisions of this Agreement (including
the procedures set forth in SCHEDULE 4 hereto). The Intermediary shall make
requested disbursements to dealers or Manufacturers for purchases of Replacement
Vehicles or to the Lender Agent or to the Trustee, when applicable, in
conformity with the provisions of SCHEDULE 4, in each case, on the Business Day
it receives instructions therefor if such instructions are received before 12:30
p.m., New York time, or on the next following Business Day, if such instructions
are received after 12:30 p.m., New York time (or, with respect to requested
disbursements to dealers or Manufacturers, on such later Business Day as is
specified by AESOP Leasing). The Intermediary shall rely upon written
instruction when communicated by fax, mail or courier when executed and
delivered by one of the authorized representatives of AESOP Leasing as set forth
in SCHEDULE 2 to this Agreement (as such SCHEDULE 2 may be amended from time to
time by AESOP Leasing by written notice to the Intermediary). Disbursement by
the Intermediary for purchases of Replacement Vehicles may be made by check,
bank or cashiers check or wire transfer, as directed by AESOP Leasing, and in
the case of amounts payable to a dealer may be directed to be paid to a finance
company or other financial institution to repay indebtedness of the dealer in
connection with such Vehicles. Disbursements to the Lender Agent or the Trustee
shall be made by wire transfer as set forth on SCHEDULE 4, unless otherwise
directed in writing by the Lender Agent or the Trustee, as applicable.
Section 5.3 TRUST ACCOUNT EARNINGS. All interest or other earnings
earned on the Trust Accounts shall be credited to the relevant Trust Account by
the Intermediary and reinvested in such Trust Account. AESOP Leasing has no
right to receive, pledge or otherwise obtain the benefits of such interest or
other earnings prior to the time that funds (including such interest) in a Trust
Account may be disbursed pursuant to this Agreement.
Section 5.4 ACCOUNTING FOR TRUST ACCOUNTS.
(a) On books and records maintained by the Intermediary pursuant to
this Agreement, the Intermediary shall establish and maintain records for the
Trust Accounts. For each Group of Relinquished Vehicles, the Intermediary shall
establish a separate AESOP Trust Account and a separate Lender Trust Account,
appropriately designated to indicate that each such Trust Account relates to the
same Group of Relinquished Vehicles. Absent actual receipt of written notice
from the Lender Agent or the Trustee contesting allocations of funds to
particular Groups of Relinquished Vehicles, the Intermediary shall be entitled
to rely upon certificates from time to time provided by ARAC, as Administrator,
in determining the allocation of funds to particular Groups of Relinquished
Vehicles. (In the event any such notice is given, if the dispute is not resolved
within two Business Days and the amount in controversy is greater than
$1,000,000, the parties agree that the dispute resolution procedures in the
Intercreditor Agreement shall apply.) The AESOP Trust Accounts, on the one hand,
and the Lender Trust Accounts, on the other hand, shall be kept separate from
each other and shall not be commingled; PROVIDED, HOWEVER, that for purposes of
the tax records to be maintained with respect to each Group of Relinquished
Vehicles, the amounts in the respective AESOP Trust Account and Lender Trust
Account corresponding to each such Group shall be aggregated or netted, as the
case may be.
(b) Each Lender Trust Account or AESOP Trust Account, as the case
may be, shall be increased by: (1) the amount of proceeds (or any portion
thereof) of each Group of Relinquished Vehicles received in connection with the
disposition of such Relinquished Vehicles by the Intermediary and allocable to
such Trust Account pursuant to the Intercreditor Agreement and the terms hereof;
(2) interest and other earnings on such Trust Account; (3), in the case of each
AESOP Trust Account, any funds that are released from the corresponding Lender
Trust Account pursuant to the Intercreditor Agreement and, pursuant to the
Intercreditor Agreement, to be deposited into such AESOP Trust Account; and (4)
Other Trust Funds received by the Intermediary and allocable to such Trust
Account pursuant to the Intercreditor Agreement or the terms hereof, including,
with respect to any AESOP Trust Account, any direct contribution of funds by
AESOP Leasing and the proceeds of any Loans made by the Receivables Lender.
(c) Each Lender Trust Account or AESOP Trust Account, as the case
may be, shall be decreased by: (1) in the case of each AESOP Trust Account, the
purchase price and applicable expenses, if any, relating to the acquisition of
Replacement Vehicles; (2) in the case of each Lender Trust Account, any amounts
payable from such Lender Trust Account to the Lender Agent for principal and
interest (and breakage amounts, if any) payable by or incurred by the
Intermediary, in its capacity as Borrower under the Receivables Funding
Documents; (3) in the case of each Lender Trust Account, any amounts credited
thereto that are in excess of the amounts owing to the Lender in respect of
principal and interest (and breakage amounts, if any) with respect to the
related Group of Relinquished Vehicles and that are to be released to the
corresponding AESOP Trust Account pursuant to the Intercreditor Agreement; and
(4) in the case of each AESOP Trust Account, any funds released to the Trustee
in accordance with Section 2.4 of this Agreement.
(d) The Intermediary shall deliver detailed statements of all Trust
Accounts, including all credits and debits thereto, to AESOP Leasing, to the
Trustee and to the Lender Agent on a monthly basis. Funds received by the
Intermediary with respect to any such separate AESOP Trust Account may be
commingled with funds held in trust for AESOP Leasing with respect to other
AESOP Trust Accounts, and funds received by the Intermediary with respect to any
such separate Lender Trust Account may be commingled with funds held in trust
for the Lender Agent with respect to other Lender Trust Accounts, so long as the
records maintained by the Intermediary properly account for additions and
reductions relating to each such account, including with respect to applicable
earnings thereon.
(e) In any circumstance contemplated by this Agreement or the
Intercreditor Agreement in which funds ordinarily to be credited to the Lender
Trust Account are paid directly to the Lender Agent, the Intermediary shall
indicate on its Trust Account books and records that an amount allocable to the
Lender Trust Account
corresponding to such Group of Relinquished Vehicles has been paid directly to
the Lender Agent pursuant to the Intercreditor Agreement.
Section 5.5 POWER OF ATTORNEY. AESOP Leasing hereby grants to the
Intermediary power of attorney to endorse any checks, drafts or other payments
received by the Intermediary for deposit pursuant to the provisions of SCHEDULE
3 but requiring the signature of AESOP Leasing. AESOP Leasing shall take such
further steps as may be reasonably required to evidence this limited power of
attorney granted to the Intermediary.
Section 5.6 NO RIGHT OF OFFSET. The Intermediary agrees that it
shall have no right to offset any claim it may have against AESOP Leasing or any
other Person against any funds, investments or other property held by the
Intermediary pursuant to this Agreement; and the Intermediary hereby expressly
waives any such right it otherwise may have had.
Section 5.7 GOOD FUNDS. Any check, draft or other item included in
the funds provided to the Intermediary under this Agreement shall be collected
by the Intermediary and the proceeds held in trust for AESOP Leasing or the
Lender Agent, as applicable, as part of the Trust Accounts. No monies shall be
disbursed by the Intermediary until the Intermediary has received good funds in
connection with any such item. The Intermediary shall have no duty to take any
legal action to enforce payment of any item deposited with it or provided to it;
PROVIDED, that the Intermediary promptly shall notify AESOP Leasing if any item
deposited is returned unpaid or if the Intermediary otherwise does not receive
collected funds in the normal course.
SECTION VI: RIGHTS OF THE SECURED PARTIES
Section 6.1 PAYMENTS TO AESOP LEASING. Notwithstanding any other
provision of this Agreement to the contrary, all payments to be made to AESOP
Leasing pursuant hereto shall be paid to the Trustee in the manner set forth in
SCHEDULE 4.
Section 6.2 THE FLEET FINANCING DOCUMENTS. Pursuant to the Loan
Agreement, AESOP Funding II L.L.C. has a lien on any and all Vehicles from time
to time owned by AESOP Leasing, any rights relating thereto under Manufacturer
Purchase Agreements, and any and all proceeds thereof. Pursuant to the
Indenture, the Trustee has a lien on all assets of AESOP Funding II L.L.C.,
including its interest in all of the Vehicles from time to time owned by AESOP
Leasing, any rights relating thereto under Manufacturer Purchase Agreements and
any and all proceeds thereof, for the benefit of the Secured Parties. Pursuant
to the Fleet Financing Documents and the Intercreditor Agreement, and as more
fully described therein, (a) subject to the conditions set forth therein, the
Secured Parties have agreed (or consented, as the case may be) to the release of
their lien on Relinquished Vehicles (and to permit the transfer and provision of
the certificates of title therefor by AESOP Leasing or its nominee, pursuant to
the Fleet Financing Documents) and related rights including rights in the
Relinquished Vehicle Receivables, such release to be effective in each case upon
the transfer of a Relinquished Vehicle by AESOP Leasing to the Intermediary in
accordance with this Agreement, and the Secured Parties have acknowledged that
any funds held in trust from time to time by the Intermediary in the Trust
Accounts shall not be subject to the lien of the Indenture, and (b) pursuant to
the Fleet Financing Documents, the Secured Parties have
acknowledged the restrictions provided for by this Agreement on the payment of
proceeds of the sale of Relinquished Vehicles.
Section 6.3 TRANSFER FREE OF LIENS. In accordance with Section 3.3
hereof, no later than the date upon which the transfer occurs of any
Relinquished Vehicle to or for the benefit of the Intermediary, AESOP Leasing
shall (or shall cause its nominee to) transfer and provide title to such
Relinquished Vehicle to the transferee of the Intermediary free of any liens or
encumbrances in favor of the Trustee or of any other Person.
Section 6.4 RESTRICTIONS ON PLEDGES BY THE INTERMEDIARY. Except to
the extent expressly provided in the Receivables Funding Documents with respect
to Receivables Lender Collateral, the Intermediary agrees that it shall not
incur indebtedness with respect to, pledge or encumber, or assign any rights
relating to, any Relinquished Vehicle or Replacement Vehicle or the proceeds
thereof, any funds or other property credited at any time to any Trust Account,
any property constituting Receivables Lender Collateral not described in the
foregoing, or any other property or rights held by or on behalf of the
Intermediary under and pursuant to this Agreement, including rights in and under
this Agreement.
SECTION VII: OTHER RIGHTS AND DUTIES OF THE INTERMEDIARY
Section 7.1 GENERAL.
(a) Subject to the restrictions on rights to and distributions of
funds and property set forth in Sections 2.2 and 2.4 hereof, all funds, property
and rights thereto held by or for the Intermediary pursuant to this Agreement
are and shall be held in trust for the benefit of AESOP Leasing or, with respect
to the Receivables Lender Collateral, for the benefit of the Lender Agent, as
applicable; PROVIDED, HOWEVER, that from and after the receipt by the
Intermediary from any of AESOP Leasing, AFC-II or the Trustee of notice of an
AESOP Exchange Agreement Termination Event, all funds, property, and rights
prior thereto held in trust for the benefit of AESOP Leasing shall be deemed
held in trust for the benefit of the Trustee. All funds and property shall be so
held in segregated Trust Accounts for the purposes set forth in this Agreement.
(b) The Intermediary shall have no liability to any Person in acting
upon any written notice, request, waiver, consent, certificate, receipt,
authorization, or other paper or document which the Intermediary believes to be
genuine and what it purports to be. The Intermediary shall not be charged with
knowledge of any fact, including, without limitation, performance or
non-performance of any condition, unless the Intermediary has actually received
written notice thereof from the Person(s) or their authorized representative
from which notice is required or necessary. Without limiting the foregoing, for
any purposes of this Agreement that contemplate the transfer or release of funds
by the Intermediary upon or following the payment in full of a Loan, or that
otherwise incorporate an assumption that a Loan shall have been paid in full,
the Intermediary shall be conclusively entitled to rely upon a determination of
payment in full of such Loan pursuant to Section 6(c) of the Intercreditor
Agreement.
(c) The Intermediary shall not be liable to any Person for anything
that it may do or refrain from doing in connection with this Agreement, except
for its own negligence, bad faith or willful misconduct.
(d) The Intermediary shall act in good faith in connection with this
Agreement.
(e) The Intermediary may confer with legal counsel in the event of
any dispute or question as to the construction of any of the provisions hereof,
or its duties hereunder, and it shall incur no liability and it shall be fully
protected in acting in accordance with the opinions of such counsel.
(f) In the event that any conflicting or inconsistent claims or
demands are made in connection with the subject matter of this Agreement, and
the Intermediary makes a good faith determination that there is doubt as to what
action it should take hereunder, the Intermediary may, at its option, refuse to
comply with such claims or demands on it, so long as such disagreement continues
and such doubt exists, and in any such event, the Intermediary shall not be or
become liable in any way or to any Person for its failure or refusal to act, and
the Intermediary shall be entitled to continue to refrain from acting until (i)
the rights of all parties have been fully and finally adjudicated by a court of
competent jurisdiction, or (ii) all differences shall have been settled and all
doubt resolved by agreement among all of the interested Persons, and the
Intermediary shall have been notified thereof in writing signed by all such
Persons. Without limiting the foregoing, in the event that conflicting or
inconsistent claims or demands are made on the Intermediary in connection with
the subject matter of this Agreement, and the Intermediary makes a good faith
determination that there is doubt as to the course of action it should take
under this Agreement, the Intermediary may petition the United States District
Court for the Southern District of New York for instructions or to interplead
the funds or assets held by it in trust pursuant hereto (including the Trust
Accounts) into such court, or, if the Intermediary is not indemnified to its
reasonable satisfaction for the costs and expenses of such an action, it may
petition the United States District Court for the Northern District of Texas for
such instructions or to so interplead such funds or assets. In each such case,
the parties agree to the jurisdiction of said courts over their persons as well
as the Trust Accounts and other property over which the Intermediary has
authority under this Agreement, waive personal service of process, and agree
that service of process by certified or registered mail, return receipt
requested, to the respective address provided herein shall constitute adequate
service. AESOP Leasing hereby agrees to indemnify and hold the Intermediary
harmless from any liability or losses occasioned thereby and to pay the
reasonable costs, expenses, and attorneys' fees incurred by the Intermediary in
any such action, and agrees that, subject to the provisions of subsection (c)
above, in connection with such petition, the Intermediary, its servants, agents,
employees, officers or directors will be relieved of further liability.
(g) In no event shall the Intermediary be liable to any Person for
any taxes or for any penalties or interest thereon arising out of or in
connection with the
transactions contemplated by this Agreement (other than taxes measured by the
net income of the Intermediary or imposed in lieu of such taxes).
(h) In no event shall the Intermediary be liable to any Person for
any special, exemplary, incidental, consequential or punitive damages.
Section 7.2 INDEMNIFICATION OF THE INTERMEDIARY. The Intermediary
has not made nor will it make any investigation with respect to any Relinquished
Vehicles or Replacement Vehicles, nor shall it be liable to AESOP Leasing for
any representation or warranty whatsoever concerning any matter affecting or
relating to any Vehicle, the condition thereof or the title thereto. Subject to
SECTION 8.14 hereof, AESOP Leasing hereby agrees to indemnify and hold harmless
the Intermediary, its directors, officers, employees, attorneys and agents, from
and against, any liability, demand, claim, loss, damage, cost or expense
(including, without limitation, reasonable attorneys' fees) that any of them may
incur, arising out of or in connection with the activities of the Intermediary
pursuant to this Agreement; such indemnity includes, without limitation, any
claim, liability, demand, expense, tax or assessment of any nature or kind
(excluding, however, any taxes measured by the net income of the Intermediary,
or imposed in lieu of such taxes), express or implied, whether sounding in tort
or in contract that may be asserted against the Intermediary or such other
indemnified person by any Person, including, without limitation, any and all
supplemental taxes levied by or for the county or state in which the respective
Vehicle is located, that arise out of or in connection with the Intermediary's
entering into this Agreement or performing its duties hereunder.
Section 7.3 EXCLUSIONS FROM INDEMNITY. Notwithstanding anything to
the contrary in the foregoing Section 7.2 or elsewhere in this Agreement, in no
event shall the Intermediary (or its directors, officers, employees, attorneys
or agents) be indemnified for any claim, liability, demand, expense, tax or
assessment or any kind or nature that arises from the negligence, bad faith or
willful misconduct of the Intermediary or such other indemnified person, as the
case may be.
Section 7.4 COMPENSATION AND REIMBURSEMENT OF THE INTERMEDIARY.
(a) As compensation for its services hereunder, subject to SECTION
8.14 hereof, the Intermediary shall be entitled to the fees described, and to
reimbursement of expenses as set forth, in SCHEDULE 1 hereto. Unless otherwise
agreed, AESOP Leasing shall pay such fees, and reimburse the Intermediary for
such expenses, within 30 days of its receipt of the Intermediary's statement
therefor.
(b) Notwithstanding the foregoing Section 7.4(a) or any other
provision hereof or of the Receivables Funding Documents (other than Section
12.17 of the Receivables Financing Agreement) to the contrary, the Intermediary
shall not be required to expend its own funds, including without limitation to
pay any fees, indemnities or other amounts payable to the Lender Agent pursuant
to the Receivables Funding Documents. Accordingly, AESOP Leasing agrees, subject
to SECTION 8.14 hereof, that it shall promptly pay any such amounts upon request
(excluding, in any event, any amounts payable constituting principal, interest
or breakage amounts);
PROVIDED, that AESOP Leasing shall have received at least three Business Days
prior written notice from the Intermediary.
(c) To the extent that AESOP Leasing does not have funds available
for the payment of any such amount described in (a) or (b) above on the date
payable, AESOP Leasing shall promptly invoice (or request the Administrator to
invoice) the applicable Lessee or Lessees for Special Service Charges. AESOP
Leasing hereby transfers and assigns to the Intermediary all right, title and
interest of AESOP Leasing in, to and under such rights to Special Service
Charges including the right to invoice or request payment thereof and the right
to exercise any and all remedies available at law or in equity to collect such
sums from the applicable Lessees or the Guarantor in the event that any such
amounts are not promptly paid when due; it being agreed, however, that so long
as the Lender Agent has not delivered to each of the Intermediary, the
Administrator, the Trustee and AESOP Leasing notice that an Event of Default (as
therein defined) has occurred under the Receivables Financing Agreement, the
Intermediary authorizes AESOP Leasing to invoice, or request the Administrator
to invoice, Special Service Charges.
(d) To the extent any amounts described above are not paid when due,
the Intermediary may assess a late payment charge of 1.5% per month for each day
that such payment remains outstanding after the due date; PROVIDED, HOWEVER,
that such charges shall not apply to any amounts that are in dispute, as advised
by AESOP Leasing to the Intermediary in writing; and, FURTHER PROVIDED, that the
parties shall act in good faith to promptly resolve any such dispute.
Section 7.5 NO BOND. The Intermediary shall not be required to give
any bond or any other security; PROVIDED, HOWEVER, that the Intermediary shall
maintain during its appointment under this Agreement insurance in such amounts
and coverages, and subject to such deductibles, as is customarily maintained by
banking institutions acting in a trust capacity.
SECTION VIII: MISCELLANEOUS
Section 8.1 TERMINATION BY THE INTERMEDIARY. This Agreement may be
terminated by the Intermediary upon sixty (60) days advance written notice by
the Intermediary to AESOP Leasing, the Trustee, and the Lender Agent. Any such
termination of this Agreement shall apply prospectively only and shall not
affect the duties of the parties hereto with respect to any Group of
Relinquished Vehicles already transferred for which funds are still held (or, to
the extent not yet received, to be held) in trust by the Intermediary in any
Lender Trust Accounts or AESOP Trust Accounts, as the case may be. In the event
of such a termination of this Agreement, the provisions of this Agreement,
including without limitation Sections 2.2 and 2.4 hereof, shall continue to
apply to all property held by the Intermediary. However, at the request of AESOP
Leasing, the Intermediary shall deliver all property held by it as Intermediary
to any Eligible Successor Intermediary specified by AESOP Leasing; PROVIDED,
that following receipt by the Intermediary of a notice of an AESOP Exchange
Agreement Termination Event (pursuant to Section 7.1(a) hereof), only the
Trustee may specify such an Eligible
Successor Intermediary and, further subject to the prior written approval of
each Enhancement Provider and of the Lender Agent as provided in the definition
of "Eligible Successor Intermediary". If not instructed to deliver the property
held by it as Intermediary to a successor Qualified Intermediary, then,
following such a termination, the Intermediary shall deliver all property held
in AESOP Trust Accounts when such property is no longer subject to the
restrictions of Section 2.4 (together with all applicable reports, accountings
and other records relative to this Agreement and the transactions undertaken
pursuant hereto) to the Trustee as specified in ANNEX 6 hereto, and all property
that is held in Lender Trust Accounts to the Lender Agent when due and payable
pursuant to the Receivables Financing Agreement (with any amounts in excess of
those so payable to be released from such accounts to the corresponding AESOP
Trust Accounts pursuant to Section 6(c) of the Intercreditor Agreement). In
connection with each such release of property to the Trustee, the Intermediary
also shall deliver to AESOP Leasing and the Trustee an instrument, substantially
in the form of Exhibit C hereto, conveying to AESOP Leasing all right, title and
interest of the Intermediary in any Relinquished Vehicle Receivables then
remaining outstanding in respect of each Group of Relinquished Vehicles as to
which such a release is made, unless such receivables at such time continue to
constitute part of the Receivables Lender Collateral (in which case, the
conveyance shall be delivered on such later date as the related Loan shall have
been determined to have been paid in full pursuant to Section 6(c) of the
Intercreditor Agreement if any such receivables then continue to remain
outstanding). Upon payment to the Lender Agent of all Obligations that are
secured by amounts held in the Lender Trust Accounts and payment to the Trustee
of all property held in AESOP Trust Accounts, the Intermediary shall be released
from any and all liability under this Agreement (subject to the provisions of
Sections 7.1(c), 8.3 and 8.4 hereof).
Section 8.2 TERMINATION BY AESOP LEASING. This Agreement may be
terminated by AESOP Leasing upon seven (7) days advance written notice by AESOP
Leasing to the Intermediary with copies to the Trustee and the Lender Agent. In
addition, AESOP Leasing may terminate this Agreement immediately, and without
the requirement of any notice to the Intermediary (but with a notice delivered
as promptly as practicable to the Trustee and the Lender Agent), upon the
occurrence of any of the following (each, an "Intermediary Exchange Agreement
Termination Event"): the Intermediary shall fail to perform any of its
obligations under this Agreement; the Intermediary shall cease to be the trust
department of a United States bank having a combined capital and surplus of at
least $500,000,000 as set forth in its most recent published annual report of
condition; or the Intermediary shall cease to have the Requisite Rating from
either or both of ▇▇▇▇▇'▇ or Standard & Poor's. Any such termination of this
Agreement shall apply prospectively only and shall not affect the duties of the
parties hereto with respect to any Group of Relinquished Vehicles already
transferred for which funds are still held (or, to the extent not yet received,
to be held) in trust by the Intermediary in any Lender Trust Accounts or AESOP
Trust Accounts, as the case may be. In the event of such a termination of this
Agreement, the provisions of this Agreement, including without limitation
Sections 2.2 and 2.4 hereof, shall continue to apply to all property held by the
Intermediary. However, AESOP Leasing may direct the Intermediary to transfer
such property to an Eligible Successor Intermediary; PROVIDED,
that following receipt by the Intermediary of a notice of an AESOP Exchange
Agreement Termination Event (pursuant to Section 7.1(a) hereof), only the
Trustee may specify such a successor Qualified Intermediary; and further subject
to the prior written approval of each Enhancement Provider and of the Lender
Agent as provided in the definition of Eligible Successor Intermediary. If not
instructed to deliver the property held by it as Intermediary to a successor
Qualified Intermediary, then, following such a termination, the Intermediary
shall deliver all property held in AESOP Trust Accounts, when such property is
no longer subject to the restrictions of Section 2.4 (together with all
applicable reports, accountings and other records relative to this Agreement and
the transactions undertaken pursuant hereto) to the Trustee, as specified in
ANNEX 6 hereto and all property that is held in Lender Trust Accounts to the
Lender Agent when due and payable pursuant to the Receivables Financing
Agreement, or earlier if so elected by the Lender Agent pursuant to Section
5.1(c) of this Agreement (with any amounts in excess of those so payable to be
released from such accounts to the corresponding AESOP Trust Accounts pursuant
to Section 6(c) of the Intercreditor Agreement). In connection with each such
release of property to the Trustee, the Intermediary also shall deliver to AESOP
Leasing and the Trustee an instrument, substantially in the form of Exhibit C
hereto, conveying to AESOP Leasing all right, title and interest of the
Intermediary in any Relinquished Vehicle Receivables then remaining outstanding
in respect of each Group of Relinquished Vehicles as to which such a release is
made, unless such receivables at such time continue to constitute part of the
Receivables Lender Collateral (in which case, the conveyance shall be delivered
on such later date as the related Loan shall have been determined to have been
paid in full, pursuant to Section 6(c) of the Intercreditor Agreement if any
such receivables then continue to remain outstanding). If the termination is not
the result of default by the Intermediary, then, upon payment to the Lender
Agent of all Obligations that are secured by amounts held in the Lender Trust
Accounts and payment to the Trustee of all property held in AESOP Trust
Accounts, the Intermediary shall be released from any and all liability under
this Agreement (subject to the provisions of Sections 7.1(c), 8.3 and 8.4
hereof).
Section 8.3 RECEIPT OF PROPERTY FOLLOWING TERMINATION. If following
the termination of this Agreement, the Intermediary receives any funds or other
property constituting proceeds of Relinquished Vehicle Receivables or otherwise
relating to the subject matter of this Agreement (excluding, however, any
payments of Special Service Charges), it shall promptly pay such funds to the
Trustee for deposit into the Collection Account. If at such time any of the
Receivables Funding Documents remains in effect and any Loans are outstanding,
the allocation of such funds shall be determined in accordance with the
Intercreditor Agreement.
Section 8.4 SURVIVAL OF CERTAIN PROVISIONS. The provisions of this
Agreement concerning reimbursement of expenses, indemnification and fees shall
survive the termination of this Agreement by either party, to the extent
occurring or relating to matters arising prior to such termination or during any
period following termination as to which the Intermediary has continuing duties
pursuant to Sections 8.1, or 8.2, or 8.3 hereof.
Section 8.5 NO ASSIGNMENT. Neither this Agreement nor any interest
herein shall be assignable by any party except as provided in Sections 6.4 (with
respect to the assignment to the Lender Agent), 8.1 and 8.2 and this Section
8.5. Subject to the restrictions against assignment herein contained, this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of the parties hereto and each of them. The Intermediary hereby
acknowledges and consents to the assignment by AESOP Leasing to AESOP Funding II
L.L.C. of the rights of AESOP Leasing under this Agreement pursuant to the Loan
Agreement and to the assignment by AESOP Funding II L.L.C. of such rights to the
Trustee pursuant to the Indenture and agrees that the Trustee may exercise all
rights of AESOP Leasing hereunder.
Section 8.6 FURTHER ASSURANCES. In furtherance of the authorization
and direction made in Section 2.2(c) hereof, to the extent AESOP Leasing is
deemed to retain any interest in the Relinquished Vehicle Property, it hereby
authorizes the Intermediary to make each assignment and pledge pursuant to
Section 2.2(c) hereof as (solely for such purpose) agent of AESOP Leasing.
Section 8.7 ENTIRE AGREEMENT. This Agreement contains the entire
understanding and agreement between the parties relating to the transactions
described herein. There are no implied duties of the Intermediary hereunder not
specified herein. No modification, waiver, consent, amendment or discharge of or
to this Agreement shall be valid unless in writing and signed by both parties
hereto, and any such waiver or consent shall be effective only in the specific
instance and purpose for which given. Further, no modification, waiver, consent,
amendment, or discharge of or to this Agreement may be made without the prior
receipt of any and all consents required pursuant to the Fleet Financing
Documents (including, without limitation, satisfaction of the Rating Agency
Consent Condition and of the CP Rating Agency Condition, and the prior written
consent of the Majority Banks), and the Receivables Funding Documents. If any
term, covenant, condition or provision of this Agreement is unlawful, invalid or
unenforceable for any reason whatsoever, then such illegality, invalidity, or
unenforceability shall not affect the remaining provisions of this Agreement.
Section 8.8 NOTICES.
(a) Unless otherwise provided, all notices required or permitted to
be given pursuant to this Agreement shall be in writing and shall be deemed to
be duly given upon personal delivery (which shall be deemed to include confirmed
telecopy) to the party to whom they are addressed or, if mailed, three days
following deposit in the United States Mail, first class, postage prepaid,
registered or certified, return receipt requested, and addressed to each party
at its Notice Address. The parties agree that routine notifications and advices
made pursuant to this Agreement, when mailed or telecopied, need not be sent by
registered or certified mail, return receipt requested.
(b) Notwithstanding the foregoing or any other provision of this
Agreement, the Intermediary shall have no duty to act on instructions from AESOP
Leasing, the Trustee or any other authorized party until actual receipt of such
instructions by the Intermediary.
(c) Notwithstanding the foregoing or any other provision of this
Agreement, no notice, demand or request to or upon AESOP Leasing shall be
effective unless a copy thereof is also delivered to the Administrator. Without
limiting the foregoing, a copy of each notice, statement regarding Trust
Accounts and any other material or correspondence sent to AESOP Leasing by the
Intermediary also shall be delivered to the Administrator.
Section 8.9 COMPANY REPRESENTATIONS. AESOP Leasing hereby represents
that, to the best of its knowledge, the Intermediary is not a Disqualified
Person. AESOP Leasing acknowledges that neither the Intermediary, nor any
employee, officer, or principal thereof, has given any legal or tax advice nor
made representations regarding the legal or tax consequences of this transaction
to AESOP Leasing. AESOP Leasing further acknowledges that it has sought its own
legal and tax advice regarding this transaction. AESOP Leasing agrees to provide
the Intermediary with a completed W-9 indicating its Employer Identification
Number, as assigned by the Internal Revenue Service. Additionally, AESOP Leasing
agrees to complete and return to the Intermediary any and all tax forms or
reports required to be obtained or maintained by the Intermediary in order to
perform its duties or functions under this Agreement (excluding, however, any
tax forms or reports of the Intermediary due or to become due independent of the
existence of this Agreement). All interest or other income earned under this
Agreement by AESOP Leasing shall be reported to the Internal Revenue Service as
having been allocated and paid to AESOP Leasing.
Section 8.10 SECTION 1031 EXCHANGE. The parties have entered into
this Agreement with the intent that, to the extent possible, the transfer of the
Relinquished Vehicles shall qualify for nonrecognition of gain or loss under
Code Section 1031 and the Treasury Regulations thereunder. Any rights, duties or
obligations created hereunder shall be interpreted in a manner consistent with
the preceding sentence. It is further the intent of the parties to this
Agreement that the transactions involving each Group of Relinquished Vehicles be
separately accounted for pursuant hereto and constitute a separate and
independent Section 1031 exchange.
Section 8.11 REPRESENTATIONS OF THE INTERMEDIARY. Bank One hereby
represents that (a) to the best of its knowledge, Bank One is not a Disqualified
Person, and (b) Bank One as Intermediary is authorized to enter into this
Agreement and qualified to act as the Qualified Intermediary for AESOP Leasing
under this Agreement. Except as expressly provided in this Section 8.11, no
reference in this Agreement to the Code or applicable Treasury Regulations shall
impose any obligation on the Intermediary to review or interpret, or to provide
guidance to AESOP Leasing with respect to, any such section.
Section 8.12 CONFIDENTIALITY. The Intermediary acknowledges that the
terms, substance and form of this Agreement constitute confidential information
of AESOP Leasing and the Intermediary agrees to maintain such information in
confidence, and not to disclose it to third parties (other than to the
Receivables Lender or to bank regulatory authorities) without the express
written permission of AESOP Leasing.
Section 8.13 NO BANKRUPTCY PETITION AGAINST AESOP LEASING OR CERTAIN
OTHER PERSONS. The Intermediary hereby covenants and agrees that, prior to the
date
which is one year and one day after the payment in full of all Notes and
Commercial Paper Notes (each such term being used as defined in the Indenture),
it will not institute against, or join with any other Person in instituting,
against AESOP Leasing or against AESOP Funding Corp., AESOP Funding II L.L.C.,
AESOP Leasing Corp. II, AESOP Leasing Corp., PV Holding Corp., or Quartx Fleet
Management Inc. any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any Federal or state
bankruptcy or similar law; PROVIDED, HOWEVER, that nothing in this SECTION 8.13
shall constitute a waiver of any right to indemnification, reimbursement or
other payment from AESOP Leasing pursuant to this Agreement. The provisions of
this SECTION 8.13 shall survive the termination of this Agreement, and the
resignation or removal of the Intermediary. Nothing contained herein shall
preclude participation by the Intermediary in the assertion or defense of its
claims in any such proceeding involving AESOP Leasing or any of the other
entities referred to in this SECTION 8.13.
Section 8.14 NO RECOURSE. The obligations of AESOP Leasing under
this Agreement are solely the obligations of AESOP Leasing. No recourse shall be
had for the payment of any amount owing in respect of any fee hereunder or any
other obligation or claim arising out of or based upon this Agreement against
any partner, stockholder, employee, officer, director or incorporator of AESOP
Leasing or of any partner of AESOP Leasing. Fees, expenses, costs or indemnities
payable by AESOP Leasing hereunder shall be payable by AESOP Leasing solely to
the extent that funds are then available for such purpose pursuant to the Fleet
Financing Documents.
Section 8.15 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, which taken together shall constitute a single document.
Section 8.16 GOVERNING LAW. THIS AGREEMENT SHALL BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have executed this Agreement by
their respective duly authorized officers, as of the date first above written.
BANK ONE, TEXAS, NATIONAL ASSOCIATION
By: ____________________________________
Name: ______________________________
Title: _____________________________
AESOP LEASING L.P.
By: AESOP Leasing Corp.,
its General Partner
By: ____________________________________
Name: ______________________________
Title: _____________________________
EXHIBIT C
FORM OF RECONVEYANCE OF
RELINQUISHED VEHICLE RECEIVABLES(1)
__________________, 19__
AESOP Leasing L.P.
c/o Lord Securities Corporation
Two ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Trust and Savings Bank, as Trustee
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Corporate Trust Officer
Re:
Master Exchange Agreement dated as of September 15, 1998 between AESOP
LEASING L.P. and BANK ONE, TEXAS, National Association (the "Exchange
Agreement"):
Reconveyance of Relinquished Vehicle Receivables in Respect
of Group of Relinquished Vehicles No. ___ Designated in
Transfer Notice, dated _________ __, 19__(2)
Ladies and Gentlemen:
Unless otherwise defined herein, all capitalized terms have the meanings set
forth in the Exchange Agreement.
AESOP Leasing L.P. ("AESOP Leasing"), previously transferred and assigned to us,
as Intermediary, pursuant to the Exchange Agreement and the above-referenced
Transfer Notices, among other things, the Relinquished Vehicles listed in such
Transfer Notice
----------
(1) This form is not to be used in connection with every release of funds
pursuant to Section 2.4 of the Exchange Agreement but only if, as provided
in Sections 2.4, 8.1 and 8.2 of the Exchange Agreement, at the time of
such release, or thereafter, there are outstanding Relinquished Vehicle
Receivables (and no outstanding Loan) relating to the Group of
Relinquished Vehicles as to which such release is made.
(2) Amend as appropriate if there is more than one Transfer Notice for the
Group.
(including in any exhibit or schedule thereto), and the related Transferred
Property, including the related Relinquished Vehicle Receivables.
[According to a written notice to us by AESOP Leasing dated ___________ __,
19__, a Group Closing Event with respect to such Group of Relinquished Vehicles
occurred on __________ __, 19__](3)* [The Exchange Agreement was terminated
pursuant to Section [8.1] [8.2] thereof effective ________ __, 19__]* [and the
related Loan under the Receivables Financing Agreement was paid in full as of
_________ __, 19__](4)]. Accordingly, pursuant to Section 2.4 of the Exchange
Agreement, the Intermediary herewith delivers and releases to the Trustee all
funds held in the AESOP Trust Account corresponding to such Group of
Relinquished Vehicles in the aggregate amount of $____________.
Further, the Intermediary hereby assigns, transfers and conveys to AESOP Leasing
all right, title and interest of the Intermediary in, to and under any and all
Relinquished Vehicle Receivables outstanding as of the date hereof in respect of
such Group of Relinquished Vehicles, and any and all proceeds thereof.
Very truly yours,
Bank One, Texas, National Association,
as Intermediary
By:____________________________
Name:_______________________
Title:______________________
----------
(3) Select the applicable one of the asterisked clauses.
(4) To be included only if there was a Loan with respect to such Group.
SCHEDULE 1
INTERMEDIARY FEES AND EXPENSES
[TO BE PROVIDED BY THE INTERMEDIARY]
SCHEDULE 2
AUTHORIZED REPRESENTATIVES
The representatives of AESOP Leasing authorized to execute instructions to
the Intermediary are the following officers of its general partner, AESOP
Leasing Corp.:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President, Treasurer and Assistant Secretary
▇▇▇▇▇▇▇ ▇. Tainano, Vice President, Assistant Treasurer and
Secretary
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant Treasurer and Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President, Assistant Treasurer and Assistant
Secretary
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President, Assistant Treasurer and Assistant
Secretary
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President, Assistant Treasurer and
Assistant Secretary
SCHEDULE 3
TRUST ACCOUNT DEPOSITS
I. THE FUNDS DEPOSITED INTO THE AESOP TRUST ACCOUNT(S) OR LENDER TRUST
ACCOUNTS FROM TIME TO TIME SHALL CONSIST OF:
1. Deposits by the Intermediary:
(a) Amounts received by the Intermediary from the Trustee pursuant to
the Intercreditor Agreement, and allocable to a particular AESOP
Trust Account or Lender Trust Account in accordance with a
certificate of the Administrator.
(b) Amounts received from AESOP Leasing in connection with contemplated
purchases of Replacement Vehicles, to be credited to the AESOP Trust
Account specified by AESOP Leasing or the Administrator, on its
behalf.
(c) Amounts received from the Receivables Lender representing the
proceeds of any Loan made pursuant to the Receivables Financing
Agreement, to be credited to the AESOP Trust Account corresponding
to the Group of Relinquished Vehicles with respect to which such
Loan is made.
2. Other deposits to the Trust Accounts:
(a) Investment earnings on amounts in the respective AESOP Trust Account
or Lender Trust Account.
II. DEPOSITS TO OTHER SEGREGATED TRUST ACCOUNTS MAINTAINED WITHIN THE
CORPORATE TRUST DEPARTMENT OF THE INTERMEDIARY:
(a) Pursuant to Section 3.5 of the
Master Exchange Agreement, funds
received in error or Other Trust Funds (not identified above), which
amounts shall be held in a suspense account that is a segregated
trust account maintained by the Intermediary in the name of AESOP
Leasing pending identification and allocation by the Administrator.
(b) Pursuant to Sections 3.5 and 5.1(a) and (b) of the
Master Exchange
Agreement, funds constituting Special Service Charges (or guaranty
payments in respect thereof), if such funds cannot be transferred to
the Lender Agent on the date received by the Intermediary, are to be
deposited into a suspense account that is a segregated trust account
maintained by the Intermediary in the name of the Lender Agent,
pending payment to the Lender Agent.
SCHEDULE 4
PAYMENT INSTRUCTIONS FOR TRUST ACCOUNT DISBURSEMENTS
Any funds to be disbursed to the Trustee or to the Lender Agent shall be
paid to such Person by wire transfer in accordance with the directions set forth
below (or as the Trustee or the Lender Agent, as applicable, may otherwise from
time to time direct the Intermediary in writing):
IF TO THE TRUSTEE
▇▇▇▇▇▇ Trust and Savings Bank
Chicago, Illinois
ABA No.: ▇▇▇▇▇▇▇▇▇
Credit Account No.: ▇▇▇-▇▇▇-▇
Further Credit AESOP
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
IF TO THE LENDER AGENT
Credit Lyonnais
New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA No. ▇▇▇▇-▇▇▇▇-▇
Account: Atlantic Asset Securitization Corp.
#01-25680-0001-00-001
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Any funds to be disbursed in payment for Replacement Vehicles shall be
disbursed solely from the AESOP Trust Account corresponding to the Group of
Relinquished Vehicles for which such Replacement Vehicles constitute
replacements, and shall be made as directed in the relevant "Notice of
Acceptance".
SCHEDULE 5
Permitted Trust Account Investments
The balance of the Trust Account(s) shall be invested by the Intermediary in
such of the following investments, as may directed in writing by AESOP Leasing
from time to time:
1. Obligations issued or unconditionally guaranteed by the United
States government, or issued by an agency thereof and backed by the
full faith and credit of the United States government, which
obligations mature on the Business Day following the date of
investment.
2. Commercial paper which has the highest rating obtainable from
Standard & Poor's Corporation and ▇▇▇▇▇'▇ Investors Services, Inc.
(and which is not issued by AESOP Leasing or by any affiliate of
AESOP Leasing), and which matures on the Business Day following the
date of investment.
3. Shares in money market funds that are freely redeemable (upon demand
and without charge) and that are rated "AAm" by Standard & Poor's
Corporation and having the highest rating obtainable from ▇▇▇▇▇'▇
Investors Services, Inc., including, without limitation, provided it
satisfies such requirements, The One Group(R) U.S. Treasury Money
Market Fund.
ANNEX 1
NOTICE OF RELINQUISHED VEHICLE
IDENTIFICATION AND TRANSFER
RELINQUISHED VEHICLE GROUP NUMBER
_______________, 19
BANK ONE, TEXAS, National Association
ATTN: Corporate Trust Department
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re:
Master Exchange Agreement dated as of September 15, 1998 between
AESOP LEASING L.P. and BANK ONE, TEXAS, National Association (the
"Exchange Agreement"):
Notice of Relinquished Vehicle Identification and Transfer
Ladies and Gentlemen:
AESOP Leasing L.P., pursuant to the Exchange Agreement, hereby transfers and
assigns to you, as Intermediary, the following (collectively, the "Transferred
Property"): (1) the Relinquished Vehicles listed and described in Exhibit A
hereto (subject to the occurrence of the conditions set forth in Section 3.1 of
the Exchange Agreement), (2) all rights of AESOP Leasing to sell or otherwise
dispose of such Vehicles pursuant to the respective Manufacturer Purchase
Agreement to which such Vehicles are subject, and (3) the related Assigned
Special Default Payments.
AESOP Leasing hereby further designates that all of the Vehicles described in
Exhibit A constitute a part of a single Group of Relinquished Vehicles, to be
identified by the Group Number shown above for purposes of the Exchange
Agreement. For purposes of Group Number ___ : (a) the Identification Period and
the Exchange Period [shall
commence on the above date][commenced on _____]* , (b) the Identification Period
shall end on ____________, and (c) the Exchange Period shall end on ___________.
AESOP Leasing hereby represents and warrants to the Intermediary, as of the date
hereof, as follows: (i) that the Transferred Property is transferred pursuant
hereto free of any lien, claim or encumbrance; (ii) that the Vehicles are
entitled to the benefits of a Manufacturer Purchase Agreement, as specified in
Exhibit A; and (iii) that AESOP Leasing has no knowledge of any event or
circumstance that, pursuant to the terms of the Fleet Financing Documents, would
prevent it from making the transfer and assignment made hereby.
Each of the Vehicles described in Exhibit A shall be delivered by AESOP Leasing
or its representative to the location specified by the applicable Manufacturer.
By copy of this Transfer Notice, AESOP Leasing hereby notifies the applicable
Manufacturer of the transfer and assignment made hereby.
Terms used and not otherwise defined herein shall have the meanings assigned in
the Exchange Agreement.
Very truly yours,
AESOP Leasing L.P.
By: AESOP Leasing Corp.,
its General Partner
By:
Name:
Title:____________________
Attachments
cc: [Applicable Manufacturer]
----------
(5) AESOP Leasing to complete as appropriate, depending upon whether the
Transfer Notice is the first to be given with respect to a particular
Group or constitutes an addition to a Group for which the Identification
Period and the Exchange Period already have commenced.
EXHIBIT A TO ANNEX 1
Subject to
Vehicle Manufacturer Estimated Estimated
Identification Purchase Date Fair Market
[Year/Make/Model] Number Agreement Delivered Value*
----------------- -------------- ------------ --------- -----------
1.
2.
3.
* INSERT MANUFACTURER PURCHASE PRICE
ANNEX 2
RESCISSION OF RELINQUISHED VEHICLE
IDENTIFICATION AND TRANSFER
_______________, 19
BANK ONE, TEXAS, National Association
ATTN: Corporate Trust Department
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re:
Master Exchange Agreement dated as of September 15, 1998 between
AESOP LEASING L.P. and BANK ONE, TEXAS, National Association (the
"Exchange Agreement");
Rescission of Transfer Notice(s), dated ____________, 19
Ladies and Gentlemen:
AESOP Leasing L.P. previously transferred to you, as Intermediary, pursuant to
the Exchange Agreement and the above-referenced Transfer Notice, the
Relinquished Vehicles listed in such Transfer Notice (including in any exhibit
or schedule thereto) and the related Transferred Property (as defined in such
Transfer Notices(s)).
AESOP Leasing hereby rescinds in all respects the identification of Identified
Relinquished Vehicles made by it in the referenced Transfer Notice as to [all
Vehicles described in the Transfer Notice] [the Vehicle or Vehicles listed in
the schedule(s) attached hereto], including, without limitation, the assignment
by AESOP Leasing of the related Transferred Property.
All documentation previously provided to you concerning the Vehicles as to which
the Transfer Notice is rescinded should be returned to AESOP Leasing at your
earliest convenience.
By copy of this notice, AESOP Leasing hereby notifies the applicable
Manufacturer of the rescission made hereby.
Terms used and not otherwise defined herein shall have the meanings assigned in
the Exchange Agreement.
Very truly yours,
AESOP Leasing L.P.
By: AESOP Leasing Corp.,
its General Partner
By:
Name:
Title:
Attachments
cc: [Applicable Manufacturer]
[ATTACH LIST OF VEHICLE(S) AS TO WHICH THE RELINQUISHED VEHICLE DESIGNATION IS
BEING RESCINDED]
ANNEX 3
NOTICE OF DESIGNATION OF REPLACEMENT VEHICLES AND PARTIAL ASSIGNMENT OF
MANUFACTURER PURCHASE AGREEMENT
_______________, 19
BANK ONE, TEXAS, National Association
ATTN: Corporate Trust Department
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re:
Master Exchange Agreement dated as of September 15, 1998 between
AESOP LEASING L.P. and BANK ONE, TEXAS, National Association (the
"Exchange Agreement");
Relinquished Vehicle Group No.
Ladies and Gentlemen:
This Notice of Designation of Replacement Vehicles and Partial Assignment of
Rights is being delivered to you pursuant to the Exchange Agreement. As
contemplated by the Exchange Agreement, AESOP Leasing has negotiated the
purchase of the Replacement Vehicles identified on the schedules attached hereto
pursuant to a Manufacturer Purchase Agreement with [______________] (the
"Purchase Agreement").
AESOP Leasing hereby transfers and assigns to the Intermediary all of AESOP
Leasing's rights to receive and acquire such Vehicles, and the obligation to
purchase and pay for such Vehicles under the Purchase Agreement to the extent
relating to such Replacement Vehicles.
The attachments hereto consist of ____ pages (excluding this page) and cover a
total of ________ Replacement Vehicles, as Replacement Vehicles for one or more
Relinquished Vehicles included in the above-referenced Relinquished Vehicle
Group.
By copy of this assignment, AESOP Leasing hereby notifies [the applicable
Manufacturer] of the assignment made hereby.
Terms used and not defined herein shall have the meanings assigned in the
Exchange Agreement.
Very truly yours,
AESOP Leasing L.P.
By: AESOP Leasing Corp.,
its General Partner
By:
Name:
Title:
Attachments
cc: [Applicable Manufacturer]
ANNEX 4
REVOCATION OF DESIGNATION AND PARTIAL ASSIGNMENT OF
MANUFACTURER PURCHASE AGREEMENT
_____________________, ▇▇__
▇▇▇▇ ▇▇▇, ▇▇▇▇▇, National Association
ATTN: Corporate Trust Department
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Master Exchange Agreement, dated as of September 15, 1998 between
AESOP LEASING L.P. and BANK ONE, TEXAS, National Association (the
"Exchange Agreement");
Relinquished Vehicle Group No. ______;
Revocation of Notice of Designation and Partial Assignment, dated __________, 19
Ladies and Gentlemen:
AESOP Leasing previously transferred and assigned to you, as Intermediary,
pursuant to the Exchange Agreement and the above-referenced Partial Assignment,
certain of AESOP Leasing's rights to and obligations under the Purchase
Agreement with [________________] to the extent relating to the Designated
Replacement Vehicles identified in such Partial Assignment.
AESOP Leasing hereby revokes in all respects the assignment made by AESOP
Leasing pursuant to such Partial Assignment as to [all Designated Replacement
Vehicle(s) referenced therein] [those of the Designated Replacement Vehicles
listed in such Partial Assignment as are listed in the Schedule attached
hereto].
All documentation previously provided to you concerning the Vehicles as to which
the Partial Assignment is revoked should be returned to AESOP Leasing at your
earliest convenience.
By copy of this revocation, AESOP Leasing hereby notifies [_______________] of
the revocation effected hereby.
Terms used and not defined herein shall have the meanings assigned in the
Exchange Agreement.
Very truly yours,
AESOP Leasing L.P.
By: AESOP Leasing Corp.,
its General Partner
By:
Name:
Title:
Attachments
[ATTACH LIST OF VEHICLE(S) AS TO WHICH THE REPLACEMENT VEHICLE DESIGNATION IS
BEING REVOKED]
cc: [Applicable Manufacturer]
ANNEX 5
NOTICE OF ACCEPTANCE
________________, 19
BANK ONE, TEXAS, National Association
ATTN: Corporate Trust Department
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Master Exchange Agreement dated as of September 15, 1998 between
AESOP Leasing L.P. and BANK ONE, TEXAS, National Association (the
"Exchange Agreement")
Relinquished Vehicle Group No.:_____________
Ladies and Gentlemen:
This Notice of Acceptance is delivered to you pursuant to the Exchange
Agreement. Terms used and not otherwise defined herein shall have the meanings
assigned in the Exchange Agreement. As provided in the Exchange Agreement, AESOP
Leasing previously has identified the Replacement Vehicles listed on the
attachments to this notification (consisting of ____ pages of attachments) and
representing a total of Replacement Vehicles, having an aggregate purchase price
of approximately $________ , as Replacement Vehicles for Relinquished Vehicles
transferred to you pursuant to the Transfer Notice(s) dated ___________________.
Having previously been assigned AESOP Leasing's right to purchase those
Replacement Vehicles, you are hereby advised that all conditions precedent to
the closing of the Purchase Agreements negotiated and/or entered into by AESOP
Leasing with respect to such Replacement Vehicles have been satisfied and,
therefore, pursuant to Sections 4.3 and 4.4 of the Exchange Agreement, you are
permitted to consummate such purchases, including making payments to (or at the
direction of) the relevant dealer or dealers, in accordance with the directions
specified below.
[Each] Such dealer has requested that funds be disbursed to it (or at its
direction, to another party), as follows:
____ Check drawn on the applicable AESOP Trust Account, sent by:
____ U.S. Mail ____ Overnight courier
____ Other:
____ Wire transfer to:
For the account of: _____________________________________________ ABA #:
|_| IF THIS BOX IS CHECKED, THE VEHICLES DESCRIBED IN THIS NOTIFICATION OF
CLOSING CONSTITUTE THE LAST REPLACEMENT VEHICLES TO BE OBTAINED BY AESOP LEASING
WITH RESPECT TO THIS GROUP. THEREFORE, THE DATE OF RECEIPT OF THE LAST
REPLACEMENT VEHICLE WITH RESPECT TO THIS GROUP FOR PURPOSES OF CLAUSE (B) OF THE
DEFINITION OF GROUP CLOSING EVENT AND SECTION 2.4 OF THE EXCHANGE AGREEMENT IS
THE DATE OF THIS NOTICE, AS SET FORTH ABOVE(1); PROVIDED, HOWEVER, THAT IF SUCH
DATE IS PRIOR TO THE END OF THE IDENTIFICATION PERIOD WITH RESPECT TO THE
REFERENCED GROUP, THEN THE DATE OF THE GROUP CLOSING EVENT IS ____________,
WHICH IS THE FIRST DATE FOLLOWING EXPIRATION OF SUCH IDENTIFICATION PERIOD.
Very truly yours,
AESOP Leasing L.P.
By: AESOP Leasing Corp.,
its General Partner
By:
Name:
Title:
[Attach a document showing, among other things, dealer name, Manufacturer name,
VIN number and purchase price for the Vehicles that are the subject of this
notice]
(1) Or, if date of actual receipt is earlier, specify such alternate date.
ANNEX 6
NOTICE OF RELEASE OF FUNDS
FOLLOWING TERMINATION
_________________, 19___
AESOP Leasing L.P.
c/o Lord Securities Corporation
Two ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Re: Master Exchange Agreement dated as of September 15, 1998 between
AESOP Leasing L.P. and BANK ONE, TEXAS, National Association (the
"Exchange Agreement")
Transfer of Funds in AESOP Trust Account in Respect of
Group of Relinquished Vehicles No. ___ Designated in
Transfer Notice, dated ________ __, 199_*
Ladies and Gentlemen:
Unless otherwise defined herein, all capitalized terms have the meanings set
forth in the Exchange Agreement.
AESOP Leasing L.P. ("AESOP Leasing") previously transferred and assigned to us,
as Intermediary, pursuant to the Exchange Agreement and the above-referenced
Transfer Notices, among other things, the Relinquished Vehicles listed in such
Transfer Notice (including in any exhibit or schedule thereto), and the related
Transferred Property, including the related Relinquished Vehicle Receivables.
According to a written notice to us by AESOP Leasing dated ____________ __,
199_, a Group Closing Event with respect to such Group of Relinquished Vehicles
occurred on ____________ __, 199_, and the Exchange Agreement was terminated
pursuant to Section [8.1][8.2] thereof on ____________ __, 19__. [Further, the
Loan under the Receivables Financing Agreement related to such Group was paid in
full as of
----------
(6) This form is not to be used in connection with every release of funds from
an AESOP Trust Account pursuant to the Exchange Agreement, but only if, at
the time of such release, the Master Exchange Agreement shall have been
terminated and the release, accordingly, is made pursuant to Section 8.1
or 8.2 of the Exchange Agreement.
__________ __, 19__.]** Accordingly, pursuant to Sections 2.4 and [8.1] [8.2] of
the Exchange Agreement, the Intermediary herewith delivers and releases to the
Trustee all funds held in the AESOP Trust Account corresponding to such Group of
Relinquished Vehicles in the aggregate amount of $____________.
Pursuant to your instructions, such sum is being disbursed for the benefit of
AESOP Leasing by effecting a wire transfer to:
[▇▇▇▇▇▇ Trust and Savings Bank, ABA # ___________
For the account of: The AFC-II Collection Account
Account #: _____________.
Very truly yours,
BANK ONE, TEXAS, National Association
By:__________________________________
Name: ____________________________
Title: ___________________________
----------
(7) To be included only if there was a Loan with respect to such Group.