CENDANT RENTAL CAR FUNDING (AESOP) LLC, as Issuer AVIS BUDGET CAR RENTAL, LLC, as Administrator BARCLAYS BANK PLC, as Administrative Agent, Funding Agent and APA Bank STRATFORD RECEIVABLES COMPANY, LLC, as a CP Conduit Purchaser and THE BANK OF NEW...
Exhibit
10.1
CENDANT
RENTAL CAR FUNDING (AESOP) LLC,
as
Issuer
AVIS
BUDGET CAR RENTAL, LLC,
as
Administrator
BARCLAYS
BANK PLC,
as
Administrative Agent, Funding Agent and APA Bank
STRATFORD
RECEIVABLES COMPANY, LLC,
as
a CP
Conduit Purchaser
and
THE
BANK
OF NEW YORK,
as
Trustee and Series 2006-2 Agent
_____________________
dated
as
of June 2, 2006
to
SECOND
AMENDED AND RESTATED BASE INDENTURE
dated
as
of June 3, 2004
_____________________
TABLE
OF CONTENTS
Page
|
ARTICLE
I
|
|
DEFINITIONS
|
2
|
|||
|
ARTICLE
II
|
PURCHASE
AND SALE OF SERIES 2006-2 NOTES; INCREASES AND DECREASES OF SERIES
2006-2
INVESTED AMOUNT
|
34
|
||||
|
Section
2.1.
|
Purchases
of the Series 2006-2 Notes
|
34
|
||||
|
Section
2.2.
|
Delivery
|
35
|
||||
|
Section
2.3.
|
Procedure
for Initial Issuance and for Increasing the Series 2006-2 Invested
Amount
|
35
|
||||
|
Section
2.4.
|
Sales
of Series 2006-2 Notes
|
37
|
||||
|
Section
2.5.
|
Procedure
for Decreasing the Series 2006-2 Invested Amount; Optional
Termination
|
37
|
||||
|
Section
2.6.
|
Increases
and Reductions of the Commitment Amounts; Extensions
|
39
|
||||
|
Section
2.7.
|
Interest;
Fees
|
41
|
||||
|
Section
2.8.
|
Indemnification
by CRCF
|
42
|
||||
|
Section
2.9.
|
Funding
Agents
|
42
|
||||
|
ARTICLE
III
|
|
SERIES
2006-2 ALLOCATIONS
|
43
|
|||
|
Section
3.1.
|
Establishment
of Series 2006-2 Collection Account, Series 2006-2 Excess Collection
Account and Series 2006-2 Accrued Interest Account
|
43
|
||||
|
Section
3.2.
|
Allocations
with Respect to the Series 2006-2 Notes
|
43
|
||||
|
Section
3.3.
|
Payments
to Noteholders, the Surety Provider and Each Series 2006-2 Interest
Rate
Swap Counterparty
|
48
|
||||
|
Section
3.4.
|
Payment
of Note Interest, Liquidity Fees and Series 2006-2 Basis
Fees
|
53
|
||||
|
Section
3.5.
|
Payment
of Note Principal
|
54
|
||||
|
Section
3.6.
|
Administrator’s
Failure to Instruct the Trustee to Make a Deposit or
Payment
|
60
|
||||
|
Section
3.7.
|
Series
2006-2 Reserve Account
|
60
|
||||
|
Section
3.8.
|
Series
2006-2 Letters of Credit and Series 2006-2 Cash Collateral
Account
|
62
|
||||
|
Section
3.9.
|
Series
2006-2 Distribution Account
|
67
|
||||
|
Section
3.10.
|
Series
2006-2 Demand Notes Constitute Additional Collateral for Series
2006-2
Notes
|
69
|
||||
|
Section
3.11.
|
Series
2006-2 Interest Rate ▇▇▇▇▇▇
|
69
|
||||
|
Section
3.12.
|
Payments
to Funding Agents or Purchaser Groups
|
70
|
||||
|
Section
3.13.
|
Series
2006-2 Accounts Permitted Investments
|
71
|
||||
(i)
TABLE
OF CONTENTS
(continued)
Page
|
ARTICLE
IV
|
AMORTIZATION
EVENTS
|
71
|
||||
|
ARTICLE
V
|
RIGHT
TO WAIVE PURCHASE RESTRICTIONS
|
74
|
||||
|
ARTICLE
VI
|
CONDITIONS
PRECEDENT
|
76
|
||||
|
ARTICLE
VII
|
|
CHANGE
IN CIRCUMSTANCES
|
79
|
|||
|
Section
7.1.
|
Increased
Costs
|
79
|
||||
|
Section
7.2.
|
Taxes
|
79
|
||||
|
Section
7.3.
|
Break
Funding Payments
|
80
|
||||
|
Section
7.4.
|
Alternate
Rate of Interest
|
82
|
||||
|
Section
7.5.
|
Mitigation
Obligations
|
83
|
||||
|
ARTICLE
VIII
|
|
REPRESENTATIONS
AND WARRANTIES, COVENANTS
|
84
|
|||
|
Section
8.1.
|
Representations
and Warranties of CRCF and the Administrator
|
84
|
||||
|
Section
8.2.
|
Covenants
of CRCF and the Administrator
|
84
|
||||
|
ARTICLE
IX
|
THE
ADMINISTRATIVE AGENT
|
85
|
||||
|
Section
9.1.
|
Appointment
|
86
|
||||
|
Section
9.2.
|
Delegation
of Duties
|
86
|
||||
|
Section
9.3.
|
Exculpatory
Provisions
|
86
|
||||
|
Section
9.4.
|
Reliance
by Administrative Agent
|
86
|
||||
|
Section
9.5.
|
Notice
of Administrator Default or Amortization Event or Potential Amortization
Event; Additional Notice Requirements and Information
|
87
|
||||
|
Section
9.6.
|
Non-Reliance
on the Administrative Agent and Other Purchaser Groups
|
88
|
||||
|
Section
9.7.
|
Indemnification
|
89
|
||||
|
Section
9.8.
|
The
Administrative Agent in Its Individual Capacity
|
89
|
||||
|
Section
9.9.
|
Resignation
of Administrative Agent; Successor Administrative Agent
|
89
|
||||
|
ARTICLE
X
|
|
THE
FUNDING AGENTS
|
90
|
|||
|
Section
10.1.
|
Appointment
|
90
|
||||
|
Section
10.2.
|
Delegation
of Duties
|
90
|
||||
|
Section
10.3.
|
Exculpatory
Provisions
|
90
|
||||
|
Section
10.4.
|
Reliance
by Each Funding Agent
|
91
|
||||
|
Section
10.5.
|
Notice
of Administrator Default or Amortization Event or Potential Amortization
Event
|
91
|
||||
|
Section
10.6.
|
Non-Reliance
on Each Funding Agent and Other Purchaser Groups
|
91
|
||||
|
Section
10.7.
|
Indemnification
|
92
|
||||
|
Section
10.8.
|
Notice
of Maturing Commercial Paper
|
92
|
||||
(ii)
TABLE
OF CONTENTS
(continued)
Page
|
ARTICLE
XI
|
GENERAL
|
93
|
||||
|
Section
11.1.
|
Successors
and Assigns
|
93
|
||||
|
Section
11.2.
|
Securities
Law
|
95
|
||||
|
Section
11.3.
|
Adjustments;
Set-off
|
96
|
||||
|
Section
11.4.
|
No
Bankruptcy Petition
|
96
|
||||
|
Section
11.5.
|
Limited
Recourse
|
97
|
||||
|
Section
11.6.
|
Costs
and Expenses
|
97
|
||||
|
Section
11.7.
|
Exhibits
|
98
|
||||
|
Section
11.8.
|
Ratification
of Base Indenture
|
98
|
||||
|
Section
11.9.
|
Counterparts
|
98
|
||||
|
Section
11.10.
|
Governing
Law
|
98
|
||||
|
Section
11.11.
|
Amendments
|
98
|
||||
|
Section
11.12.
|
Discharge
of Indenture
|
99
|
||||
|
Section
11.13.
|
Notice
to Administrative Agent, Surety Provider, Rating Agencies and each
Series 2006-2 Interest Rate Hedge Counterparty
|
99
|
||||
|
Section
11.14.
|
Certain
Rights of Surety Provider
|
99
|
||||
|
Section
11.15.
|
Surety
Provider Deemed Noteholder and Secured Party
|
99
|
||||
|
Section
11.16.
|
Capitalization
of CRCF
|
100
|
||||
|
Section
11.17.
|
Third
Party Beneficiary
|
100
|
||||
|
Section
11.18.
|
Prior
Notice by Trustee to Surety Provider
|
100
|
||||
|
Section
11.19.
|
Effect
of Payments by the Surety Provider
|
101
|
||||
|
Section
11.20.
|
Purchaser
Group Consent
|
101
|
||||
|
Section
11.21.
|
Series
2006-2 Demand Notes
|
101
|
||||
|
Section
11.22.
|
Subrogation
|
101
|
||||
|
Section
11.23.
|
Termination
of Supplement
|
101
|
||||
|
Section
11.24.
|
Condition
to Termination of CRCF’s Obligations
|
102
|
||||
|
Section
11.25.
|
Collateral
Representations and Warranties of CRCF
|
102
|
||||
|
Section
11.26.
|
No
Waiver; Cumulative Remedies
|
103
|
||||
|
Section
11.27.
|
Waiver
of Setoff
|
103
|
||||
|
Section
11.28.
|
Notices
|
104
|
||||
|
Section
11.29.
|
Confidential
Information
|
104
|
||||
(iii)
SERIES
2006-2 SUPPLEMENT, dated as of June 2, 2006 (this “Supplement”),
among
CENDANT RENTAL CAR FUNDING (AESOP) LLC, a special purpose limited liability
company established under the laws of Delaware (“CRCF”),
AVIS
BUDGET CAR RENTAL, LLC, a Delaware limited liability company (“ABCR”),
as
administrator (in such capacity, the “Administrator”),
BARCLAYS BANK PLC (“Barclays”),
in
its capacity as administrative agent for Stratford (defined below) (in such
capacity, the “Administrative
Agent”),
as
funding agent (in such capacity a “Funding
Agent”
and,
together with each other funding agent that becomes party to this Supplement,
the “Funding
Agents”)
on
behalf of the Stratford and as a liquidity bank (a “APA
Bank”
and,
together with each other liquidity bank that becomes a party to this Supplement,
the “APA
Banks”)
on
behalf of Stratford, STRATFORD RECEIVABLES COMPANY, LLC, a multi-seller
extendible cash-flow ABCP conduit (“Stratford”
and
a
“CP
Conduit Purchaser”
and,
together with each other commercial paper conduit that becomes a party to this
Supplement, the “CP
Conduit Purchasers”),
THE
BANK OF NEW YORK, a New York banking corporation, as trustee (together with
its successors in trust thereunder as provided in the Base Indenture referred
to
below, the “Trustee”),
and
THE BANK OF NEW YORK, a New York banking corporation, as agent (the
“Series
2006-2 Agent”)
for
the benefit of the Series 2006-2 Noteholders, each Series 2006-2 Interest Rate
Swap Counterparty, if any, and the Surety Provider, to the Second Amended and
Restated Base Indenture, dated as of June 3, 2004, between CRCF and the
Trustee (as amended, modified or supplemented from time to time, exclusive
of
Supplements creating a new Series of Notes, the “Base
Indenture”).
PRELIMINARY
STATEMENT
WHEREAS,
Sections 2.2
and
12.1
of the
Base Indenture provide, among other things, that CRCF and the Trustee may at
any
time and from time to time enter into a supplement to the Base Indenture for
the
purpose of authorizing the issuance of one or more Series of Notes;
NOW,
THEREFORE, the parties hereto agree as follows:
DESIGNATION
There
is
hereby created a Series of Notes to be issued pursuant to the Base Indenture
and
this Supplement and such Series of Notes shall be designated generally as
Variable Funding Rental Car Asset Backed Notes, Series 2006-2.
The
proceeds from the sale of the Series 2006-2 Notes shall be deposited in the
Collection Account and shall be paid to CRCF and used to make Loans under the
Loan Agreements to the extent that the Borrowers have requested Loans thereunder
and Eligible Vehicles are available for acquisition or refinancing thereunder
on
the date hereof. Any such portion of proceeds not so used to make Loans shall
be
deemed to be Principal Collections.
The
Series 2006-2 Notes are a non-Segregated Series of Notes (as more fully
described in the Base Indenture). Accordingly, all references in this Supplement
to “all” Series of Notes (and all references in this Supplement to terms defined
in the Base Indenture that contain references to “all” Series of Notes) shall
refer to all Series of Notes other than Segregated Series of Notes.
1
ARTICLE
I
DEFINITIONS
(a) All
capitalized terms not otherwise defined herein are defined in the Definitions
List attached to the Base Indenture as Schedule I thereto. All Article,
Section, Subsection, Exhibit or Schedule references herein shall refer to
Articles, Sections, Subsections, Exhibits or Schedules of this Supplement,
except as otherwise provided herein. Unless otherwise stated herein, as the
context otherwise requires or if such term is otherwise defined in the Base
Indenture, each capitalized term used or defined herein shall relate only to
the
Series 2006-2 Notes and not to any other Series of Notes issued by CRCF. In
the
event that a term used herein shall be defined both herein and in the Base
Indenture, the definition of such term herein shall govern.
(b) The
following words and phrases shall have the following meanings with respect
to
the Series 2006-2 Notes and the definitions of such terms are applicable to
the
singular as well as the plural form of such terms and to the masculine as well
as the feminine and neuter genders of such terms:
“ABCR”
is
defined in the recitals hereto.
“Acquiring
APA Bank”
is
defined in Section 11.1(c).
“Acquiring
Purchaser Group”
is
defined in Section 11.1(e).
“Additional
CP Conduit Purchaser”
is
defined in Section 2.6(e).
“Additional
Funding Agent”
is
defined in Section 2.6(e).
“Adjusted
LIBO Rate”
means,
with respect to each day during each Eurodollar Period, pertaining to a portion
of the Purchaser Group Invested Amount with respect to any Purchaser Group
allocated to a Eurodollar Tranche, an interest rate per annum (rounded upwards,
if necessary, to the nearest 1/16th
of 1%)
equal to the LIBO Rate for such Eurodollar Period multiplied by the Statutory
Reserve Rate.
“Adjusted
Net Book Value”
means,
as of any date of determination, with respect to each Adjusted Program Vehicle
as of such date, the product of 0.965 and the Net Book Value of such Adjusted
Program Vehicle as of such date.
“Administrative
Agent”
is
defined in the recitals hereto.
“Administrator”
is
defined in the recitals hereto.
“Affected
Party”
means
any CP Conduit Purchaser and any Program Support Provider with respect to such
CP Conduit Purchaser.
“Alternate
Base Rate”
means,
for any day, a rate per annum equal to the greater of (a) the Prime Rate in
effect on such day and
(b) the
Federal Funds Effective Rate in effect on
2
such
day
plus½
of
1%.
Any change in the Alternate Base Rate due to a change in the Prime Rate or
the
Federal Funds Effective Rate shall be effective from and including the effective
day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
“APA
Bank”
is
defined in the recitals hereto.
“APA
Bank Funded Amount”
means,
with respect to any Purchaser Group for any day, the excess, if any, of the
Purchaser Group Invested Amount with respect to such Purchaser Group over the
CP
Conduit Funded Amount for such day.
“APA
Bank Percentage”
means,
with respect to any APA Bank, the percentage set forth opposite the name of
such
APA Bank on Schedule I.
“Applicable
Margin”
is
defined in the Fee Letter.
“Article
VII Costs”
means
any amounts due pursuant to Article VII or Section
2.8
and any
interest accrued pursuant to Section
3.4
on any
amounts due pursuant to Article VII or Section
2.8.
“Asset
Purchase Agreement”
means,
with respect to any CP Conduit Purchaser, the asset purchase agreement,
liquidity agreement or other agreement among such CP Conduit Purchaser, the
Funding Agent with respect to such CP Conduit Purchaser and the APA Bank with
respect to such CP Conduit Purchaser, any agreement between such CP Conduit
Purchaser and any Program Support Provider with respect to such CP Conduit
Purchaser or any letter of credit, surety bond or other instrument of any such
Program Support Provider, as amended, modified or supplemented from time to
time.
“Available
Liquidity Amount”
means,
with respect to any CP Conduit Purchaser, as of any date of determination while
a CP Disruption Event with respect to such CP Conduit Purchaser is continuing,
the amount available to such CP Conduit Purchaser as of such date under the
Asset Purchase Agreement with respect to such CP Conduit Purchaser.
“Average
Vehicle Lease Term”
means,
as of any date of determination, (1) the sum of, for all Vehicles leased under
a
Lease as of such date, the number of days since the Vehicle Operating Lease
Commencement Date or Vehicle Lease Commencement Date, as applicable, for each
such Vehicle, divided
by
(2) the
aggregate number of Vehicles leased under the Leases as of such
date.
“Bank
Accounts”
is
defined in Section 11.25(f).
“Barclays”
is
defined in the recitals hereto.
“Benefited
Purchaser Group”
is
defined in Section 11.3(a).
“Board”
means
the Board of Governors of the Federal Reserve System or any successor
thereto.
3
“Business
Day”
means
any day other than (a) a Saturday or a Sunday or (b) a day on which the Surety
Provider or banking institutions in New York, New York, Chicago,
Illinois or the city in which the corporate trust office of the Trustee is
located are authorized or obligated by law or executive order to
close.
“Cendant”
means
Cendant Corporation, a Delaware corporation.
“Certificate
of Lease Deficit Demand”
means
a
certificate substantially in the form of Annex A
to any
Series 2006-2 Letter of Credit.
“Certificate
of Termination Date Demand”
means
a
certificate substantially in the form of Annex D
to any
Series 2006-2 Letter of Credit.
“Certificate
of Termination Demand”
means
a
certificate substantially in the form of Annex C
to any
Series 2006-2 Letter of Credit.
“Certificate
of Unpaid Demand Note Demand”
means
a
certificate substantially in the form of Annex B
to any
Series 2006-2 Letter of Credit.
“Change
in Control”
means
(a) Cendant shall at any time cease to own or control, directly or indirectly,
greater than 50% of the Voting Stock of ABCR, ARAC or BRAC or (b) either
CRCF or AESOP Leasing is no longer indirectly wholly-owned by ABCR.
“Change
in Law”
means
(a) any law, rule or regulation or any change therein or in the interpretation
or application thereof (whether or not having the force of law), in each case,
adopted, issued or occurring after the Series 2006-2 Closing Date or (b) any
request, guideline or directive (whether or not having the force of law) from
any government or political subdivision or agency, authority, bureau, central
bank, commission, department or instrumentality thereof, or any court, tribunal,
grand jury or arbitrator, or any accounting board or authority (whether or
not
part of government) which is responsible for the establishment or interpretation
of national or international accounting principles, in each case, whether
foreign or domestic (each an “Official
Body”)
charged with the administration, interpretation or application thereof, or
the
compliance with any request or directive of any Official Body (whether or not
having the force of law) made, issued or occurring after the Series 2006-2
Closing Date.
“Claim”
is
defined in Section 2.8.
“Commercial
Paper”
means,
with respect to any CP Conduit Purchaser, the short-term promissory notes
(including any such notes the maturity of which, by the terms of such notes,
may
be extended for a period not to exceed 390 days from original issuance), issued
by such CP Conduit Purchaser which are allocated at the time of determination
by
such CP Conduit Purchaser to funding its purchase of a Series 2006-2 Note or
the
maintenance of such Series 2006-2 Note, including any Increase. All Commercial
Paper allocated by or on behalf of Stratford to fund its purchase of a Series
2006-2 Note or the maintenance of a Series 2006-2 Note shall have an initial
maturity of no more than 60 days from the original issuance of such Commercial
Paper, shall not mature on any date that is not a Business Day and, absent
a CP
Disruption Event, shall not be extended beyond such initial
maturity.
4
“Commitment
Amount”
means,
with respect to any Purchaser Group, the amount set forth opposite the name
of
the CP Conduit Purchaser included in such Purchaser Group on Schedule I, as
such amount may be increased or reduced from time to time as provided in
Section 2.6.
The
Commitment Amount with respect to each Non-Extending Purchaser Group shall
be
reduced to zero on the Scheduled Expiry Date with respect to such Purchaser
Group.
“Commitment
Percentage”
means,
on any date of determination, with respect to any Purchaser Group, the ratio,
expressed as a percentage, which such Purchaser Group’s Commitment Amount bears
to the Series 2006-2 Maximum Invested Amount on such date.
“Company
indemnified person”
is
defined in Section 2.8.
“Conduit
Assignee”
means,
with respect to any CP Conduit Purchaser, any commercial paper conduit
administered by the Funding Agent with respect to such CP Conduit Purchaser
and
designated by such Funding Agent to accept an assignment from such CP Conduit
Purchaser of the Purchaser Group Invested Amount or a portion thereof with
respect to such CP Conduit Purchaser pursuant to Section 11.1(b).
“Confirmation
Condition”
means,
with respect to any Bankrupt Manufacturer which is a debtor in Chapter 11
Proceedings, a condition that shall be satisfied upon the bankruptcy court
having competent jurisdiction over such Chapter 11 Proceedings issuing an order
that remains in effect approving (i) the assumption of such Bankrupt
Manufacturer’s Manufacturer Program (and the related Assignment Agreements) by
such Bankrupt Manufacturer or the trustee in bankruptcy of such Bankrupt
Manufacturer under Section 365 of the Bankruptcy Code and at the time of
such assumption, the payment of all amounts due and payable by such Bankrupt
Manufacturer under such Manufacturer Program and the curing of all other
defaults by the Bankrupt Manufacturer thereunder or (ii) the execution, delivery
and performance by such Bankrupt Manufacturer of a new post-petition
Manufacturer Program (and the related assignment agreements) on the same terms
and covering the same Vehicles as such Bankrupt Manufacturer’s Manufacturer
Program (and the related Assignment Agreements) in effect on the date such
Bankrupt Manufacturer became subject to such Chapter 11 Proceedings and, at
the
time of the execution and delivery of such new post-petition Manufacturer
Program, the payment of all amounts due and payable by such Bankrupt
Manufacturer under such Manufacturer Program and the curing of all other
defaults by the Bankrupt Manufacturer thereunder; provided
that
notwithstanding the foregoing, the Confirmation Condition shall be deemed
satisfied until the 90th
calendar
day following the initial filing in respect of such Chapter 11
Proceedings.
“Consent”
is
defined in Article V.
“Consent
Period Expiration Date”
is
defined in Article V.
“CP
Conduit Funded Amount”
means,
with respect to any Purchaser Group for any day, the portion of the Purchaser
Group Invested Amount with respect to such Purchaser Group funded by such
Purchaser Group through the issuance of Commercial Paper outstanding on such
day.
“CP
Conduit Purchaser”
is
defined in the recitals hereto.
5
“CP
Disruption Amortization Event”
means
a
CP Disruption Event with respect to any CP Conduit Purchaser shall occur and
continue and for a period of ninety (90) days.
“CP
Disruption Event”
means,
with respect to any CP Conduit Purchaser, an event that is deemed to have
occurred on the date that CRCF, the Surety Provider, the Administrator and
the
Administrative Agent receive notice from such CP Conduit Purchaser that such
CP
Conduit Purchaser is unable to raise, or is precluded or prohibited from
raising, funds through the issuance of Commercial Paper and is deemed to
continue until the Administrator and the Surety Provider receive notice from
such CP Conduit Purchaser that such CP Conduit Purchaser is able to raise funds
through the issuance of Commercial Paper.
“CP
Interest Rate Period”
means,
with respect to the Commercial Paper of any CP Conduit Purchaser which has
extended beyond its expected maturity date, a period commencing on and including
a Distribution Date and ending on and including the day preceding the next
succeeding Distribution Date; provided,
however,
that
the initial CP Interest Rate Period with respect to such Commercial Paper shall
commence on and include the expected maturity date of such Commercial Paper
and
end on and include the day preceding the first Distribution Date following
such
expected maturity date or, if earlier, the date such Commercial Paper is repaid
or redeemed in full.
“CRCF”
is
defined in the recitals hereto.
“Decrease”
means
a
reduction of the Series 2006-2 Invested Amount pursuant to Section 2.5(a).
“Demand
Note Issuer”
means
each issuer of a Series 2006-2 Demand Note.
“Designated
Amounts”
is
defined in Article V.
“Disbursement”
means
any Lease Deficit Disbursement, any Unpaid Demand Note Disbursement, any
Termination Date Disbursement or any Termination Disbursement under a Series
2006-2 Letter of Credit, or any combination thereof, as the context may
require.
“Discount”
means,
with respect to any CP Conduit Purchaser, the amount of interest or discount
to
accrue on or in respect of the Commercial Paper issued by such CP Conduit
Purchaser allocated, in whole or in part, by the Funding Agent with respect
to
such CP Conduit Purchaser, to fund the purchase or maintenance of the CP Conduit
Funded Amount with respect to such CP Conduit Purchaser (including, without
limitation, any interest attributable to the commissions of placement agents
and
dealers in respect of such Commercial Paper and any costs associated with
funding small or odd-lot amounts, to the extent that such commissions or costs
are allocated, in whole or in part, to such Commercial Paper by such Funding
Agent); provided,
however,
that it
is understood and agreed that to the extent that the Commercial Paper issued
by
a CP Conduit Purchaser is extended beyond its expected maturity date, interest
thereon will accrue at a rate equal to the LIBO Rate for each CP Interest Rate
Period with respect to such Commercial Paper from and including the expected
maturity date of such Commercial Paper to but excluding the date such Commercial
Paper is repaid or redeemed in full plus
0.25%
per annum.
6
“Disruption
Trigger Date”
means
the first day upon which (a) a CP Disruption Amortization Event with respect
to
any CP Conduit Purchaser occurs, (b) an Early Controlled Amortization Event
has
occurred and an Extended CP Disruption Event with respect to any CP Conduit
Purchaser occurs on or prior to the last day of the second calendar month after
the calendar month in which such Early Controlled Amortization Event occurred
or
(c) an Extended CP Disruption Event with respect to any CP Conduit Purchaser
exists and an Early Controlled Amortization Event occurs.
“Early
Controlled Amortization Event”
means
the occurrence of any of the following: (i) the Three Month Average Vehicle
Lease Term as of any Determination Date exceeds 305 days, (ii) the Series
2006-2 Invested Amount, for a period of three (3) Business Days, exceeds 25%
of
the Aggregate Invested Amount or (iii) the Series 2006-2 Notes fail to have
a rating of at least “Aa2” from Moody’s or a rating of at least “AA” from
S&P for a period of thirty (30) days.
“Effective
Date”
is
defined in Article VI.
“Eligible
Assignee”
means
a
financial institution having short-term debt ratings of at least “A-1” from
Standard & Poor’s and “P-1” from Moody’s.
“Eurodollar
Period”
means,
with respect to any Eurodollar Tranche and any Purchaser Group:
(a) initially,
the period commencing on the date upon which all or a portion of the APA Bank
Funded Amount is allocated to such Eurodollar Tranche in accordance with
Section 2.7(c)
and
ending on the next succeeding Distribution Date or such other date agreed to
by
the Funding Agent for such Purchaser Group and the Administrator on behalf
of
CRCF (provided
that the
Administrator provides the Trustee with written notice of such date two (2)
Business Days prior to such date); and
(b) thereafter,
each period commencing on the last day of the immediately preceding Eurodollar
Period applicable to such Eurodollar Tranche and ending on the next succeeding
Distribution Date or such other date agreed to by the Funding Agent for such
Purchaser Group and the Administrator on behalf of CRCF (provided
that the
Administrator provides the Trustee with written notice of such date two (2)
Business Days prior to such date).
“Eurodollar
Tranche”
means,
with respect to any Purchaser Group, a portion of the APA Bank Funded Amount
with respect to such Purchaser Group allocated pursuant to Section 2.7(c)
to a
particular Eurodollar Period and an Adjusted LIBO Rate determined by reference
thereto.
“Excess
Collections”
is
defined in Section 3.3(f)(i).
“Excluded
Receivable Amount”
means,
as of any date of determination, the greater of the Moody’s Excluded Receivable
Amount and the Standard & Poor’s Excluded Receivable Amount as of such
date.
7
“Excluded
Taxes”
means,
with respect to the Administrative Agent, any CP Conduit Purchaser, any APA
Bank, any Funding Agent, any Program Support Provider or any other recipient
of
any payment to be made by or on account of any obligation of CRCF hereunder,
(a)
income or franchise taxes imposed on (or measured by) its net income by the
United States of America or by any other Governmental Authority, in each case,
as a result of a present or former connection between the United States of
America or the jurisdiction of such Governmental Authority imposing such tax,
as
the case may be, and the Administrative Agent, such CP Conduit Purchaser, such
APA Bank, such Funding Agent, such Program Support Provider or any other such
recipient (except a connection arising solely from the Administrative Agent’s,
such CP Conduit Purchaser’s, such APA Bank’s, such Program Support Provider’s or
such recipient’s having executed, delivered or performed its obligations
hereunder, receiving a payment hereunder or enforcing the Series 2006-2 Notes)
and (b) any branch profits tax imposed by the United States of America or any
similar tax imposed by any other jurisdiction in which CRCF is located (except
any such branch profits or similar tax imposed as a result of a connection
with
the United States of America or other jurisdiction as a result of a connection
arising solely from the Administrative Agent’s, such CP Conduit Purchaser’s,
such APA Bank’s, such Program Support Provider’s or such recipient’s having
executed, delivered or performed its obligations hereunder, receiving a payment
hereunder or enforcing the Series 2006-2 Notes).
“Expiry
Date”
means,
with respect to any Purchaser Group, the earliest of (a) the Scheduled Expiry
Date with respect to such Purchaser Group, (b) the date on which an Early
Controlled Amortization Event shall have occurred, (c) the date on which a
CP
Disruption Amortization Event with respect to any CP Conduit Purchaser shall
have occurred and (d) the date on which an Amortization Event with respect
to
the Series 2006-2 Notes shall have been declared or automatically
occurred.
“Extended
CP Disruption Event”
means,
with respect to any CP Conduit Purchaser, a CP Disruption Event shall occur
with
respect to such CP Conduit Purchaser and shall continue for a period of at
least
five (5) Business Days.
“Extending
Purchaser Group”
means
a
Purchaser Group other than a Non-Extending Purchaser Group.
“Federal
Funds Effective Rate”
means,
for any day, the weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight federal funds transactions with members
of the Federal Reserve System arranged by federal funds brokers, as published
on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day of such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by
it.
“Fee
Letter”
means
the letter, dated the date hereof, from CRCF addressed to the Administrative
Agent and each of the CP Conduit Purchasers, the Funding Agents and the APA
Banks setting forth certain fees payable from time to time to each of the
Purchaser Groups, as such letter may be amended or replaced from time to
time.
8
“Finance
Guide”
means
the Black Book Official Finance/Lease Guide.
“Fixed
Rate Payment”
means,
for any Distribution Date, the amount, if any, payable by CRCF as the “Fixed
Amount” under any Series 2006-2 Interest Rate Swap after the netting of payments
due to CRCF as the “Floating Amount” from the Series 2006-2 Interest Rate Swap
Counterparty under such Series 2006-2 Interest Rate Swap on such Distribution
Date. For the avoidance of doubt, “Fixed Rate Payment” shall not include any
amounts payable as a result of the early termination of a Series 2006-2 Interest
Rate Swap.
“Floating
Tranche”
means,
with respect to any Purchaser Group, the portion of the APA Bank Funded Amount
with respect to such Purchaser Group not allocated to a Eurodollar
Tranche.
“Funding
Agent”
is
defined in the recitals hereto.
“Inclusion
Date”
means,
with respect to any Vehicle, the date that is three months after the earlier
of
(i) the date such Vehicle became a Redesignated Vehicle and (ii) if the
Manufacturer of such Vehicle is a Bankrupt Manufacturer, the date upon which
the
Event of Bankruptcy which caused such Manufacturer to become a Bankrupt
Manufacturer first occurred.
“Increase”
is
defined in Section 2.3(a).
“Increase
Amount”
is
defined in Section 2.3(a).
“Increase
Date”
is
defined in Section 2.3(a).
“Indemnified
Taxes”
means
Taxes other than Excluded Taxes.
“Insurance
Agreement”
means
the Insurance Agreement, dated as of June 2, 2006, by and among the Surety
Provider, the Trustee and CRCF, which shall constitute an “Enhancement
Agreement” with respect to the Series 2006-2 Notes for all purposes under the
Indenture.
“Insured
Principal Deficit Amount”
means,
with respect to any Distribution Date, the excess, if any, of (a) the Series
2006-2 Outstanding Principal Amount on such Distribution Date (after giving
effect to the distribution of the Monthly Total Principal Allocation for the
Related Month) over (b) the sum of the Series 2006-2 Available Reserve Account
Amount on such Distribution Date, the Series 2006-2 Letter of Credit Amount
on
such Distribution Date and the Series 2006-2 AESOP I Operating Lease Loan
Agreement Borrowing Base on such Distribution Date.
“Lease
Deficit Disbursement”
means
an amount drawn under a Series 2006-2 Letter of Credit pursuant to a Certificate
of Lease Deficit Demand.
“LIBO
Rate”
means,
(a) with respect to each day during each Eurodollar Period pertaining to a
Eurodollar Tranche or each CP Interest Rate Period, the rate appearing on
Telerate Page 3750 of the Dow ▇▇▇▇▇ Telerate Service (or on any successor or
substitute page of such service, providing rate quotations comparable to those
currently provided on such page of
9
such
service, as determined by the Administrative Agent from time to time in
accordance with its customary practices for purposes of providing quotations
of
interest rates applicable to dollar deposits in the London interbank market)
at
approximately 11:00 a.m. (London time) on the second London Banking Day prior
to
the commencement of such Eurodollar Period or such CP Interest Rate Period,
as
the case may be, as the rate for dollar deposits with a maturity comparable
to
the Eurodollar Period applicable to such Eurodollar Tranche or such CP Interest
Rate Period, as the case may be or (b) with respect to each day in connection
with the calculation of Series 2006-2 Capped Senior Amount, (i) if such day
is a
London Banking Day, the rate appearing on Telerate Page 3750 of the Dow ▇▇▇▇▇
Telerate Service (or on any successor or substitute page of such service,
providing rate quotations comparable to those currently provided on such page
of
such service, as determined by the Administrative Agent from time to time in
accordance with its customary practices for purposes of providing quotations
of
interest rates applicable to dollar deposits in the London interbank market)
at
approximately 11:00 a.m. (London time) on such London Banking Day as the
overnight rate for dollar deposits, or (ii) if such day is not a London Banking
Day, such rate for the preceding London Banking Day.
“Liquidity
Amount”
means,
with respect to any Purchaser Group, the Mandatory Liquidity Percentage, with
respect to such Purchaser Group, of the Commitment Amount with respect to such
Purchaser Group.
“Liquidity
Fee”
is
defined in Section 2.7(b).
“Liquidity
Fee Rate”
is
defined in the Fee Letter.
“LOC
Pro Rata Share”
means,
with respect to any Series 2006-2 Letter of Credit Provider as of any date,
the
fraction (expressed as a percentage) obtained by dividing (A) the available
amount under such Series 2006-2 Letter of Credit Provider’s Series 2006-2 Letter
of Credit as of such date by (B) an amount equal to the aggregate available
amount under all Series 2006-2 Letters of Credit as of such date; provided
that
only for purposes of calculating the LOC Pro Rata Share with respect to any
Series 2006-2 Letter of Credit Provider as of any date, if such Series 2006-2
Letter of Credit Provider has not complied with its obligation to pay the
Trustee the amount of any draw under its Series 2006-2 Letter of Credit made
prior to such date, the available amount under such Series 2006-2 Letter of
Credit Provider’s Series 2006-2 Letter of Credit as of such date shall be
treated as reduced (for calculation purposes only) by the amount of such unpaid
demand and shall not be reinstated for purposes of such calculation unless
and
until the date as of which such Series 2006-2 Letter of Credit Provider has
paid
such amount to the Trustee and been reimbursed by the Lessee or the applicable
Demand Note Issuer, as the case may be, for such amount (provided
that the
foregoing calculation shall not in any manner reduce the undersigned’s actual
liability in respect of any failure to pay any demand under its
Series 2006-2 Letter of Credit).
“London
Banking Day”
means
any business day on which dealings in deposits in United States dollars are
transacted in the London interbank market.
“Mandatory
Assignment Conditions”
means,
with respect to any requested sale of an interest in a Series 2006-2 Note
pursuant to Section
11.1(g),
(a) no
Surety Default has occurred and is continuing, (b) either (x) such sale is
to an
Acquiring Purchaser Group and (1) a
10
Potential
Amortization Event (other than a Potential Amortization Event due to a CP
Disruption Event) has occurred and is continuing, (2) CRCF has consented to
such
sale or (3) 90 days have elapsed since the commencement of the then-existing
CP
Disruption Event and the Surety Provider has given five (5) Business Days’ prior
written notice to CRCF of such sale, or (y) such sale is to the Surety Provider
or its Affiliate, the Series 2006-2 Notes being sold constitute all of the
Series 2006-2 Notes then outstanding, and all amendments to the Series 2006-2
Supplement that are necessary to allow the Surety Provider or its Affiliate
to
hold the Series 2006-2 Notes have become effective and (c) the selling Purchaser
Group has been paid an amount at least equal to the Mandatory Assignment Price
as of the date of the settlement of such sale with respect to such interest
in a
Series 20062 Note.
“Mandatory
Assignment Price”
means,
with respect to any Purchaser Group selling an interest in a Series 2006-2
Note
pursuant to Section
11.1(g),
as of
any date of determination, the sum of the amounts set forth in Section
2.6(d)(i)
through
(iv); provided
that the
portion of the Mandatory Assignment Price allocable to amounts set forth in
Section 2.6(d)(ii)
through
(iv) with respect to an interest in a Series 2006-2 Note shall not exceed the
pro
rata
portion
of the Series 2006-2 Capped Senior Amount attributable to such interest in
such
Series 2006-2 Note for the portion of the Series 2006-2 Interest Period during
which such sale occurs which has elapsed prior to such date of
determination.
“Mandatory
Decrease Amount”
means,
with respect to any CP Conduit Purchaser on a Mandatory Decrease Date for such
CP Conduit Purchaser, an amount equal to the excess, if any, of (i) the face
amount plus
accrued
and unpaid interest payable by such CP Conduit Purchaser in respect of any
Commercial Paper with respect to such CP Conduit Purchaser that is scheduled
by
its terms to mature on such date over (ii) the Available Liquidity Amount with
respect to such CP Conduit Purchaser on such date; provided,
however,
that if
such Mandatory Decrease Date is also the date of a Decrease or a Distribution
Date, the Mandatory Decrease Amount for such date will be reduced by the amount
to be paid to such Purchaser Group on such Distribution Date pursuant to
Section
3.5(a)
or
3.5(b)(i).
“Mandatory
Decrease Date”
means,
with respect to any CP Conduit Purchaser with respect to which a CP Disruption
Event is continuing, any day occurring at least 330 days and no more than 390
days after the initial occurrence of such CP Disruption Event upon which (i)
the
Commercial Paper with respect to such CP Conduit Purchaser is scheduled by
its
terms to mature and (ii) after giving effect to all payments to such CP
Conduit Purchaser on or prior to such day pursuant to the Asset Purchase
Agreement with respect to such CP Conduit Purchaser, the aggregate amount paid
thereunder to such CP Conduit Purchaser will be equal to the Liquidity Amount
with respect to the Purchaser Group of which such CP Conduit Purchaser is a
member.
“Mandatory
Liquidity Percentage”
means,
(i) with respect to the Purchaser Group including Barclays and Stratford, 20%,
or such different percentage agreed to by CRCF, the Surety Provider (in its
sole
and absolute discretion), Barclays and Stratford subject to satisfaction of
the
Rating Agency Confirmation and Consent Condition, and (ii) with respect to
any
other Purchaser Group, the percentage agreed to in writing by CRCF, the Surety
Provider (in its sole and absolute discretion) and such Purchaser
Group.
11
“Market
Value Average”
means,
as of any day, the percentage equivalent of a fraction, the numerator of which
is the average of the Selected Fleet Market Value as of the preceding
Determination Date and the two Determination Dates precedent thereto and the
denominator of which is the sum of (a) the average of the aggregate Net Book
Value of all Non-Program Vehicles (excluding (i) any Unaccepted Program
Vehicles, (ii) any Excluded Redesignated Vehicles and (iii) any other
Non-Program Vehicles that are subject to a Manufacturer Program with an Eligible
Non-Program Manufacturer with respect to which no Manufacturer Event of Default
has occurred and is continuing) and (b) the average of the aggregate Adjusted
Net Book Value of all Adjusted Program Vehicles, in the case of each of clause
(a) and (b) leased under the AESOP I Operating Lease and the Finance Lease
as of
the preceding Determination Date and the two Determination Dates precedent
thereto.
“Monthly
Funding Costs”
means,
with respect to each Series 2006-2 Interest Period and any Purchaser Group,
the
sum of:
(a) for
each
day during such Series 2006-2 Interest Period, the aggregate amount of Discount
accruing on or otherwise in respect of the Commercial Paper issued by, or for
the benefit of, the CP Conduit Purchaser in such Purchaser Group allocated,
in
whole or in part, by the Funding Agent with respect to such CP Conduit
Purchaser, to fund the purchase or maintenance of the CP Conduit Funded Amount
with respect to such Purchaser Group; and
(b) for
each
day during such Series 2006-2 Interest Period, the sum of:
(i) an
amount
equal to (A) the portion of the APA Bank Funded Amount with respect to such
Purchaser Group allocated to the Floating Tranche with respect to such Purchaser
Group on such day times
(B) the
Alternate Base Rate plus the
Applicable Margin, divided
by (C)
365 (or 366, as the case may be) and
(ii) an
amount
equal to (A) the portion of the APA Bank Funded Amount with respect to such
Purchaser Group allocated to Eurodollar Tranches with respect to such Purchaser
Group on such day times
(B) the
weighted average Adjusted LIBO Rate with respect to such Eurodollar Tranches
plus
the
Applicable Margin on such day in effect with respect thereto divided
by (C)
360; and
(c) for
each
day during such Series 2006-2 Interest Period, an amount equal to (A) the CP
Conduit Funded Amount with respect to such Purchaser Group on such day
times
(B) the
Program Fee Rate per annum divided
by (C)
360.
“Monthly
Total Principal Allocation”
means
for any Related Month the sum of all Series 2006-2 Principal Allocations with
respect to such Related Month.
“▇▇▇▇▇’▇
Excluded Manufacturer Receivable Specified Percentage”
means,
as of any date of determination, with respect to each ▇▇▇▇▇’▇ Non-Investment
Grade Manufacturer as of such date, the percentage (not to exceed 100%) most
recently specified in writing by ▇▇▇▇▇’▇ to CRCF and the Trustee and consented
to by the Surety Provider (in its sole and absolute discretion) with respect
to
such ▇▇▇▇▇’▇ Non-Investment Grade Manufacturer; provided,
12
however,
that as
of the Series 2006-2 Closing Date the ▇▇▇▇▇’▇ Excluded Manufacturer Receivable
Specified Percentage for each ▇▇▇▇▇’▇ Non-Investment Grade Manufacturer shall be
100%; provided further
that the
initial ▇▇▇▇▇’▇ Excluded Manufacturer Receivable Specified Percentage with
respect to any Manufacturer that becomes a ▇▇▇▇▇’▇ Non-Investment Grade
Manufacturer after the Series 2006-2 Closing Date shall be 100%.
“▇▇▇▇▇’▇
Excluded Receivable Amount”
means,
as of any date of determination, the sum of the following amounts with respect
to each ▇▇▇▇▇’▇ Non-Investment Grade Manufacturer as of such date: the product
of (i) to the extent such amounts are included in the calculation of AESOP
I
Operating Lease Loan Agreement Borrowing Base as of such date, all amounts
receivable, as of such date, by AESOP Leasing or the Intermediary from such
▇▇▇▇▇’▇ Non-Investment Grade Manufacturer and (ii) the ▇▇▇▇▇’▇ Excluded
Manufacturer Receivable Specified Percentage for such ▇▇▇▇▇’▇ Non-Investment
Grade Manufacturer as of such date.
“▇▇▇▇▇’▇
Non-Investment Grade Manufacturer”
means,
as of any date of determination, any Manufacturer that (i) is not a Bankrupt
Manufacturer and (ii) does not have a long-term senior unsecured debt rating
of
at least “Baa3” from ▇▇▇▇▇’▇; provided
that any
Manufacturer whose long-term senior unsecured debt rating is downgraded from
at
least “Baa3” to below “Baa3” by ▇▇▇▇▇’▇ after the Series 2006-2 Closing Date
shall not be deemed a ▇▇▇▇▇’▇ Non-Investment Grade Manufacturer until the
thirtieth (30th)
calendar day following such downgrade.
“Non-Extending
Purchaser Group”
means
any Purchaser Group who shall not have agreed to an extension of its Scheduled
Expiry Date pursuant to Section 2.6(b).
“Optional
Termination Date”
is
defined in Section 2.5(b).
“Optional
Termination Notice”
is
defined in Section 2.5(b).
“Other
Taxes”
means
any and all current or future stamp or documentary taxes or other excise or
property taxes, charges or similar levies arising from any payment made under
this Supplement, the Base Indenture, or any Related Documents or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Supplement, the Base Indenture or any Related Document.
“Outstanding”
means,
with respect to the Series 2006-2 Notes, the Series 2006-2 Invested Amount
shall
not have been reduced to zero and all accrued interest and other amounts owing
on the Series 2006-2 Notes and to the Administrative Agent, the Funding Agents,
the CP Conduit Purchasers, the APA Banks and the Surety Provider hereunder
shall
not have been paid in full.
“Participants”
is
defined in Section 11.1(d).
“Past
Due Rent Payment”
is
defined in Section 3.2(g).
“Preference
Amount”
means
any amount previously distributed to a member or members of a Purchaser Group
on
or relating to a Series 2006-2 Note that is recoverable or that has been
recovered as a voidable preference by the trustee in a bankruptcy proceeding
of
a
13
Demand
Note Issuer pursuant to the Bankruptcy Code, in accordance with a final
nonappealable order of a court having competent jurisdiction.
“Premium
Letter”
means
the letter, dated the date hereof, from CRCF and the Trustee addressed to the
Surety Provider setting forth the Surety Provider Fee.
“Pre-Preference
Period Demand Note Payments”
means,
as of any date of determination, the aggregate amount of all proceeds of demands
made on the Series 2006-2 Demand Notes included in the Series 2006-2 Demand
Note
Payment Amount as of the Series 2006-2 Letter of Credit Termination Date that
were paid by the Demand Note Issuers more than one year before such date of
determination; provided,
however, that
if
an Event of Bankruptcy (or the occurrence of an event described in clause (a)
of
the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer occurs during such one-year period, (x)
the
Pre-Preference Period Demand Note Payments as of any date during the period
from
and including the date of the occurrence of such Event of Bankruptcy to and
including the conclusion or dismissal of the proceedings giving rise to such
Event of Bankruptcy without continuing jurisdiction by the court in such
proceedings shall equal the Pre-Preference Period Demand Note Payments as of
the
date of such occurrence and (y) the Pre-Preference Period Demand Note Payments
as of any date after the conclusion or dismissal of such proceedings shall
equal
the Series 2006-2 Demand Note Payment Amount as of the date of the conclusion
or
dismissal of such proceedings.
“Prime
Rate”
means
the rate of interest per annum publicly announced from time to time by Barclays
as its prime rate in effect at its principal office in New York City. Each
change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
“Principal
Deficit Amount”
means,
on any date of determination, the excess, if any, of (i) the Series 2006-2
Invested Amount on such date (after giving effect to the distribution of the
Monthly Total Principal Allocation for the Related Month if such date is a
Distribution Date) over (ii) the Series 2006-2 AESOP I Operating Lease Loan
Agreement Borrowing Base on such date; provided,
however
the
Principal Deficit Amount on any date occurring during the period commencing
on
and including the date of the filing by ABCR of a petition for relief under
Chapter 11 of the Bankruptcy Code to but excluding the date on which ABCR shall
have resumed making all payments of the portion of Monthly Base Rent relating
to
Loan Interest required to be made under the AESOP I Operating Lease, shall
mean
the excess, if any, of (x) the Series 2006-2 Invested Amount on such date (after
giving effect to the distribution of Monthly Total Principal Allocation for
the
Related Month if such date is a Distribution Date) over
(y) the
sum of (1) the Series 2006-2 AESOP I Operating Lease Loan Agreement Borrowing
Base on such date and (2) the lesser of (a) the Series 2006-2 Liquidity Amount
on such date and (b) the Series 2006-2 Required Liquidity Amount on such
date.
“Pro
Rata Share”
means,
with respect to any Purchaser Group, on any date, the ratio, expressed as a
percentage, which the Purchaser Group Invested Amount with respect to such
Purchaser Group bears to the Series 2006-2 Invested Amount on such
date.
“Program
Fee Rate”
is
defined in the Fee Letter.
14
“Program
Support Provider”
means,
with respect to any CP Conduit Purchaser, the APA Bank with respect to such
CP
Conduit Purchaser and any other or additional Person now or hereafter extending
credit, or having a commitment to extend credit to or for the account of, or
to
make purchases from, such CP Conduit Purchaser or issuing a letter of credit,
surety bond or other instrument to support any obligations arising under or
in
connection with such CP Conduit Purchaser’s securitization program.
“Purchase
Effective Date”
is
defined in Section 2.6(d).
“Purchaser
Group”
means,
collectively, a CP Conduit Purchaser and the APA Banks with respect to such
CP
Conduit Purchaser.
“Purchaser
Group Addition Date”
is
defined in Section 2.6(e).
“Purchaser
Group Increase Amount”
means,
with respect to any Purchaser Group, for any Business Day, such Purchaser
Group’s Commitment Percentage of the Increase Amount, if any, on such Business
Day.
“Purchaser
Group Invested Amount”
means,
with respect to any Purchaser Group, (a) when used with respect to the Series
2006-2 Closing Date, such Purchaser Group’s Commitment Percentage of the Series
2006-2 Initial Invested Amount and (b) when used with respect to any other
date,
an amount equal to (i) the Purchaser Group Invested Amount with respect to
such
Purchaser Group on the immediately preceding Business Day plus
(ii) the
Purchaser Group Increase Amount with respect to such Purchaser Group on such
date minus
(iii) the amount of principal payments made to such Purchaser Group
pursuant to Section 3.5(h)
on such
date plus
(iv) the
amount of principal payments recovered from such Purchaser Group by a trustee
as
a preference payment in a bankruptcy proceeding of a Demand Note Issuer or
otherwise to the extent such amounts have not been paid to such Purchaser Group
from proceeds of a draw on the Surety Bond.
“Purchaser
Group Supplement”
is
defined in Section 11.1(e).
“Qualified
Interest Rate Hedge Counterparty”
means
a
counterparty (A) which is acceptable to the Surety Provider and (B) which is
a
bank or other financial institution, which is acceptable to ▇▇▇▇▇’▇ or which has
itself, or has all of its obligations under its Series 2006-2 Interest Rate
Hedge guaranteed by a Person that has, (i) a short-term senior unsecured debt,
deposit, claims paying or credit
(as the
case may be) rating of at least “A-1” from Standard & Poor’s and of “P-1”
from ▇▇▇▇▇’▇ and (ii) (a) on the date such Series 2006-2 Interest
Rate Hedge is executed, a long-term senior unsecured debt, deposit, claims
paying or credit (as the case may be) rating of at least “AA-” from Standard
& Poor’s and of at least “Aa3” from ▇▇▇▇▇’▇ and (b) on any other date, a
long-term senior unsecured debt, deposit, claims paying or credit (as the case
may be) rating of at least “A+” from Standard & Poor’s and of at least “A1”
from ▇▇▇▇▇’▇.
“Record
Date”
means,
with respect to each Distribution Date, the immediately preceding Business
Day.
“Related
Additional APA Banks”
is
defined in Section 2.6(e).
15
“Related
Purchaser Group”
means,
with respect to any Funding Agent, the CP Conduit Purchaser identified next
to
such Funding Agent on Schedule I and each APA Bank identified on
Schedule I next to such CP Conduit Purchaser.
“Requisite
Noteholders”
means
Purchaser Groups having Commitment Percentages aggregating more than
50%.
“Scheduled
Expiry Date”
means,
with respect to any Purchaser Group, June 1, 2007, as such date may be
extended in accordance with Section 2.6(b).
“Selected
Fleet Market Value”
means,
with respect to all Adjusted Program Vehicles and all Non-Program Vehicles
(excluding (i) any Unaccepted Program Vehicles, (ii) any Excluded
Redesignated Vehicles and (iii) any other Non-Program Vehicles that are subject
to a Manufacturer Program with an Eligible Non-Program Manufacturer with respect
to which no Manufacturer Event of Default has occurred and is continuing) as
of
any date of determination, the sum of the respective Market Values of each
such
Adjusted Program Vehicle and each such Non-Program Vehicle, in each case subject
to the AESOP I Operating Lease or the Finance Lease as of such date. For
purposes of computing the Selected Fleet Market Value, the “Market Value” of an
Adjusted Program Vehicle or a Non-Program Vehicle means the market value of
such
Vehicle as specified in the most recently published NADA Guide for the model
class and model year of such Vehicle based on the average equipment and the
average mileage of each Vehicle of such model class and model year then leased
under the AESOP I Operating Lease and the Finance Lease; provided,
that if
the NADA Guide is not being published or the NADA Guide is being published
but
such Vehicle is not included therein, the Market Value of such Vehicle shall
be
based on the market value specified in the most recently published Finance
Guide
for the model class and model year of such Vehicle based on the average
equipment and the average mileage of each Vehicle of such model class and model
year then leased under the AESOP I Operating Lease or the Finance Lease;
provided,
further,
that if
the Finance Guide is being published but such Vehicle is not included therein,
the Market Value of such Vehicle shall mean (x) in the case of an Adjusted
Program Vehicle, the Adjusted Net Book Value of such Adjusted Program Vehicle
and (y) in the case of a Non-Program Vehicle, the Net Book Value of such
Non-Program Vehicle provided,
further,
that if
the Finance Guide is not being published, the Market Value of such Vehicle
shall
be based on an independent third-party data source selected by the Administrator
and approved by each Rating Agency that is rating any Series of Notes and the
Surety Provider (such approval not to be unreasonably withheld or delayed),
at
the request of CRCF based on the average equipment and average mileage of each
Vehicle of such model class and model year then leased under the AESOP I
Operating Lease or the Finance Lease; provided,
further,
that if
no such third-party data source or methodology shall have been so approved
or
any such third-party data source or methodology is not available, the Market
Value of such Vehicle shall be equal to a reasonable estimate of the wholesale
market value of such Vehicle as determined by the Administrator, based on the
Net Book Value of such Vehicle and any other factors deemed relevant by the
Administrator.
“Series
2000-2 Notes”
means
the Series of Notes designated as the Series 2000-2 Notes.
16
“Series
2001-2 Notes”
means
the Series of Notes designated as the Series 2001-2 Notes.
“Series
2002-1 Notes”
means
the Series of Notes designated as the Series 2002-1 Notes.
“Series
2002-2 Notes”
means
the Series of Notes designated as the Series 2002-2 Notes.
“Series
2002-3 Notes”
means
the Series of Notes designated as the Series 2002-3 Notes.
“Series
2003-1 Notes”
means
the Series of Notes designated as the Series 2003-1 Notes.
“Series
2003-2 Notes”
means
the Series of Notes designated as the Series 2003-2 Notes.
“Series
2003-3 Notes”
means
the Series of Notes designated as the Series 2003-3 Notes.
“Series
2003-4 Notes”
means
the Series of Notes designated as the Series 2003-4 Notes.
“Series
2003-5 Notes”
means
the Series of Notes designated as the Series 2003-5 Notes.
“Series
2004-1 Notes”
means
the Series of Notes designated as the Series 2004-1 Notes.
“Series
2004-2 Notes”
means
the Series of Notes designated as the Series 2004-2 Notes.
“Series
2004-4 Notes”
means
the Series of Notes designated as the Series 2004-4 Notes.
“Series
2005-1 Notes”
means
the Series of Notes designated as the Series 2005-1 Notes.
“Series
2005-2 Notes”
means
the Series of Notes designated as the Series 2005-2 Notes.
“Series
2005-4 Notes”
means
the Series of Notes designated as the Series 2005-4 Notes.
“Series
2006-1 Notes”
means
the Series of Notes designated as the Series 2006-1 Notes.
“Series
2006-2 Accrued Interest Account”
is
defined in Section 3.1(b).
17
“Series
2006-2 Adjusted Monthly Interest”
means,
for any Distribution Date, the lesser of (A) the sum of (i) an amount equal
to the product of (1) the Series 2006-2 Note Rate for the Series 2006-2 Interest
Period ending on the day preceding such Distribution Date, (2) the average
daily
Series 2006-2 Outstanding Principal Amount for such Series 2006-2 Interest
Period and (3) a fraction, the numerator of which is the number of days in
such
Series 2006-2 Interest Period and the denominator of which is 360 and
(ii) any amount described in clause (i) with respect to a prior
Distribution Date that remains unpaid as of such Distribution Date (together
with any accrued interest on such amount) and (B) the Series 2006-2 Capped
Senior Amount for such Distribution Date.
“Series
2006-2 AESOP I Operating Lease Loan Agreement Borrowing Base”
means,
as of any date of determination, the product of (a) the Series 2006-2 AESOP
I
Operating Lease Vehicle Percentage as of such date and (b) the excess of (i)
AESOP I Operating Lease Loan Agreement Borrowing Base as of such date over
(ii)
the Excluded Receivable Amount as of such date.
“Series
2006-2 AESOP I Operating Lease Vehicle Percentage”
means,
as of any date of determination, a fraction, expressed as a percentage (which
percentage shall never exceed 100%), the numerator of which is the Series 2006-2
Required AESOP I Operating Lease Vehicle Amount as of such date and the
denominator of which is the sum of the Required AESOP I Operating Lease Vehicle
Amounts for all Series of Notes as of such date.
“Series
2006-2 Agent”
is
defined in the recitals hereto.
“Series
2006-2 Available Cash Collateral Account Amount”
means,
as of any date of determination, the amount on deposit in the Series 2006-2
Cash
Collateral Account (after giving effect to any deposits thereto and withdrawals
and releases therefrom on such date).
“Series-2006-2
Available Reserve Account Amount”
means,
as of any date of determination, the amount on deposit in the Series 2006-2
Reserve Account (after giving effect to any deposits thereto and withdrawals
and
releases therefrom on such date).
“Series
2006-2 Basis Fees”
means,
for any Distribution Date, an amount equal to the excess, if any, of (A) the
sum
of (i) an amount equal to the product of (1) the Series 2006-2 Note Rate for
the
Series 2006-2 Interest Period ending on the day preceding such Distribution
Date, (2) the average daily Series 2006-2 Outstanding Principal Amount for
such
Series 2006-2 Interest Period and (3) a fraction, the numerator of which is
the
number of days in such Series 2006-2 Interest Period and the denominator of
which is 360, (ii) any amount described in clause (i) with respect to
a prior Distribution Date that remains unpaid as of such Distribution Date
(together with any accrued interest on such amount), (iii) the aggregate amount
of Liquidity Fees payable for the account of the Purchaser Groups on such
Distribution Date and (iv) the aggregate amount described in clause (iii) with
respect to a prior Distribution Date that remains unpaid as of such Distribution
Date (together with any accrued interest on such amount) over
(B) the
Series 2006-2 Capped Senior Amount for such Distribution Date.
18
“Series
2006-2 Capped Senior Amount”
means,
with respect to any Distribution Date, an amount equal to the sum, for each
day
during the Series 2006-2 Interest Period ending on the day preceding such
Distribution Date, of the product of (x) the Series 2006-2 Outstanding Principal
Amount calculated as of the close of business on such day (or if such day is
not
a Business Day, as of the close of business on the preceding Business Day)
and
(y) the sum of the LIBO Rate for such day plus
0.50%,
divided by 360.
“Series
2006-2 Capped Shortfall Amount”
means,
for any Distribution Date, the excess, if any, of (i) the sum, for each
Distribution Date preceding such Distribution Date, of the excess, if any,
of
(A) the sum of the Series 2006-2 Adjusted Monthly Interest and the Series 2006-2
Liquidity Fee Amount for such Distribution Date over
(B) the
aggregate amount paid to the Funding Agents on such Distribution Date pursuant
to Section
3.4
on
account of Monthly Funding Costs and Liquidity Fees, plus
accrued
interest on such excess at the Alternate Base Rate plus
2% per
annum, over (ii) the aggregate amount paid to the Paying Agent pursuant to
Section
3.3(f)
on each
Distribution Date preceding such Distribution Date on account of the Series
2006-2 Capped Shortfall Amount.
“Series
2006-2 Carryover Controlled Amortization Amount”
means,
with respect to any Related Month during the Series 2006-2 Controlled
Amortization Period, the amount, if any, by which the portion of the Monthly
Total Principal Allocation paid to the Administrative Agent for benefit of
the
Series 2006-2 Noteholders pursuant to Section 3.5(g)
for the
previous Related Month was less than the Series 2006-2 Controlled Distribution
Amount for the previous Related Month; provided,
however,
that
(i) for the first Related Month in the Series 2006-2 Controlled Amortization
Period, the Series 2006-2 Carryover Controlled Amortization Amount shall be
zero
and (ii) solely for the purposes of calculating the Series 2006-2 Controlled
Distribution Amount for the purposes of clause (n) of Article IV, on any
Disruption Trigger Date, the Series 2006-2 Carryover Controlled Amortization
Amount shall be reset to zero.
“Series
2006-2 Cash Collateral Account”
is
defined in Section 3.8(e).
“Series
2006-2 Cash Collateral Account Collateral”
is
defined in Section 3.8(a).
“Series
2006-2 Cash Collateral Account Surplus”
means,
with respect to any Distribution Date, the lesser of (a) the Series 2006-2
Available Cash Collateral Account Amount and (b) the lesser of (A) the excess,
if any, of the Series 2006-2 Liquidity Amount (after giving effect to any
withdrawal from the Series 2006-2 Reserve Account on such Distribution Date)
over
the
Series 2006-2 Required Liquidity Amount on such Distribution Date and (B) the
excess, if any, of the Series 2006-2 Enhancement Amount (after giving effect
to
any withdrawal from the Series 2006-2 Reserve Account on such Distribution
Date)
over the Series 2006-2 Required Enhancement Amount on such Distribution Date;
provided,
however,
that,
on any date after the Series 2006-2 Letter of Credit Termination Date, the
Series 2006-2 Cash Collateral Account Surplus shall mean the excess, if any,
of
(x) the Series 2006-2 Available Cash Collateral Account Amount over (y) the
Series 2006-2 Demand Note Payment Amount minus the
Pre-Preference Period Demand Note Payments as of such date.
“Series
2006-2 Cash Collateral Percentage”
means,
as of any date of determination, the percentage equivalent of a fraction, the
numerator of which is the
19
Series 2006-2
Available Cash Collateral Amount as of such date and the denominator of which
is
the Series 2006-2 Letter of Credit Liquidity Amount as of such
date.
“Series
2006-2 Closing Date”
is
defined in Section 2.1(a).
“Series
2006-2 Collateral”
means
the Collateral, each Series 2006-2 Letter of Credit, each Series 2006-2 Demand
Note, the Series 2006-2 Interest Rate Hedge Collateral, the Series 2006-2
Distribution Account Collateral, the Series 2006-2 Cash Collateral Account
Collateral and the Series 2006-2 Reserve Account Collateral.
“Series
2006-2 Collection Account”
is
defined in Section 3.1(b).
“Series
2006-2 Controlled Amortization Amount”
means
with respect to any Related Month or portion thereof during the Series 2006-2
Controlled Amortization Period, (a) if (i) the Series 2006-2 Controlled
Amortization Period commenced as a result of the occurrence of the Scheduled
Expiry Date with respect to each Purchaser Group or (ii) (x) the Series 2006-2
Controlled Amortization Period commenced as a result of the occurrence of an
Early Controlled Amortization Event and (y) no Extended CP Disruption Event
with
respect to any CP Conduit Purchaser existed at the commencement of the Series
2006-2 Controlled Amortization Period or occurs on or prior to the last day
of
the second calendar month after the calendar month in which the Series 2006-2
Controlled Amortization Period commenced, the Series 2006-2 Invested Amount
as
of the close of business on the Business Day preceding the commencement of
such
Series 2006-2 Controlled Amortization Period divided
by
6; (b)
if the Series 2006-2 Controlled Amortization Period commenced as a result of
the
occurrence of a CP Disruption Amortization Event with respect to any CP Conduit
Purchaser, the Series 2006-2 Invested Amount as of the close of business on
the
Business Day preceding the commencement of such Series 2006-2 Controlled
Amortization Period divided
by
3; and
(c) if the Series 2006-2 Controlled Amortization Period commenced as a result
of
the occurrence of an Early Controlled Amortization Event and an Extended CP
Disruption Event with respect to any CP Conduit Purchaser existed at the
commencement of the Series 2006-2 Controlled Amortization Period or occurs
on or
prior to the last day of the second calendar month after the calendar month
in
which the Series 2006-2 Controlled Amortization Period commenced, the Series
2006-2 Invested Amount as of the close of business on the Business Day preceding
the commencement of the Series 2006-2 Controlled Amortization Period
divided
by
(i) 3,
if such Extended CP Disruption Event existed at the commencement of the Series
2006-2 Controlled Amortization Period or occurs during the calendar month in
which the Series 2006-2 Controlled Amortization Period commenced, (ii) 4, if
such Extended CP Disruption Event occurs during the calendar month after the
calendar month in which the Series 2006-2 Controlled Amortization Period
commenced or (iii) 5, if such Extended CP Disruption Event occurs during the
second calendar month after the calendar month in which the Series 2006-2
Controlled Amortization Period commenced.
“Series
2006-2 Controlled Amortization Period”
means
the period beginning at the earliest to occur of (a) the close of business
on
the Business Day immediately preceding the date on which the Scheduled Expiry
Date with respect to each Purchaser Group shall have occurred, (b) the
occurrence of an Early Controlled Amortization Event and (c) the occurrence
of a
CP Disruption Amortization Event and ending upon the earliest to occur of
(i) the
20
commencement
of the Series 2006-2 Rapid Amortization Period, (ii) the date on which the
Series 2006-2 Notes are fully paid and (iii) the termination of the
Indenture.
“Series
2006-2 Controlled Distribution Amount”
means,
with respect to any Related Month (or portion thereof) during the Series 2006-2
Controlled Amortization Period, an amount equal to the sum of the Series 2006-2
Controlled Amortization Amount and any Series 2006-2 Carryover Controlled
Amortization Amount for such Related Month.
“Series
2006-2 Demand Note”
means
each demand note, substantially in the form of Exhibit D
to this
Supplement, as amended, modified or restated from time to time.
“Series
2006-2 Demand Note Payment Amount”
means,
as of the Series 2006-2 Letter of Credit Termination Date, the aggregate amount
of all proceeds of demands made on the Series 2006-2 Demand Notes pursuant
to
Section 3.5(d)(i)
or
3.5(e)(i)
that
were deposited into the Series 2006-2 Distribution Account and paid to the
Series 2006-2 Noteholders during the one-year period ending on the Series 2006-2
Letter of Credit Termination Date; provided, however,
that if
an Event of Bankruptcy (or the occurrence of an event described in clause (a)
of
the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred during such one-year
period, the Series 2006-2 Demand Note Payment Amount as of the Series 2006-2
Letter of Credit Termination Date shall equal the Series 2006-2 Demand Note
Payment Amount as if it were calculated as of the date of such
occurrence.
“Series
2006-2 Deposit Date”
is
defined in Section 3.2.
“Series
2006-2 Distribution Account”
is
defined in Section 3.9(a).
“Series
2006-2 Distribution Account Collateral”
is
defined in Section 3.9(d).
“Series
2006-2 Eligible Letter of Credit Provider”
means
a
person satisfactory to ABCR and the Demand Note Issuers and the Surety Provider
and having, at the time of the issuance of the related Series 2006-2 Letter
of
Credit, a long-term senior unsecured debt, deposit, claims paying or credit
(as
the case may be) rating of at least “A” from Standard & Poor’s and a
short-term senior unsecured debt, deposit, claims paying or credit (as the
case
may be) rating of at least “A-1” from Standard & Poor’s and a long-term
senior unsecured debt, deposit, claims paying or credit (as the case may be)
rating of at least “A1” from ▇▇▇▇▇’▇ and a short-term senior unsecured debt,
deposit, claims paying or credit (as the case may be) rating of “P-1” from
▇▇▇▇▇’▇ that is a commercial bank having total assets in excess of $500,000,000;
provided
that if
a person is not a Series 2006-2 Letter of Credit Provider (or a letter of credit
provider under the Supplement for any other Series of Notes), then such person
shall not be a Series 2006-2 Eligible Letter of Credit Provider until CRCF
has
provided 10 days’ prior notice to the Rating Agencies that such person has been
proposed as a Series 2006-2 Letter of Credit Provider.
“Series
2006-2 Enhancement”
means
the Series 2006-2 Cash Collateral Account Collateral, the Series 2006-2 Letters
of Credit, the Series 2006-2 Demand Notes, the Series 2006-2
Overcollateralization Amount and the Series 2006-2 Reserve Account
Amount.
21
“Series
2006-2 Enhancement Amount”
means,
as of any date of determination, the sum of (i) the Series 2006-2
Overcollateralization Amount as of such date, (ii) the Series 2006-2 Letter
of
Credit Amount as of such date, (iii) the Series 2006-2 Available Reserve Account
Amount as of such date and
(iv)
the amount of cash and Permitted Investments on deposit in the Series 2006-2
Collection Account (not including amounts allocable to the Series 2006-2 Accrued
Interest Account) and the Series 2006-2 Excess Collection Account as of such
date.
“Series
2006-2 Enhancement Deficiency”
means,
on any date of determination, the amount by which the Series 2006-2 Enhancement
Amount is less than the Series 2006-2 Required Enhancement Amount as of such
date.
“Series
2006-2 Excess Collection Account”
is
defined in Section 3.1(b).
“Series
2006-2 Expected Final Distribution Date”
means
the Distribution Date falling in the earliest of (a) the sixth calendar month
after the calendar month in which the Series 2006-2 Controlled Amortization
Period begins, (b) the third calendar month after the calendar month in which
a
CP Disruption Amortization Event occurs, (c) the third calendar month after
a
calendar month in which an Extended CP Disruption Event occurs after the
occurrence of an Early Controlled Amortization Event and (d) the
third
calendar month after the calendar month in which an Early Controlled
Amortization Event occurs during any period in which an Extended CP Disruption
Event exists.
“Series
2006-2 Initial Invested Amount”
is
defined in Section 2.3(a).
“Series
2006-2 Interest Period”
means
a
period commencing on and including a Distribution Date and ending on and
including the day preceding the next succeeding Distribution Date; provided,
however,
that
the initial Series 2006-2 Interest Period shall commence on and include the
Series 2006-2 Closing Date and end on and include June 20,
2006.
“Series
2006-2 Interest Rate Cap”
is
defined in Section 3.11(a).
22
“Series
2006-2 Interest Rate Cap Counterparty”
means
CRCF’s counterparty under any Series 2006-2 Interest Rate Cap.
“Series
2006-2 Interest Rate Hedge”
is
defined in Section 3.11(a).
“Series
2006-2 Interest Rate Hedge Collateral”
is
defined in Section 3.11(c).
“Series
2006-2 Interest Rate Hedge Counterparty”
means
any Series 2006-2 Interest Rate Cap Counterparty or Series 2006-2 Interest
Rate
Swap Counterparty.
“Series
2006-2 Interest Rate Hedge Proceeds”
means
the amounts, if any, received by the Trustee from a Series 2006-2 Interest
Rate
Hedge Counterparty from time to time in respect of any Series 2006-2 Interest
Rate Hedge (including amounts received from a guarantor or from
collateral).
“Series
2006-2 Interest Rate Swap”
is
defined in Section 3.11(a).
“Series
2006-2 Interest Rate Swap Counterparty”
means
CRCF’s counterparty under any Series 2006-2 Interest Rate Swap.
“Series
2006-2 Invested Amount”
means,
on any date of determination, the sum of (i) the sum of the Purchaser Group
Invested Amounts with respect to each of the Purchaser Groups on such date
and
(ii) the amount of all principal payments made to the Purchaser Groups on or
prior to such date with the proceeds of a demand on the Surety
Bond.
“Series
2006-2 Invested Percentage”
means
as of any date of determination:
(a) when
used
with respect to Principal Collections, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction the numerator of which shall
be equal to the sum of the Series 2006-2 Invested Amount and the Series 2006-2
Overcollateralization Amount, determined during the Series 2006-2 Revolving
Period as of the end of the immediately preceding Business Day, or, during
the
Series 2006-2 Controlled Amortization Period or the Series 2006-2 Rapid
Amortization Period, as of the end of the Series 2006-2 Revolving Period, and
the denominator of which shall be the greater as of the end of the immediately
preceding Business Day of (I) the Aggregate Asset Amount and (II) the sum of
the
numerators used to determine (i) invested percentages for allocations with
respect to Principal Collections (for all Series of Notes and all classes of
such Series of Notes) and (ii) overcollateralization percentages for allocations
with respect to Principal Collections (for all Series of Notes that provide
for
credit enhancement in the form of overcollateralization); and
(b) when
used
with respect to Interest Collections, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction the numerator of which shall
be the Accrued Amounts with respect to the Series 2006-2 Notes on such date
of
determination, and the denominator of which shall be the aggregate Accrued
Amounts with respect to all Series of Notes on such date of
determination.
“Series
2006-2 Lease Interest Payment Deficit”
means
on any Distribution Date an amount equal to the excess, if any, of (a) the
aggregate amount of Interest Collections which pursuant to Section 3.2(a),
(b),
(c)
or
(d)
would
have been allocated to the Series 2006-2 Accrued Interest Account if all
payments of Monthly Base Rent required to have been made under the Leases from
and excluding the preceding Distribution Date to and including such Distribution
Date were made in full over (b) the aggregate amount of Interest Collections
which pursuant to Section 3.2(a),
(b),
(c)
or
(d)
have
been allocated to the Series 2006-2 Accrued Interest Account (excluding any
amounts paid into the Series 2006-2 Accrued Interest Account pursuant to the
proviso in Sections 3.2(b)(ii),
3.2(c)(ii)
and
3.2(d)(ii))
from
and excluding the preceding Distribution Date to and including such Distribution
Date.
“Series
2006-2 Lease Payment Deficit”
means
either a Series 2006-2 Lease Interest Payment Deficit or a Series 2006-2 Lease
Principal Payment Deficit.
“Series
2006-2 Lease Principal Payment Carryover Deficit”
means
(a) for the initial Distribution Date, zero and (b) for any other Distribution
Date, the excess of (x) the Series 2006-2 Lease Principal Payment Deficit,
if
any, on the preceding Distribution Date over
(y)
23
the
amount deposited in the Distribution Account on such preceding Distribution
Date
pursuant to Section 3.5(d)
on
account of such Series 2006-2 Lease Principal Payment Deficit.
“Series
2006-2 Lease Principal Payment Deficit”
means,
on any Distribution Date, the sum of (a) the Series 2006-2 Monthly Lease
Principal Payment Deficit for such Distribution Date and (b) the Series 2006-2
Lease Principal Payment Carryover Deficit for such Distribution
Date.
“Series
2006-2 Letter of Credit”
means
an irrevocable letter of credit, if any, substantially in the form of
Exhibit E,
issued
by a Series 2006-2 Eligible Letter of Credit Provider in favor of the Trustee
for the benefit of the Series 2006-2 Noteholders, each Series 2006-2 Interest
Rate Swap Counterparty and the Surety Provider in form and substance
satisfactory to the Surety Provider.
“Series
2006-2 Letter of Credit Amount”
means,
as of any date of determination, the lesser of (a) the sum of (i) the
aggregate amount available to be drawn on such date under each Series 2006-2
Letter of Credit on which no draw has been made pursuant to Section 3.8(c),
as
specified therein, and (ii) if the Series 2006-2 Cash Collateral Account
has been established and funded pursuant to Section 3.8,
the
Series 2006-2 Available Cash Collateral Account Amount on such date and (b)
the
aggregate outstanding principal amount of the Series 2006-2 Demand Notes on
such
date.
“Series
2006-2 Letter of Credit Expiration Date”
means,
with respect to any Series 2006-2 Letter of Credit, the expiration date set
forth in such Series 2006-2 Letter of Credit, as such date may be extended
in
accordance with the terms of such Series 2006-2 Letter of Credit.
“Series
2006-2 Letter of Credit Liquidity Amount”
means,
as of any date of determination, the sum of (a) the aggregate amount available
to be drawn on such date under each Series 2006-2 Letter of Credit on which
no
draw has been made pursuant to Section 3.8(c),
as
specified therein, and (b) if the Series 2006-2 Cash Collateral Account has
been
established and funded pursuant to Section 3.8,
the
Series 2006-2 Available Cash Collateral Account Amount on such
date.
“Series
2006-2 Letter of Credit Provider”
means
the issuer of a Series 2006-2 Letter of Credit.
“Series
2006-2 Letter of Credit Termination Date”
means
the first to occur of (a) the date on which the Series 2006-2 Notes are
fully paid and the Surety Provider has been paid all Surety Provider Fees and
all other Surety Provider Reimbursement Amounts then due, (b) the Series 2006-2
Termination Date and (c) such earlier date consented to by the Surety Provider
and the Rating Agencies which consent by the Surety Provider shall be in
writing.
“Series
2006-2 Limited Liquidation Event of Default”
means,
so long as such event or condition continues, any event or condition of the
type
specified in clauses (a) through (k), clause (m) or clause (n) of Article IV;
provided,
however,
that
any event or condition of the type specified in (1) clauses (a) through (f)
or
clauses (i) through (k) or clause (m) of Article IV shall not constitute a
Series 2006-2 Limited Liquidation Event of Default if within such thirty
24
(30)
day
period immediately following the occurrence of such Amortization Event, such
Amortization Event shall have been cured and, after such cure of such
Amortization Event is provided for, the Trustee shall have received the written
consent of the Surety Provider waiving the occurrence of such Series 2006-2
Limited Liquidation Event of Default and (2) clause (n) shall not constitute
a
Series 2006-2 Limited Liquidation Event of Default upon its cure as described
in
such clause (n).
“Series
2006-2 Liquidity Amount”
means,
as of any date of determination, the sum of (a) the Series 2006-2 Letter of
Credit Liquidity Amount on such date and (b) the Series 2006-2 Available Reserve
Account Amount on such date.
“Series
2006-2 Liquidity Fee Amount”
means,
for any Distribution Date, an amount equal to the lesser of (i) the aggregate
amount of Liquidity Fees payable for the account of the Purchaser Groups on
such
Distribution Date and (ii) the excess, if any, of Series 2006-2 Capped Senior
Amount for such Distribution Date over
Series
2006-2 Adjusted Monthly Interest for such Distribution Date.
“Series
2006-2 Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki Amount”
means,
as of any day, with respect to Kia, Isuzu, Subaru, Hyundai and Suzuki, in the
aggregate, an amount equal to 20% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2006-2 Maximum Amount”
means
any of the Series 2006-2 Maximum Manufacturer Amounts, the Series 2006-2 Maximum
Non-Eligible Manufacturer Amount, the Series 2006-2 Maximum Non-Program Vehicle
Amount or the Series 2006-2 Maximum Specified States Amount.
“Series
2006-2
Maximum Individual Hyundai/Suzuki Amount”
means,
as of any day, with respect to Hyundai or Suzuki, individually, an amount equal
to 7.5% of the aggregate Net Book Value of all Vehicles leased under the Leases
on such day.
“Series
2006-2 Maximum Individual Kia/Isuzu/Subaru Amount”
means,
as of any day, with respect to Kia, Isuzu or Subaru, individually, an amount
equal to 5% of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
“Series
2006-2 Maximum Invested Amount”
means,
on any date of determination, the sum of the Commitment Amounts (not to exceed
$600,000,000 without the prior written consent of the Surety Provider (in its
sole and absolute discretion)) with respect to each of the Purchaser Groups
on
such date. The Series 2006-2 Maximum Invested Amount shall be reduced by the
Commitment Amount of each Non-Extending Purchaser Group on the Scheduled Expiry
Date with respect to such Purchaser Group.
“Series
2006-2 Maximum Manufacturer Amount”
means,
as of any day, any of the Series 2006-2 Maximum Mitsubishi Amount, the Series
2006-2 Maximum Individual Kia/Isuzu/Subaru Amount, the Series 2006-2 Maximum
Individual Hyundai/Suzuki Amount or the Series 2006-2 Maximum Aggregate
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount.
25
“Series
2006-2 Maximum Mitsubishi Amount”
means,
as of any day, an amount equal to 5% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2006-2 Maximum Non-Eligible Manufacturer Amount”
means,
as of any day, an amount equal to 3% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2006-2 Maximum Non-Program Vehicle Amount”
means,
as of any day, an amount equal to the Series 2006-2 Maximum Non-Program Vehicle
Percentage of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
“Series
2006-2 Maximum Non-Program Vehicle Percentage”
means,
as of any date of determination, the sum of (a) 40% and (b)
a
fraction, expressed as a percentage, the numerator of which is the aggregate
Net
Book Value of all Redesignated Vehicles manufactured by a Bankrupt Manufacturer
or a Manufacturer with respect to which a Manufacturer Event of Default has
occurred, and in each case leased under the AESOP I Operating Lease or the
Finance Lease as of such date, and the denominator of which is the aggregate
Net
Book Value of all Vehicles leased under the Leases as of such date.
“Series
2006-2 Maximum Specified States Amount”
means,
as of any day, an amount equal to 7.5% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2006-2 Monthly Interest”
means,
with respect to any Series 2006-2 Interest Period the sum of Series 2006-2
Adjusted Monthly Interest for the related Distribution Date and the Surety
Provider Monthly Interest for the related Distribution Date.
“Series
2006-2 Monthly Lease Principal Payment Deficit”
means,
on any Distribution Date, an amount equal to the excess, if any, of (a) the
aggregate amount of Principal Collections which pursuant to Section 3.2(a),
(b),
(c)
or
(d)
would
have been allocated to the Series 2006-2 Collection Account if all payments
required to have been made under the Leases from and excluding the preceding
Distribution Date to and including such Distribution Date were made in full
over
(b) the aggregate amount of Principal Collections which pursuant to Section 3.2(a),
(b),
(c)
or
(d)
have
been allocated to the Series 2006-2 Collection Account (without giving effect
to
any amounts paid into the Series 2006-2 Accrued Interest Account pursuant to
the
proviso in Sections 3.2(b)(ii),
3.2(c)(ii)
and/or
3.2(d)(ii))
from
and excluding the preceding Distribution Date to and including such Distribution
Date.
“Series
2006-2 ▇▇▇▇▇’▇ Highest Enhanced Vehicle Percentage” means,
as
of any date of determination, a fraction, expressed as a percentage, (a) the
numerator of which is the aggregate Net Book Value of all Vehicles leased under
the AESOP I Operating Lease that are either not subject to a Manufacturer
Program or not eligible for repurchase under a Manufacturer Program as of such
date and (b) the denominator of which is the aggregate Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of such date.
“Series
2006-2 ▇▇▇▇▇’▇ Highest Enhancement Rate”
means,
as of any date of determination, the greater of (a) 28.50% and (b) the sum
of
(i) 28.50% and (ii) the highest, for
26
any
calendar month within the preceding twelve calendar months, of the greater
of
(x) an amount (not less than zero) equal to 100% minus
the
Measurement Month Average for the immediately preceding Measurement Month and
(y) an amount (not less than zero) equal to 100% minus
the
Market Value Average as of the Determination Date within such calendar month
(excluding the Market Value Average for any Determination Date which has not
yet
occurred).
“Series
2006-2 ▇▇▇▇▇’▇ Intermediate Enhanced Vehicle Percentage”
means,
as of any date of determination, 100% minus
the sum
of (a) the Series 2006-2 ▇▇▇▇▇’▇ Lowest Enhanced Vehicle Percentage and (b) the
Series 2006-2 ▇▇▇▇▇’▇ Highest Enhanced Vehicle Percentage.
“Series
2006-2 ▇▇▇▇▇’▇ Intermediate Enhancement Rate”
means,
as of any date of determination, 26.50%.
“Series
2006-2 ▇▇▇▇▇’▇ Lowest Enhanced Vehicle Percentage”
means,
as of any date of determination, a fraction, expressed as a percentage, (a)
the
numerator of which is the sum, without duplication, of (1) the aggregate Net
Book Value of all Program Vehicles leased under the AESOP I Operating Lease
that
are manufactured by Eligible Program Manufacturers having long-term senior
unsecured debt ratings of “Baa2” or higher from ▇▇▇▇▇’▇ as of such date, (2) so
long as any Eligible Non-Program Manufacturer has a long-term senior unsecured
debt rating of “Baa2” or higher from ▇▇▇▇▇’▇ and no Manufacturer Event of
Default has occurred and is continuing with respect to such Eligible Non-Program
Manufacturer, the aggregate Net Book Value of all Non-Program Vehicles leased
under the AESOP I Operating Lease manufactured by each such Eligible Non-Program
Manufacturer that are subject to a Manufacturer Program and remain eligible
for
repurchase thereunder as of such date and (3) the lesser of (A) the sum of
(x)
if as of such date any Eligible Program Manufacturer has a long-term senior
unsecured debt rating of “Baa3” from ▇▇▇▇▇’▇, the aggregate Net Book Value of
all Program Vehicles leased under the AESOP I Operating Lease manufactured
by
each such Eligible Program Manufacturer as of such date and (y) if as of such
date any Eligible Non-Program Manufacturer has a long-term senior unsecured
debt
rating of “Baa3” from ▇▇▇▇▇’▇ and no Manufacturer Event of Default has occurred
and is continuing with respect to such Eligible Non-Program Manufacturer, the
aggregate Net Book Value of all Non-Program Vehicles leased under the AESOP
I
Operating Lease manufactured by each such Eligible Non-Program Manufacturer
that
are subject to a Manufacturer Program and remain eligible for repurchase
thereunder as of such date and (B) 10% of the aggregate Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of such date and (b) the
denominator of which is the aggregate Net Book Value of all Vehicles leased
under the AESOP I Operating Lease as of such date.
“Series
2006-2 ▇▇▇▇▇’▇ Lowest Enhancement Rate”
means,
as of any date of determination, 14.25%.
“Series
2006-2 ▇▇▇▇▇’▇ Required Enhancement Percentage”
means,
as of any date of determination, the sum of (i) the product of (A) the Series
2006-2 ▇▇▇▇▇’▇ Lowest Enhancement Rate and (B) the Series 2006-2 ▇▇▇▇▇’▇ Lowest
Enhanced Vehicle Percentage as of such date, (ii) the product of (A) the Series
2006-2 ▇▇▇▇▇’▇ Intermediate Enhancement Rate as of such date and (B) the Series
2006-2 ▇▇▇▇▇’▇ Intermediate Enhanced Vehicle Percentage as
27
of
such
date, and (iii) the product of (A) the Series 2006-2 ▇▇▇▇▇’▇ Highest Enhancement
Rate as of such date and (B) the Series 2006-2 ▇▇▇▇▇’▇ Highest Enhanced Vehicle
Percentage as of such date.
“Series
2006-2 Non-Investment Grade Manufacturer”
means,
as of any date of determination, any ▇▇▇▇▇’▇ Non-Investment Grade Manufacturer
or any Standard & Poor’s Non-Investment Grade Manufacturer as of such
date.
“Series
2006-2 Non-Investment Grade Manufacturer Percentage”
means,
with respect to any Series 2006-2 Non-Investment Grade Manufacturer, as of
any
date of determination, a fraction, expressed as a percentage, (i) the numerator
of which is the aggregate Net Book Value of all Vehicles manufactured by such
Series 2006-2 Non-Investment Grade Manufacturer and leased under the AESOP
I
Operating Lease as of such date and (ii) the denominator of which is the
aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease as of such date.
“Series
2006-2 Note”
means
any one of the Series 2006-2 Variable Funding Rental Car Asset Backed Notes,
executed by CRCF authenticated and delivered by or on behalf of the Trustee,
substantially in the form of Exhibit A.
“Series
2006-2 Note Rate”
means
for any Series 2006-2 Interest Period, the interest rate equal to the product
of
(a) the percentage equivalent of a fraction, the numerator of which is equal
to
the sum of the Monthly Funding Costs with respect to each Purchaser Group for
such Series 2006-2 Interest Period and the denominator of which is equal to
the
average daily Series 2006-2 Outstanding Principal Amount during such Series
2006-2 Interest Period and (b) a fraction, the numerator of which is 360 and
the
denominator of which is the number of days in such Series 2006-2 Interest
Period; provided,
however,
that
the Series 2006-2 Note Rate will in no event be higher than the maximum rate
permitted by applicable law.
“Series
2006-2 Noteholder”
means
a
Person in whose name a Series 2006-2 Note is registered in the Note
Register.
“Series
2006-2 Outstanding Principal Amount”
means,
with respect to any date, the sum of the Purchaser Group Invested Amounts with
respect to each of the Purchaser Groups on such date.
“Series
2006-2 Overcollateralization Amount”
means
(i) as of any date on which no AESOP I Operating Lease Vehicle Deficiency
exists, the Series 2006-2 Required Overcollateralization Amount as of such
date
and (ii) as of any date on which an AESOP I Operating Lease Vehicle Deficiency
exists, the excess, if any, of (x) the Series 2006-2 AESOP I Operating Lease
Loan Agreement Borrowing Base as of such date over
(y) the
Series 2006-2 Invested Amount as of such date.
“Series
2006-2 Past Due Rent Payment”
is
defined in Section 3.2(g).
“Series
2006-2 Percentage”
means,
as of any date of determination, a fraction, expressed as a percentage, the
numerator of which is the Series 2006-2 Invested Amount as of
28
such
date
and the denominator of which is the sum of the Invested Amount of each Series
of
Notes outstanding as of such date.
“Series
2006-2 Principal Allocation”
is
defined in Section 3.2(a)(ii).
“Series
2006-2 Rapid Amortization Period”
means
the period beginning at the close of business on the earlier to occur of
(x) the Business Day immediately preceding the day on which an Amortization
Event is deemed to have occurred with respect to the Series 2006-2 Notes and
(y) the Optional Termination Date, and ending upon the earlier to occur of
(i) the date on which the Series 2006-2 Notes are fully paid and there are
no amounts due and owing thereunder, hereunder or under the Insurance Agreement
and (ii) the termination of the Indenture.
“Series
2006-2 Reimbursement Agreement”
means
any and each agreement providing for the reimbursement of a Series 2006-2 Letter
of Credit Provider for draws under its Series 2006-2 Letter of Credit as the
same may be amended, supplemented, restated or otherwise modified from time
to
time.
“Series
2006-2 Required AESOP I Operating Lease Vehicle Amount”
means,
as of any date of determination, the sum of the Series 2006-2 Required
Overcollateralization Amount and the Series 2006-2 Invested Amount as of such
date.
“Series
2006-2 Required Enhancement Amount”
means,
as of any date of determination, the sum of (i) the product of the Series 2006-2
Required Enhancement Percentage as of such date and the Series 2006-2 Invested
Amount as of such date, (ii) the Series 2006-2 AESOP I Operating Lease
Vehicle Percentage as of the immediately preceding Business Day of the excess,
if any, of the Non-Program Vehicle Amount as of such date over the Series 2006-2
Maximum Non-Program Vehicle Amount as of such date, (iii) the Series 2006-2
AESOP I Operating Lease Vehicle Percentage as of the immediately preceding
Business Day of the excess, if any, of the aggregate Net Book Value of all
Vehicles manufactured by Mitsubishi and leased under the Leases as of such
date
over the Series 2006-2 Maximum Mitsubishi Amount as of such date, (iv) the
Series 2006-2 AESOP I Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the aggregate Net Book Value
of
all Vehicles manufactured by Kia, Isuzu or Subaru, individually, and leased
under the Leases as of such date over the Series 2006-2 Maximum Individual
Kia/Isuzu/Subaru Amount as of such date, (v) the Series 2006-2 AESOP I Operating
Lease Vehicle Percentage as of the immediately preceding Business Day of the
excess, if any, of the aggregate Net Book Value of all Vehicles manufactured
by
Hyundai or Suzuki, individually, and leased under the Leases as of such date
over the Series 2006-2 Maximum Individual Hyundai/Suzuki Amount as of such
date,
(vi) the Series 2006-2 AESOP I Operating Lease Vehicle Percentage as of the
immediately preceding Business Day of the excess, if any, of the aggregate
Net
Book Value of all Vehicles manufactured by Kia, Isuzu, Subaru, Hyundai or
Suzuki, in the aggregate, and leased under the Leases as of such date over
the
Series 2006-2 Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki Amount as of
such date, (vii) the Series 2006-2 AESOP I Operating Lease Vehicle Percentage
as
of the immediately preceding Business Day of the excess, if any, of the
Specified States Amount as of such date over the Series 2006-2 Maximum Specified
States Amount as of such date and (viii) the Series 2006-2 AESOP I Operating
Lease
29
Vehicle
Percentage as of the immediately preceding Business Day of the excess, if any,
of the Non-Eligible Manufacturer Amount as of such date over the Series 2006-2
Maximum Non-Eligible Manufacturer Amount as of such date.
“Series
2006-2 Required Enhancement Percentage”
means,
as of any date of determination, the greater of (i) the Series 2006-2 Standard
& Poor’s Required Enhancement Percentage as of such date and (ii) the Series
2006-2 ▇▇▇▇▇’▇ Required Enhancement Percentage as of such date.
“Series
2006-2 Required Liquidity Amount”
means,
with respect to any Distribution Date, an amount equal to 4.00% of the Series
2006-2 Invested Amount on such Distribution Date (after giving effect to any
payments of principal to be made on the Series 2006-2 Notes on such Distribution
Date).
“Series
2006-2 Required Overcollateralization Amount”
means,
as of any date of determination, the excess, if any, of the Series 2006-2
Required Enhancement Amount over the sum of (i) the Series 2006-2 Letter of
Credit Amount as of such date, (ii) the Series 2006-2 Available Reserve Account
Amount on such date and (iii) the amount of cash and Permitted Investments
on
deposit in the Series 2006-2 Collection Account (not including amounts allocable
to the Series 2006-2 Accrued Interest Account) and the Series 2006-2 Excess
Collection Account on such date.
“Series
2006-2 Required Reserve Account Amount”
means,
with respect to any Distribution Date, an amount equal to the greater of
(i) the excess, if any, of the Series 2006-2 Required Liquidity Amount on
such Distribution Date over the Series 2006-2 Letter of Credit Liquidity Amount
on such Distribution Date (after giving effect to any payments of principal
to
be made on the Series 2006-2 Notes on such Distribution Date) and (ii) the
excess, if any, of the Series 2006-2 Required Enhancement Amount over the Series
2006-2 Enhancement Amount (excluding therefrom the Series 2006-2 Available
Reserve Account Amount and calculated after giving effect to any payments of
principal to be made on the Series 2006-2 Notes) on such Distribution
Date.
“Series
2006-2 Reserve Account”
is
defined in Section 3.7(a).
“Series
2006-2 Reserve Account Collateral”
is
defined in Section 3.7(d).
“Series
2006-2 Reserve Account Surplus”
means,
with respect to any Distribution Date, the excess, if any, of the Series 2006-2
Available Reserve Account Amount over the Series 2006-2 Required Reserve Account
Amount on such Distribution Date.
“Series
2006-2 Revolving Period”
means
the period from and including, the Series 2006-2 Closing Date to the earlier
of
the commencement of the Series 2006-2 Controlled Amortization Period and the
commencement of the Series 2006-2 Rapid Amortization Period.
“Series
2006-2 Standard & Poor’s Highest Enhanced Vehicle Percentage” means,
as
of any date of determination, a fraction, expressed as a percentage, (a) the
numerator of which is the sum of (i) the aggregate Net Book Value of all
Vehicles leased under the AESOP I Operating Lease that are manufactured by
either of the Standard & Poor’s Specified
30
Non-Investment
Grade Manufacturers as of such date, (ii) the excess, if any, of (A) the
aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease that are manufactured by a Standard & Poor’s Non-Investment Grade
Manufacturer other than a Standard & Poor’s Specified Non-Investment Grade
Manufacturer, as of such date over
(B) 30%
of the aggregate Net Book Value of all Vehicles leased under the AESOP I
Operating Lease as of such date and (iii) the aggregate Net Book Value of all
Vehicles leased under the AESOP I Operating Lease that are manufactured by
a
Bankrupt Manufacturer and (b) the denominator of which is the aggregate Net
Book
Value of all Vehicles leased under the AESOP I Operating Lease as of such
date.
“Series
2006-2 Standard & Poor’s Highest Enhancement Rate”
means,
as of any date of determination, the sum of the Series 2006-2 Standard &
Poor’s Intermediate Enhancement Rate as of such date and 10.25%.
“Series
2006-2 Standard & Poor’s Intermediate Enhanced Vehicle
Percentage”
means,
as of any date of determination, 100% minus
the sum
of (a) the Series 2006-2 Standard & Poor’s Lowest Enhanced Vehicle
Percentage and (b) the Series 2006-2 Standard & Poor’s Highest Enhanced
Vehicle Percentage.
“Series
2006-2 Standard & Poor’s Intermediate Enhancement Rate”
means,
as of any date of determination, the greater of (a) 21.00%
and (b)
the sum of (i) 21.00%
and (ii)
the highest, for any calendar month within the preceding twelve calendar months,
of the greater of (x) an amount (not less than zero) equal to 100% minus
the
Measurement Month Average for the immediately preceding Measurement Month and
(y) an amount (not less than zero) equal to 100% minus
the
Market Value Average as of the Determination Date within such calendar month
(excluding the Market Value Average for any Determination Date which has not
yet
occurred).
“Series
2006-2 Standard & Poor’s Lowest Enhanced Vehicle Percentage”
means,
as of any date of determination, a fraction, expressed as a percentage, (a)
the
numerator of which is the sum, without duplication, of (1) the aggregate Net
Book Value of all Program Vehicles leased under the AESOP I Operating Lease
that
are manufactured by Eligible Program Manufacturers having long-term senior
unsecured debt ratings of “BBB” or higher from Standard & Poor’s as of such
date, (2) so long as any Eligible Non-Program Manufacturer has a long-term
senior unsecured debt rating of “BBB” or higher from Standard & Poor’s and
no Manufacturer Event of Default has occurred and is continuing with respect
to
such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease manufactured
by
each such Eligible Non-Program Manufacturer that are subject to a Manufacturer
Program and remain eligible for repurchase thereunder as of such date and (3)
the lesser of (A) the sum of (x) if as of such date any Eligible Program
Manufacturer has a long-term senior unsecured debt rating of “BBB-” from
Standard & Poor’s, the aggregate Net Book Value of all Program Vehicles
leased under the AESOP I Operating Lease manufactured by each such Eligible
Program Manufacturer as of such date and (y) if as of such date any Eligible
Non-Program Manufacturer has a long-term senior unsecured debt rating of “BBB-”
from Standard & Poor’s and no Manufacturer Event of Default has occurred and
is continuing with respect to such Eligible Non-Program Manufacturer, the
aggregate Net Book Value of all Non-Program Vehicles leased under the AESOP
I
Operating
31
Lease
manufactured by each such Eligible Non-Program Manufacturer that are subject
to
a Manufacturer Program and remain eligible for repurchase thereunder as of
such
date and (B) 10% of the aggregate Net Book Value of all Vehicles leased
under the AESOP I Operating Lease as of such date and (b) the denominator of
which is the aggregate Net Book Value of all Vehicles leased under the AESOP
I
Operating Lease as of such date.
“Series
2006-2 Standard & Poor’s Lowest Enhancement Rate”
means,
as of any date of determination, 16.00%.
“Series
2006-2 Standard & Poor’s Required Enhancement Percentage”
means,
as of any date of determination, the sum of (i) the product of (A) the Series
2006-2 Standard & Poor’s Lowest Enhancement Rate and (B) the Series 2006-2
Standard & Poor’s Lowest Enhanced Vehicle Percentage as of such date, (ii)
the product of (A) the Series 2006-2 Standard & Poor’s Intermediate
Enhancement Rate as of such date and (B) the Series 2006-2 Standard & Poor’s
Intermediate Enhanced Vehicle Percentage as of such date, and (iii) the product
of (A) the Series 2006-2 Standard & Poor’s Highest Enhancement Rate as of
such date and (B) the Series 2006-2 Standard & Poor’s Highest Enhanced
Vehicle Percentage as of such date.
“Series
2006-2 Termination Date”
means
the Distribution Date falling in the eighteenth calendar month after the
calendar month in which the Series 2006-2 Revolving Period ends.
“Series
2006-2 Unpaid Demand Amount”
means,
with respect to any single draw pursuant to Section 3.5(d)
or
(e)
on the
Series 2006-2 Letters of Credit, the aggregate amount drawn by the Trustee
on
all Series 2006-2 Letters of Credit.
“Standard
& Poor’s Excluded Manufacturer Receivable Specified
Percentage”
means,
as of any date of determination, with respect to each Standard & Poor’s
Non-Investment Grade Manufacturer as of such date, the percentage (not to exceed
100%) most recently specified in writing by Standard & Poor’s to CRCF and
the Trustee and consented to by the Surety Provider with respect to such
Standard & Poor’s Non-Investment Grade Manufacturer; provided, however,
that as
of the Series 2006-2 Closing Date the Standard & Poor’s Excluded
Manufacturer Receivable Specified Percentage for each Standard & Poor’s
Non-Investment Grade Manufacturer shall be 100%; provided further
that the
initial Standard & Poor’s Excluded Manufacturer Receivable Specified
Percentage with respect to any Manufacturer that becomes a Standard & Poor’s
Non-Investment Grade Manufacturer after the Series 2006-2 Closing Date shall
be
100%.
“Standard
& Poor’s Excluded Receivable Amount”
means,
as of any date of determination, the sum of the following amounts with respect
to each Standard & Poor’s Non-Investment Grade Manufacturer as of such date:
the product of (i) to the extent such amounts are included in the calculation
of
AESOP I Operating Lease Loan Agreement Borrowing Base as of such date, all
amounts receivable, as of such date, by AESOP Leasing or the Intermediary from
such Standard & Poor’s Non-Investment Grade Manufacturer and (ii) the
Standard & Poor’s Excluded Manufacturer Receivable Specified Percentage for
such Standard & Poor’s Non-Investment Grade Manufacturer as of such
date.
32
“Standard
& Poor’s Non-Investment Grade Manufacturer”
means,
as of any date of determination, any Manufacturer that (i) is not a Bankrupt
Manufacturer and (ii) does not have a long-term senior unsecured debt rating
of
at least “BBB-” from Standard & Poor’s; provided that
any Manufacturer whose long-term senior unsecured debt rating is downgraded
from
at least “BBB-” to below “BBB-” by Standard & Poor’s after the Series 2006-2
Closing Date shall not be deemed a Standard & Poor’s Non-Investment Grade
Manufacturer until the thirtieth (30th)
calendar day following such downgrade.
“Standard
& Poor’s Specified Non-Investment Grade Manufacturer”
means,
as of any date of determination, each of the Standard & Poor’s
Non-Investment Grade Manufacturers with the two highest Series 2006-2
Non-Investment Grade Manufacturer Percentages as of such date.
“Statutory
Reserve Rate”
means
a
fraction (expressed as a decimal), the numerator of which is the number one
and
the denominator of which is the number one minus
the
aggregate of the maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal (rounded up to the
nearest 1/100th of 1%) established by the Board with respect to the Adjusted
LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to Regulation D. Eurodollar Tranches shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time under such Regulation D or comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and
as
of the effective date of any change in the reserve percentage.
“Stratford”
is
defined in the recitals hereto.
“Supplement”
is
defined in the recitals hereto.
“Surety
Bond”
means
the Financial Guaranty Insurance Policy ▇▇. ▇▇▇▇▇▇▇▇ dated June 2, 2006, issued
by the Surety Provider.
“Surety
Default”
means
(i) the occurrence and continuance of any failure by the Surety Provider to
pay
upon a demand for payment in accordance with the requirements of the Surety
Bond
or (ii) the occurrence of an Event of Bankruptcy with respect to the Surety
Provider.
“Surety
Provider”
means
XL Capital Assurance Inc., a New York stock insurance corporation. The Surety
Provider shall constitute an “Enhancement Provider” with respect to the Series
2006-2 Notes for all purposes under the Indenture and the other Related
Documents.
“Surety
Provider Fee”
is
defined in the Premium Letter.
“Surety
Provider Monthly Interest”
means,
with respect to any Distribution Date, an amount equal to the product of (i)
the
aggregate amount of principal payments drawn on the Surety Bond as of the close
of business on the Distribution Date preceding such Distribution Date, (ii)
the
Late Payment Rate (as defined in the Insurance Agreement) and (iii) the
number of days in the Series 2006-2 Interest Period for such Distribution Date
divided
by
365.
33
“Surety
Provider Reimbursement Amounts”
means,
as of any date of determination, (i) an amount equal to the aggregate of any
amounts due as of such date to the Surety Provider pursuant to the Insurance
Agreement in respect of unreimbursed draws under the Surety Bond, including
interest thereon determined in accordance with the Insurance Agreement, and
(ii) an amount equal to the aggregate of any other amounts due as of such
date to the Surety Provider pursuant to the Insurance Agreement.
“Taxes”
means
any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Termination
Date Disbursement”
means
an amount drawn under a Series 2006-2 Letter of Credit pursuant to a Certificate
of Termination Date Demand.
“Termination
Disbursement”
means
an amount drawn under a Series 2006-2 Letter of Credit pursuant to a Certificate
of Termination Demand.
“Three
Month Average Vehicle Lease Term”
means,
as of any Determination Date, the average of the Average Vehicle Lease Term
for
such Determination Date and the two preceding Determination Dates.
“Transfer
Supplement”
is
defined in Section 11.1(c).
“Transferee”
is
defined in Section 11.1(f).
“Trustee”
is
defined in the recitals hereto.
“Unpaid
Demand Note Disbursement”
means
an amount drawn under a Series 2006-2 Letter of Credit pursuant to a
Certificate of Unpaid Demand Note Demand.
“Voting
Stock”
means,
with respect to any Person, the common stock or membership interests of such
Person and any other security of, or ownership interest in, such Person having
ordinary voting power to elect a majority of the board of directors or a
majority of the managers (or other Persons serving similar functions) of such
Person.
“Waiver
Event”
means
the occurrence of the delivery of a Waiver Request and the subsequent waiver
of
any Series 2006-2 Maximum Amount.
“Waiver
Request”
is
defined in Article V.
ARTICLE
II
PURCHASE
AND SALE OF SERIES 2006-2 NOTES;
INCREASES
AND DECREASES OF SERIES 2006-2 INVESTED AMOUNT
Section
2.1. Purchases
of the Series 2006-2 Notes.
(a) Initial
Purchases.
Subject
to the terms and conditions of this Supplement, including delivery of notice
in
accordance with Section 2.3,
(i)
each CP Conduit Purchaser shall purchase a Series 2006-2 Note in an amount
equal
to all or a portion of its Commitment Percentage of the Series 2006-2 Initial
34
Invested
Amount on any Business Day during the period from the Effective Date (the
“Series
2006-2 Closing Date”)
to and
including the Expiry Date with respect to such CP Conduit Purchaser, and (ii)
thereafter, such CP Conduit Purchaser shall maintain its Series 2006-2 Note,
subject to increase or decrease during the period from the Series 2006-2 Closing
Date to and including the Expiry Date with respect to such CP Conduit Purchaser,
in accordance with the provisions of this Supplement. Payments by each CP
Conduit Purchaser shall be made in immediately available funds on the Series
2006-2 Closing Date to the Funding Agent with respect to such CP Conduit
Purchaser for remittance to the Trustee for deposit into the Series 2006-2
Collection Account.
(b) Maximum
Purchaser Group Invested Amounts.
Notwithstanding anything to the contrary contained in this Supplement, at no
time shall the Purchaser Group Invested Amount with respect to any Purchaser
Group exceed the Commitment Amount with respect to such Purchaser Group at
such
time.
(c) Form
of Series 2006-2 Notes.
The
Series 2006-2 Notes shall be issued in fully registered form without interest
coupons, substantially in the form set forth in Exhibit A.
Section
2.2. Delivery.
(a) On
the Series 2006-2 Closing Date, CRCF shall sign and shall direct the Trustee
in
writing pursuant to Section 2.2
of the
Base Indenture to duly authenticate, and the Trustee, upon receiving such
direction, shall so authenticate a Series 2006-2 Note in the name of the Funding
Agent with respect to each Purchaser Group in an amount equal to the Commitment
Amount with respect to such Purchaser Group and deliver such Series 2006-2
Note to such Funding Agent in accordance with such written
directions.
(b) The
Administrative Agent shall maintain a record of the actual Purchaser Group
Invested Amount outstanding with respect to each Purchaser Group and the actual
Series 2006-2 Invested Amount outstanding on any date of determination,
which, absent manifest error, shall constitute prima facie
evidence
of the outstanding Purchaser Group Invested Amounts and outstanding Series
2006-2 Invested Amount from time to time. Upon a written request from the
Trustee or the Surety Provider, the Administrative Agent shall provide in
writing the identity of the Purchaser Groups, the related Funding Agents, the
Purchaser Group Invested Amount for each Purchaser Group and the Commitment
Percentage with respect to such Purchaser Group to the Trustee or the Surety
Provider, as applicable.
Section
2.3. Procedure
for Initial Issuance and for Increasing the Series 2006-2 Invested
Amount. (a)
Subject
to Section 2.3(b),
(i) on the Series 2006-2 Closing Date, each CP Conduit Purchaser shall
purchase a Series 2006-2 Note in accordance with Section 2.1
and (ii)
on any Business Day during the period from the Effective Date to and including
the Expiry Date with respect to a CP Conduit Purchaser, such CP Conduit
Purchaser agrees that the Purchaser Group Invested Amount with respect to such
Purchaser Group may be increased by an amount equal to its Commitment Percentage
with respect to such Purchaser Group of the Increase Amount (an “Increase”),
upon
the request of CRCF (each date on which an increase in the Series 2006-2
Invested Amount occurs hereunder being herein referred to as the “Increase
Date”
applicable to such Increase); provided,
however,
that
CRCF shall have given the Administrative Agent (with a copy to the Trustee
and
the Surety Provider) irrevocable written notice (effective upon receipt), by
telecopy (receipt confirmed), substantially in the form of Exhibit B,
of such
35
request
no later than 3:00 p.m. (New York City time) on the second Business Day
prior to the Series 2006-2 Closing Date or such Increase Date, as the case
may
be. Such notice shall state (x) the Series 2006-2 Closing Date or the Increase
Date, as the case may be, and (y) the initial invested amount (the
“Series
2006-2 Initial Invested Amount”)
or the
proposed amount of the increase in the Series 2006-2 Invested Amount (an
“Increase
Amount”),
as
the case may be.
(b) No
CP
Conduit Purchaser shall be required to make the initial purchase of a Series
2006-2 Note on the Series 2006-2 Closing Date or to increase its Purchaser
Group
Invested Amount on any Increase Date hereunder unless:
(i) such
Purchaser Group’s Commitment Percentage of the Series 2006-2 Initial Invested
Amount or such Increase Amount is equal to (A) $1,000,000 or an integral
multiple of $100,000 in excess thereof or (B) if less, the excess of the
Commitment Amount with respect to such Purchaser Group over the Purchaser Group
Invested Amount with respect to such Purchaser Group;
(ii) after
giving effect to the Series 2006-2 Initial Invested Amount or such Increase
Amount, (A) the Purchaser Group Invested Amount with respect to such Purchaser
Group would not exceed the Commitment Amount with respect to such Purchaser
Group and (B) the Series 2006-2 Invested Amount would not exceed the Series
2006-2 Maximum Invested Amount;
(iii) after
giving effect to the Series 2006-2 Initial Invested Amount or such Increase
Amount, no AESOP I Operating Lease Vehicle Deficiency would occur and be
continuing;
(iv) no
Amortization Event or Potential Amortization Event would occur and be continuing
prior to or after giving effect to such Series 2006-2 Initial Invested Amount
or
such Increase;
(v) not
more
than two Increases have occurred in the four (4) Business Days immediately
preceding the date of such Increase;
(vi) all
of
the representations and warranties made by each of CRCF, the Lessees, the
Lessors and the Administrator in the Base Indenture, this Supplement and the
Related Documents to which each is a party are true and correct in all material
respects on and as of the Series 2006-2 Closing Date or such Increase Date,
as
the case may be, as if made on and as of such date (except to the extent such
representations and warranties are expressly made as of another
date);
(vii) no
CP
Disruption Event with respect to any CP Conduit Purchaser shall have occurred
and be continuing as of such date;
(viii) after
giving effect to the Increase, the aggregate notional amount of Series 2006-2
Interest Rate ▇▇▇▇▇▇ satisfying the requirements of Section 3.11(a)
equals
or exceeds the Series 2006-2 Invested Amount; and
36
(ix) all
conditions precedent to the making of any Loan under the applicable Loan
Agreements would be satisfied.
CRCF’s
acceptance of funds in connection with (x) the initial purchase of Series 2006-2
Notes on the Series 2006-2 Closing Date and (y) each Increase occurring on
any
Increase Date shall constitute a representation and warranty by CRCF to the
Purchaser Groups as of the Series 2006-2 Closing Date or such Increase Date
(except to the extent such representations and warranties are expressly made
as
of another date), as the case may be, that all of the conditions contained
in
this Section 2.3(b)
have
been satisfied.
(c) Upon
receipt of any notice required by Section 2.3(a)
from
CRCF, the Administrative Agent shall promptly forward (by telecopy or electronic
messaging system) a copy of such notice to the Funding Agent with respect to
each Purchaser Group. After receipt by any Funding Agent with respect to a
Purchaser Group of such notice from the Administrative Agent, such Funding
Agent
shall, so long as the conditions set forth in Sections 2.3(a)
and
(b)
are
satisfied, promptly provide telephonic notice to the related CP Conduit
Purchaser, of the Increase Date and of such Purchaser Group’s Commitment
Percentage of the Increase Amount. Each CP Conduit Purchaser shall pay in
immediately available funds its Commitment Percentage of the amount of such
Increase on the related Increase Date to the Funding Agent with respect to
such
Purchaser Group for deposit into the Series 2006-2 Collection Account. Each
Funding Agent shall remit the amounts received by it from its CP Conduit
Purchaser pursuant to this Section 2.3(c)
to the
Trustee for deposit into the Series 2006-2 Collection Account.
Section
2.4. Sales
of Series 2006-2 Notes.
Notwithstanding
any limitation to the contrary contained herein, each CP Conduit Purchaser
may,
in its own discretion, at any time, sell or assign all or any portion of its
Purchaser Group Invested Amount to any Conduit Assignee or to the APA Banks
with
respect to such CP Conduit Purchaser pursuant to, and subject to the terms
and
conditions of, the Asset Purchase Agreement with respect to such CP Conduit
Purchaser.
Section
2.5. Procedure
for Decreasing the Series 2006-2 Invested Amount; Optional
Termination.
(a) (i)
On any
Business Day on which no Series 2006-2 Lease Payment Deficit exists, upon the
written request of CRCF or the Administrator on behalf of CRCF, the Series
2006-2 Invested Amount may be reduced by the Trustee’s withdrawing (x) during
the Series 2006-2 Revolving Period, funds available in the Series 2006-2 Excess
Collection Account and (y) after the Series 2006-2 Revolving Period, funds
available in the Series 2006-2 Collection Account or the Series 2006-2 Excess
Collection Account, depositing such funds into the Series 2006-2 Distribution
Account and distributing such funds to the Administrative Agent on such day
in
accordance with Section 3.5(b)(i)
in an
amount not to exceed the amount of such funds on deposit on such Business Day;
provided
that
CRCF shall have given the Administrative Agent (with a copy to the Trustee
and
the Surety Provider) irrevocable written notice (effective upon receipt) of
the
amount of such Decrease prior to 9:30 a.m. (New York City time) on the
fifth Business Day prior to such Decrease; provided,
further,
that
any such Decrease shall be in an amount equal to $10,000,000 and integral
multiples of $500,000 in excess thereof (or, if such Decrease will be used
to
reduce one or more Non-Extending Purchaser Group’s Purchaser Group Invested
Amounts, such Decrease may be in such amount as is necessary to reduce the
Purchaser Group Invested Amounts of all such Non-Extending Purchaser Groups
to
zero). Upon each
37
Decrease,
the Administrative Agent shall indicate in its records each such Decrease and
the Purchaser Group Invested Amount outstanding with respect to each Purchaser
Group after giving effect to such Decrease.
(ii)
On
any Mandatory Decrease Date with respect to a CP Conduit Purchaser, upon the
written request of CRCF or the Administrator on behalf of CRCF, the CP Conduit
Funded Amount with respect to such CP Conduit Purchaser may be reduced by the
Trustee’s withdrawing available funds from the Series 2006-2 Collection Account,
depositing such funds into the Series 2006-2 Distribution Account and
distributing such funds to the Administrative Agent on such day in accordance
with Section 3.5(b)(ii);
provided
that
CRCF shall have given the Administrative Agent (with a copy to the Trustee
and
the Surety Provider) irrevocable written notice (effective upon receipt) of
the
amount of such Decrease prior to 9:30 a.m. (New York City time) on the
third Business Day prior to such Mandatory Decrease Date; provided,
further,
that
the amount deposited into the Series 2006-2 Distribution Account pursuant to
this Section
2.5(a)(ii)
on any
Mandatory Decrease Date shall be at least equal to the sum of the Mandatory
Decrease Amounts with respect to each CP Conduit Purchaser for which such date
is a Mandatory Decrease Date. Upon payment of each such Mandatory Decrease
Amount to the Administrative Agent, the Administrative Agent shall indicate
in
its records each such Decrease and the Purchaser Group Invested Amount with
respect to each related Purchaser Group after giving effect to such
Decrease.
(iii)
Upon receipt of any notice required by Section 2.5(a)(i)
or
(ii)
from
CRCF, the Administrative Agent shall forward (by telecopy or electronic
messaging system) a copy of such notice to the Funding Agent with respect to
each affected Purchaser Group, no later than 1:00 p.m. (New York City time)
on the Business Day received.
(b) On
any
Business Day during the Series 2006-2 Revolving Period, CRCF shall have the
right to deliver an irrevocable written notice (an “Optional
Termination Notice”)
to the
Administrative Agent, the Trustee, the Administrator, the Surety Provider and
the Rating Agencies in which CRCF declares that the Commitment Amounts shall
be
irrevocably reduced to zero on the date (the “Optional
Termination Date”)
set
forth in such notice (which date, in any event, shall be a Distribution Date
not
less than twenty (20) Business Days from the date on which such notice is
delivered). Upon receipt of any Optional Termination Notice from CRCF, the
Administrative Agent shall promptly notify the Funding Agent with respect to
each Purchaser Group thereof.
(c) From
and
after the Optional Termination Date, the Series 2006-2 Rapid Amortization Period
shall commence for all purposes under this Supplement, the Base Indenture and
the Related Documents.
(d) If
there
are Principal Collections in excess of $1,000,000 on deposit in the Series
2006-2 Excess Collection Account on any Business Day on which the Purchaser
Group Invested Amount with respect to any Non-Extending Purchaser Group shall
not have been reduced to zero and CRCF would be permitted under the terms of
Section 2.5(a)(i)
to
effect a Decrease with such funds, CRCF shall request such a Decrease in
accordance with Section 2.5(a)(i)
on the
earliest possible date.
38
Section
2.6. Increases
and Reductions of the Commitment Amounts; Extensions.
(a)
CRCF may
from time to time request that any Purchaser Group agree to increase its
Commitment Amount. An increase in such amount shall only be effective hereunder
if (x) both the Surety Provider and such Purchaser Group shall have agreed
in
writing in their sole discretion to such increase and (y) if such increase
results in the increase of the Series 2006-2 Maximum Invested Amount, the Surety
Bond shall have been amended to reflect the Series 2006-2 Maximum Invested
Amount after giving effect to such increase.
(b) If
CRCF
desires to extend the Scheduled Expiry Date with respect to the Purchaser
Groups, CRCF shall notify the Administrative Agent and the Surety Provider
at
least 60 days prior to such Scheduled Expiry Date of its desire to extend the
Scheduled Expiry Date with respect to the Purchaser Groups, whereupon the
Administrative Agent shall notify the Funding Agent with respect to each
Purchaser Group of CRCF’s desire to so extend the Scheduled Expiry Date. Each
Funding Agent, on behalf of its Purchaser Group, shall notify the Administrative
Agent and CRCF in writing of whether such Purchaser Group agrees to an extension
of the Scheduled Expiry Date with respect to such Purchaser Group; provided
that
failure by a Funding Agent or the Surety Provider to respond to such request
shall not be construed as a consent by such Purchaser Group to such extension.
CRCF shall provide the Surety Provider a copy of any notice received from any
Funding Agent relating to the extension of the Scheduled Expiry Date for the
related Purchaser Group. The decision to extend or not extend shall be made
by
each Purchaser Group in its sole discretion and the Surety Provider in its
sole
discretion. If the Surety Provider fails to consent to the extension of any
Scheduled Expiry Date with respect to a Purchaser Group, then such Scheduled
Expiry Date shall not be extended. In the event that any Purchaser Group desires
to extend its Scheduled Expiry Date for an amount that is less than its
Commitment Amount prior to CRCF’s request for an extension, CRCF, in its sole
discretion, may with the consent of the Surety Provider accept such extension;
provided,
however,
that
such Purchaser Group (x) shall be deemed to be a Non-Extending Purchaser
Group for purposes of Section 3.5
having a
Purchaser Group Invested Amount equal to the excess of its Purchaser Group
Invested Amount over a percentage of its Commitment Amount that will be
available after the extension of its Scheduled Expiry Date equal to the
percentage equivalent of a fraction, the numerator of which is the sum of the
Purchaser Group Invested Amounts with respect to all Extending Purchaser Groups,
other than such Purchaser Group and any other Purchaser Group reducing its
Commitment Amount, and the denominator of which is the sum of the Commitment
Amounts of all Extending Purchaser Groups, other than such Purchaser Group
and
any other Purchaser Group reducing its Commitment Amount and (y) shall be
deemed to be an Extending Purchaser Group with a Commitment Amount equal to
the portion of its Commitment Amount that will be available after the extension
of its Scheduled Expiry Date. In connection with any request by CRCF to extend
the Scheduled Expiry Date pursuant to this Section 2.6(b),
CRCF
shall provide to the Surety Provider and the Administrative Agent, who shall
provide to each Purchaser Group, on or prior to the effective date of any such
extension, a certificate of an officer of CRCF making the certifications
described in Schedule 8.3(d) of the Base Indenture.
(c) On
any
Business Day during the Series 2006-2 Revolving Period, CRCF may, upon two
(2)
Business Days’ prior written notice to the Administrative Agent (effective upon
receipt) (with copies to the Administrator, the Trustee and the Surety Provider)
reduce the Series 2006-2 Maximum Invested Amount in an amount equal to
$10,000,000 or a whole
39
multiple
of $1,000,000 in excess thereof; provided
that no
such termination or reduction shall be permitted if, after giving effect thereto
and to any reduction in the Series 2006-2 Invested Amount on such date, (x)
the
Purchaser Group Invested Amount with respect to any Purchaser Group would exceed
the Commitment Amount with respect to such Purchaser Group then in effect or
(y)
the Series 2006-2 Invested Amount would exceed the Series 2006-2 Maximum
Invested Amount. Any reduction in the Series 2006-2 Maximum Invested Amount
shall be made on a pro
rata
basis to
the Commitment Amounts with respect to the Purchaser Groups, based on the
Commitment Amount with respect to each Purchaser Group. Once reduced, the
Commitment Amounts may not be subsequently reinstated without the Surety
Provider’s and each such Purchaser Group’s prior written consent, which consent
shall be granted or not in the sole discretion of the Surety Provider and each
such Purchaser Group.
(d) If,
after
receiving a request for extension of its Scheduled Expiry Date from CRCF
pursuant to Section 2.6(b),
(1) the
Funding Agent with respect to a CP Conduit Purchaser notifies CRCF and the
Surety Provider in writing of its decision not to extend its Scheduled Expiry
Date as requested, (2) the Funding Agent with respect to a CP Conduit Purchaser
fails to respond to CRCF’s request within 30 days of its receipt of such
request, (3) the Surety Provider notifies CRCF in writing that it does not
consent to the extension of the Scheduled Expiry Date with respect to the
related Purchaser Group or (4) the Surety Provider fails to respond to CRCF’s
request within 30 days of such request, then at the request of CRCF, such CP
Conduit Purchaser and the APA Banks with respect to such CP Conduit Purchaser
shall on a Distribution Date thereafter selected by CRCF (or such other date
as
may be agreed by CRCF, the Funding Agent and the Administrative Agent) assign
all or any portion of their respective rights and obligations under this
Supplement and the Series 2006-2 Notes pursuant to Section 11.1
to a
replacement CP Conduit Purchaser and the APA Banks with respect to such
replacement CP Conduit Purchaser selected by CRCF and consented to by the Surety
Provider upon payment by the replacement CP Conduit Purchaser and the APA Banks
with respect to such replacement CP Conduit Purchaser (or upon payment by CRCF
as agreed to by CRCF, the assignor and the assignee) of an amount equal to
(i)
the Purchaser Group Invested Amount with respect to such Non-Extending Purchaser
Group, plus (ii)
the
sum of (x) the aggregate amount of accrued and unpaid Discount on or in respect
of the Commercial Paper issued by, or for the benefit of, the CP Conduit
Purchaser in such Non-Extending Purchaser Group, allocated in whole or in part,
by the Funding Agent with respect to such CP Conduit Purchaser, to fund the
purchase or maintenance of the CP Funded Amount with respect to such
Non-Extending Purchaser Group as of the date (the “Purchase
Effective Date”)
of the
assignment to the replacement CP Conduit Purchaser and the APA Banks with
respect to such CP Conduit Purchaser and (y) the aggregate amount of Discount
to
accrue on or in respect of the Commercial Paper issued by, or for the benefit
of, such CP Conduit Purchaser allocated, in whole or in part, by the Funding
Agent with respect to such CP Conduit Purchaser, to fund the purchase or
maintenance of the CP Funded Amount with respect to such Non-Extending Purchaser
Group from and including the Purchase Effective Date to and excluding the
maturity dates of such Commercial Paper, plus
(iii)
all accrued and unpaid interest on the APA Bank Funded Amount with respect
to
such Purchaser Group, calculated at the Alternate Base Rate or the applicable
Adjusted LIBO Rate plus
the
Applicable Margin as of the Purchase Effective Date, plus
(iv) for
each day from but excluding the last day of the Series 2006-2 Interest Period
immediately preceding the Purchase Effective Date, an amount equal to (x) the
CP
Funded Amount with respect to such Non-Extending Purchaser Group on such day
times
(y) the
Program Fee Rate
40
divided by
(z)
360, plus
(v) for
each day from but excluding the last day of the Series 2006-2 Interest Period
immediately preceding the Purchase Effective Date, an amount equal to (x) the
Liquidity Amount with respect to such Non-Extending Purchaser Group times
(y) the
Liquidity Fee Rate divided by
(z)
360, plus
(vi) all
Article VII Costs then due and payable to such Non-Extending Purchaser Group,
plus
(vii)
without duplication, any other amounts then due and payable to such
Non-Extending Purchaser Group pursuant to this Supplement.
(e) CRCF
may
at any time add a multi-seller commercial paper conduit as an additional CP
Conduit Purchaser (an “Additional
CP Conduit Purchaser”)
and
one or more banks providing support to the Additional CP Conduit Purchaser
as
APA Banks with respect to the Additional CP Conduit Purchaser (the “Related
Additional APA Banks”),
with
the prior written consent of the Administrative Agent (which consent shall
not
be unreasonably withheld), by providing at least ten (10) Business Days’ prior
written notice (a copy of which shall be provided to the Surety Provider and
the
Rating Agencies) of (i) the names of the Additional CP Conduit Purchaser, the
Related Additional APA Banks and the funding agent with respect to the
Additional CP Conduit Purchaser and the Related Additional APA Banks (the
“Additional
Funding Agent”),
(ii)
the date on which CRCF desires to effect such addition (the “Purchaser
Group Addition Date”),
(iii)
the proposed Commitment Amount with respect to the Additional CP Conduit
Purchaser and the Related Additional APA Banks, (iv) the Commitment Percentage
of each Purchaser Group on the Purchaser Group Addition Date, after giving
effect to the addition of the Additional CP Conduit Purchaser and the Related
Additional APA Banks and (v) the Mandatory Liquidity Percentage with
respect to the additional Purchaser Group. On the Purchaser Group Addition
Date,
each CP Conduit Purchaser, the APA Banks with respect to such CP Conduit
Purchaser and the Funding Agent with respect to such CP Conduit Purchaser shall
make an assignment and assumption to the Additional CP Conduit Purchaser, the
Related Additional APA Banks and the Additional Funding Agent pursuant to
Section 11.1,
as
directed by the Administrative Agent, with the result that after giving effect
thereto, the Purchaser Group Invested Amount with respect to each such Purchaser
Group shall equal the product of (x) the Series 2006-2 Invested Amount on the
Purchaser Group Addition Date and (y) the Commitment Percentage of such
Purchaser Group on the Purchaser Group Addition Date, after giving effect to
the
addition of the Additional CP Conduit Purchaser and the Related Additional
APA
Banks. No Purchaser Group shall be required to make any assignment unless such
assigning Purchaser Group shall receive in cash an amount equal to the reduction
in its Series 2006-2 Invested Amount.
Section
2.7. Interest;
Fees.
(a)
Interest
shall be payable on the Series 2006-2 Notes on each Distribution Date pursuant
to Section 3.3.
(b) CRCF
shall pay with funds available pursuant to Section 3.3(a)
to the
Administrative Agent, for the account of each Purchaser Group, on each
Distribution Date, a liquidity fee with respect to the Series 2006-2 Interest
Period ending on the day preceding such Distribution Date (the “Liquidity
Fee”)
during
the period from the Series 2006-2 Closing Date to and including the Series
2006-2 Termination Date at the Liquidity Fee Rate of the Liquidity Amount with
respect to such Purchaser Group during such Series 2006-2 Interest Period.
The
Liquidity Fees shall be payable monthly in arrears on each Distribution
Date.
41
(c) The
Funding Agent for any Purchaser Group shall, in consultation with the
Administrator on behalf of CRCF, allocate all or a portion of any APA Bank
Funded Amount to one or more Eurodollar Tranches. The portion of any APA Bank
Funded Amount allocated to a Eurodollar Tranche shall bear interest at the
Adjusted LIBO Rate for the related Eurodollar Period plus
the
Applicable Margin. If the Funding Agent and the Administrator determine that
allocation of all or any portion of the APA Bank Funded Amount to one or more
Eurodollar Tranches is not practical or advisable, then the portion of the
APA
Bank Funded Amount for any Purchaser Group not allocated to a Eurodollar Tranche
shall be part of the Floating Tranche.
(d) Calculations
of per annum rates under this Supplement shall be made on the basis of a 360-
(or 365-/366- in the case of interest on the Floating Tranche based on the
Prime
Rate) day year. Calculations of Liquidity Fees shall be made on the basis of
a
360-day year. Each determination of the Adjusted LIBOR Rate by the
Administrative Agent shall be conclusive and binding upon each of the parties
hereto in the absence of manifest error.
Section
2.8. Indemnification
by CRCF.
CRCF
agrees to indemnify and hold harmless the Trustee, the Administrative Agent,
each Funding Agent, the Surety Provider, each CP Conduit Purchaser, each APA
Bank and each of their respective officers, directors, agents and employees
(each, a “Company
indemnified person”)
from
and against any loss, liability, expense, damage or injury suffered or sustained
by (a “Claim”)
such
Company indemnified person by reason of (i) any acts, omissions or alleged
acts or omissions arising out of, or relating to, activities of CRCF pursuant
to
the Indenture or the other Related Documents to which it is a party, (ii) a
breach of any representation or warranty made or deemed made by CRCF (or any
of
its officers) in the Indenture or other Related Document or (iii) a failure
by
CRCF to comply with any applicable law or regulation or to perform its
covenants, agreements, duties or obligations required to be performed or
observed by it in accordance with the provisions of the Indenture or the other
Related Documents, including, but not limited to, any judgment, award,
settlement, reasonable attorneys’ fees and other reasonable costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim, except to the extent such loss, liability, expense, damage
or injury resulted from the gross negligence, bad faith or willful misconduct
of
such Company indemnified person or its officers, directors, agents, principals,
employees or employers or includes any Excluded Taxes; provided
that any
payments made by CRCF pursuant to this Section 2.8
shall be
made solely from funds available pursuant to Section 3.3(f),
shall
be non-recourse other than with respect to such funds, and shall not constitute
a claim against CRCF to the extent that such funds are insufficient to make
such
payment.
Section
2.9. Funding
Agents.
(a)
The
Funding Agent with respect to each Purchaser Group is hereby authorized to
record on each Business Day the CP Funded Amount with respect to such Purchaser
Group and the aggregate amount of Discount accruing with respect thereto on
such
Business Day and the APA Bank Funded Amount with respect to such Purchaser
Group
and the amount of interest accruing with respect thereto on such Business Day
and, based on such recordations, to determine the Monthly Funding Costs with
respect to each Series 2006-2 Interest Period and such Purchaser Group. Any
such
recordation by a Funding Agent, absent manifest error, shall constitute
prima
facie
evidence
of the accuracy of the information so recorded. Furthermore, the Funding Agent
with respect to each Purchaser Group shall maintain records sufficient to
identify the percentage interest of the related CP Conduit
42
Purchaser
and each APA Bank with respect to such Purchaser Group holding an interest
in
the Series 2006-2 Note registered in the name of such Funding Agent and any
amounts owing thereunder.
(b) Upon
receipt of funds from the Administrative Agent on each Distribution Date and
the
date of any Decrease, each Funding Agent shall pay such funds to the related
CP
Conduit Purchaser and/or the related APA Bank owed such funds in accordance
with
the recordations maintained by it in accordance with Section 2.9(a)
and the
Asset Purchase Agreement with respect to such CP Conduit Purchaser. If a Funding
Agent shall have paid to any CP Conduit Purchaser or APA Bank any funds that
(i)
must be returned for any reason (including bankruptcy) or (ii) exceeds that
which such CP Conduit Purchaser or APA Bank was entitled to receive, such amount
shall be promptly repaid to such Funding Agent by such CP Conduit Purchaser
or
APA Bank.
ARTICLE
III
SERIES
2006-2 ALLOCATIONS
With
respect to the Series 2006-2 Notes, the following shall apply:
Section
3.1. Establishment
of Series 2006-2 Collection Account, Series 2006-2 Excess Collection Account
and
Series 2006-2 Accrued Interest Account.
(a) All
Collections allocable to the Series 2006-2 Notes shall be allocated to the
Collection Account.
(b) The
Trustee will create three administrative sub-accounts within the Collection
Account for the benefit of the Series 2006-2 Noteholders, each Series 2006-2
Interest Rate Swap Counterparty and the Surety Provider: the Series 2006-2
Collection Account (such sub-account, the “Series
2006-2 Collection Account”),
the
Series 2006-2 Excess Collection Account (such sub-account, the “Series
2006-2 Excess Collection Account”)
and
the Series 2006-2 Accrued Interest Account (such sub-account, the “Series
2006-2 Accrued Interest Account”).
Section
3.2. Allocations
with Respect to the Series 2006-2 Notes.
The net
proceeds from the initial sale of the Series 2006-2 Notes and any Increase
shall
be deposited into the Collection Account. On each Business Day on which
Collections are deposited into the Collection Account (each such date, a
“Series
2006-2 Deposit Date”),
the
Administrator shall direct the Trustee in writing pursuant to the Administration
Agreement to allocate all amounts deposited into the Collection Account in
accordance with the provisions of this Section 3.2:
(a) Allocations
of Collections During the Series 2006-2 Revolving Period.
During
the Series 2006-2 Revolving Period, the Administrator shall direct the Trustee
in writing pursuant to the Administration Agreement to allocate on each day,
prior to 11:00 a.m. (New York City time) on each Series 2006-2 Deposit
Date, all amounts deposited into the Collection Account as set forth
below:
43
(i) allocate
to the Series 2006-2 Accrued Interest Account an amount equal to the sum of
(A) the Series 2006-2 Invested Percentage (as of such day) of the aggregate
amount of Interest Collections on such day and (B) any amounts received by
the
Trustee on such day in respect of the Series 2006-2 Interest Rate ▇▇▇▇▇▇;
and
(ii) allocate
to the Series 2006-2 Excess Collection Account the sum of (A) the Series 2006-2
Invested Percentage (as of such day) of the aggregate amount of Principal
Collections on such day (for any such day, the “Series
2006-2 Principal Allocation”)
and
(B) the proceeds from the initial issuance of the Series 2006-2 Notes and from
any Increase; provided,
however,
if a
Waiver Event shall have occurred, then such allocation shall be modified as
provided in Article V.
(b) Allocations
of Collections During the Series 2006-2 Controlled Amortization
Period.
With
respect to the Series 2006-2 Controlled Amortization Period, the Administrator
will direct the Trustee in writing pursuant to the Administration Agreement
to
allocate, prior to 11:00 a.m. (New York City time) on any Series 2006-2 Deposit
Date, all amounts deposited into the Collection Account as set forth
below:
(i) allocate
to the Series 2006-2 Accrued Interest Account an amount determined as set forth
in Section 3.2(a)(i)
above
for such day; and
(ii) allocate
to the Series 2006-2 Collection Account an amount equal to the Series 2006-2
Principal Allocation for such day, which amount shall be used to make principal
payments in respect of the Series 2006-2 Notes or make a Decrease pursuant
to
Section
2.5(a)(i)
or
(ii);
provided,
however,
that if
the Monthly Total Principal Allocation exceeds the lesser of (x) the Series
2006-2 Controlled Distribution Amount and (y) the Series 2006-2 Invested Amount
on such Series 2006-2 Deposit Date, then the amount of such excess shall be
allocated to the Series 2006-2 Excess Collection Account; and provided,
further,
that if
a Waiver Event shall have occurred, then such allocation shall be modified
as
provided in Article V.
(c) Allocations
of Collections During the Series 2006-2 Rapid Amortization
Period.
With
respect to the Series 2006-2 Rapid Amortization Period, other than after the
occurrence of an Event of Bankruptcy with respect to ABCR, any other Lessee
or
any Permitted Sublessee, the Administrator shall direct the Trustee in writing
pursuant to the Administration Agreement to allocate, prior to 11:00 a.m.
(New York City time) on any Series 2006-2 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2006-2 Accrued Interest Account an amount determined as set forth
in Section 3.2(a)(i)
above
for such day; and
(ii) allocate
to the Series 2006-2 Collection Account an amount equal to the Series 2006-2
Principal Allocation for such day, which amount shall be used to make principal
payments in respect of the Series 2006-2 Notes, ratably,
44
without
preference or priority of any kind, until the Series 2006-2 Invested Amount
is
paid in full or make a Decrease pursuant to Section
2.5(a)(i)
or
(ii);
provided
that if
on any Determination Date (A) the Administrator determines that the amount
anticipated to be available from Interest Collections allocable to the Series
2006-2 Notes, Series 2006-2 Interest Rate Hedge Proceeds and other amounts
available pursuant to Section 3.3
to pay
Series 2006-2 Monthly Interest, the Series 2006-2 Liquidity Fee Amount and
any
Fixed Rate Payments on the next succeeding Distribution Date will be less than
the sum of Series 2006-2 Adjusted Monthly Interest for the next succeeding
Distribution Date, Series 2006-2 Liquidity Fee Amount for such Distribution
Date
and any Fixed Rate Payments for the Series 2006-2 Interest Period ending on
the
day preceding such Distribution Date and (B) the Series 2006-2 Enhancement
Amount is greater than zero, then the Administrator shall direct the Trustee
in
writing to reallocate a portion of the Principal Collections allocated to the
Series 2006-2 Notes during the Related Month equal to the lesser of such
insufficiency and the Series 2006-2 Enhancement Amount to the Series 2006-2
Accrued Interest Account to be treated as Interest Collections on such
Distribution Date.
(d) Allocations
of Collections after the Occurrence of an Event of Bankruptcy.
After
the occurrence of an Event of Bankruptcy with respect to ABCR, any other Lessee
or any Permitted Sublessee, the Administrator shall direct the Trustee in
writing pursuant to the Administration Agreement to allocate, prior to 11:00
a.m. (New York City time) on any Series 2006-2 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
(i) allocate
to the Series 2006-2 Accrued Interest Account an amount equal to the sum of
(A)
the Series 2006-2 AESOP I Operating Lease Vehicle Percentage as of the date
of
the occurrence of such Event of Bankruptcy of the aggregate amount of Interest
Collections made under the AESOP I Operating Lease Loan Agreement and (B) any
amounts received by the Trustee in respect of the Series 2006-2 Interest Rate
▇▇▇▇▇▇ on such day; and
(ii) allocate
to the Series 2006-2 Collection Account an amount equal to the Series 2006-2
AESOP I Operating Lease Vehicle Percentage as of the date of the occurrence
of
such Event of Bankruptcy of the aggregate amount of Principal Collections made
under the AESOP I Operating Lease Loan Agreement, which amount shall be used
to
make principal payments in respect of the Series 2006-2 Notes until the Series
2006-2 Notes have been paid in full or make a Decrease pursuant to Section
2.5(a)(i)
or
(ii);
provided
that if
on any Determination Date (A) the Administrator determines that the amount
anticipated to be available from Interest Collections allocable to the Series
2006-2 Notes, Series 2006-2 Interest Rate Hedge Proceeds and other amounts
available pursuant to Section 3.3
to pay
Series 2006-2 Monthly Interest, the Series 2006-2 Liquidity Fee Amount and
any
Fixed Rate Payments on the next succeeding Distribution Date will be less than
the sum of Series 2006-2 Adjusted Monthly Interest for the next succeeding
Distribution Date, Series 20062 Liquidity Fee Amount for such Distribution
Date and any Fixed Rate Payments for the Series 2006-2 Interest
45
Period
ending on the day preceding such Distribution Date and (B) the Series 2006-2
Enhancement Amount is greater than zero, then the Administrator shall direct
the
Trustee in writing to reallocate a portion of the Principal Collections
allocated to the Series 2006-2 Notes during the Related Month equal to the
lesser of such insufficiency and the Series 2006-2 Enhancement Amount to the
Series 2006-2 Accrued Interest Account to be treated as Interest Collections
on
such Distribution Date.
(e) Allocations
From Other Series.
Amounts
allocated to other Series of Notes that have been reallocated by CRCF to the
Series 2006-2 Notes (i) during the Series 2006-2 Revolving Period shall be
allocated to the Series 2006-2 Excess Collection Account and applied in
accordance with Section 3.2(f)
and (ii)
during the Series 2006-2 Controlled Amortization Period or the Series 2006-2
Rapid Amortization Period shall be allocated to the Series 2006-2 Collection
Account and applied in accordance with Section 3.2(b)(ii),
(c)(ii)
or
(d)(ii),
as the
case may be, to make principal payments in respect of the Series 2006-2
Notes.
(f) Series
2006-2 Excess Collection Account.
Amounts
allocated to the Series 2006-2 Excess Collection Account on any Series 2006-2
Deposit Date will be (i) first, used to reduce the Purchaser Group Invested
Amount with respect to any Non-Extending Purchaser Group to the extent required
pursuant to Section 2.5(d),
(ii) second, deposited in the Series 2006-2 Reserve Account in an amount up
to the excess, if any, of the Series 2006-2 Required Reserve Account Amount
for
such date, after giving effect to any Increase or Decrease on such date, over
the Series 2006-2 Available Reserve Account Amount for such date, (iii) third,
to the extent directed by CRCF used to pay the principal amount of other Series
of Notes that are then required to be paid, (iv) fourth, to the extent directed
in writing by the Administrator, used to make a Decrease in the Series 2006-2
Invested Amount, (v) fifth, to the extent directed in writing by the
Administrator used to make a voluntary decrease in the Invested Amount of any
other Series of Notes that may be reduced in accordance with the Indenture,
(vi)
sixth, released to AESOP Leasing in an amount equal to (A) the Loan Agreement’s
Share with respect to the AESOP I Operating Lease Loan Agreement as of such
date
times
(B) 100%
minus
the Loan
Payment Allocation Percentage with respect to the AESOP I Operating Lease Loan
Agreement as of such date times
(C) the
amount of any remaining funds and (vii) seventh, paid to CRCF for any use
permitted by the Related Documents, including to make Loans under the Loan
Agreements to the extent the Borrowers have requested Loans thereunder and
Eligible Vehicles are available for financing thereunder; provided, in
the case of clauses (v), (vi) and (vii), that no AESOP I Operating Lease Vehicle
Deficiency would result therefrom or exist immediately thereafter. Upon the
occurrence of an Amortization Event, funds on deposit in the Series 2006-2
Excess Collection Account will be withdrawn by the Trustee, deposited in the
Series 2006-2 Collection Account and allocated as Principal Collections to
reduce the Series 2006-2 Invested Amount on the immediately succeeding
Distribution Date.
(g) Past
Due Rent Payments.
Notwithstanding Section 3.2(a)
or
Section 3.2(b),
at any
time prior to the commencement of the Series 2006-2 Rapid Amortization Period
if
after the occurrence of a Series 2006-2 Lease Payment Deficit, the
46
Lessees
shall make payments of Monthly Base Rent or other amounts payable by the Lessees
under the Leases on or prior to the fifth Business Day after the occurrence
of
such Series 2006-2 Lease Payment Deficit (a “Past
Due Rent Payment”),
the
Administrator shall direct the Trustee in writing pursuant to the Administration
Agreement to allocate to the Series 2006-2 Collection Account an amount equal
to
the Series 2006-2 Invested Percentage as of the date of the occurrence of such
Series 2006-2 Lease Payment Deficit of the Collections attributable to such
Past
Due Rent Payment (the “Series
2006-2 Past Due Rent Payment”).
Unless the Series 2006-2 Rapid Amortization Period has commenced, the
Administrator shall instruct the Trustee in writing pursuant to the
Administration Agreement to withdraw from the Series 2006-2 Collection Account
and apply the Series 2006-2 Past Due Rent Payment in the following
order:
(i) if
the
occurrence of the related Series 2006-2 Lease Payment Deficit resulted in one
or
more Lease Deficit Disbursements being made under the Series 2006-2 Letters
of
Credit, pay to each Series 2006-2 Letter of Credit Provider who made such a
Lease Deficit Disbursement for application in accordance with the provisions
of
the applicable Series 2006-2 Reimbursement Agreement an amount equal to the
lesser of (x) the unreimbursed amount of such Series 2006-2 Letter of
Credit Provider’s Lease Deficit Disbursement and (y) such Series 2006-2
Letter of Credit Provider’s pro rata
share,
calculated on the basis of the unreimbursed amount of each Series 2006-2 Letter
of Credit Provider’s Lease Deficit Disbursement, of the amount of the Series
2006-2 Past Due Rent Payment;
(ii) if
the
occurrence of such Series 2006-2 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2006-2 Cash Collateral Account, deposit in the Series
2006-2 Cash Collateral Account an amount equal to the lesser of (x) the amount
of the Series 2006-2 Past Due Rent Payment remaining after any payment pursuant
to clause (i) above and (y) the amount withdrawn from the Series 2006-2 Cash
Collateral Account on account of such Series 2006-2 Lease Payment
Deficit;
(iii) if
the
occurrence of such Series 2006-2 Lease Payment Deficit resulted in a withdrawal
being made from the Series 2006-2 Reserve Account pursuant to Section 3.3(d),
deposit
in the Series 2006-2 Reserve Account an amount equal to the lesser of (x) the
Series 2006-2 Past Due Rent Payment remaining after any payment pursuant to
clauses (i) and (ii) above and (y) the excess, if any, of the Series 2006-2
Required Reserve Account Amount over the Series 2006-2 Available Reserve Account
Amount on such day;
(iv) allocate
to the Series 2006-2 Accrued Interest Account the amount, if any, by which
the
Series 2006-2 Lease Interest Payment Deficit, if any, relating to such Series
2006-2 Lease Payment Deficit exceeds the amount of the Series 2006-2 Past Due
Rent Payment applied pursuant to clauses (i), (ii) and (iii) above;
and
47
(v) treat
the
remaining amount of the Series 2006-2 Past Due Rent Payment as Principal
Collections allocated to the Series 2006-2 Notes in accordance with Section 3.2(a)(ii)
or
3.2(b)(ii),
as the
case may be.
Section
3.3. Payments
to Noteholders, the Surety Provider and Each Series 2006-2 Interest Rate Swap
Counterparty.
The
Funding Agent with respect to each Purchaser Group shall provide written notice
to the Administrative Agent (x) no later than two (2) Business Days prior to
each Determination Date, setting forth the Monthly Funding Costs with respect
to
such Purchaser Group with respect to the portion of the current Series 2006-2
Interest Period ending on such Business Day and a reasonable estimation of
the
Monthly Funding Costs with respect to such Purchaser Group for the remainder
of
such Series 2006-2 Interest Period and (y) within three (3) Business Days after
the end of each calendar month, setting forth the Monthly Funding Costs
(calculated as if such calendar month was a Series 2006-2 Interest Period)
with
respect to such Purchaser Group for such calendar month. The Administrative
Agent shall, within two (2) Business Days following its receipt of such
information from each Funding Agent, compile the information provided in such
written notice pursuant to (x) or (y) above, as applicable, into one written
notice for all Purchaser Groups and forward such notice to the Administrator
and
the Surety Provider. If the actual amount of the Monthly Funding Costs with
respect to any Purchaser Group for a Series 2006-2 Interest Period is less
than
or greater than the amount thereof estimated by the Funding Agent with respect
to such Purchaser Group on a Determination Date, such Funding Agent shall notify
the Administrator and the Administrative Agent thereof on the next succeeding
Determination Date and the Administrator will reduce or increase the Monthly
Funding Costs with respect to such Purchaser Group for the next succeeding
Series 2006-2 Interest Period accordingly. The Administrator shall determine
the
Series 2006-2 Note Rate for the last Series 2006-2 Interest Period on the
Determination Date immediately preceding the final Distribution Date based
on
the information provided by the Funding Agents. If a Funding Agent determines
that the actual Monthly Funding Costs with respect to its Purchaser Group for
the last Series 2006-2 Interest Period will be more or less than the estimate
thereof provided to the Administrator and informs the Administrator of such
variance prior to the Distribution Date for such Series 2006-2 Interest Period,
the Administrator will recalculate the Series 2006-2 Note Rate for such Series
2006-2 Interest Period.
On
each
Determination Date, as provided below, the Administrator shall instruct the
Paying Agent in writing pursuant to the Administration Agreement to withdraw,
and on the following Distribution Date the Paying Agent, acting in accordance
with such instructions, shall withdraw the amounts required to be withdrawn
from
the Collection Account pursuant to Section 3.3(a)
below in
respect of all funds available from Series 2006-2 Interest Rate Hedge Proceeds
and Interest Collections processed since the preceding Distribution Date and
allocated to the holders of the Series 2006-2 Notes.
(a) Note
Interest, Liquidity Fees and Other Fees with respect to the Series 2006-2 Notes
and Payments on the Series 2006-2 Interest Rate Swaps and to the Surety
Provider.
On each
Determination Date, the Administrator shall instruct the Trustee and the Paying
Agent in writing pursuant to the Administration Agreement as to the amount
to be
withdrawn and paid pursuant to Section 3.4
from the
Series 2006-2 Accrued Interest
48
Account
to the extent funds are anticipated to be available from Interest Collections
allocable to the Series 2006-2 Notes and the Series 2006-2 Interest Rate Hedge
Proceeds processed from, but not including, the preceding Distribution Date
through the succeeding Distribution Date in respect of (v) an amount equal
to
the Series 2006-2 Monthly Interest for the Series 2006-2 Interest Period ending
on the day preceding the related Distribution Date, (w) an amount equal to
the
Series 2006-2 Liquidity Fee Amount for the next Distribution Date, (x) an amount
equal to any Series 2006-2 Basis Fees for the next Distribution Date, (y) an
amount equal to any Fixed Rate Payments for the next Distribution Date and
(z)
an amount equal to the Surety Provider Fee for such Series 2006-2 Interest
Period plus
any
Surety Provider Reimbursement Amounts then due and owing. On the following
Distribution Date, the Trustee shall withdraw the amounts described in the
first
sentence of this Section 3.3(a) from
the Series 2006-2 Accrued Interest Account and deposit such amounts in the
Series 2006-2 Distribution Account.
(b) Lease
Payment Deficit Notice.
On or
before 10:00 a.m. (New York City time) on each Distribution Date, the
Administrator shall notify the Trustee and the Surety Provider of the amount
of
any Series 2006-2 Lease Payment Deficit, such notification to be in the form
of
Exhibit F
(each a
“Lease
Payment Deficit Notice”).
(c) Draws
on Series 2006-2 Letters of Credit For Series 2006-2 Lease Interest Payment
Deficits.
If the
Administrator determines on any Distribution Date that there exists a Series
2006-2 Lease Interest Payment Deficit, the Administrator shall instruct the
Trustee in writing to draw on the Series 2006-2 Letters of Credit, if any,
and,
the Trustee shall, by 12:00 noon (New York City time) on such Distribution
Date draw an amount (identified by the Administrator) equal to the least of
(i)
such Series 2006-2 Lease Interest Payment Deficit, (ii) the excess, if any,
of
the sum of (A) the Series 2006-2 Adjusted Monthly Interest for such Distribution
Date, (B) the Series 2006-2 Liquidity Fee Amount for such Distribution Date,
and
(C) the amounts described in clauses (y) and (z) of Section 3.3(a)
above on
such Distribution Date over the amounts available from the Series 2006-2 Accrued
Interest Account on such Distribution Date and (iii) the Series 2006-2 Letter
of
Credit Liquidity Amount on the Series 2006-2 Letters of Credit by presenting
to
each Series 2006-2 Letter of Credit Provider (with a copy to the Surety
Provider) a draft accompanied by a Certificate of Lease Deficit Demand and
shall
cause the Lease Deficit Disbursements to be deposited in the Series 2006-2
Distribution Account on such Distribution Date for distribution in accordance
with Section 3.4;
provided,
however,
that if
the Series 2006-2 Cash Collateral Account has been established and funded,
the
Trustee shall withdraw from the Series 2006-2 Cash Collateral Account and
deposit in the Series 2006-2 Distribution Account an amount equal to the lesser
of (x) the Series 2006-2 Cash Collateral Percentage on such Distribution Date
of
the least of the amounts described in clauses (i), (ii) and (iii) above and
(y)
the Series 2006-2 Available Cash Collateral Account Amount on such Distribution
Date and draw an amount equal to the remainder of such amount on the Series
2006-2 Letters of Credit. During the continuance of a Surety Default, no amounts
in respect of the Surety Provider Fee shall be drawn on the Series 2006-2
Letters of Credit.
49
(d) Withdrawals
from Series 2006-2 Reserve Account.
If the
Administrator determines on any Distribution Date that the amounts available
from the Series 2006-2 Accrued Interest Account plus
the
amount, if any, to be drawn under the Series 2006-2 Letters of Credit and/or
withdrawn from the Series 2006-2 Cash Collateral Account pursuant to
Section 3.3(c)
are
insufficient to pay the sum of (A) Series 2006-2 Adjusted Monthly Interest
for such Distribution Date, (B) the Series 2006-2 Liquidity Fee Amount for
such Distribution Date and (C) the amounts described in clauses (y) and (z)
of Section 3.3(a)
above on
such Distribution Date, the Administrator shall instruct the Trustee in writing
to withdraw from the Series 2006-2 Reserve Account and deposit in the Series
2006-2 Distribution Account on such Distribution Date an amount equal to the
lesser of the Series 2006-2 Available Reserve Account Amount and such
insufficiency. During the continuance of a Surety Default, no amounts in respect
of the Surety Provider Fee shall be withdrawn from the Series 2006-2 Reserve
Account. The Trustee shall withdraw such amount from the Series 2006-2 Reserve
Account and deposit such amount in the Series 2006-2 Distribution
Account.
(e) Surety
Bond.
(i)
If
the Administrator determines on any Determination Date that the sum of the
amounts to be available from the Series 2006-2 Accrued Interest Account plus
the
amount, if any, to be drawn under the Series 2006-2 Letters of Credit and/or
to
be withdrawn from the Series 2006-2 Cash Collateral Account pursuant to
Section 3.3(c)
above
plus
the
amount, if any, to be withdrawn from the Series 2006-2 Reserve Account pursuant
to Section 3.3(d)
above
will be insufficient to pay on the related Distribution Date the sum of
(A) the Series 2006-2 Adjusted Monthly Interest for such Distribution Date
and (B) the Series 2006-2 Liquidity Fee Amount for such Distribution Date,
the Administrator shall instruct the Trustee, prior to 10:00 a.m. (New York
City
time) on the second Business Day prior to such Distribution Date, in writing
to
make a demand on the Surety Bond and, upon receipt of such notice by the Trustee
on or prior to 11:00 a.m. (New York City time) on such Business Day, the Trustee
shall, by 12:00 noon (New York City time) on such Business Day, make a demand
on
the Surety Bond in an amount equal to such insufficiency in accordance with
the
terms thereof and shall cause the proceeds thereof to be deposited in the Series
2006-2 Distribution Account. The Trustee shall use the proceeds of any draw
on
the Surety Bond made pursuant to this paragraph solely for the purpose of making
payments of Series 2006-2 Monthly Interest and Liquidity Fees pursuant to
Section
3.4
(which
collectively shall not exceed Series 2006-2 Capped Senior Amount with respect
to
the related Distribution Date).
(ii)
If,
on any Distribution Date following a demand on the Surety Bond pursuant to
clause (i) of this Section 3.3(e), the Administrator determines that the sum
of
(x) the amounts available from the Series 2006-2 Accrued Interest Account plus
the amount, if any, to be drawn under the Series 2006-2 Letters of Credit and/or
to be withdrawn from the Series 2006-2 Cash Collateral Account pursuant to
Section 3.3(c) plus the amount, if any, to be withdrawn from the Series 2006-2
Reserve Account pursuant to 3.3(d) and (y) the amount drawn on
50
the
Surety Bond pursuant to clause (i) of this Section 3.3(e) exceeds the sum of
(A)
the Series 2006-2 Adjusted Monthly Interest for such Distribution Date and
(B)
the Series 2006-2 Liquidity Fee Amount for such Distribution Date, then the
Administrator shall instruct the Trustee, no later than 12:00 noon (New York
City time) on such Distribution Date, to reduce (but not below zero) the demand
on the Surety Bond in an amount equal to such excess.
(f) Distributions.
On or
prior to the second Business Day preceding each Distribution Date, the
Administrator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement to pay the amounts available from
the
Series 2006-2 Accrued Interest Account and the Series 2006-2 Distribution
Account, plus
the
amount, if any, drawn under the Series 2006-2 Letters of Credit and/or withdrawn
from the Series 2006-2 Cash Collateral Account pursuant to Section 3.3(c) plus
the
amount, if any, withdrawn from the Series 2006-2 Reserve Account pursuant to
Section 3.3(d),
plus
the
amount, if any, of any demand on the Surety Bond pursuant to Section
3.3(e)
as
follows:
(i) on
each
Distribution Date during the Series 2006-2 Revolving Period and the Series
2006-2 Controlled Amortization Period, (1) first, to the Paying Agent, an amount
equal to the Series 2006-2 Adjusted Monthly Interest for such Distribution
Date
to be paid in accordance with Section
3.4,
(2)
second, to the Paying Agent, an amount equal to the Series 2006-2 Liquidity
Fee
Amount for such Distribution Date to be paid in accordance with Section
3.4,
(3)
third, to each Series 2006-2 Interest Rate Swap Counterparty, an amount equal
to
any Fixed Rate Payment for such Distribution Date due and owing to such Series
2006-2 Interest Rate Swap Counterparty, (4) fourth, to the Paying Agent, an
amount equal to the Series 2006-2
Capped
Shortfall Amount for such Distribution Date to be paid in accordance with
Section
3.4,
(5)
fifth, to the Surety Provider, in an amount equal to (x) the Surety Provider
Fee
for the related Series 2006-2 Interest Period and, without duplication (y)
any
Surety Provider Reimbursement Amounts then due and owing, (6) sixth, to the
Trustee, an amount equal to the Series 2006-2 Percentage as of the beginning
of
such Series 2006-2 Interest Period of the Trustee’s fees for such Series 2006-2
Interest Period, (7) seventh, so long as ABCR is the Administrator as of such
Distribution Date, to the Paying Agent, an amount equal to the excess, if any,
of (x) the Series 2006-2 Basis Fees for such Distribution Date over (y) the
Series 2006-2 Capped Shortfall Amount for such Distribution Date, to be paid
in
accordance with Section 3.4, (8) eighth, to the Administrator, an amount equal
to the Series 2006-2 Percentage as of the beginning of the Series 2006-2
Interest Period ending on the day preceding such Distribution Date of the
portion of the Monthly Administration Fee payable by CRCF (as specified in
clause (iii) of the definition thereof) for such Series 2006-2 Interest Period,
(9) ninth, in the event that ABCR is not the Administrator as of such
Distribution Date, to the Paying Agent, an amount equal to the excess, if any,
of (x) the Series 2006-2 Basis Fees for such Distribution Date over (y) the
Series 2006-2 Capped Shortfall Amount for such Distribution Date, to be paid
in
accordance with Section
3.4,
(10)
tenth, to the Series 2006-2 Distribution Account to pay any Article VII Costs,
(11) eleventh, to pay any Carrying Charges (other
51
than
Carrying Charges provided for above) to the Persons to whom such amounts are
owed, an amount equal to the Series 2006-2 Percentage as of the beginning of
such Series 2006-2 Interest Period of such Carrying Charges (other than Carrying
Charges provided for above) for such Series 2006-2 Interest Period, (12)
twelfth, if CRCF is required to replace the Series 2006-2 Interest Rate Hedge
Counterparty pursuant to Section
3.11(b),
the
initial payment, if any, to be made by CRCF to the replacement Series 2006-2
Interest Rate Hedge Counterparty, (13) thirteenth, to each Series 2006-2
Interest Rate Hedge Counterparty, any amounts due and owing under the applicable
Series 2006-2 Interest Rate Hedge (other than any Fixed Rate Payment and any
amounts payable pursuant to clause (12) above) and (14) fourteenth, the
balance, if any (“Excess
Collections”),
shall
be withdrawn by the Paying Agent from the Series 2006-2 Collection Account
and
deposited in the Series 2006-2 Excess Collection Account; and
(ii) on
each
Distribution Date during the Series 2006-2 Rapid Amortization Period (1) first,
to the Paying Agent, an amount equal to Series 2006-2 Adjusted Monthly Interest
for such Distribution Date to be paid in accordance with Section 3.4,
(2)
second, to the Paying Agent, an amount equal to the Series 2006-2 Liquidity
Fee
Amount for such Distribution Date to be paid in accordance with Section
3.4,
(3) third, to each Series 2006-2 Interest Rate Swap Counterparty, an amount
equal to any Fixed Rate Payment for such Distribution Date due and owing to
such
Series 2006-2 Interest Rate Swap Counterparty, (4) fourth, to the Paying
Agent, an amount equal to Series 2006-2 Capped Shortfall Amount for such
Distribution Date to be paid in accordance with Section 3.4,
(5)
fifth, to the Surety Provider, in an amount equal to the sum of (x) the Surety
Provider Fee for the related Series 2006-2 Interest Period and, without
duplication, (y) any Surety Provider Reimbursement Amounts then due and owing,
(6) sixth, to the Trustee, an amount equal to the Series 2006-2 Percentage
as of
the beginning of the Series 2006-2 Interest Period ending on the day preceding
such Distribution Date of the Trustee’s fees for such Series 2006-2 Interest
Period, (7) seventh, to the Administrator, an amount equal to the Series 2006-2
Percentage as of the beginning of such Series 2006-2 Interest Period of the
portion of the Monthly Administration Fee (as specified in clause (iii) of
the
definition thereof) payable by CRCF for such Series 2006-2 Interest Period,
(8)
eighth, so long as no Series 2006-2 Lease Payment Deficit exists on such
Distribution Date, to the Paying Agent, an amount equal to the excess, if any,
of (x) the Series 2006-2 Basis Fees for such Distribution Date over (y) the
Series 2006-2 Capped Shortfall Amount for such Distribution Date, to be paid
in
accordance with Section
3.4,
(9)
ninth, so long as the Series 2006-2 Invested Amount is greater than the Monthly
Total Principal Allocations for the Related Month, an amount equal to the excess
of the Series 2006-2 Invested Amount over the Monthly Total Principal
Allocations for the Related Month shall be treated as Principal Collections
and
paid in accordance with Section 3.5(a), (10) tenth,
if any
Series 2006-2 Lease Payment Deficit exists on such Distribution Date, to the
Paying Agent, an amount equal to the excess, if any, of (x) the Series 2006-2
Basis Fees for such Distribution Date over (y) the Series 2006-2 Capped
Shortfall
52
Amount
for such Distribution Date, to be paid in accordance with Section
3.4,
(11)
eleventh, to the Series 2006-2 Distribution Account to pay any Article VII
Costs, (12) twelfth, to pay any Carrying Charges (other than Carrying Charges
provided for above) to the Persons to whom such amounts are owed, an amount
equal to the Series 2006-2 Percentage as of the beginning of such Series 2006-2
Interest Period of such Carrying Charges (other than Carrying Charges provided
for above) for such Series 2006-2 Interest Period, (13) thirteenth, if CRCF
is
required to replace the Series 2006-2 Interest Rate Hedge Counterparty pursuant
to Section
3.11(b),
the
initial payment, if any, to be made by CRCF to the replacement Series 2006-2
Interest Rate Hedge Counterparty, (14) fourteenth, to each Series 2006-2
Interest Rate Hedge Counterparty, any amounts due and owing under the applicable
Series 2006-2 Interest Rate Hedge (other than any Fixed Rate Payment and any
amounts payable pursuant to clause (13) above) and (15) fifteenth, the
balance, if any, shall be treated as Principal Collections.
(g) Shortfalls.
If the
amounts described in Section 3.3
are
insufficient to pay the Series 2006-2 Monthly Interest, the Series 2006-2
Liquidity Fee Amount and the Series 2006-2 Basis Fees of the Purchaser Groups
on
any Distribution Date, payments of interest to the Series 2006-2 Noteholders
and
payments of Liquidity Fees to the Purchaser Groups will be reduced on a
pro rata
basis by
the amount of such deficiency. Interest shall accrue on the amount of such
deficiency at the Alternate Base Rate plus
2% per
annum.
Section
3.4. Payment
of Note Interest, Liquidity Fees and Series 2006-2 Basis Fees.
On each
Distribution Date, subject to Section 9.8
of the
Base Indenture, the Paying Agent shall, in accordance with Section 6.1
of the
Base Indenture, pay to the Administrative Agent for the accounts of the
Purchaser Groups from the funds on deposit in the Series 2006-2 Distribution
Account available to make payment to the Purchaser Groups determined in
accordance with the priority of payments set forth in Section
3.3(f).
Upon
the receipt of funds from the Paying Agent on each Distribution Date on account
of Series 2006-2 Monthly Interest and any Series 2006-2 Basis Fees, the
Administrative Agent shall pay to each Funding Agent with respect to a Purchaser
Group an amount equal to the Monthly Funding Costs with respect to such
Purchaser Group with respect to the Series 2006-2 Interest Period ending on
the
day preceding such Distribution Date plus
the
amount of any allocable portion of the Series 2006-2 Basis Fees relating to
Series 2006-2 Monthly Interest payable to such Purchaser Group as of the
preceding Distribution Date, together with any interest thereon at the Alternate
Base Rate plus
2% per
annum. If the amount paid to the Administrative Agent on any Distribution Date
pursuant to this Section 3.4
on
account of Series 2006-2 Monthly Interest for the Series 2006-2 Interest Period
ending on the day preceding such Distribution Date and any Series 2006-2 Basis
Fees for such Distribution Date relating to Series 2006-2 Monthly Interest
is
less than such Series 2006-2 Monthly Interest, the Administrative Agent shall
pay the amount available to the Funding Agents, on behalf of the Purchaser
Groups, on a pro rata
basis,
based on the Monthly Funding Costs with respect to each Purchaser Group with
respect to such Series 2006-2 Interest Period. Upon the receipt of funds from
the Paying Agent on each Distribution Date on account of Liquidity Fees and
any
Series 2006-2 Basis Fees, the Administrative Agent shall pay to each Funding
Agent with respect to a Purchaser Group an amount equal to the Liquidity Fee
and
any allocable portion of the Series 2006-2 Basis Fee payable to such Purchaser
Group with respect to
53
the
Series 2006-2 Interest Period ending on the day preceding such Distribution
Date
relating to unpaid Liquidity Fees and any unpaid Series 2006-2 Basis Fee payable
to such Purchaser Group as of the preceding Distribution Date, together with
any
interest thereon at the Alternate Base Rate plus
2% per
annum. If the amount paid to the Administrative Agent on any Distribution Date
pursuant to this Section 3.4
on
account of Liquidity Fees and any Series 2006-2 Basis Fees with respect to
Liquidity Fees is less than the Liquidity Fees and any Series 2006-2 Basis
Fees
payable on such Distribution Date, the Administrative Agent shall pay the amount
available to the Funding Agents, on behalf of the Purchaser Groups, on a
pro rata
basis,
based on the Liquidity Fee and any Series 2006-2 Basis Fee with respect to
Liquidity Fees payable to each Purchaser Group on such Distribution Date. Upon
the receipt of funds from the Trustee or the Paying Agent on any Distribution
Date on account of Article VII Costs, the Administrative Agent shall pay such
amounts to the Funding Agent with respect to the CP Conduit Purchaser or the
APA
Bank owed such amounts. If the amounts paid to the Administrative Agent on
any
Distribution Date pursuant to this Section 3.4
on
account of Article VII Costs are less than the Article VII Costs due and payable
on such Distribution Date, the Administrative Agent shall pay the amounts
available to the Funding Agents with respect to the CP Conduit Purchasers and
APA Banks owed such amounts, on a pro rata
basis,
based on the Article VII Costs owing to such CP Conduit Purchasers and APA
Banks. Due and unpaid Article VII Costs owing to a Purchaser Group shall accrue
interest at the Alternate Base Rate plus
2%;
provided
that
Article VII Costs shall not be considered due until the first Distribution
Date
following five (5) days’ notice to CRCF and the Administrator of such Article
VII Costs. Distribution by the Trustee on behalf of the CRCF of funds in respect
of any Series 2006-2 Basis Fees, Series 2006-2 Monthly Interest on, and
Liquidity Fees in respect of, the Series 2006-2 Notes to the Administrative
Agent on behalf of the Purchaser Groups shall discharge the obligation to make
such payment whether or not the Administrative Agent shall properly deliver
such
funds to the applicable Funding Agents.
Section
3.5. Payment
of Note Principal.
(a) Monthly
Payments During Series 2006-2 Controlled Amortization Period or Rapid
Amortization Period.
Commencing on the first Determination Date after the commencement of the earlier
of the Series 2006-2 Controlled Amortization Period or the Series 2006-2 Rapid
Amortization Period, the Administrator shall instruct the Trustee and the Paying
Agent in writing pursuant to the Administration Agreement and in accordance
with
this Section 3.5
as to
(i) the amount allocated to the Series 2006-2 Notes during the Related Month
pursuant to Section 3.2(b)(ii),
(c)(ii)
or
(d)(ii),
as the
case may be, and the portion of such amount, if any, that has been previously
applied to make a Decrease pursuant to Section 2.5,
(ii) any amounts to be drawn on the Series 2006-2 Demand Notes and/or on
the Series 2006-2 Letters of Credit (or withdrawn from the Series 2006-2 Cash
Collateral Account), (iii) any amounts to be withdrawn from the Series 2006-2
Reserve Account and deposited into the Series 2006-2 Distribution Account and
(iv) the amount of any demand on the Surety Bond in accordance with the terms
thereof. On the Distribution Date following each such Determination Date, the
Trustee shall withdraw the amount allocated to the Series 2006-2 Notes during
the Related Month pursuant to Section 3.2(b)(ii),
(c)(ii)
or
(d)(ii),
as the
case may be, less the portion of such amount, if any, that has been previously
applied to make a Decrease pursuant to Section 2.5,
from
the Series 2006-2 Collection Account and deposit such amount in the
Series 2006-2 Distribution Account, to be paid as principal to the holders
of the Series 2006-2 Notes.
54
(b) Decreases.
(i) On
any Business Day on which a Decrease is to be made pursuant to Section 2.5(a)(i),
the
Trustee shall withdraw from the Series 2006-2 Excess Collection Account and/or
the Series 2006-2 Collection Account in accordance with the written instructions
of the Administrator an amount equal to the lesser of (i) the funds then
allocated to the Series 2006-2 Excess Collection Account and/or the Series
2006-2 Collection Account and (ii) the amount of such Decrease, and deposit
such
amount in the Series 2006-2 Distribution Account, to be paid to the
Administrative Agent for distribution in accordance with Section 3.5(h)(i).
(ii) On
any
Business Day on which a Decrease is to be made pursuant to Section 2.5(a)(ii),
the
Trustee shall withdraw from the Series 2006-2 Collection Account in accordance
with the written instructions of the Administrator an amount equal to the lesser
of (i) the funds then allocated to the Series 2006-2 Collection Account and
(ii) the amount of such Decrease and deposit such amount in the Series 2006-2
Distribution Account, to be paid to the Administrative Agent for distribution
in
accordance with Section 3.5(h)(ii).
(c) Principal
Draws on Series 2006-2 Letters of Credit.
If the
Administrator determines on any Distribution Date during the Series 2006-2
Rapid
Amortization Period that there exists a Series 2006-2 Lease Principal Payment
Deficit, the Administrator shall instruct the Trustee in writing to draw on
the
Series 2006-2 Letters of Credit, if any, as provided below; provided,
however,
that
the Administrator shall not instruct the Trustee to draw on the Series 2006-2
Letters of Credit in respect of a Series 2006-2 Lease Principal Payment Deficit
on or after the date of the filing by ABCR of a petition for relief under
Chapter 11 of the Bankruptcy Code unless and until the date on which ABCR shall
have resumed making all payments of the portion of Monthly Base Rent relating
to
Loan Interest required to be made under the AESOP I Operating Lease.
Upon
receipt of a notice by the Trustee from the Administrator in respect of a Series
2006-2 Lease Principal Payment Deficit on or prior to 11:00 a.m.
(New York City time) on a Distribution Date, the Trustee shall, by 12:00
noon (New York City time) on such Distribution Date draw an amount equal to
the lesser of (1) such Series 2006-2 Lease Principal Payment Deficit and (2)
the
Series 2006-2 Letter of Credit Liquidity Amount on the Series 2006-2
Letters of Credit by presenting to each Series 2006-2 Letter of Credit Provider
a draft accompanied by a Certificate of Lease Deficit Demand and shall cause
the
Lease Deficit Disbursements to be deposited in the Series 2006-2 Distribution
Account on such Distribution Date; provided,
however,
that if
the Series 2006-2 Cash Collateral Account has been established and funded,
the
Trustee shall withdraw from the Series 2006-2 Cash Collateral Account and
deposit in the Series 2006-2 Distribution Account an amount equal to the lesser
of (x) the Series 2006-2 Cash Collateral Percentage on such Distribution
Date of the Series 2006-2 Lease Principal Payment Deficit above and (y) the
Series 2006-2 Available Cash Collateral Account Amount on such Distribution
Date
and draw an amount equal to the remainder of such amount on the Series 2006-2
Letters of Credit.
(d) Principal
Deficit Amount.
On each
Distribution Date on which the Principal Deficit Amount is greater than zero,
amounts shall be transferred to the Series 2006-2 Distribution Account as
follows:
(i) Demand
Note Draw.
If on
any Determination Date, the Administrator determines that the Principal Deficit
Amount on the next succeeding Distribution Date
55
will
be
greater than zero and there are any Series 2006-2 Letters of Credit on such
date, prior to 10:00 a.m. (New York City time) on the second Business Day
prior to such Distribution Date, the Administrator shall instruct the Trustee
in
writing (with a copy to the Surety Provider) to deliver a Demand Notice to
the
Demand Note Issuers demanding payment of an amount equal to the lesser of (A)
the Principal Deficit Amount and (B) the Series 2006-2 Letter of Credit Amount.
The Trustee shall, prior to 12:00 noon (New York City time) on the second
Business Day preceding such Distribution Date, deliver such Demand Notice to
the
Demand Note Issuers; provided,
however,
that if
an Event of Bankruptcy (or the occurrence of an event described in clause (a)
of
the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred and be continuing,
the
Trustee shall not be required to deliver such Demand Notice to such Demand
Note
Issuer. The Trustee shall cause the proceeds of any demand on the Series 2006-2
Demand Notes to be deposited into the Series 2006-2 Distribution
Account.
(ii) Letter
of Credit Draw.
In the
event that either (x) on or prior to 10:00 a.m. (New York City time) on the
Business Day prior to such Distribution Date, any Demand Note Issuer shall
have
failed to pay to the Trustee or deposit in the Series 2006-2 Distribution
Account the amount specified in such Demand Notice in whole or in part or (y)
due to the occurrence of an Event of Bankruptcy (or the occurrence of an event
described in clause (a) of the definition thereof, without the lapse of a period
of 60 consecutive days) with respect to any Demand Note Issuer, the Trustee
shall not have delivered such Demand Notice to any Demand Note Issuer on the
second Business Day preceding such Distribution Date, then, in the case of
(x)
or (y) the Trustee shall on such Business Day draw on the Series 2006-2 Letters
of Credit an amount equal to the lesser of (1) Series 2006-2 Letter of
Credit Amount and (2) the aggregate amount that the Demand Note Issuers
failed to pay under the Series 2006-2 Demand Notes (or, the amount that the
Trustee failed to demand for payment thereunder) by presenting to each Series
2006-2 Letter of Credit Provider (with a copy to the Surety Provider) a draft
accompanied by a Certificate of Unpaid Demand Note Demand; provided,
however,
that if
the Series 2006-2 Cash Collateral Account has been established and funded,
the
Trustee shall withdraw from the Series 2006-2 Cash Collateral Account and
deposit in the
Series 2006-2 Distribution Account an amount equal to the lesser of (x) the
Series 2006-2 Cash Collateral Percentage on such Business Day of the aggregate
amount that the Demand Note Issuers failed to pay under the Series 2006-2 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (y) the Series 2006-2 Available Cash Collateral Account Amount on such
Business Day and draw an amount equal to the remainder of the aggregate amount
that the Demand Note Issuers failed to pay under the Series 2006-2 Demand Notes
(or, the amount that the Trustee failed to demand for payment thereunder) on
the
Series 2006-2 Letters of Credit. The Trustee shall deposit into, or cause the
deposit of, the proceeds of any draw on the Series 2006-2 Letters of Credit
and
the proceeds of any withdrawal from the Series 2006-2 Cash Collateral Account
to
be deposited in the Series 2006-2 Distribution Account.
(iii) Reserve
Account Withdrawal.
If the
Series 2006-2 Letter of Credit Amount will be less than the Principal Deficit
Amount on any Distribution Date, then, prior to 12:00 noon (New York City time)
on the second Business Day prior to such
56
Distribution
Date, the Administrator shall instruct the Trustee in writing to withdraw from
the Series 2006-2 Reserve Account, an amount equal to the lesser of (x) the
Series 2006-2 Available Reserve Account Amount and (y) the amount by which
the
Principal Deficit Amount exceeds the amounts to be deposited in the Series
2006-2 Distribution Account in accordance with clauses (i) and (ii) of this
Section 3.5(d)
and
deposit it in the Series 2006-2 Distribution Account on such Distribution
Date.
(iv) Demand
on Surety Bond.
If the
sum of the Series 2006-2 Letter of Credit Amount and the Series 2006-2 Available
Reserve Account Amount will be less than the Principal Deficit Amount on any
Distribution Date, then the Trustee shall make a demand on the Surety Bond
by
12:00 noon (New York City time) on the second Business Day preceding such
Distribution Date in an amount equal to the Insured Principal Deficit Amount
in
accordance with the terms of the Surety Bond and shall cause the proceeds
thereof to be deposited in the Series 2006-2 Distribution Account. The Trustee
shall uses the proceeds of any draw on the Surety Bond made pursuant to this
paragraph solely for the purpose of making principal payments on the Series
2006-2 Notes.
(e) Series
2006-2 Termination Date.
The
entire Series 2006-2 Invested Amount shall be due and payable on the Series
2006-2 Termination Date. In connection therewith:
(i) Demand
Note Draw.
If the
amount to be deposited in the Series 2006-2 Distribution Account in accordance
with Section 3.5(a)
together
with any amounts to be deposited therein in accordance with Section 3.5(d)
on the
Series 2006-2 Termination Date is less than the Series 2006-2 Invested Amount,
and there are any Series 2006-2 Letters of Credit on such date, then, prior
to
10:00 a.m. (New York City time) on the second Business Day prior to the
Series 2006-2 Termination Date, the Administrator shall instruct the Trustee
in
writing (with a copy to the Surety Provider) to make a demand (a “Demand
Notice”)
substantially in the form attached hereto as Exhibit G
on the
Demand Note Issuers for payment under the Series 2006-2 Demand Notes in an
amount equal to the lesser of (1) such insufficiency and (2) the Series
2006-2 Letter of Credit Amount. The Trustee shall, prior to 12:00 noon
(New York City time) on the second Business Day preceding the Series 2006-2
Termination Date, deliver such Demand Notice to the Demand Note Issuers;
provided,
however,
that if
an Event of Bankruptcy (or the occurrence of an event described in clause (a)
of
the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to a Demand Note Issuer shall have occurred and be continuing,
the
Trustee shall not be required to deliver such Demand Notice to such Demand
Note
Issuer. The Trustee shall cause the proceeds of any demand on the Series 2006-2
Demand Notes to be deposited into the Series 2006-2 Distribution
Account.
(ii) Letter
of Credit Draw.
In the
event that either (x) on or prior to 10:00 a.m. (New York City time) on the
Business Day immediately preceding any Distribution Date next succeeding any
date on which a Demand Notice has been transmitted by the Trustee to the Demand
Note Issuers pursuant to clause (i) of this Section 3.5(e)
any
Demand Note Issuer shall have failed to pay to the Trustee or deposit into
the
Series 2006-2 Distribution Account the amount specified in such Demand Notice
in
whole or in part or
57
(y)
due
to the occurrence of an Event of Bankruptcy (or the occurrence of an event
described in clause (a) of the definition thereof, without the lapse of a period
of 60 consecutive days) with respect to one or more of the Demand Note Issuers,
the Trustee shall not have delivered such Demand Notice to any Demand Note
Issuer on the second Business Day preceding the Series 2006-2 Termination Date,
then, in the case of (x) or (y) the Trustee shall draw on the Series 2006-2
Letters of Credit by 12:00 noon (New York City time) on such Business Day
an amount equal to the lesser of (1) the amount that the Demand Note Issuers
failed to pay under the Series 2006-2 Demand Notes (or, the amount that the
Trustee failed to demand for payment thereunder) and (2) the Series 2006-2
Letter of Credit Amount on such Business Day by presenting to each Series 2006-2
Letter of Credit Provider (with a copy to the Surety Provider) a draft
accompanied by a Certificate of Unpaid Demand Note Demand; provided,
however, that
if
the Series 2006-2 Cash Collateral Account has been established and funded,
the
Trustee shall withdraw from the Series 2006-2 Cash Collateral Account and
deposit in the Series 2006-2 Distribution Account an amount equal to the lesser
of (x) the Series 2006-2 Cash Collateral Percentage on such Business Day of
the
amount that the Demand Note Issuers failed to pay under the Series 2006-2 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (y) the Series 2006-2 Available Cash Collateral Account Amount on such
Business Day and draw an amount equal to the remainder of the amount that the
Demand Note Issuers failed to pay under the Series 2006-2 Demand Notes (or,
the
amount that the Trustee failed to demand for payment thereunder) on the Series
2006-2 Letters of Credit. The Trustee shall deposit, or cause the deposit of,
the proceeds of any draw on the Series 2006-2 Letters of Credit and the proceeds
of any withdrawal from the Series 2006-2 Cash Collateral Account to be deposited
in the Series 2006-2 Distribution Account.
(iii) Reserve
Account Withdrawal.
If,
after giving effect to the deposit into the Series 2006-2 Distribution Account
of the amount to be deposited in accordance with Section 3.5(a)
and the
amounts described in clauses (i) and (ii) of this Section 3.5(e)
together
with any amounts to be deposited therein in accordance with Section 3.5(d)
on the
Series 2006-2 Termination Date, the amount to be deposited in the Series 2006-2
Distribution Account with respect to the Series 2006-2 Termination Date is
or
will be less than the Series 2006-2 Invested Amount, then prior to 12:00 noon
(New York City time) on the second Business Day prior to such Series 2006-2
Termination Date, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 2006-2 Reserve Account, an amount equal to the lesser
of the Series 2006-2 Available Reserve Account Amount and such remaining
insufficiency and deposit it in the Series 2006-2 Distribution Account on such
Series 2006-2 Termination Date.
(iv) Demand
on Surety Bond.
If
after giving effect to the deposit into the Series 2006-2 Distribution Account
of the amount to be deposited in accordance with Section 3.5(a)
and all
other amounts described in clauses (i), (ii) and (iii) of this Section 3.5(e)
together
with any amounts to be deposited therein in accordance with Section 3.5(d)
on the
Series 2006-2 Termination Date, the amount to be deposited in the Series 2006-2
Distribution Account with respect to the Series 2006-2 Termination Date is
or
will be less than the Series 2006-2 Outstanding Principal Amount, then the
Trustee shall make a demand on the Surety Bond by 12:00 noon (New York City
time) on the
58
second
Business Day preceding such Distribution Date in an amount equal to such
insufficiency in accordance with the terms thereof and shall cause the proceeds
thereof to be deposited in the Series 2006-2 Distribution Account.
(f) Mandatory
Decrease Date.
(i) Mandatory
Decreases.
Three
(3) Business Days prior to any Mandatory Decrease Date with respect to a CP
Conduit Purchaser, CRCF or the Administrator on behalf of CRCF, shall submit
a
written request to the Trustee for a principal payment to be made with respect
to the Series 2006-2 Note registered in the name of the Funding Agent with
respect to such CP Conduit Purchaser, to be made in accordance with Section 2.5(a)(ii),
in an
amount at least equal to the Mandatory Decrease Amount for such Mandatory
Decrease Date. Each Mandatory Decrease Amount will be due and payable by CRCF
on
the Mandatory Decrease Date and any failure to pay such amount shall constitute
a failure to make a principal payment on the related Series 2006-2
Note.
(ii) Demand
on Surety Bond.
If the
Administrator determines on the third Business Day prior to any Mandatory
Decrease Date, that there will be insufficient funds available in the Series
2006-2 Collection Account to make a Decrease pursuant to Section 2.5(a)(ii)
in an
amount equal to the Mandatory Decrease Amount for such Mandatory Decrease Date,
then the Administrator shall, on such Business Day, instruct the Trustee in
writing to make a demand on the Surety Bond in an amount equal to such
insufficiency in accordance with the terms of the Surety Bond prior to 12:00
noon (New York City time) on the second Business Day prior to such Mandatory
Decrease Date, and the Trustee shall make such a demand on the Surety Bond
and
shall cause the proceeds thereof to be deposited into the Series 2006-2
Distribution Account to be paid to the Administrative Agent for distribution
in
accordance with Section
3.5(h)(ii).
It
shall be a condition precedent under the Surety Bond to payment of such
shortfall that, on the applicable Mandatory Decrease Date, after giving effect
to all payments to be made to the CP Conduit Purchaser on or prior to such
Mandatory Decrease Date pursuant to the Asset Purchase Agreement with respect
to
such CP Conduit Purchaser, the aggregate amount paid thereunder to such CP
Conduit Purchaser will be equal to the Liquidity Amount with respect to the
Purchaser Group of which such Funding Agent and CP Conduit Purchaser are
members, and the Trustee shall not submit such a claim unless it has received
written notice from the related Funding Agent confirming that such condition
will be satisfied on such Mandatory Decrease Date.
(g) Distribution
to the Administrative Agent.
On each
Distribution Date occurring on or after the date a withdrawal is made from
the
Series 2006-2 Collection Account pursuant to Section 3.5(a)
or
amounts are deposited in the Series 2006-2 Distribution Account pursuant to
Section 3.5(c),
(d),
(e)
and/or
(f),
the
Paying Agent shall, in accordance with Section 6.1
of the
Base Indenture, pay to the Administrative Agent for the accounts of the
Purchaser Groups from the Series 2006-2 Distribution Account such amount
deposited therein pursuant to Section 3.5(a),
(c),
(d),
(e)
and/or
(f),
as the
case may be. Distribution by the Trustee on behalf of the CRCF of funds in
respect of principal on the Series 2006-2 Notes to the Administrative Agent
on
behalf of the Purchaser Groups shall discharge the obligation to make
59
such
payment whether or not the Administrative Agent shall properly deliver such
funds to the Purchaser Group.
(h) Distribution
by Administrative Agent to Purchaser Groups.
(i)
Upon the
receipt of funds on account of a Decrease pursuant to Section
2.5(a)(i)
from the
Trustee, the Administrative Agent shall pay first, to each Funding Agent with
respect to a Non-Extending Purchaser Group a pro rata
amount
of the Decrease, based on the Purchaser Group Invested Amounts with respect
to
such Non-Extending Purchaser Group relative to the Purchaser Group Invested
Amounts with respect to all Non-Extending Purchaser Groups on the date of such
Decrease and second, to each Funding Agent with respect to a Purchaser Group,
such Purchaser Group’s Pro Rata Share of the remaining amount of such Decrease.
Each Purchaser Group’s share of the amount of any Decrease on any Business Day
shall be allocated by such Purchaser Group to reduce the portion of the
Purchaser Group Invested Amount with respect to such Purchaser Group allocated
to Eurodollar Tranches in such order as such Purchaser Group may select in
order
to minimize costs payable pursuant to Section 7.3.
Upon
the receipt of funds from the Trustee pursuant to Sections 3.5(a),
(c),
(d)
and/or
(e)
on any
Distribution Date, the Administrative Agent shall pay to each Funding Agent
with
respect to a Purchaser Group, such Purchaser Group’s Pro Rata Share of such
funds.
(ii) Upon
the
receipt of funds on account of a Decrease pursuant to Section 2.5(a)(ii)
in
respect of any CP Conduit Purchaser or the proceeds of a demand on the Surety
Bond pursuant to Section
3.5(f)(ii)
in
respect of a CP Conduit Purchaser from the Trustee, the Administrative Agent
shall pay such funds to the Funding Agent with respect to such CP Conduit
Purchaser.
Section
3.6. Administrator’s
Failure to Instruct the Trustee to Make a Deposit or Payment.
If the
Administrator fails to give notice or instructions to make any payment from
or
deposit into the Collection Account required to be given by the Administrator,
at the time specified in the Administration Agreement or any other Related
Document (including applicable grace periods), the Trustee shall make such
payment or deposit into or from the Collection Account without such notice
or
instruction from the Administrator, provided
that the
Administrator, upon request of the Trustee, promptly provides the Trustee with
all information necessary to allow the Trustee to make such a payment or
deposit. When any payment or deposit hereunder or under any other Related
Document is required to be made by the Trustee or the Paying Agent at or prior
to a specified time, the Administrator shall deliver any applicable written
instructions with respect thereto reasonably in advance of such specified
time.
Section
3.7. Series
2006-2 Reserve Account.
(a) Establishment
of Series 2006-2 Reserve Account.
CRCF
shall establish and maintain in the name of the Series 2006-2 Agent for the
benefit of the Series 2006-2 Noteholders, each Series 2006-2 Interest Rate
Swap
Counterparty and the Surety Provider, or cause to be established and maintained,
an account (the “Series
2006-2 Reserve Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2006-2 Noteholders, each Series 2006-2
Interest Rate Swap Counterparty and the Surety Provider. The Series 2006-2
Reserve Account shall be maintained (i) with a Qualified Institution, or (ii)
as
a segregated trust account with the corporate trust department of a depository
institution or trust company having corporate trust powers and acting as trustee
for funds deposited in the Series 2006-2 Reserve Account; provided
60
that,
if
at any time such Qualified Institution is no longer a Qualified Institution
or
the credit rating of any securities issued by such depositary institution or
trust company shall be reduced to below “BBB-” by Standard & Poor’s or
“Baa2” by Moody’s, then CRCF shall, within 30 days of such reduction, establish
a new Series 2006-2 Reserve Account with a new Qualified Institution. If the
Series 2006-2 Reserve Account is not maintained in accordance with the previous
sentence, CRCF shall establish a new Series 2006-2 Reserve Account, within
ten
(10) Business Days after obtaining knowledge of such fact, which complies with
such sentence, and shall instruct the Series 2006-2 Agent in writing to transfer
all cash and investments from the non-qualifying Series 2006-2 Reserve Account
into the new Series 2006-2 Reserve Account. Initially, the Series 2006-2 Reserve
Account will be established with The Bank of New York.
(b) Administration
of the Series 2006-2 Reserve Account.
The
Administrator may instruct the institution maintaining the Series 2006-2 Reserve
Account to invest funds on deposit in the Series 2006-2 Reserve Account from
time to time in Permitted Investments; provided,
however,
that
any such investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were received, unless
any Permitted Investment held in the Series 2006-2 Reserve Account is held
with
the Paying Agent, then such investment may mature on such Distribution Date
and
such funds shall be available for withdrawal on or prior to such Distribution
Date. All such Permitted Investments will be credited to the Series 2006-2
Reserve Account and any such Permitted Investments that constitute
(i) physical property (and that is not either a United States security
entitlement or a security entitlement) shall be physically delivered to the
Trustee; (ii) United States security entitlements or security entitlements
shall be controlled (as defined in Section 8-106 of the New York UCC)
by the Trustee pending maturity or disposition, and (iii) uncertificated
securities (and not United States security entitlements) shall be delivered
to
the Trustee by causing the Trustee to become the registered holder of such
securities. The Trustee shall, at the expense of CRCF, take such action as
is
required to maintain the Trustee’s security interest in the Permitted
Investments credited to the Series 2006-2 Reserve Account. CRCF shall not direct
the Trustee to dispose of (or permit the disposal of) any Permitted Investments
prior to the maturity thereof to the extent such disposal would result
in a
loss of
purchase price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2006-2 Reserve
Account shall remain uninvested.
(c) Earnings
from Series 2006-2 Reserve Account.
All
interest and earnings (net of losses and investment expenses) paid on funds
on
deposit in the Series 2006-2 Reserve Account shall be deemed to be on deposit
therein and available for distribution.
(d) Series
2006-2 Reserve Account Constitutes Additional Collateral for Series 2006-2
Notes.
In
order to secure and provide for the repayment and payment of the CRCF
Obligations with respect to the Series 2006-2 Notes, CRCF hereby grants a
security interest in and assigns, pledges, grants, transfers and sets over
to
the Trustee, for the benefit of the Series 2006-2 Noteholders, each Series
2006-2 Interest Rate Swap Counterparty and the Surety Provider, all of CRCF’s
right, title and interest in and to the following (whether now or hereafter
existing or acquired): (i) the Series 2006-2 Reserve Account, including any
security entitlement thereto; (ii) all funds on deposit therein from time to
time; (iii) all certificates and instruments, if any, representing or evidencing
any or all of the Series 2006-2 Reserve Account or the funds on deposit therein
from time to time; (iv) all investments made at any time and from time to
time
61
with
monies in the Series 2006-2 Reserve Account, whether constituting securities,
instruments, general intangibles, investment property, financial assets or
other
property; (v) all interest, dividends, cash, instruments and other property
from
time to time received, receivable or otherwise distributed in respect of or
in
exchange for the Series 2006-2 Reserve Account, the funds on deposit therein
from time to time or the investments made with such funds; and (vi) all proceeds
of any and all of the foregoing, including, without limitation, cash (the items
in the foregoing clauses (i) through (vi) are referred to, collectively, as
the
“Series
2006-2 Reserve Account Collateral”).
The
Trustee shall possess all right, title and interest in and to all funds on
deposit from time to time in the Series 2006-2 Reserve Account and in all
proceeds thereof, and shall be the only person authorized to originate
entitlement orders in respect of the Series 2006-2 Reserve Account. The Series
2006-2 Reserve Account Collateral shall be under the sole dominion and control
of the Trustee for the benefit of the Series 2006-2 Noteholders, each Series
2006-2 Interest Rate Swap Counterparty and the Surety Provider. The Series
2006-2 Agent hereby agrees (i) to act as the securities intermediary (as defined
in Section 8-102(a)(14) of the New York UCC) with respect to the
Series 2006-2 Reserve Account; (ii) that its jurisdiction as securities
intermediary is New York; (iii) that each item of property (whether investment
property, financial asset, security, instrument or cash) credited to the Series
2006-2 Reserve Account shall be treated as a financial asset (as defined in
Section 8-102(a)(9) of the New York UCC) and (iv) to comply with any
entitlement order (as defined in Section 8-102(a)(8) of the New York
UCC) issued by the Trustee.
(e) Series
2006-2 Reserve Account Surplus.
In the
event that the Series 2006-2 Reserve Account Surplus on any Distribution Date,
after giving effect to all withdrawals from the Series 2006-2 Reserve Account,
is greater than zero, if no Series 2006-2 Enhancement Deficiency or AESOP I
Operating Lease Vehicle Deficiency would result therefrom or exist thereafter,
the Trustee, acting in accordance with the written instructions of the
Administrator (with a copy of such written instructions to be provided by the
Administrator to the Surety Provider) pursuant to the Administration Agreement,
shall withdraw from the Series 2006-2 Reserve Account an amount equal to
the Series 2006-2 Reserve Account Surplus and shall pay such amount to
CRCF.
(f) Termination
of Series 2006-2 Reserve Account.
Upon
the termination of the Indenture pursuant to Section 11.1
of the
Base Indenture, the Trustee, acting in accordance with the written instructions
of the Administrator, after the prior payment of all amounts owing to the Series
2006-2 Noteholders and to the Surety Provider and payable from the Series 2006-2
Reserve Account as provided herein, shall withdraw from the Series 2006-2
Reserve Account all amounts on deposit therein for payment to CRCF.
Section
3.8. Series
2006-2 Letters of Credit and Series 2006-2 Cash Collateral
Account.
(a) Series
2006-2 Letters of Credit and Series 2006-2 Cash Collateral Account Constitute
Additional Collateral for Series 2006-2 Notes.
In
order to secure and provide for the repayment and payment of CRCF’s obligations
with respect to the Series 2006-2 Notes, CRCF hereby grants a security interest
in and assigns, pledges, grants, transfers and sets over to the Trustee, for
the
benefit of the Series 2006-2 Noteholders, each Series 2006-2 Interest Rate
Swap
Counterparty and the Surety Provider, all of CRCF’s right, title and interest in
and to the following (whether now or hereafter existing or acquired):
(i) each Series 2006-2 Letter of Credit; (ii) the Series 2006-2 Cash
Collateral Account, including any security entitlement
62
thereto;
(iii) all funds on deposit in the Series 2006-2 Cash Collateral Account
from time to time; (iv) all certificates and instruments, if any,
representing or evidencing any or all of the Series 2006-2 Cash Collateral
Account or the funds on deposit therein from time to time; (v) all
investments made at any time and from time to time with monies in the Series
2006-2 Cash Collateral Account, whether constituting securities, instruments,
general intangibles, investment property, financial assets or other property;
(vi) all interest, dividends, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of or
in
exchange for the Series 2006-2 Cash Collateral Account, the funds on deposit
therein from time to time or the investments made with such funds; and
(vii) all proceeds of any and all of the foregoing, including, without
limitation, cash (the items in the foregoing clauses (ii) through (vii) are
referred to, collectively, as the “Series
2006-2 Cash Collateral Account Collateral”).
The
Trustee shall, for the benefit of the Series 2006-2 Noteholders, each Series
2006-2 Interest Rate Swap Counterparty and the Surety Provider, possess all
right, title and interest in all funds on deposit from time to time in the
Series 2006-2 Cash Collateral Account and in all
proceeds thereof, and shall be the only person authorized to originate
entitlement orders in respect
of the Series 2006-2 Cash Collateral Account. The Series 2006-2 Cash Collateral
Account shall be under the sole dominion and control of the Trustee for the
benefit of the Series 2006-2 Noteholders, each Series 2006-2 Interest Rate
Swap
Counterparty and the Surety Provider. The Series 2006-2 Agent hereby agrees
(i)
to act as the securities intermediary (as defined in Section 8-102(a)(14)
of the New York UCC) with respect to the Series 2006-2 Cash Collateral
Account; (ii) that its jurisdiction as securities intermediary is New York;
(iii) that each item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Series 2006-2 Cash Collateral
Account shall be treated as a financial asset (as defined in
Section 8-102(a)(9) of the New York UCC) and (iv) to comply with any
entitlement order (as defined in Section 8-102(a)(8) of the New York
UCC) issued by the Trustee.
(b) Series
2006-2 Letter of Credit Expiration Date.
If
prior to the date which is ten (10) days prior to the then-scheduled Series
2006-2 Letter of Credit Expiration Date with respect to any Series 2006-2 Letter
of Credit, excluding the amount available to be drawn under such Series 2006-2
Letter of Credit but taking into account each substitute Series 2006-2 Letter
of
Credit which is not expiring within ten (10) days and which has been obtained
from a Series 2006-2 Eligible Letter of Credit Provider and is in full force
and
effect on such date, the Series 2006-2 Enhancement Amount would be equal to
or
more than the Series 2006-2 Required Enhancement Amount and the Series 2006-2
Liquidity Amount would be equal to or greater than the Series 2006-2 Required
Liquidity Amount, then the Administrator shall notify the Trustee and the Surety
Provider (with the Surety Provider to be provided supporting calculations in
reasonable detail) in writing no later than two
63
(2)
Business Days prior to such Series 2006-2 Letter of Credit Expiration Date
of
such determination. If prior to the date which is ten (10) days prior to the
then scheduled Series 2006-2 Letter of Credit Expiration Date with respect
to
any Series 2006-2 Letter of Credit, excluding the amount available to be drawn
under such Series 2006-2 Letter of Credit but taking into account a substitute
Series 2006-2 Letter of Credit which is not expiring within ten (10) days and
which has been obtained from a Series 2006-2 Eligible Letter of Credit Provider
and is in full force and effect on such date, the Series 2006-2 Enhancement
Amount would be less than the Series 2006-2 Required Enhancement Amount or
the
Series 2006-2 Liquidity Amount would be less than the Series 2006-2 Required
Liquidity Amount, then the Administrator shall notify the Trustee and the Surety
Provider (with the Surety Provider to be provided supporting calculations in
reasonable detail) in writing no later than two (2) Business Days prior to
such
Series 2006-2 Letter of Credit Expiration Date of (x) the greater of (A) the
excess, if any, of the Series 2006-2 Required Enhancement Amount over the
Series 2006-2 Enhancement Amount, excluding the available amount under such
expiring Series 2006-2 Letter of Credit but taking into account any
substitute Series 2006-2 Letter of Credit which is not expiring within ten
(10)
days and which has been obtained from a Series 2006-2 Eligible Letter of
Credit Provider and is in full force and effect, on such date, and (B) the
excess, if any, of the Series 2006-2 Required Liquidity Amount over the Series
2006-2 Liquidity Amount, excluding the available amount under such expiring
Series 2006-2 Letter of Credit but taking into account any substitute Series
2006-2 Letter of Credit which is not expiring within ten (10) days and which
has
been obtained from a Series 2006-2 Eligible Letter of Credit Provider and is
in
full force and effect, on such date, and (y) the amount available to be drawn
on
such expiring Series 2006-2 Letter of Credit on such date. Upon receipt of
such
notice by the Trustee on or prior to 10:00 a.m. (New York City time) on any
Business Day, the Trustee shall, by 12:00 noon (New York City time) on such
Business Day (or, in the case of any notice given to the Trustee after 10:00
a.m. (New York City time), by 12:00 noon (New York City time) on the
next following Business Day), draw the lesser of the amounts set forth in
clauses (x) and (y) above on such expiring Series 2006-2 Letter of Credit by
presenting a draft (with a copy to the Surety Provider) accompanied by a
Certificate of Termination Demand and shall cause the Termination Disbursement
to be deposited in the Series 2006-2 Cash Collateral Account.
If
the
Trustee does not receive the notice from the Administrator described in the
first paragraph of this Section 3.8(b)
on or
prior to the date that is two (2) Business Days prior to each Series 2006-2
Letter of Credit Expiration Date, the Trustee shall, by 12:00 noon
(New York City time) on such Business Day draw the full amount of such
Series 2006-2 Letter of Credit by presenting a draft accompanied by a
Certificate of Termination Demand and shall cause the Termination Disbursement
to be deposited in the Series 2006-2 Cash Collateral Account.
(c) Series
2006-2 Letter of Credit Providers.
The
Administrator shall notify the Trustee and the Surety Provider in writing within
one (1) Business Day of becoming aware that, and, in any event, within twenty
(20) days if, (i) the long-term senior unsecured debt, deposit, claims paying
or
credit (as the case may be) rating of any Series 2006-2 Letter of Credit
Provider has fallen below “A” as determined by Standard & Poor’s or “A1” as
determined by Moody’s or (ii) the short-term senior unsecured debt, deposit,
claims paying or credit (as the case may be) rating of any Series 2006-2 Letter
of Credit Provider has fallen below “A-1” as determined by Standard & Poor’s
or “P-1” as determined by Moody’s. At such time the Administrator shall also
notify the Trustee of (i) the greater of (A) the excess, if any, of the
Series 2006-2 Required Enhancement Amount over the Series 2006-2 Enhancement
Amount, excluding the available amount under the Series 2006-2 Letter of Credit
issued by such Series 2006-2 Letter of Credit Provider, on such date, and (B)
the excess, if any, of the Series 2006-2 Required Liquidity Amount over the
Series 2006-2 Liquidity Amount, excluding the available amount under such Series
2006-2 Letter of Credit, on such date, and (ii) the amount available to be
drawn on such Series 2006-2 Letter of Credit on such date. Upon receipt of
such
notice by the Trustee on or prior to 10:00 a.m. (New York City time) on any
Business Day, the Trustee shall, by 12:00 noon (New York City time) on such
Business Day (or, in the case of any notice given to the Trustee after 10:00
a.m. (New York City time), by 12:00 noon (New York City time) on the
next following Business Day), draw on such Series 2006-2 Letter of Credit in
an
amount equal to the lesser of the amounts in clause (i) and clause
(ii) of the immediately
64
preceding
sentence on such Business Day by presenting a draft accompanied by a Certificate
of Termination Demand and shall cause the Termination Disbursement to be
deposited in the Series 2006-2 Cash Collateral Account.
(d) Draws
on the Series 2006-2 Letters of Credit.
If
there is more than one Series 2006-2 Letter of Credit on the date of any draw
on
the Series 2006-2 Letters of Credit pursuant to the terms of this Supplement,
the Administrator shall instruct the Trustee, in writing, to draw on each Series
2006-2 Letter of Credit in an amount equal to the LOC Pro Rata Share of the
Series 2006-2 Letter of Credit Provider issuing such Series 2006-2 Letter of
Credit of the amount of such draw on the Series 2006-2 Letters of
Credit.
(e) Establishment
of Series 2006-2 Cash Collateral Account.
On or
prior to the date of any drawing under a Series 2006-2 Letter of Credit pursuant
to Section 3.8(b),
(c)
or
(k),
CRCF
shall establish and maintain in the name of the Trustee for the benefit of
the
Series 2006-2 Noteholders, each Series 2006-2 Interest Rate Swap
Counterparty and the Surety Provider, or cause to be established and maintained,
an account (the “Series
2006-2 Cash Collateral Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2006-2 Noteholders, each Series 2006-2
Interest Rate Swap Counterparty and the Surety Provider. The Series 2006-2
Cash
Collateral Account shall be maintained (i) with a Qualified Institution, or
(ii) as a segregated trust account with the corporate trust department of a
depository institution or trust company having corporate trust powers and acting
as trustee for funds deposited in the Series 2006-2 Cash Collateral Account;
provided
that, if
at any time such Qualified Institution is no longer a Qualified Institution
or
the credit rating of any securities issued by such depository institution or
trust company shall be reduced to below “BBB-” by Standard & Poor’s or
“Baa3” by Moody’s, then CRCF shall, within 30 days of such reduction, establish
a new Series 2006-2 Cash Collateral Account with a new Qualified Institution
or
a new segregated trust account with the corporate trust department of a
depository institution or trust company having corporate trust powers and acting
as trustee for funds deposited in the Series 2006-2 Cash Collateral Account.
If
a new Series 2006-2 Cash Collateral Account is established, CRCF shall instruct
the Trustee in writing to transfer all cash and investments from the
non-qualifying Series 2006-2 Cash Collateral Account into the new Series 2006-2
Cash Collateral Account.
(f) Administration
of the Series 2006-2 Cash Collateral Account.
CRCF
may instruct (by standing instructions or otherwise) the institution maintaining
the Series 2006-2 Cash Collateral Account to invest funds on deposit in the
Series 2006-2 Cash Collateral Account from time to time in Permitted
Investments; provided,
however,
that
any such investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were received, unless
any Permitted Investment held in the Series 2006-2 Cash Collateral Account
is
held with the Paying Agent, in which
case such investment may mature on such Distribution Date so long as such funds
shall be available for withdrawal on or prior to such Distribution Date. All
such Permitted Investments will be credited to the Series 2006-2 Cash Collateral
Account and any such Permitted Investments that constitute (i) physical
property (and that is not either a United States security entitlement or a
security entitlement) shall be physically delivered to the Trustee;
(ii) United States security entitlements or security entitlements shall be
controlled (as defined in Section 8-106 of the New York UCC) by the
Trustee pending maturity or disposition, and (iii) uncertificated
securities (and not United States security entitlements)
65
shall
be
delivered to the Trustee by causing the Trustee to become the registered holder
of such securities. The Trustee shall, at the expense of CRCF, take such action
as is required to maintain the Trustee’s security interest in the Permitted
Investments credited to the Series 2006-2 Cash Collateral Account. CRCF shall
not direct the Trustee to dispose of (or permit the disposal of) any Permitted
Investments prior to the maturity thereof to the extent such disposal would
result in a
loss of
purchase price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2006-2 Cash
Collateral Account shall remain uninvested.
(g) Earnings
from Series 2006-2 Cash Collateral Account.
All
interest and earnings (net of losses and investment expenses) paid on funds
on
deposit in the Series 2006-2 Cash Collateral Account shall be deemed to be
on
deposit therein and available for distribution.
(h) Series
2006-2 Cash Collateral Account Surplus.
In the
event that the Series 2006-2 Cash Collateral Account Surplus on any Distribution
Date (or, after the Series 2006-2 Letter of Credit Termination Date, on any
date) is greater than zero, the Trustee, acting in accordance with the written
instructions (a copy of which shall be provided by the Administrator to the
Surety Provider) of the Administrator, shall withdraw from the Series 2006-2
Cash Collateral Account an amount equal to the Series 2006-2 Cash Collateral
Account Surplus and shall pay such amount: first,
to the
Series 2006-2 Letter of Credit Providers to the extent of any unreimbursed
drawings under the related Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Agreement, for
application in accordance with the provisions of the related Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ Agreement, and, second,
to CRCF
any remaining amount.
(i) Post-Series
2006-2 Letter of Credit Termination Date Withdrawals from the Series 2006-2
Cash
Collateral Account. If
the
Surety Provider notifies the Trustee in writing that the Surety Provider shall
have paid a Preference Amount (as defined in the Surety Bond) under the Surety
Bond, subject to the satisfaction of the conditions set forth in the next
succeeding sentence, the Trustee shall withdraw from the Series 2006-2 Cash
Collateral Account and pay to the Surety Provider an amount equal to the lesser
of (i) the Series 2006-2 Available Cash Collateral Account Amount on such date
and (ii) such Preference Amount. Prior to any withdrawal from the Series 2006-2
Cash Collateral Account pursuant to this Section 3.8(i),
the
Trustee shall have received a certified copy of the order requiring the return
of such Preference Amount.
(j) Termination
of Series 2006-2 Cash Collateral Account.
Upon
the termination of this Supplement in accordance with its terms, the Trustee,
acting in accordance with the written instructions of the Administrator, after
the prior payment of all amounts owing to the Series 2006-2 Noteholders and
to
the Surety Provider and payable from the Series 2006-2 Cash Collateral Account
as provided herein, shall withdraw from the Series 2006-2 Cash Collateral
Account all amounts on deposit therein (to the extent not withdrawn pursuant
to
Section 3.8(h)
above)
and shall pay such amounts: first,
to the
Series 2006-2 Letter of Credit Providers to the extent of any unreimbursed
drawings under the related Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ Agreement, for
application in accordance with the provisions of the related Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ Agreement, and, second,
to CRCF
any remaining amount.
66
(k) Termination
Date Demands on the Series 2006-2 Letters of Credit.
Prior
to 10:00 a.m. (New York City time) on the Business Day immediately
succeeding the Series 2006-2 Letter of Credit Termination Date, the
Administrator shall determine the Series 2006-2 Demand Note Payment Amount
as of
the Series 2006-2 Letter of Credit Termination Date. If the Series 2006-2 Demand
Note Payment Amount is greater than zero, then the Administrator shall instruct
the Trustee in writing to draw on the Series 2006-2 Letters of Credit. Upon
receipt of any such notice by the Trustee on or prior to 11:00 a.m.
(New York City time) on a Business Day, the Trustee shall, by 12:00 noon
(New York City time) on such Business Day draw an amount equal to the
lesser of (i) the Series 2006-2 Demand Note Payment Amount and
(ii) the Series 2006-2 Letter of Credit Liquidity Amount on the Series
2006-2 Letters of Credit by presenting to each Series 2006-2 Letter of Credit
Provider, with a copy to the Surety Provider, a draft accompanied by a
Certificate of Termination Date Demand; provided,
however,
that if
the Series 2006-2 Cash Collateral Account has been established and funded,
the
Trustee shall draw an amount equal to the product of (a) 100% minus
the
Series 2006-2 Cash Collateral Percentage and (b) the lesser of the amounts
referred to in clause (i) or (ii) on such Business Day on the Series 2006-2
Letters of Credit as calculated by the Administrator and provided in writing
to
the Trustee and the Surety Provider. The Trustee shall cause the Termination
Date Disbursement to be deposited in the Series 2006-2 Cash Collateral
Account.
Section
3.9. Series
2006-2 Distribution Account.
(a) Establishment
of Series 2006-2 Distribution Account.
The
Trustee shall establish and maintain in the name of the Series 2006-2 Agent
for
the benefit of the Series 2006-2 Noteholders, each Series 2006-2 Interest Rate
Swap Counterparty and the Surety Provider, or cause to be established and
maintained, an account (the “Series
2006-2 Distribution Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Series 2006-2 Noteholders, each Series 2006-2
Interest Rate Swap Counterparty and the Surety Provider. The Series 2006-2
Distribution Account shall be maintained (i) with a Qualified Institution,
or
(ii) as a segregated trust account with the corporate trust department of a
depository institution or trust company having corporate trust powers and acting
as trustee for funds deposited in the Series 2006-2 Distribution Account;
provided
that, if
at any time such Qualified Institution is no longer a Qualified Institution
or
the credit rating of any securities issued by such depositary institution or
trust company shall be reduced to below “BBB-” by Standard & Poor’s or
“Baa3” by Moody’s, then CRCF shall, within 30 days of such reduction, establish
a new Series 2006-2 Distribution Account with a new Qualified Institution.
If
the Series 2006-2 Distribution Account is not maintained in accordance with
the
previous sentence, CRCF shall establish a new Series 2006-2 Distribution
Account, within ten (10) Business Days after obtaining knowledge of such fact,
which complies with such sentence, and shall instruct the Series 2006-2
Agent in writing to transfer all cash and investments from the non-qualifying
Series 2006-2 Distribution Account into the new Series 2006-2 Distribution
Account. Initially, the Series 2006-2 Distribution Account will be established
with The Bank of New York.
(b) Administration
of the Series 2006-2 Distribution Account.
The
Administrator may instruct the institution maintaining the Series 2006-2
Distribution Account to invest funds on deposit in the Series 2006-2
Distribution Account from time to time in Permitted Investments; provided,
however,
that
any such investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were received, unless
any Permitted Investment held in the Series 2006-2 Distribution Account
67
is
held
with the Paying Agent, then such investment may mature on such Distribution
Date
and such funds shall be available for withdrawal on or prior to such
Distribution Date. All such Permitted Investments will be credited to the Series
2006-2 Distribution Account and any such Permitted Investments that constitute
(i) physical property (and that is not either a United States security
entitlement or a security entitlement) shall be physically delivered to the
Trustee; (ii) United States security entitlements or security entitlements
shall be controlled (as defined in Section 8-106 of the New York UCC)
by the Trustee pending maturity or disposition, and (iii) uncertificated
securities (and not United States security entitlements) shall be delivered
to
the Trustee by causing the Trustee to become the registered holder of such
securities. The Trustee shall, at the expense of CRCF, take such action as
is
required to maintain the Trustee’s security interest in the Permitted
Investments credited to the Series 2006-2 Distribution Account. CRCF shall
not
direct the Trustee to dispose of (or permit the disposal of) any Permitted
Investments prior to the maturity thereof to the extent such disposal would
result in a
loss of
purchase price of such Permitted Investments. In the absence of written
investment instructions hereunder, funds on deposit in the Series 2006-2
Distribution Account shall remain uninvested.
(c) Earnings
from Series 2006-2 Distribution Account.
All
interest and earnings (net of losses and investment expenses) paid on funds
on
deposit in the Series 2006-2 Distribution Account shall be deemed to be on
deposit and available for distribution.
(d) Series
2006-2 Distribution Account Constitutes Additional Collateral for Series 2006-2
Notes.
In
order to secure and provide for the repayment and payment of the CRCF
Obligations with respect to the Series 2006-2 Notes, CRCF hereby grants a
security interest in and assigns, pledges, grants, transfers and sets over
to
the Trustee, for the benefit of the Series 2006-2 Noteholders, each Series
2006-2 Interest Rate Swap Counterparty and the Surety Provider, all of CRCF’s
right, title and interest in and to the following (whether now or hereafter
existing or acquired): (i) the Series 2006-2 Distribution Account, including
any
security entitlement thereto; (ii) all funds on deposit therein from time to
time; (iii) all certificates and instruments, if any, representing or
evidencing any or all of the Series 2006-2 Distribution Account or the funds
on
deposit therein from time to time; (iv) all investments made at any time and
from time to time with monies in the Series 2006-2 Distribution Account, whether
constituting securities, instruments, general intangibles, investment property,
financial assets or other property; (v) all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the Series 2006-2
Distribution Account, the funds on deposit therein from time to time or the
investments made with such funds; and (vi) all proceeds of any and all of the
foregoing, including, without limitation, cash (the items in the foregoing
clauses (i) through (vi) are referred to, collectively, as the “Series
2006-2 Distribution Account Collateral”).
The
Trustee shall possess all right, title and interest in all funds on deposit
from
time to time in the Series 2006-2 Distribution Account and in and to all
proceeds thereof, and shall be the only person authorized to originate
entitlement orders in respect of the Series 2006-2 Distribution Account. The
Series 2006-2 Distribution Account Collateral shall be under the sole dominion
and control of the Trustee for the benefit of the Series 2006-2 Noteholders,
each Series 2006-2 Interest Rate Swap Counterparty and the Surety Provider.
The
Series 2006-2 Agent hereby agrees (i) to act as the securities intermediary
(as
defined in Section 8-102(a)(14) of the New York UCC) with respect to
the Series 2006-2 Distribution Account; (ii) that its jurisdiction as
securities intermediary is New York; (iii) that each item of property (whether
investment property, financial asset, security,
68
instrument
or cash) credited to the Series 2006-2 Distribution Account shall be treated
as
a financial asset (as defined in Section 8-102(a)(9) of the New York
UCC) and (iv) to comply with any entitlement order (as defined in
Section 8-102(a)(8) of the New York UCC) issued by the
Trustee.
Section
3.10. Series
2006-2 Demand Notes Constitute Additional Collateral for Series 2006-2
Notes.
In
order
to secure and provide for the repayment and payment of the obligations with
respect to the Series 2006-2 Notes, CRCF hereby grants a security interest
in
and assigns, pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 2006-2 Noteholders, each Series 2006-2 Interest Rate
Swap
Counterparty and the Surety Provider, all of CRCF’s right, title and interest in
and to the following (whether now or hereafter existing or acquired):
(i) the Series 2006-2 Demand Notes; (ii) all certificates and
instruments, if any, representing or evidencing the Series 2006-2 Demand Notes;
and (iii) all proceeds of any and all of the foregoing, including, without
limitation, cash. On the date hereof, CRCF shall deliver to the Trustee, for
the
benefit of the Series 2006-2 Noteholders, each Series 2006-2 Interest Rate
Swap
Counterparty and the Surety Provider, each Series 2006-2 Demand Note, endorsed
in blank. The Trustee, for the benefit of the Series 2006-2 Noteholders, each
Series 2006-2 Interest Rate Swap Counterparty and the Surety Provider, shall
be
the only Person authorized to make a demand for payments on the Series 2006-2
Demand Notes.
Section
3.11. Series
2006-2 Interest Rate ▇▇▇▇▇▇.
(a) On
the Series 2006-2 Closing Date, CRCF shall acquire one or more interest rate
swaps (each, a “Series
2006-2 Interest Rate Swap”)
or
interest rate caps (each, a “Series 2006-2
Interest Rate Cap”,
and
together with the Series 2006-2 Interest Rate Swaps, the “Series
2006-2 Interest Rate ▇▇▇▇▇▇”)
acceptable to the Surety Provider in respect of the Series 2006-2 Notes, in
a form reasonably acceptable to the Surety Provider from a Qualified Interest
Rate Hedge Counterparty.
On
the
Series 2006-2 Closing Date, the aggregate notional amount of all
Series 2006-2 Interest Rate ▇▇▇▇▇▇ shall equal the Series 2006-2 Maximum
Invested Amount. CRCF shall at all times
maintain
Series 2006-2 Interest Rate ▇▇▇▇▇▇ with a notional amount greater than or equal
to the Series 2006-2 Maximum Invested Amount and having a
termination date no earlier than the Distribution Date in the month that is
eighteen months following the latest Scheduled Expiry Date
with
respect to any Purchaser Group. The aggregate notional amount of all Series
2006-2 Interest Rate ▇▇▇▇▇▇ may be reduced to the extent that the
Series 2006-2 Maximum Invested Amount is reduced after the Series 2006-2
Closing Date.
The
strike rate of each Series 2006-2 Interest Rate Hedge shall not be greater
than
5.0%.
(b) Replacement
of Any Series 2006-2 Interest Rate Hedge. If,
at
any time, a Series 2006-2 Interest Rate Hedge Counterparty is not a Qualified
Interest Rate Hedge Counterparty, then CRCF shall cause the Series 2006-2
Interest Rate Hedge Counterparty within thirty (30) days following such
occurrence, at the Series 2006-2 Interest Rate Hedge Counterparty’s expense, to
do one of the following (the choice of such action to be determined by the
Series 2006-2 Interest Rate Hedge Counterparty) (x) obtain a replacement
interest rate cap
69
or
interest rate swap, as applicable, on substantially the same terms as the
replaced Series 2006-2 Interest Rate Hedge from a Qualified Interest Rate Hedge
Counterparty and terminate the applicable Series 2006-2 Interest Rate Hedge,
(y) collateralize its obligations under the Series 2006-2 Interest Rate
Hedge in a manner acceptable to Moody’s and the Surety Provider in an amount and
with collateral which is sufficient to maintain or restore the immediately
prior
ratings of each Rating Agency (without giving effect to the Surety Bond) of
the
Series 2006-2 Notes or (z) enter into any other arrangement satisfactory to
Moody’s and the Surety Provider, which is sufficient to maintain or restore the
immediately prior ratings of each Rating Agency (without giving effect to the
Surety Bond) of the Series 2006-2 Notes; provided
that no
termination of any Series 2006-2 Interest Rate Hedge shall occur until CRCF
has
entered into a replacement interest rate cap or interest rate swap, as
applicable, or shall have entered any other arrangement satisfactory to Standard
& Poor’s, Moody’s and the Surety Provider. If a Series 2006-2 Interest Rate
Hedge Counterparty fails to take any actions or pay any amounts required by
clauses (x), (y) or (z) above, then the amount necessary to enter into a
replacement Series 2006-2 Interest Rate Hedge shall be the expense of CRCF
(in
which event, such amount will be paid solely from Interest Collections available
pursuant to Section
3.3(f)(i)
or
(ii)
hereof).
(c) To
secure
payment of all CRCF obligations with respect to the Series 2006-2 Noteholders
and the Surety Provider, CRCF grants a security interest in, and assigns,
pledges, grants, transfers and sets over to the Trustee, for the benefit of
the
Series 2006-2 Noteholders and the Surety Provider, all of CRCF’s right, title
and interest in the Series 2006-2 Interest Rate ▇▇▇▇▇▇ and all proceeds thereof
(the “Series
2006-2 Interest Rate Hedge Collateral”).
CRCF
shall require all Series 2006-2 Interest Rate Hedge Proceeds to be paid to,
and
the Trustee shall allocate all Series 2006-2 Interest Rate Hedge Proceeds to,
the Series 2006-2 Accrued Interest Account of the Series 2006-2 Collection
Account.
(d) In
the
event that an “Event of Default” under a Series 2006-2 Interest Rate Hedge has
occurred (x) under Section
5(a)(i)
of the
ISDA Master Agreement governing such Series 2006-2 Interest Rate Hedge in
connection with the failure by the related Series 2006-2 Interest Rate Hedge
Counterparty to make payments due under such Series 2006-2 Interest Rate Hedge
or (y) under Section
5(a)(vii)
of the
ISDA Master Agreement governing such Series 2006-2 Interest Rate Hedge in
connection with certain bankruptcy events with respect to the related Series
2006-2 Interest Rate Hedge Counterparty, then CRCF shall, at the request of
the
Surety Provider, promptly terminate such Series 2006-2 Interest Rate
Hedge.
(e) Each
Series 2006-2 Interest Rate Swap Counterparty shall be a Swap Counterparty
and
therefore shall be a beneficiary of the grant set forth in Section 3.1
of the
Base Indenture.
Section
3.12. Payments
to Funding Agents or Purchaser Groups.
Notwithstanding anything to the contrary herein or in the Base Indenture,
amounts distributable by CRCF, the Trustee, the Paying Agent or the
Administrative Agent to a Funding Agent for the account of its related Purchaser
Group (or amounts distributable by any such Person directly to such Purchaser
Group) shall be paid by wire transfer of immediately available funds no later
than 3:00 p.m. (New York time) for credit to the account or accounts
designated by such Funding Agent. Notwithstanding the foregoing, the
Administrative Agent shall not be so obligated unless the Administrative Agent
shall have received the funds by 12:00 noon (New York City
time).
70
Section
3.13. Series
2006-2 Accounts Permitted Investments.
CRCF
shall not invest funds on deposit in the Series 2006-2 Accounts, and shall
not
permit such funds to be invested, in:
(i) Permitted
Investments that do not mature at least one Business Day before the next
Distribution Date;
(ii) demand
deposits, time deposits or certificates of deposit with a maturity in excess
of
360 days;
(iii) commercial
paper which is not rated “P-1” by Moody’s;
(iv) money
market funds or eurodollar time deposits which are not rated at least “AAA” by
Standard & Poor’s;
(v) eurodollar
deposits that are not rated “P-1” by Moody’s or that are with financial
institutions not organized under the laws of a G-7 nation; or
(vi) any
investment, instrument or security not otherwise listed in clause (i) through
(vi) of the definition of “Permitted Investments” in the Base Indenture that is
not approved in writing by the Surety Provider.
ARTICLE
IV
AMORTIZATION
EVENTS
In
addition to the Amortization Events set forth in Section 9.1
of the
Base Indenture, any of the following shall be an Amortization Event with respect
to the Series 2006-2 Notes and collectively shall constitute the Amortization
Events set forth in Section 9.1(n)
of the
Base Indenture with respect to the Series 2006-2 Notes (without notice or other
action on the part of the Trustee or any holders of the Series 2006-2
Notes):
(a) a
Series
2006-2 Enhancement Deficiency shall occur and continue for at least two (2)
Business Days; provided,
however,
that
such event or condition shall not be an Amortization Event if during such two
(2) Business Day period such Series 2006-2 Enhancement Deficiency shall have
been cured in accordance with the terms and conditions of the Indenture and
the
Related Documents;
(b) either
the Series 2006-2 Liquidity Amount shall be less than the Series 2006-2
Required Liquidity Amount or the Series 2006-2 Available Reserve Account Amount
shall be less than the Series 2006-2 Required Reserve Account Amount for at
least two (2) Business Days; provided,
however,
that
such event or condition shall not be an Amortization Event if during such two
(2) Business Day period such insufficiency shall have been cured in accordance
with the terms and conditions of the Indenture and the Related
Documents;
71
(c) an
AESOP
I Operating Lease Vehicle Deficiency shall occur and continue for at least
two
(2) Business Days;
(d) the
Collection Account, the Series 2006-2 Collection Account, the Series 2006-2
Excess Collection Account or the Series 2006-2 Reserve Account shall be subject
to an injunction, estoppel or other stay or a Lien (other than Liens permitted
under the Related Documents);
(e) all
principal of and interest on the Series 2006-2 Notes is not paid on the Series
2006-2 Expected Final Distribution Date;
(f) the
Trustee shall make a demand for payment under the Surety Bond;
(g) the
occurrence of an Event of Bankruptcy with respect to the Surety
Provider;
(h) the
Surety Provider fails to pay a demand for payment in accordance with the
requirements of the Surety Bond;
(i) any
Series 2006-2 Letter of Credit shall not be in full force and effect for at
least two (2) Business Days and (x) either a Series 2006-2 Enhancement
Deficiency would result from excluding such Series 2006-2 Letter of Credit
from
the Series 2006-2 Enhancement Amount or (y) the Series 2006-2 Liquidity Amount,
excluding therefrom the available amount under such Series 2006-2 Letter of
Credit, would be less than the Series 2006-2 Required Liquidity
Amount;
(j) from
and
after the funding of the Series 2006-2 Cash Collateral Account, the Series
2006-2 Cash Collateral Account shall be subject to an injunction, estoppel
or
other stay or a Lien (other than Liens permitted under the Related Documents)
for at least two (2) Business Days and either (x) a Series 2006-2 Enhancement
Deficiency would result from excluding the Series 2006-2 Available Cash
Collateral Account Amount from the Series 2006-2 Enhancement Amount or (y)
the
Series 2006-2 Liquidity Amount, excluding therefrom the Series 2006-2 Available
Cash Collateral Amount, would be less than the Series 2006-2 Required Liquidity
Amount;
(k) an
Event
of Bankruptcy shall have occurred with respect to any Series 2006-2 Letter
of
Credit Provider or any Series 2006-2 Letter of Credit Provider repudiates its
Series 2006-2 Letter of Credit or refuses to honor a proper draw thereon and
either (x) a Series 2006-2 Enhancement Deficiency would result from excluding
such Series 2006-2 Letter of Credit from the Series 2006-2 Enhancement Amount
or
(y) the Series 2006-2 Liquidity Amount, excluding therefrom the available amount
under such Series 2006-2 Letter of Credit, would be less than the Series 2006-2
Required Liquidity Amount;
(l) the
occurrence of an Event of Bankruptcy with respect to Cendant, any Lessee or
any
Permitted Sublessee;
72
(m) on
any
date of determination, the aggregate notional amount of all Series 2006-2
Interest Rate ▇▇▇▇▇▇ having a termination date no earlier than the Distribution
Date in the month that is eighteen months following the latest Scheduled Expiry
Date with respect to any Purchaser Group shall be less than the Series 2006-2
Maximum Invested Amount; and
(n)
on
any Distribution Date in a calendar month following a Disruption Trigger Date,
CRCF shall have failed to reduce the Series 2006-2 Invested Amount as of such
Disruption Trigger Date so that:
(i) on
or
prior to the first
such
Distribution Date, after giving effect to any payments of principal made on
such
Distribution Date pursuant to Section 3.5(a),
the
Series 2006-2 Invested Amount as of the Disruption Trigger Date has been reduced
by an aggregate amount at least equal to the Series 2006-2 Controlled
Distribution Amount for the Related Month;
(ii) on
or
prior to the second
such
Distribution Date, after giving effect to any payments of principal made on
such
Distribution Date pursuant to Section 3.5(a),
the
Series 2006-2 Invested Amount as of the Disruption Trigger Date has been reduced
by an aggregate amount at least equal to the Series 2006-2 Controlled
Distribution Amount for the Related Month; or
(iii) on
or
prior to the third
such
Distribution Date, after giving effect to any payments of principal made on
such
Distribution Date pursuant to Section 3.5(a),
the
Series 2006-2 Invested Amount has been reduced to zero (0);
provided
that if
(w) prior to the next succeeding Distribution Date, CRCF shall make one or
more
Decreases pursuant to Section
3.5(b)(i)
in an
aggregate amount at least equal to any insufficiency under clause (i) or (ii)
hereof, as applicable, (x) on or prior to the next succeeding Distribution
Date,
the Series 2006-2 Noteholders shall have otherwise received principal payments
in an aggregate amount at least equal to any insufficiency under clause (i)
or
(ii) hereof, as applicable, (y) on the next succeeding Distribution Date, CRCF
shall make a payment of principal pursuant to Section
3.5(a)
in an
amount equal to the Series 2006-2 Controlled Distribution Amount with respect
to
the Related Month or (z) no CP Disruption Event with respect to any CP Conduit
Purchaser is continuing; then, in the case of clause (i) or (ii) above, the
Amortization Event that occurred as a result of the occurrence of the event
described in this clause (n) shall automatically be deemed to have been cured
without any act of any party.
In
the
case of an event described in clause (m) above, an Amortization Event shall
have
occurred with respect to the Series 2006-2 Notes only if any of the Trustee
(with the prior written consent of the Surety Provider), the Requisite
Noteholders or the Surety Provider declare that an Amortization Event has
occurred.
In
the
case of any event described in clauses (a), (b), (c), (d), (e), (f), (g), (h),
(i), (j), (k) and (l) above, an Amortization Event with respect to the Series
2006-2 Notes shall have occurred without any notice or other action on the
part
of the Trustee or any Series 2006-2
73
Noteholders,
immediately upon the occurrence of such event. In the case of an event described
in clause (n) above, an Amortization Event shall only have occurred if the
Surety Provider declares that an Amortization Event has occurred.
Amortization
Events with respect to the Series 2006-2 Notes described in clauses (a), (b),
(c), (d), (e), (f), (i), (j), (k) and (l) above, may be waived with the written
consent of the Purchaser Groups having Commitment Percentages aggregating 100%
and the Surety Provider, and Amortization Events with respect to the Series
2006-2 Notes described in clauses (g) and (h) above may be waived with the
consent of the Purchaser Groups having Commitment Percentages aggregating 100%.
CRCF shall provide the Rating Agencies written notice of any such waiver by
the
Purchaser Groups having Commitment Percentages aggregating 100%.
Amortization
Events with respect to the Series 2006-2 Notes described in clause (m)
above may be waived with the written consent of the Requisite Noteholders and
the Surety Provider.
Any
Amortization Event with respect to the Series 2006-2 Notes described in clause
(n) above may be waived with the written consent of the Surety
Provider.
ARTICLE
V
RIGHT
TO WAIVE PURCHASE RESTRICTIONS
Notwithstanding
any provision to the contrary in the Indenture or the Related Documents, upon
the Trustee’s receipt of notice from any Lessee, any Borrower or CRCF that the
Lessees, the Borrowers and CRCF have determined to increase any Series 2006-2
Maximum Amount (such notice, a “Waiver
Request”)
which
Waiver Request shall include written direction to the Trustee to ensure that
the
conditions of this Article V have been complied with, each Series 2006-2
Noteholder may, at its option, waive any Series 2006-2 Maximum Amount
(collectively, a “Waivable
Amount”)
if (i)
no Amortization Event exists, (ii) the Requisite Noteholders and the Surety
Provider consent in writing to such waiver and (iii) 60 days’ prior written
notice of such proposed waiver is provided to the Rating Agencies by the
Trustee.
Upon
receipt by the Trustee of a Waiver Request (a copy of which the Trustee shall
promptly provide to the Rating Agencies), all amounts which would otherwise
be
allocated to the Series 2006-2 Excess Collection Account (collectively, the
“Designated
Amounts”)
from
the date the Trustee receives a Waiver Request through the Consent Period
Expiration Date will be held by the Trustee in the Series 2006-2 Collection
Account for ratable distribution as described below.
Within
ten (10) Business Days after the Trustee receives a Waiver Request, the Trustee
shall furnish written notice thereof to the Administrative Agent and the Surety
Provider, which notice shall be accompanied by a form of consent (each a
“Consent”)
in the
form of Exhibit C
by which
the Series 2006-2 Noteholders and the Surety Provider may, on or before the
Consent Period Expiration Date, consent to waiver of the applicable Waivable
Amount. Upon receipt of notice of a Waiver Request, the Administrative Agent
shall forward a copy of such request together with the Consent to the Funding
Agent with respect to each Purchaser Group. If
74
the
Trustee receives the written consent of the Surety Provider and Consents from
the Requisite Noteholders agreeing to waiver of the applicable Waivable Amount
within 45 days after the Trustee notifies the Administrative Agent of a Waiver
Request (the day on which such 45-day period expires, the “Consent
Period Expiration Date”),
(i)
the applicable Waivable Amount shall be deemed waived by the consenting Series
2006-2 Noteholders, (ii) the Trustee will distribute the Designated Amounts
as
set forth below and (iii) the Trustee shall promptly (but in any event
within two (2) Business Days) provide the Rating Agency with notice of such
waiver. Any Purchaser Group from whom the Trustee has not received a Consent
on
or before the Consent Period Expiration Date will be deemed not to have
consented to such waiver.
If
the
Trustee receives Consents from the Surety Provider and the Requisite Noteholders
on or before the Consent Period Expiration Date, then on the immediately
following Distribution Date, upon receipt of written direction from the
Administrator the Trustee will pay the Designated Amounts to the Administrative
Agent for the accounts of the non-consenting Purchaser Groups. Upon the receipt
of funds from the Trustee pursuant to this Article V, the Administrative Agent
shall pay the Designated Amounts as follows:
(i) to
each
Funding Agent with respect to a non-consenting Purchaser Group, such Purchaser
Group’s pro rata
share
based on the Purchaser Group Invested Amount with respect to such Purchaser
Group relative to the Purchaser Group Invested Amount with respect to all
non-consenting Purchaser Groups of the Designated Amounts up to the amount
required to reduce to zero the Purchaser Group Invested Amounts with respect
to
all non-consenting Purchaser Groups; and
(ii) any
remaining Designated Amounts to the Series 2006-2 Excess Collection
Account.
If
the
amount distributed pursuant to clause (i) of the preceding paragraph is not
sufficient to reduce the Purchaser Group Invested Amount with respect to each
non-consenting Purchaser Group to zero on the date specified therein, then
on
each day following such Distribution Date, the Administrator will allocate
to
the Series 2006-2 Collection Account on a daily basis all Designated Amounts
collected on such day. On each following Distribution Date, the Trustee will
withdraw such Designated Amounts from the Series 2006-2 Collection Account
and
deposit the same in the Series 2006-2 Distribution Account for distribution
to
the Administrative Agent for the accounts of the non-consenting Purchaser
Groups. Upon the receipt of funds from the Trustee pursuant to this Article
V,
the Administrative Agent shall pay the Designated Amounts as
follows:
(a) to
each
Funding Agent with respect to a non-consenting Purchaser Group, such Purchaser
Group’s pro rata
share
based on the Purchaser Group Invested Amount with respect to such Purchaser
Group relative to the Purchaser Group Invested Amount with respect to all
non-consenting Purchaser Groups of the Designated Amounts in the Series 2006-2
Collection Account as of the applicable Determination Date up to the amount
required to reduce to zero the Purchaser Group Invested Amounts with respect
to
all non-consenting Purchaser Groups; and
75
(b) any
remaining Designated Amounts to the Series 2006-2 Excess Collection
Account.
If
the
Requisite Noteholders or the Surety Provider do not timely consent to such
waiver, the Designated Amounts will be re-allocated to the Series 2006-2 Excess
Collection Account for allocation and distribution in accordance with the terms
of the Indenture and the Related Documents.
In
the
event that the Series 2006-2 Rapid Amortization Period shall commence after
receipt by the Trustee of a Waiver Request, all such Designated Amounts will
thereafter be considered Principal Collections allocated to the Series 2006-2
Noteholders.
ARTICLE
VI
CONDITIONS
PRECEDENT
This
Supplement shall become effective on the first date (the “Effective
Date”)
on
which all of the following conditions precedent shall have been
satisfied:
(a) Documents.
The
Administrative Agent and the Surety Provider shall have received copies for
each
CP Conduit Purchaser and the Funding Agent and the APA Banks with respect to
such CP Conduit Purchaser, each executed and delivered in form and substance
satisfactory to it of (i) the Base Indenture, executed by a duly authorized
officer of each of CRCF and the Trustee, (ii) this Supplement, executed by
a duly authorized officer of each of CRCF, the Administrator, the Trustee,
the
Administrative Agent, the Funding Agents, the CP Conduit Purchasers and the
APA
Banks, (iii) each Lease, executed by a duly authorized officer of each Lessee
party thereto, the Administrator, and the Lessor party thereto, (iv) each
Sublease, executed by a duly authorized officer of each Lessee party thereto
and
each Permitted Sublessee party thereto, (v) each Loan Agreement, executed by
a
duly authorized officer of each of CRCF, the Lessor party thereto and the
Permitted Nominees party thereto, (vi) each Vehicle Title and Lienholder Nominee
Agreement, executed by the duly authorized officer of each of the Permitted
Nominee party thereto, ABCR, the Lessor party thereto and the Trustee, (vii)
the
Master Exchange Agreement, executed by a duly authorized officer of each of
the
Intermediary, AESOP Leasing, ARAC, BRAC
and
ABCR; (viii) the Escrow Agreement, executed by a duly authorized officer of
each of the Intermediary, ▇.▇. ▇▇▇▇▇▇ Trust Company, N.A., JPMorgan Chase Bank,
N.A., AESOP Leasing, ARAC, BRAC and ABCR, (ix) the Assignment and Assumption
Agreement, executed by a duly authorized officer of each of ABCR, ARAC and
Avis
Group Holdings, Inc., (x) the Series 2006-2 Letter of Credit, issued by a Series
2006-2 Eligible Letter of Credit Provider, (xi) one or more Series 2006-2
Interest Rate ▇▇▇▇▇▇, executed in each case by a duly authorized officer of
each
of the Series 2006-2 Interest Rate Hedge Counterparty thereto and CRCF, (xii)
the Administration Agreement, executed by a duly authorized officer of each
of
ABCR, BRAC, AESOP Leasing, AESOP Leasing II, CRCF and the Trustee,
(xiii) the Insurance Agreement and the Premium Letter executed by CRCF, the
Trustee and the Surety Provider and (xiv) the Surety Bond executed by the
Surety Provider.
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(b) Corporate
Documents; Proceedings of CRCF, the Administrator, AESOP Leasing, AESOP Leasing
II, Original AESOP and ABCR.
The
Administrative Agent shall have received, with a copy for each CP Conduit
Purchaser and the Funding Agent and the APA Banks with respect to such CP
Conduit Purchaser, from CRCF, the Administrator, AESOP Leasing, AESOP Leasing
II, Original AESOP, ABCR, ARAC and BRAC true and complete copies
of:
(i) to
the
extent applicable, the certificate of incorporation or certificate of formation,
including all amendments thereto, of such Person, certified as of a recent
date
by the Secretary of State or other appropriate authority of the state of
incorporation or organization, as the case may be, and a certificate of
compliance, of status or of good standing, as and to the extent applicable,
of
each such Person as of a recent date, from the Secretary of State or other
appropriate authority of such jurisdiction;
(ii) a
certificate of the Secretary or an Assistant Secretary of such Person, dated
on
or prior to the Effective Date and certifying (A) that attached thereto is
a
true and complete copy of the bylaws, limited liability company agreement or
partnership agreement of such Person, as the case may be, as in effect on the
Series 2006-2 Closing Date and at all times
since a
date prior to the date of the resolutions described in clause (B) below, (B)
that attached thereto is a true and complete copy of the resolutions, in form
and substance reasonably satisfactory to each Funding Agent, of the Board of
Directors or Managers of such Person or committees thereof authorizing the
execution, delivery and performance of this Supplement and the Related Documents
to which it is a party and the transactions contemplated thereby, and that
such
resolutions have not been amended, modified, revoked or rescinded and are in
full force and effect, (C) that the certificate of incorporation or certificate
of formation of such Person has not been amended since the date of the last
amendment thereto shown on the certificate of good standing (or its equivalent)
furnished pursuant to clause (i) above and (D) as to the incumbency and specimen
signature of each officer or authorized signatory executing this Supplement
and
the Related Documents or any other document delivered in connection herewith
or
therewith on behalf of such Person; and
(iii) a
certificate of another officer as to the incumbency and specimen signature
of
the Secretary or Assistant Secretary executing the certificate pursuant to
clause (ii) above.
(c) Representations
and Warranties.
All
representations and warranties of each of CRCF, the Administrator, AESOP
Leasing, AESOP Leasing II, Original AESOP, each of the Permitted Nominees,
each
of the Lessees, each of the Permitted Sublessees, the Intermediary and ABCR
contained in each of the Related Documents shall be true and correct as of
the
Series 2006-2 Closing Date.
(d) No
Amortization Event, Potential Amortization Event or AESOP I Operating Lease
Vehicle Deficiency.
No
Amortization Event or Potential Amortization
77
Event
in
respect of the Series 2006-2 Notes or any other Series of Notes shall exist
and
no AESOP I Operating Lease Vehicle Deficiency shall exist.
(e) Lien
Searches.
The
Surety Provider and the Administrative Agent shall have received a written
search report listing all effective financing statements that name CRCF, AESOP
Leasing, AESOP Leasing II, Original AESOP, each of the Permitted Nominees or
ABCR as debtor or assignor and that are filed in the State of New York, the
State of Delaware and in any other jurisdictions that the Administrative Agent
determines are necessary or appropriate, together with copies of such financing
statements, and tax and judgment lien searches showing no such liens that are
not permitted by the Base Indenture, this Supplement or the Related
Documents.
(f) Legal
Opinions.
The
Administrative Agent shall have received, with a counterpart addressed to each
CP Conduit Purchaser and the Funding Agent, the Program Support Provider and
the
APA Banks with respect to such CP Conduit Purchaser and the Trustee, opinions
of
counsel required by Section 2.2(f)
of the
Base Indenture and opinions of counsel with respect to such other matters as
may
be reasonably requested by any Funding Agent and the Surety Provider, in form
and substance reasonably acceptable to the addressees thereof and their
counsel.
(g) Fees
and Expenses.
Each
Funding Agent with respect to a CP Conduit Purchaser shall have received payment
of all fees, out-of-pocket expenses and other amounts due and payable to such
CP
Conduit Purchaser or the APA Banks with respect to such CP Conduit Purchaser
on
or before the Effective Date.
(h) Establishment
of Accounts.
The
Administrative Agent and the Surety Provider shall have received evidence
reasonably satisfactory to it that the Series 2006-2 Collection Account, the
Series 2006-2 Reserve Account and the Series 2006-2 Distribution Account shall
have been established in accordance with the terms and provisions of the
Indenture.
(i) Legal
Opinion with Respect to the Trustee.
The
Administrative Agent and the Surety Provider shall have received, with a
counterpart addressed to each CP Conduit Purchaser and the Funding Agent, the
Program Support Provider and the APA Banks with respect such CP Conduit
Purchaser, an opinion of counsel to the Trustee as to the due authorization,
execution and delivery by the Trustee of this Supplement and the due execution,
authentication and delivery by the Trustee of the Series 2006-2
Notes.
(j) Rating
Letters.
Each
Funding Agent shall have received (i) a letter, in the form and substance
satisfactory to such Funding Agent, from each of Moody’s and Standard &
Poor’s confirming the commercial paper rating of the related CP Conduit
Purchaser after giving effect to such CP Conduit Purchaser’s purchase of the
Series 2006-2 Notes and (ii) a letter from Moody’s stating that the long-term
rating of “Aaa” has been assigned by Moody’s to the Series 2006-2 Notes and a
letter from Standard & Poor’s stating that the long-term rating of “AAA” has
been assigned by Standard & Poor’s to the Series 2006-2 Notes. The Surety
Provider shall have received a letter, in form and substance satisfactory to
the
Surety Provider, (i) from Moody’s stating that a
78
rating
of
“Baa2” has been assigned by Moody’s to the Series 2006-2 Notes and
(ii) from Standard & Poor’s stating that a rating of “BBB” has been
assigned by Standard & Poor’s to the Series 2006-2 Notes, in each case,
without giving effect to the Surety Bond.
(k) Procedures
Letter.
Each
Funding Agent shall have received a letter from Deloitte & Touche, LLP,
addressed to the Funding Agents and dated on or before the Effective Date,
in
form and substance satisfactory to the Funding Agents, concerning the
statistical information with respect to the Vehicles subject to the Leases
provided to the Funding Agents.
(l) UCC
Filings.
The
Administrative Agent and the Surety Provider shall have received (i) executed
originals of any documents (including, without limitation, financing statements)
required to be filed in each jurisdiction necessary to perfect the security
interest of the Trustee in the Series 2006-2 Collateral and (ii) evidence
reasonably satisfactory to it of each such filing and reasonably satisfactory
evidence of the payment of any necessary fee or tax relating
thereto.
(m) Proceedings.
All
corporate and other proceedings and all other documents and legal matters in
connection with the transactions contemplated by the Related Documents shall
be
satisfactory in form and substance to each Funding Agent, the Surety Provider
and each of their counsel.
ARTICLE
VII
CHANGE
IN CIRCUMSTANCES
Section
7.1. Increased
Costs.
(a)
If any
Change in Law (except with respect to Taxes which shall be governed by
Section 7.2)
shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by,
any Affected Party (except any such reserve requirement reflected in the
Adjusted LIBO Rate); or
(ii) impose
on
any Affected Party or the London interbank market any other condition affecting
the Indenture or the Related Documents or the funding of Eurodollar Tranches
by
such Affected Party;
and
the
result of any of the foregoing shall be to increase the cost to such Affected
Party of making, converting into, continuing or maintaining Eurodollar Tranches
(or maintaining its obligation to do so) or to reduce any amount received or
receivable by such Affected Party hereunder or in connection herewith (whether
principal, interest or otherwise), then CRCF will pay to such Affected Party
such additional amount or amounts as will compensate such Affected Party for
such additional costs incurred or reduction suffered.
(b) If
any
Affected Party determines that any Change in Law regarding capital requirements
has or would have the effect of reducing the rate of return on such Affected
Party’s capital or the capital of any corporation controlling such Affected
Party as a consequence of its
79
obligations
hereunder to a level below that which such Affected Party or such corporation
could have achieved but for such Change in Law (taking into consideration such
Affected Party’s or such corporation’s policies with respect to capital
adequacy), then from time to time, CRCF shall pay to such Affected Party such
additional amount or amounts as will compensate such Affected Party for any
such
reduction suffered.
(c) A
certificate of an Affected Party setting forth the amount or amounts necessary
to compensate such Affected Party as specified in subsections (a) and (b) of
this Section 7.1
shall be
delivered to CRCF (with a copy to the Administrative Agent and the Funding
Agent
with respect to such Affected Party) and shall be conclusive absent manifest
error. Any payments made by CRCF pursuant to this Section 7.1
shall be
made solely from funds available in the Series 2006-2 Distribution Account
for
the payment of Article VII Costs, shall be non-recourse other than with respect
to such funds, and shall not constitute a claim against CRCF to the extent
that
insufficient funds exist to make such payment. The agreements in this
Section 7.1
shall
survive the termination of this Supplement and the Base Indenture and the
payment of all amounts payable hereunder and thereunder.
(d) Failure
or delay on the part of an Affected Party to demand compensation pursuant to
this Section 7.1
shall
not constitute a waiver of such Affected Party’s right to demand such
compensation; provided
that
CRCF shall not be required to compensate any Affected Party pursuant to this
Section 7.1
for any
increased costs or reductions incurred more than 270 days prior to the date
that
such Affected Party notifies CRCF of the Change in Law giving rise to such
increased costs or reductions and of such Affected Party’s intention to claim
compensation therefor; provided,
further,
that,
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.
Section
7.2. Taxes.
(a)
Any and
all payments by or on account of any obligation of CRCF hereunder shall be
made
free and clear of and without deduction for any Indemnified Taxes or Other
Taxes; provided
that if
CRCF shall be required to deduct any Indemnified Taxes or Other Taxes from
such
payments, then (i) subject to Section 7.2(c)
below,
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 7.2)
the
recipient receives an amount equal to the sum that it would have received had
no
such deductions been made, (ii) CRCF shall make such deductions and (iii) CRCF
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In
addition, CRCF shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) CRCF
shall indemnify the Administrative Agent, each Funding Agent, each Program
Support Provider and each member of each Purchaser Group within the later of
10
days after written demand therefor and the Distribution Date next following
such
demand for the full amount of any Indemnified Taxes or Other Taxes paid by
the
Administrative Agent, such Funding Agent, such Program Support Provider or
such
member of such Purchaser Group on or with respect to any payment by or on
account of any obligation of CRCF hereunder or under the Indenture (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
80
amounts
payable under this Section 7.2)
and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly
or
legally imposed or asserted by the relevant Governmental Authority; provided
that no
Person shall be indemnified pursuant to this Section 7.2(c)
or
entitled to receive additional amounts under the proviso of Section 7.2(a)
to the
extent that the reason for such indemnification results from the failure by
such
Person to comply with the provisions of Section 7.2(e)
or
(g).
A
certificate as to the amount of such payment or liability delivered to CRCF
by
the Administrative Agent, any Funding Agent, any Program Support Provider or
any
member of any Purchaser Group shall be conclusive absent manifest error. Any
payments made by CRCF pursuant to this Section 7.2
shall be
made solely from funds available in the Series 2006-2 Distribution Account
for the payment of Article VII Costs, shall be non-recourse other than with
respect to such funds, and shall not constitute a claim against CRCF to the
extent that insufficient funds exist to make such payment. The agreements in
this Section 7.2
shall
survive the termination of this Supplement and the Base Indenture and the
payment of all amounts payable hereunder and thereunder.
(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by CRCF
to
a Governmental Authority, CRCF shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) The
Administrative Agent, each Funding Agent, each member of each Purchaser Group
and each Program Support Provider, if entitled to an exemption from or reduction
of an Indemnified Tax or Other Tax with respect to payments made hereunder
or
under the Indenture shall (to the extent legally able to do so) deliver to
CRCF
(with a copy to the Administrative Agent) such properly completed and executed
documentation prescribed by applicable law and reasonably requested by CRCF
on
the later of (i) 30 Business Days after such request is made and the applicable
forms are provided to the Administrative Agent, such Funding Agent, such member
of such Purchaser Group or such Program Support Provider or (ii) 30 Business
Days before prescribed by applicable law as will permit such payments to be
made
without withholding or with an exemption from or reduction of Indemnified Taxes
or Other Taxes.
(f) If
the
Administrative Agent, any Funding Agent, any Program Support Provider or any
member of any Purchaser Group receives a refund solely in respect of Indemnified
Taxes or Other Taxes, it shall pay over such refund to CRCF to the extent that
it has already received indemnity payments or additional amounts pursuant to
this Section 7.2
with
respect to such Indemnified Taxes or Other Taxes giving rise to the refund,
net
of all out-of-pocket expenses and without interest (other than interest paid
by
the relevant Governmental Authority with respect to such refund); provided,
however,
that
CRCF shall, upon request of the Administrative Agent, such Funding Agent, such
Program Support Provider or such member of such Purchaser Group, repay such
refund (plus
interest
or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Funding Agent, such Program Support Provider or
such
member of such Purchaser Group if the Administrative Agent, such Funding Agent,
such Program Support Provider or such member of such Purchaser Group is required
to repay such refund to such Governmental Authority. Nothing contained herein
shall
81
require
the Administrative Agent, any Funding Agent, any Program Support Provider or
any
member of any Purchaser Group to make its tax returns (or any other information
relating to its taxes which it deems confidential) available to CRCF or any
other Person.
(g) The
Administrative Agent, each Funding Agent, each Program Support Provider and
each
member of each Purchaser Group (other than any such entity which is a domestic
corporation) shall:
(i) upon
or
prior to becoming a party hereto, deliver to CRCF and the Administrative Agent
two (2) duly completed copies of IRS Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-9, or successor
applicable forms, as the case may be, establishing a complete exemption from
withholding of United States federal income taxes or backup withholding taxes
with respect to payments under the Series 2006-2 Notes and this
Supplement;
(ii) deliver
to CRCF and the Administrative Agent two (2) further copies of any such form
or
certification establishing a complete exemption from withholding of United
States federal income taxes or backup withholding taxes with respect to payments
under the Series 2006-2 Notes and this Supplement on or before the date that
any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form previously delivered
by
it to CRCF; and
(iii) obtain
such extensions of time for filing and completing such forms or certifications
as may reasonably be requested by CRCF and the Administrative
Agent;
unless,
in any such case, any change in treaty, law or regulation has occurred after
the
Series 2006-2 Closing Date (or, if later, the date the Administrative
Agent, such Funding Agent, such Program Support Provider or such member of
such
Purchaser Group becomes an indemnified party hereunder) and prior to the date
on
which any such delivery would otherwise be required which renders the relevant
form inapplicable or which would prevent the Administrative Agent, such Funding
Agent, such Program Support Provider or such member of such Purchaser Group
from
duly completing and delivering the relevant form with respect to it, and the
Administrative Agent, such Funding Agent, such Program Support Provider or
such
member of such Purchaser Group so advises CRCF and the Administrative
Agent.
(h) If
a
beneficial or equity owner of the Administrative Agent, a Funding Agent, a
Program Support Provider or a member of a Purchaser Group (instead of the
Administrative Agent, the Funding Agent, the Program Support Provider or the
member of the Purchaser Group itself) is required under United States federal
income tax law or the terms of a relevant treaty to provide IRS Form ▇-▇▇▇▇,
▇-▇▇▇▇ or W-9, or any successor applicable forms, as the case may be, in order
to claim an exemption from withholding of United States federal income taxes
or
backup withholding taxes, then each such beneficial owner or equity owner shall
be considered to be the Administrative Agent, a Funding Agent, a Program Support
Provider or a member of a Purchaser Group for purposes of Section 7.2(g).
Section
7.3. Break
Funding Payments.
CRCF
agrees to indemnify each Purchaser Group and to hold each Purchaser Group
harmless from any loss or expense which
82
such
Purchaser Group may sustain or incur as a consequence of (a) the failure by
CRCF
to accept any Increase after CRCF has given irrevocable notice requesting the
same in accordance with the provisions of this Supplement, (b) the conversion
into or continuation of a Eurodollar Tranche that occurs other than on the
last
day of the applicable Eurodollar Period, (c) default by CRCF in making any
prepayment in connection with a Decrease after CRCF has given irrevocable notice
thereof in accordance with the provisions of Section 2.5(a)(i)
or
(d)
the
making of a prepayment of a Eurodollar Tranche (including, without limitation,
any Decrease) prior to the termination of the Eurodollar Period for such
Eurodollar Tranche or the making of a Decrease on a date other than as specified
in any notice of a Decrease or in a greater amount than contained in any notice
of a Decrease. Such indemnification shall include an amount determined by the
Funding Agent with respect to such Purchaser Group and shall equal (a) in the
case of the losses or expenses associated with a Eurodollar Tranche, either
(x)
the excess, if any, of (i) such Purchaser Group’s cost of funding the amount so
prepaid or not so borrowed, converted or continued, for the period from the
date
of such prepayment or of such failure to borrow, convert or continue to the
last
day of the Eurodollar Period (or in the case of a failure to borrow, convert
or
continue, the Eurodollar Period that would have commenced on the date of such
prepayment or of such failure), as the case may be, over (ii) the amount of
interest earned by such Purchaser Group upon redeployment of an amount of funds
equal to the amount prepaid or not borrowed, converted or continued for a
comparable period or (y) if such Purchaser Group is able to terminate the
funding source before its scheduled maturity, any costs associated with such
termination and (b) in the case of the losses or expenses incurred by a CP
Conduit Purchaser, the losses and expenses incurred by such CP Conduit Purchaser
in connection with the liquidation or reemployment of deposits or other funds
acquired by such CP Conduit Purchaser as a result of the failure to accept
an
Increase, a default in the making of a Decrease or the making of a Decrease
in
an amount or on a date not contained in a notice of a Decrease. Notwithstanding
the foregoing, any payments made by CRCF pursuant to this subsection shall
be
made solely from funds available in the Series 2006-2 Distribution Account
for
the payment of Article VII Costs, shall be non-recourse other than with respect
to such funds, and shall not constitute a claim against CRCF to the extent
that
such funds are insufficient to make such payment. This covenant shall survive
the termination of this Supplement and the Base Indenture and the payment of
all
amounts payable hereunder and thereunder. A certificate as to any additional
amounts payable pursuant to the foregoing sentence submitted by any Funding
Agent on behalf of a Purchaser Group to CRCF shall be conclusive absent manifest
error.
Section
7.4. Alternate
Rate of Interest.
If
prior to the commencement of any Eurodollar Period:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate for such Eurodollar Period, or
(b) the
Administrative Agent is advised by any APA Bank that the Adjusted LIBO Rate
for
such Eurodollar Period will not adequately and fairly reflect the cost to such
APA Bank of making or maintaining the Eurodollar Tranches during such Eurodollar
Period,
83
then
the
Administrative Agent shall promptly give telecopy or telephonic notice thereof
to CRCF and the Trustee, whereupon until the Administrative Agent notifies
CRCF
and the Trustee that the circumstances giving rise to such notice no longer
exist, no portion of the Purchaser Group Invested Amount with respect to any
Purchaser Group (in the case of clause (a) above) or with respect to the related
Purchaser Group (in the case of clause (b) above) shall be allocated to any
Eurodollar Tranche.
Section
7.5. Mitigation
Obligations.
If an
Affected Party requests compensation under Section 7.1,
or if
CRCF is required to pay any additional amount to any Purchaser Group or any
Governmental Authority for the account of any Purchaser Group pursuant to
Section 7.2,
then,
upon written notice from CRCF, such Affected Party or Purchaser Group, as the
case may be, shall use commercially reasonable efforts to designate a different
lending office for funding or booking its obligations hereunder or to assign
its
rights and obligations hereunder to another of its offices, branches or
affiliates, which pays a price for such assignment which is acceptable to such
Purchaser Group and its assignee, in the judgment of such Affected Party or
Purchaser Group, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 7.1
or
7.2,
as the
case may be, in the future and (ii) would not subject such Affected Party or
Purchaser Group to any unreimbursed cost or expense and would not otherwise
be
disadvantageous to such Affected Party or Purchaser Group. CRCF hereby agrees
to
pay all reasonable costs and expenses incurred by such Affected Party or
Purchaser Group in connection with any such designation or
assignment.
ARTICLE
VIII
REPRESENTATIONS
AND WARRANTIES, COVENANTS
Section
8.1. Representations
and Warranties of CRCF and the Administrator.
(a) CRCF and the Administrator each hereby represents and warrants to
the Trustee, the Administrative Agent, the Surety Provider, each Funding Agent,
each CP Conduit Purchaser and each APA Bank that:
(i) each
and
every of their respective representations and warranties contained in the
Related Documents is true and correct as of the Series 2006-2 Closing Date
and
true and correct in all material respects as of the Series 2006-2 Initial
Funding Date and as of the date of each Increase; and
(ii) as
of the
Series 2006-2 Closing Date, they have not engaged, in connection with the
offering of the Series 2006-2 Notes, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities
Act.
(b) CRCF
hereby represents and warrants to the Trustee, the Administrative Agent, each
Funding Agent, each CP Conduit Purchaser the Surety Provider, and each APA
Bank
that each of the Series 2006-2 Notes has been duly authorized and executed
by
CRCF and when duly authenticated by the Trustee and delivered to the Funding
Agents in accordance with the terms of this Supplement will constitute legal,
valid and binding obligations of CRCF enforceable in accordance with their
terms, except as enforceability thereof may be limited by
84
bankruptcy,
insolvency, or other similar laws relating to or affecting generally the
enforcement of creditors’ rights or by general equitable
principles.
Section
8.2. Covenants
of CRCF and the Administrator.
CRCF
and the Administrator hereby agree with the other parties hereto and the Surety
Provider; in addition to their obligations hereunder, that:
(a) they
shall observe in all material respects each and every of their respective
covenants (both affirmative and negative) contained in the Base Indenture and
all other Related Documents to which each is a party;
(b) they
shall afford each Funding Agent with respect to a Purchaser Group, the Trustee
or any representatives of any such Funding Agent or the Trustee access to all
records relating to the Leases, the Subleases, the Vehicles, the Manufacturer
Programs and the Loan Agreements at any reasonable time during regular business
hours, upon reasonable prior notice (and with one Business Day’s prior notice if
an Amortization Event with respect to the Series 2006-2 Notes shall have been
deemed to have occurred or shall have been declared to have occurred), for
purposes of inspection and shall permit such Funding Agent, the Trustee or
any
representative of such Funding Agent or the Trustee to visit any of CRCF’s or
the Administrator’s, as the case may be, offices or properties during regular
business hours and as often as may reasonably be desired to discuss the
business, operations, properties, financial and other conditions of CRCF or
the
Administrator with their respective officers and employees and with their
independent certified public accountants;
(c) they
shall promptly provide such additional financial and other information with
respect to the Related Documents, CRCF, the Lessors, the Permitted Nominees,
the
Lessees, the Permitted Sublessees, the Related Documents or the Manufacturer
Programs as the Administrative Agent may from time to time reasonably
request;
(d) they
shall provide to the Administrative Agent and the Surety Provider simultaneously
with delivery to the Trustee copies of information furnished to the Trustee
or
CRCF pursuant to the Related Documents as such information relates to all Series
of Notes generally or specifically to the Series 2006-2 Notes or the Series
2006-2 Collateral. In connection with any Preference Amount payable under the
Surety Bond, the Trustee shall furnish to the Surety Provider its records
evidencing the distributions of principal of and interest on the Series 2006-2
Notes that have been made and subsequently recovered from Series 2006-2
Noteholders and the dates on which such payments were made. They shall also
provide to the Administrative Agent copies of (i) each report prepared pursuant
to Sections 9.12
and
9.22
of the
Loan Agreements and (ii) the financial statements of ABCR and its consolidated
subsidiaries delivered pursuant to Section 31.5
of the
Leases. The Administrative Agent shall distribute to the Funding Agents copies
of all information delivered to it pursuant to this Section 8.2(d);
(e) they
shall not agree to any amendment to the Base Indenture or any other Related
Document, which amendment requires the consent of the Requisite Investors,
85
without
having received the prior written consent of the Requisite Noteholders and
the
Surety Provider;
(f) they
shall not agree to any replacement or successor to the Intermediary or the
addition of any new Manufacturer as an Eligible Program Manufacturer, in each
case without having received the prior written consent of the Requisite
Noteholders and the Surety Provider; and
(g) in
connection with any sale under Section 11.1(g), they shall agree to facilitate
to the extent reasonable, any assignment or amendment necessary to enable the
Surety Provider or its Affiliate to hold the Series 2006-2 Notes under this
Supplement.
ARTICLE
IX
THE
ADMINISTRATIVE AGENT
Section
9.1. Appointment.
Each of
the CP Conduit Purchasers, the APA Banks and the Funding Agents hereby
irrevocably designates and appoints the Administrative Agent as the agent of
such Person under this Supplement and irrevocably authorizes the Administrative
Agent, in such capacity, to take such action on its behalf under the provisions
of this Supplement and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Supplement,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Supplement,
the
Administrative Agent shall not have any duties or responsibilities except those
expressly set forth herein, or any fiduciary relationship with any CP Conduit
Purchaser, any APA Bank or any Funding Agent, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Supplement or otherwise exist against the Administrative
Agent.
Section
9.2. Delegation
of Duties.
The
Administrative Agent may execute any of its duties under this Supplement by
or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
Section
9.3. Exculpatory
Provisions.
Neither
the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
the Base Indenture, this Supplement or any other Related Document (except
to the extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or
such
Person’s own gross negligence or willful misconduct) or
(ii)
responsible in any manner to any of the CP Conduit Purchasers, the APA Banks
or
the Funding Agents for any recitals, statements, representations or warranties
made by CRCF, the Lessors, the Lessees, the Permitted Sublessees, the
Intermediary, the Administrator, the Surety Provider or any officer thereof
contained in this Supplement or any other Related Document or in any
certificate, report, statement or other document referred to or provided for
in,
or received by the Administrative Agent under or in connection with, this
Supplement or any
86
other
Related Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Supplement, any other Related Document,
or
for any failure of any of CRCF, the Lessors, the Lessees, the Permitted
Sublessees, the Intermediary, the Surety Provider or the Administrator to
perform its obligations hereunder or thereunder. The Administrative Agent shall
not be under any obligation to any CP Conduit Purchaser, any APA Bank or any
Funding Agent to ascertain or to inquire as to the observance or performance
of
any of the agreements contained in, or conditions of, this Supplement, any
other
Related Document or to inspect the properties, books or records of CRCF, the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary, the Surety
Provider or the Administrator.
Section
9.4. Reliance
by Administrative Agent.
The
Administrative Agent shall be entitled to rely, and shall be fully protected
in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to CRCF
or
the Administrator), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the registered
holder of any Series 2006-2 Note as the owner thereof for all purposes unless
a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Supplement or
any
other Related Document unless it shall first receive such advice or concurrence
of the Requisite Noteholders, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Funding Agents against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Supplement and the other Related Documents in accordance with a request of
the
Requisite Noteholders (unless, in the case of any action relating to the giving
of consent hereunder, the giving of such consent requires the consent of all
Series 2006-2 Noteholders), and such request and any action taken or failure
to
act pursuant thereto shall be binding upon all the CP Conduit Purchasers, the
APA Banks and the Funding Agents.
Section
9.5. Notice
of Administrator Default or Amortization Event or Potential Amortization Event;
Additional Notice Requirements and Information.
(a) The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Amortization Event or Potential Amortization
Event, any Administrator Default, any CP Disruption Event, any Early Controlled
Amortization Event or any Surety Default unless the Administrative Agent has
received written notice from a CP Conduit Purchaser, an APA Bank, a Funding
Agent, CRCF or the Administrator referring to the Indenture or this Supplement,
describing such Amortization Event or Potential Amortization Event,
Administrator Default, CP Disruption Event, Early Controlled Amortization Event
or Surety Default and stating that such notice is a “notice of an Amortization
Event or Potential Amortization Event;” “notice of an Administrator Default,”
“notice of a CP Disruption Event,” “notice of an Early Controlled Amortization
Event” or “notice of a Surety Default,” as the case may be. In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Funding Agents, the Trustee, CRCF and the
Administrator. The Administrative Agent shall take such action with respect
to
such event as shall be reasonably directed by the Requisite Noteholders,
provided
that
unless and until the Administrative Agent shall have received such directions,
the Administrative
87
Agent
may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such event as it shall deem advisable in the best
interests of the Purchaser Groups.
(b)
During the occurrence and continuance of a CP Disruption Event with respect
to
any CP Conduit Purchaser, the Administrative Agent shall provide to the
Administrator, the Trustee and the Surety Provider on the second Business Day
of
each calendar week (1) a schedule of outstanding Commercial Paper with respect
to such CP Conduit Purchaser as of the last Business Day of the preceding
calendar week, together with the scheduled maturity dates for such Commercial
Paper and the face amounts thereof plus
accrued
interest due and payable thereon on each such scheduled maturity date and (2)
the Available Liquidity Amount with respect to such CP Conduit Purchaser as
of
such date.
(c)
The
Administrative Agent shall provide to the Administrator, the Trustee and the
Surety Provider (1) so long as no CP Disruption Event has occurred or is
continuing, promptly upon receipt of each Monthly Noteholders’ Statement, notice
of any disagreement the Administrative Agent has with the Series 2006-2 Invested
Amount as reported in such Monthly Noteholders’ Statement and (2) so long as a
CP Disruption Event has occurred and is continuing, on the second Business
Day
of each calendar week, a report of the Series 2006-2 Invested Amount as of
the
date of such report.
Section
9.6. Non-Reliance
on the Administrative Agent and Other Purchaser Groups.
Each of
the CP Conduit Purchasers, the APA Banks and the Funding Agents expressly
acknowledges that neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of CRCF, the Lessors,
the
Lessees, the Permitted Sublessees, the Intermediary, the Surety Provider or
the
Administrator shall be deemed to constitute any representation or warranty
by
the Administrative Agent to any such Person. Each of the CP Conduit Purchasers,
the APA Banks and the Funding Agents represents to the Administrative Agent
that
it has, independently and without reliance upon the Administrative Agent or
any
other CP Conduit Purchaser, APA Bank or Funding Agent and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of CRCF, the Lessors, the Lessees, the
Permitted Sublessees, the Intermediary, the Surety Provider and the
Administrator and made its own decision to enter into this Supplement. Each
of
the CP Conduit Purchasers, the APA Banks and the Funding Agents also represents
that it will, independently and without reliance upon the Administrative Agent
or any other CP Conduit Purchaser, APA Bank or Funding Agent, and based on
such
documents and information as it shall deem appropriate at the time, continue
to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Supplement and the other Related Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
CRCF, the Lessors,
88
the
Lessees, the Permitted Sublessees, the Intermediary, the Surety Provider and
the
Administrator. Except for notices, reports and other documents expressly
required to be furnished to the Funding Agents by the Administrative Agent
hereunder, the Administrative Agent shall have no duty or responsibility to
provide any CP Conduit Purchaser, any APA Bank or any Funding Agent with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of CRCF,
the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary, the Surety
Provider or the Administrator which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
Section
9.7. Indemnification.
Each of
the APA Banks in a Purchaser Group agrees to indemnify the Administrative Agent
in its capacity as such (to the extent not reimbursed by CRCF and the
Administrator and without limiting the obligation of CRCF and the Administrator
to do so), ratably according to their respective Commitment Percentages in
effect on the date on which indemnification is sought under this Section 9.7
(or if
indemnification is sought after the date upon which the Commitment Amounts
shall
have been reduced to zero, ratably in accordance with their Commitment
Percentages immediately prior to such date of such reduction) from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Supplement,
any of the other Related Documents or any documents contemplated by or referred
to herein or therein or the transactions contemplated hereby or thereby or
any
action taken or omitted by the Administrative Agent under or in connection
with
any of the foregoing; provided
that no
APA Bank or Funding Agent shall be liable for the payment of any portion of
such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent’s gross negligence or willful misconduct. The agreements in
this Section 9.7
shall
survive the payment of all amounts payable hereunder.
Section
9.8. The
Administrative Agent in Its Individual Capacity.
The
Administrative Agent and its Affiliates may make loans to, accept deposits
from
and generally engage in any kind of business with CRCF, the Administrator or
any
of their Affiliates as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to any Series 2006-2 Note held
by
the Administrative Agent, the Administrative Agent shall have the same rights
and powers under this Supplement and the other Related Documents as any APA
Bank
or Funding Agent and may exercise the same as though it were not the
Administrative Agent, and the terms “APA Bank,” and “Funding Agent” shall
include the Administrative Agent in its individual capacity.
Section
9.9. Resignation
of Administrative Agent; Successor Administrative Agent.
The
Administrative Agent may resign as Administrative Agent at any time by giving
30
days’ notice to the Funding Agents, the Trustee, CRCF and the Administrator. If
Barclays shall resign as Administrative Agent under this Supplement, then the
Requisite Noteholders shall appoint a successor administrative agent from among
the Funding Agents, which successor administrative agent shall be approved
by
CRCF and the Administrator (which approval shall not be unreasonably withheld
or
delayed) whereupon
such successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term “Administrative Agent” shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Supplement.
If
no
successor administrative agent has accepted appointment as Administrative Agent
by the date which is ten (10) days following a retiring Administrative
89
Agent’s
notice of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Administrator shall assume
and
perform all of the duties of the Administrative Agent hereunder until such
time,
if any, as the Requisite Noteholders appoint a successor agent as provided
for
above. After any retiring Administrative Agent’s resignation as Administrative
Agent, the provisions of this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Supplement.
ARTICLE
X
THE
FUNDING AGENTS
Section
10.1. Appointment.
Each CP
Conduit Purchaser and each APA Bank with respect to such CP Conduit Purchaser
hereby irrevocably designates and appoints the Funding Agent set forth next
to
such CP Conduit Purchaser’s name on Schedule I as the agent of such Person
under this Supplement and irrevocably authorizes such Funding Agent, in such
capacity, to take such action on its behalf under the provisions of this
Supplement and to exercise such powers and perform such duties as are expressly
delegated to such Funding Agent by the terms of this Supplement, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Supplement, each Funding Agent
shall
not have any duties or responsibilities except those expressly set forth herein,
or any fiduciary relationship with any CP Conduit Purchaser or APA Bank and
no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Supplement or otherwise exist against each
Funding Agent.
Section
10.2. Delegation
of Duties.
Each
Funding Agent may execute any of its duties under this Supplement by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Each Funding Agent shall
not
be responsible to the CP Conduit Purchaser or any APA Bank in its Purchaser
Group for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.
Section
10.3. Exculpatory
Provisions.
Each
Funding Agent and any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall not be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
the Base Indenture, this Supplement or any other Related Document (except
to the extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or
such
Person’s own gross negligence or willful misconduct) or
(ii)
responsible in any manner to any of the CP Conduit Purchasers and/or APA Banks
for any recitals, statements, representations or warranties made by CRCF, the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary, the Surety
Provider, the Administrator, the Administrative Agent, or any officer thereof
contained in this Supplement or any other Related Document or in any
certificate, report, statement or other document referred to or provided for
in,
or received by such Funding Agent under or in connection with, this Supplement
or any other Related Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Supplement, any other Related
Document, or for any failure of any of CRCF, the Lessors, the Lessees, the
Permitted Sublessees, the Intermediary, the Surety Provider, the Administrative
Agent, or the Administrator to perform its obligations hereunder or thereunder.
90
Each
Funding Agent shall not be under any obligation to the CP Conduit Purchaser
or
any APA Bank in its Purchaser Group to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Supplement, any other Related Document or to inspect the properties,
books or records of CRCF, the Lessors, the Lessees, the Permitted Sublessees,
the Intermediary, the Surety Provider, the Administrative Agent, or the
Administrator.
Section
10.4. Reliance
by Each Funding Agent.
Each
Funding Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to CRCF
or
the Administrator), independent accountants and other experts selected by such
Funding Agent. Each Funding Agent shall be fully justified in failing or
refusing to take any action under this Supplement or any other Related Document
unless it shall first receive such advice or concurrence of the Related
Purchaser Group, as it deems appropriate or it shall first be indemnified to
its
satisfaction by the Related Purchaser Group against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
Section
10.5. Notice
of Administrator Default or Amortization Event or Potential Amortization
Event.
Each
Funding Agent shall not be deemed to have knowledge or notice of the occurrence
of any Amortization Event or Potential Amortization Event, any Administrator
Default, any Early Controlled Amortization Event or any Surety Default unless
such Funding Agent has received written notice from a CP Conduit Purchaser,
an
APA Bank, CRCF, the Administrative Agent or the Administrator referring to
the
Indenture or this Supplement, describing such Amortization Event or Potential
Amortization Event, Administrator Default, Early Controlled Amortization Event
or Surety Default and stating that such notice is a “notice of an Amortization
Event or Potential Amortization Event,” “notice of an Administrator Default,”
“notice of an Early Controlled Amortization Event” or “notice of a Surety
Default,” as the case may be. In the event that any Funding Agent receives such
a notice, such Funding Agent shall give notice thereof to the CP Conduit
Purchaser and APA Banks in its Purchaser Group. Such Funding Agent shall take
such action with respect to such event as shall be reasonably directed by the
CP
Conduit Purchaser and APA Banks in its Purchaser Group, provided
that
unless and until such Funding Agent shall have received such directions, such
Funding Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such event as it shall deem advisable
in the best interests of the CP Conduit Purchaser and APA Banks in its Purchaser
Group.
Section
10.6. Non-Reliance
on Each Funding Agent and Other Purchaser Groups.
Each CP
Conduit Purchaser and each of the related APA Banks expressly acknowledge that
neither its Funding Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties
to it
and that no act by such Funding Agent hereinafter taken, including any review
of
the affairs of CRCF, the Lessors, the Lessees, the Permitted Sublessees, the
Intermediary, the Surety Provider, the Administrative Agent, or the
Administrator shall be deemed to constitute any representation or warranty
by
such Funding Agent to any such Person. Each CP Conduit Purchaser and each of
the
related APA Banks
91
represents
to its Funding Agent that it has, independently and without reliance upon such
Funding Agent and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
CRCF, the Lessors, the Lessees, the Permitted Sublessees, the Intermediary,
the
Surety Provider, the Administrative Agent, and the Administrator and made its
own decision to enter into this Supplement. Each CP Conduit Purchaser and each
of the related APA Banks also represents that it will, independently and without
reliance upon its Funding Agent and based on such documents and information
as
it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Supplement
and the other Related Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial
and other conditions and creditworthiness of CRCF, the Lessors, the Lessees,
the
Permitted Sublessees, the Intermediary, the Surety Provider, the Administrative
Agent, and the Administrator.
Section
10.7. Indemnification.
Each
APA Bank in a Purchaser Group agrees to indemnify its Funding Agent in its
capacity as such (to the extent not reimbursed by CRCF and the Administrator
and
without limiting the obligation of CRCF and the Administrator to do so), ratably
according to its respective APA Bank Percentage in effect on the date on which
indemnification is sought under this Section 10.7
(or if
indemnification is sought after the date upon which the Commitment Amounts
shall
have been reduced to zero, ratably in accordance with its APA Bank Percentage
at
the time of such reduction) from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against such Funding Agent in any way
relating to or arising out of this Supplement, any of the other Related
Documents or any documents contemplated by or referred to herein or therein
or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Funding Agent under or in connection with any of the foregoing;
provided
that no
APA Bank shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such related Funding
Agent’s gross negligence or willful misconduct. The agreements in this
Section 10.7
shall
survive the payment of all amounts payable hereunder.
Section
10.8. Notice
of Maturing Commercial Paper.
During
the occurrence and continuation of a CP Disruption Event with respect to any
CP
Conduit Purchaser, the Funding Agent for such CP Conduit Purchaser shall provide
to the Administrative Agent on the second Business Day of each calendar week
(1)
a schedule of outstanding Commercial Paper with respect to such CP Conduit
Purchaser as of the last Business Day of the preceding calendar week, together
with the scheduled maturity dates for such Commercial Paper and the face amounts
thereof plus
accrued
interest due and payable thereon on each such scheduled maturity date and (2)
the Available Liquidity Amount with respect to such CP Conduit Purchaser as
of
such date. Not less than three (3) Business Days prior to any Mandatory Decrease
Date with respect to any CP Conduit Purchaser, the Funding Agent for such CP
Conduit Purchaser shall give written notice to the Trustee confirming that,
after giving effect to all payments to be made to such CP Conduit Purchaser
on
or prior to such Mandatory Decrease Date pursuant to the Asset Purchase
Agreement with respect to such CP Conduit Purchaser, the aggregate amount paid
92
thereunder
to such CP Conduit Purchaser will be equal to the Liquidity Amount with respect
to the Purchaser Group of which such Funding Agent and CP Conduit Purchaser
are
members.
ARTICLE
XI
GENERAL
Section
11.1. Successors
and Assigns.
(a) This
Supplement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that CRCF may not assign
or
transfer any of its rights under this Supplement without the prior written
consent of all of the Series 2006-2 Noteholders and the Surety Provider, no
CP
Conduit Purchaser may assign or transfer any of its rights under this Supplement
other than in accordance with the Asset Purchase Agreement with respect to
such
CP Conduit Purchaser or otherwise to the APA Bank with respect to such CP
Conduit Purchaser or a Program Support Provider with respect to such CP Conduit
Purchaser or pursuant to clause (b) or (e) below of this Section 11.1
and no
APA Bank may assign or transfer any of its rights or obligations under this
Supplement except to a Program Support Provider or pursuant to clause (c),
(d)
or (e) below of this Section 11.1.
CRCF
shall provide written notification of any assignment to the Rating
Agencies.
(b) Without
limiting the foregoing, with the prior written consent of the Administrator
and
CRCF (which consent shall not be unreasonably withheld), each CP Conduit
Purchaser may assign all or a portion of the Purchaser Group Invested Amount
with respect to such CP Conduit Purchaser and its rights and obligations under
this Supplement and any other Related Documents to which it is a party to a
Conduit Assignee with respect to such CP Conduit Purchaser. Prior to or
concurrently with the effectiveness of any such assignment (or if impracticable,
immediately thereafter), the assigning CP Conduit Purchaser shall notify the
Administrative Agent, CRCF, the Trustee and the Administrator thereof. Upon
such
assignment by a CP Conduit Purchaser to a Conduit Assignee, (A) such Conduit
Assignee shall be the owner of the Purchaser Group Invested Amount or such
portion thereof with respect to such CP Conduit Purchaser, (B) the related
administrative or managing agent for such Conduit Assignee will act as the
administrative agent for such Conduit Assignee hereunder, with all corresponding
rights and powers, express or implied, granted to the Funding Agent hereunder
or
under the other Related Documents, (C) such Conduit Assignee and its liquidity
support provider(s) and credit support provider(s) and other related parties
shall have the benefit of all the rights and protections provided to such CP
Conduit Purchaser herein and in the other Related Documents (including, without
limitation, any limitation on recourse against such Conduit Assignee as provided
in this paragraph), (D) such Conduit Assignee shall assume all of such CP
Conduit Purchaser’s obligations, if any, hereunder or under the Base Indenture
or under any other Related Document with respect to such portion of the
Purchaser Group Invested Amount and such CP Conduit Purchaser shall be released
from such obligations, (E) all distributions in respect of the Purchaser Group
Invested Amount or such portion thereof with respect to such CP Conduit
Purchaser shall be made to the applicable agent or administrative agent, as
applicable, on behalf of such Conduit Assignee, (F) the definitions of the
terms
“Monthly Funding Costs” and “Discount” shall be determined in the manner set
forth in the definition of “Monthly Funding Costs” and “Discount” applicable to
such CP Conduit Purchaser on the basis of the interest rate or discount
applicable to commercial paper issued by such Conduit Assignee (rather than
such
93
CP
Conduit Purchaser), (G) the defined terms and other terms and provisions of
this Supplement, the Base Indenture and the other Related Documents shall be
interpreted in accordance with the foregoing, and (H) if requested by the
Administrative Agent or the agent or administrative agent with respect to the
Conduit Assignee, the parties will execute and deliver such further agreements
and documents and take such other actions as the Administrative Agent or such
agent or administrative agent may reasonably request to evidence and give effect
to the foregoing.
(c) Any
APA
Bank may, in the ordinary course of its business and in accordance with
applicable law, at any time sell all or any part of its rights and obligations
under this Supplement and the Series 2006-2 Notes, with the prior written
consent of the Administrative Agent, CRCF and the Administrator (in each case,
which consent shall not be unreasonably withheld), to one or more banks (an
“Acquiring
APA Bank”)
pursuant to a transfer supplement, substantially in the form of Exhibit H
(the
“Transfer
Supplement”),
executed by such Acquiring APA Bank, such assigning APA Bank, the Funding Agent
with respect to such APA Bank, the Administrative Agent, CRCF and the
Administrator and delivered to the Administrative Agent. Notwithstanding the
foregoing, no APA Bank shall so sell its rights hereunder if such Acquiring
APA
Bank is not an Eligible Assignee.
(d) Any
APA
Bank may, in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more financial institutions or other
entities (“Participants”)
participations in its APA Bank Percentage of the Commitment Amount with respect
to it and the other APA Banks included in the related Purchaser Group, its
Series 2006-2 Note and its rights hereunder pursuant to documentation in form
and substance satisfactory to such APA Bank and the Participant; provided,
however,
that
(i) in the event of any such sale by an APA Bank to a Participant, (A) such
APA
Bank’s obligations under this Supplement shall remain unchanged, (B) such APA
Bank shall remain solely responsible for the performance thereof and (C) CRCF
and the Administrative Agent shall continue to deal solely and directly with
such APA Bank in connection with its rights and obligations under this
Supplement and (ii) no APA Bank shall sell any participating interest under
which the Participant shall have rights to approve any amendment to, or any
consent or waiver with respect to, this Supplement, the Base Indenture or any
Related Document, except to the extent that the approval of such amendment,
consent or waiver otherwise would require the unanimous consent of all APA
Banks
hereunder. A Participant shall have the right to receive Article VII Costs
but
only to the extent that the related selling APA Bank would have had such right
absent the sale of the related participation and, with respect to amounts due
pursuant to Section 7.2,
only to
the extent such Participant shall have complied with the provisions of
Section 7.2(e)
and
(g)
as if
such Participant were the Administrative Agent, a Funding Agent, a Program
Support Provider or a member of a Purchaser Group.
(e) Any
CP
Conduit Purchaser and the APA Bank with respect to such CP Conduit Purchaser
may
at any time sell all or any part of their respective rights and obligations
under this Supplement and the Series 2006-2 Notes, with the prior written
consent of the Administrative Agent, CRCF and the Administrator (in each case,
which consent shall not be unreasonably withheld), to a multi-seller commercial
paper conduit and one or more banks providing support to such multi-seller
commercial paper conduit (an “Acquiring
Purchaser Group”)
pursuant to a transfer supplement, substantially in the form of Exhibit I
(the
“Purchaser
Group Supplement”),
executed by such Acquiring Purchaser Group, the Funding Agent with
94
respect
to such Acquiring Purchaser Group (including the CP Conduit Purchaser and the
APA Banks with respect to such Purchaser Group), such assigning CP Conduit
Purchaser and the APA Banks with respect to such CP Conduit Purchaser, the
Funding Agent with respect to such assigning CP Conduit Purchaser and APA Banks,
the Administrative Agent, CRCF and the Administrator and delivered to the
Administrative Agent.
(f) CRCF
authorizes each APA Bank to disclose to any Participant or Acquiring APA Bank
(each, a “Transferee”)
and
any prospective Transferee any and all financial information in such APA Bank’s
possession concerning CRCF, the Collateral, the Administrator and the Related
Documents which has been delivered to such APA Bank by CRCF or the Administrator
in connection with such APA Bank’s credit evaluation of CRCF, the Collateral and
the Administrator; provided
that to
the extent such information constitutes Confidential Information, the disclosing
APA Bank shall only disclose such Confidential Information in accordance with
the terms of Section 11.29.
(g) At
any
time during a CP Disruption Event with respect to a CP Conduit Purchaser, at
the
request and direction of the Surety Provider and upon satisfaction of the
Mandatory Assignment Conditions, such CP Conduit Purchaser and the APA Bank
with
respect to such CP Conduit Purchaser shall sell all or any part of their
respective interests under this Supplement and the Series 2006-2 Notes to an
Acquiring Purchaser Group, as directed by the Surety Provider pursuant to
Section
11.1(e)
or to
the Surety Provider or its designee. Any amounts remaining unpaid by CRCF to
the
selling Purchaser Group in excess of the Mandatory Assignment Price and any
amounts owed under Article
VII
hereof
to the selling Purchaser Group after an effective assignment if owed at the
time
of such assignment shall remain an obligation of CRCF hereunder, such amounts
to
be paid in accordance with the priority of payments set forth in Section
3.3(f).
Any
amounts paid by CRCF to the Acquiring Purchaser Group (or to the Surety Provider
or its designee, in the event of a sale to the Surety Provider or its designee),
as the holder of the Series 2006-2 Note, in respect of such Series 2006-2 Note
after the Purchase Effective Date attributable to amounts due and payable to
the
selling Purchaser Group pursuant to this Supplement on such Purchase Effective
Date, other than amounts included in the Mandatory Assignment Price, shall
be
paid by the Acquiring Purchaser Group (or by the Surety Provider or its
designee, in the event of a sale to the Surety Provider or its designee) to
the
selling Purchaser Group.
Section
11.2. Securities
Law.
Each CP
Conduit Purchaser and APA Bank hereby represents and warrants to CRCF that
it is
an “accredited investor” as such term is defined in Rule 501(a) of
Regulation D under the Securities Act and has sufficient assets to bear the
economic risk of, and sufficient knowledge and experience in financial and
business matters to evaluate the merits and risks of, its investment in a Series
2006-2 Note. Each CP Conduit Purchaser and APA Bank agrees that its Series
2006-2 Note will be acquired for investment only and not with a view to any
public distribution thereof, and that such CP Conduit Purchaser and APA Bank
will not offer to sell or otherwise dispose of its Series 2006-2 Note (or any
interest therein) in violation of any of the registration requirements of the
Securities Act, or any applicable state or other securities laws. Each CP
Conduit Purchaser and APA Bank acknowledges that it has no right to require
CRCF
to register its Series 2006-2 Note under the Securities Act or any other
securities law. Each CP Conduit Purchaser and APA Bank hereby confirms and
agrees that in connection with any transfer by it of an interest in the Series
2006-2
95
Note,
such CP Conduit Purchaser or APA Bank has not engaged and will not engage in
a
general solicitation or general advertising including advertisements, articles,
notices or other communications published in any newspaper, magazine or similar
media or broadcast over radio or television, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising.
Section
11.3. Adjustments;
Set-off.
(a) If
any CP Conduit Purchaser or APA Bank in a Purchaser Group (a “Benefited
Purchaser Group”)
shall
at any time receive in respect of its Purchaser Group Invested Amount any
distribution of principal, interest, Commitment Fees or any interest thereon,
or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off or otherwise) in a greater proportion than any such distribution
received by any other Purchaser Group, if any, in respect of such other
Purchaser Group’s Purchaser Group Invested Amount, or interest thereon, the APA
Banks in such Benefited Purchaser Group shall purchase for cash from the CP
Conduit Purchaser or APA Banks in the other Purchaser Group such portion of
such
other CP Conduit Purchaser’s or APA Banks’ interest in the Series 2006-2 Notes,
or shall provide such other CP Conduit Purchaser or APA Bank with the benefits
of any such collateral, or the proceeds thereof, as shall be necessary to cause
such Benefited Purchaser Group to share the excess payment or benefits of such
collateral or proceeds ratably with the other Purchaser Group; provided,
however,
that if
all or any portion of such excess payment or benefits is thereafter recovered
from such Benefited Purchaser Group, such purchase shall be rescinded, and
the
purchase price and benefits returned, to the extent of such recovery, but
without interest. CRCF agrees that any CP Conduit Purchaser or APA Bank so
purchasing a portion of another Purchaser Group’s Purchaser Group Invested
Amount may exercise all rights of payment (including, without limitation, rights
of set-off) with respect to such portion as fully as if such CP Conduit
Purchaser or APA Bank were the direct holder of such portion.
(b) In
addition to any rights and remedies of the Purchaser Groups provided by law,
each CP Conduit Purchaser and APA Bank shall have the right, without prior
notice to CRCF, any such notice being expressly waived by CRCF to the extent
permitted by applicable law, upon any amount becoming due and payable by CRCF
hereunder or under the Series 2006-2 Notes to set-off and appropriate and apply
against any and all deposits (general or special, time or demand, provisional
or
final), in any currency, and any other credits, indebtedness or claims, in
any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Purchaser Group to
or
for the credit or the account of CRCF. Each CP Conduit Purchaser and APA Bank
agrees promptly to notify CRCF, the Administrator, the Surety Provider and
the
Administrative Agent after any such set-off and application made by such CP
Conduit Purchaser or APA Bank; provided
that the
failure to give such notice shall not affect the validity of such set-off and
application. CRCF shall not have the right to set-off any amount that is due
and
payable by any Series 2006-2 Noteholder against any obligation.
Section
11.4. No
Bankruptcy Petition.
(a) Each
of the Administrative Agent, the CP Conduit Purchasers, the APA Banks and the
Funding Agents hereby covenants and agrees that, prior to the date which is
one
year and one day after the later of payment in full of all Series of Notes,
it
will not institute against, or join any other Person in instituting against,
CRCF any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other similar proceedings under any federal or state bankruptcy
or similar law.
96
(b) CRCF,
the
Trustee, the Administrative Agent, each Funding Agent and each APA Bank hereby
covenants and agrees that, prior to the date which is one year and one day
after
the payment in full of all outstanding Commercial Paper issued by, or for the
benefit of, a CP Conduit Purchaser, it will not institute against, or join
any
other Person in instituting against, such CP Conduit Purchaser (or the Person
issuing Commercial Paper for the benefit of such CP Conduit Purchaser) any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other similar proceedings under any federal or state bankruptcy or similar
law.
(c) This
covenant shall survive the termination of this Supplement and the Base Indenture
and the payment of all amounts payable hereunder and thereunder.
Section
11.5. Limited
Recourse.
(a) Notwithstanding
anything to the contrary contained herein, any obligations of each CP Conduit
Purchaser hereunder to any party hereto are solely the corporate obligations
of
such CP Conduit Purchaser and shall be payable at such time as funds are
received by or are available to such CP Conduit Purchaser in excess of funds
necessary to pay in full all of its outstanding Commercial Paper and, to the
extent funds are not available to pay such obligations, the claims relating
thereto shall not constitute a claim against such CP Conduit Purchaser but
shall
continue to accrue. Each party hereto agrees that the payment of any claim
(as
defined in Section 101 of Title 11 of the Bankruptcy Code) of any such
party against a CP Conduit Purchaser shall be subordinated to the payment in
full of all of its Commercial Paper.
(b) No
recourse under any obligation, covenant or agreement of any CP Conduit Purchaser
contained herein shall be had against any incorporator, stockholder, officer,
director, employee or agent of such CP Conduit Purchaser, its administrative
agent, the Funding Agent with respect to such CP Conduit Purchaser or any of
their Affiliates by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute or otherwise; it being expressly
agreed and understood that this Supplement is solely a corporate obligation
of
such CP Conduit Purchaser individually, and that no personal liability whatever
shall attach to or be incurred by any incorporator, stockholder, officer,
director, employee or agent of such CP Conduit Purchaser, its administrative
agent, the Funding Agent with respect to such CP Conduit Purchaser or any of
its
Affiliates (solely by virtue of such capacity) or any of them under or by reason
of any of the obligations, covenants or agreements of such CP Conduit Purchaser
contained in this Agreement, or implied therefrom, and that any and all personal
liability for breaches by such CP Conduit Purchaser of any of such obligations,
covenants or agreements, either at common law or at equity, or by statute,
rule
or regulation, of every such incorporator, stockholder, officer, director,
employee or agent is hereby expressly waived as a condition of and in
consideration for the execution of this Supplement; provided
that the
foregoing shall not relieve any such Person from any liability it might
otherwise have as a result of fraudulent actions taken or omissions made by
them. The provisions of this Section 11.5
shall
survive termination of this Supplement.
Section
11.6. Costs
and Expenses.
CRCF
agrees to pay on demand (x) all reasonable out-of-pocket costs and expenses
of
the Administrative Agent (including, without limitation, reasonable fees and
disbursements of counsel to the Administrative Agent) and of each Purchaser
Group (including in connection with the preparation, execution and delivery
of
97
this
Supplement the reasonable fees and disbursements of one counsel, other than
counsel to the Administrative Agent, for all such Purchaser Groups) in
connection with (i) the preparation, execution and delivery of this Supplement
and the other Related Documents and any amendments or waivers of, or consents
under, any such documents and (ii) the enforcement by the Administrative Agent
or any Funding Agent of the obligations and liabilities of CRCF, the Lessors,
the Lessees,
the
Permitted Sublessees, the Intermediary
and the
Administrator under the Indenture, this Supplement, the other Related Documents
or any related document and all costs and expenses, if any (including reasonable
counsel fees and expenses), in connection with the enforcement of this Agreement
and the other Related Documents and (y) all reasonable out of pocket costs
and
expenses of the Administrative Agent (including, without limitation, reasonable
fees and disbursements of counsel to the Administrative Agent) in connection
with the administration of this Supplement and the other Related Documents.
Any
payments made by CRCF pursuant to this Section 11.6
shall be
made solely from funds available in the Series 2006-2 Distribution Account
for the payment of Article VII Costs, shall be non-recourse other than with
respect to such funds, and shall not constitute a claim against CRCF to the
extent that insufficient funds exist to make such payment. The agreements in
this Section shall survive the termination of this Supplement and the Base
Indenture and the payment of all amounts payable hereunder and
thereunder.
Section
11.7. Exhibits.
The
following exhibits attached hereto supplement the exhibits included in the
Indenture.
|
Exhibit A:
|
Form
of Variable Funding Note
|
||
|
Exhibit B:
|
Form
of Increase Notice
|
||
|
Exhibit C:
|
Form
of Consent
|
||
|
Exhibit D:
|
Form
of Series 2006-2 Demand Note
|
||
|
Exhibit E:
|
Form
of Series 2006-2 Letter of Credit
|
||
|
Exhibit F:
|
Form
of Lease Payment Deficit Notice
|
||
|
Exhibit G:
|
Form
of Demand Notice
|
||
|
Exhibit H:
|
Form
of Transfer Supplement
|
||
|
Exhibit I:
|
Form
of Purchaser Group Supplement
|
Section
11.8. Ratification
of Base Indenture.
As
supplemented by this Supplement, the Base Indenture is in all respects ratified
and confirmed and the Base Indenture as so supplemented by this Supplement
shall
be read, taken, and construed as one and the same instrument.
Section
11.9. Counterparts.
This
Supplement may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all of such counterparts shall
together constitute but one and the same instrument.
Section
11.10. Governing
Law.
This
Supplement shall be construed in accordance with the law of the State of
New York, and the obligations, rights and remedies of the parties hereto
shall be determined in accordance with such law.
Section
11.11. Amendments.
This
Supplement may be modified or amended from time to time with the prior written
consent of the Requisite Noteholders and the Surety
98
Provider
and in accordance with the terms of the Base Indenture; provided,
however,
that
if, pursuant to the terms of the Base Indenture or this Supplement, the consent
of the Required Noteholders is required for an amendment or modification of
this
Supplement, such requirement shall be satisfied if such amendment or
modification is consented to by the Requisite Noteholders and the Surety
Provider.
Section
11.12. Discharge
of Indenture.
Notwithstanding anything to the contrary contained in the Base Indenture, no
discharge of the Indenture pursuant to Section 11.1(b)
of the
Base Indenture will be effective as to the Series 2006-2 Notes without the
written consent of the Requisite Noteholders and the Surety Provider and, to
the
extent there are any amounts due to a Series 2006-2 Interest Rate Swap
Counterparty, each such Series 2006-2 Interest Rate Swap
Counterparty.
Section
11.13. Notice
to Administrative Agent, Surety Provider, Rating Agencies and each Series 2006-2
Interest Rate Hedge Counterparty.
The
Trustee shall provide to the Administrative Agent, the Surety Provider, each
Rating Agency and each Series 2006-2 Interest Rate Hedge Counterparty a copy
of
each notice, opinion of counsel, certificate or other item delivered to, or
required to be provided by, the Trustee pursuant to this Supplement or any
other
Related Document. Each such opinion of counsel shall be addressed to the
Administrative Agent, the Surety Provider and each Series 2006-2 Interest Rate
Hedge Counterparty, shall be from counsel reasonably acceptable to the
Administrative Agent, the Surety Provider and each Series 2006-2 Interest Rate
Hedge Counterparty and shall be in form and substance reasonably acceptable
to
the Administrative Agent, the Surety Provider and each Series 2006-2 Interest
Rate Hedge Counterparty. All such notices, opinions, certificates or other
items
delivered to the Surety Provider shall be forwarded to XL Capital Assurance
Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: Surveillance;
telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇.
Section
11.14. Certain
Rights of Surety Provider.
The
Surety Provider shall be deemed to be an Enhancement Provider entitled to
receive confirmation of the rating on the Series 2006-2 Notes (without regard
to
the Surety Bond) pursuant to the definition of “Rating Agency Confirmation
Condition.” In addition, the Surety Provider shall be deemed to be an
Enhancement Provider entitled to exercise the consent rights described in clause
(ii) of the definition of “Rating Agency Consent Condition.”
Section
11.15. Surety
Provider Deemed Noteholder and Secured Party.
Except
for any period during which a Surety Default is continuing, the Surety Provider
shall be deemed to be the holder of 100% of the Series 2006-2 Notes (and thus,
the Required Noteholders under the Base Indenture and other Transaction
Documents) for the purposes of giving any and all consents, waivers,
instructions, directions, requests, declarations and/or notices pursuant to
the
Base Indenture; provided,
however,
that
either (x) the Requisite Noteholders or (y) the Surety Provider may declare
the
occurrence of an Amortization Event with respect to the Series 2006-2 Notes
described in Section
9.1
of the
Base Indenture (to the extent such Amortization Event does not occur
automatically) and the Surety Provider shall not waive any Amortization Event
(other than as set forth in the last sentence of Article IV) with respect to
the
Series 2006-2 Notes described in Section
9.1
of the
Base Indenture or consent to any amendment or waiver of any provision of the
Base Indenture or the Related Documents without the consent of the Requisite
99
Noteholders;
provided,
however,
that
the Requisite Noteholders will not have the right to approve any amendment
required to satisfy the Mandatory Assignment Conditions in order to effect
the
transfer of all of the Series 2006-2 Notes outstanding to the Surety Provider
or
its Affiliate pursuant to Section
11.1(g)
hereof,
so long as such amendment does not have a material adverse effect on the rights
of any Series 2006-2 Noteholder hereunder. For the avoidance of doubt, and
notwithstanding any provision to the contrary herein, other than the provisions
set forth in Article
IV
or in
this Section 11.15, any matter arising hereunder that requires the vote,
direction, approval or waiver of the Series 2006-2 Noteholders shall also
require the approval of the Surety Provider. Any reference in the Base Indenture
or the Related Documents (including, without limitation, in Sections 2.3,
8.14, 9.1, 9.2 or 12.1
of the
Base Indenture) to materially, adversely, or detrimentally affecting the rights
or interests of the Noteholders, or words of similar meaning, shall be deemed,
for purposes of the Series 2006-2 Notes, to refer to the rights or interests
of
the Surety Provider. The Surety Provider shall constitute an “Enhancement
Provider” with respect to the Series 2006-2 Notes for all purposes under the
Indenture and the other Related Documents. Furthermore, the Surety Provider
shall be deemed to be a “Secured Party” under the Base Indenture and the Related
Documents to the extent of amounts payable to the Surety Provider pursuant
to
this Supplement, the Premium Letter and the Insurance Agreement shall constitute
an “Enhancement Agreement” with respect to the Series 2006-2 Notes for all
purposes under the Indenture and the Related Documents. Moreover, wherever
in
the Related Documents money or other property is assigned, conveyed, granted
or
held for, a filing is made for, action is taken for or agreed to be taken for,
or a representation or warranty is made for the benefit of the Noteholders,
the
Surety Provider shall be deemed to be the Noteholder with respect to 100% of
the
Series 2006-2 Notes for such purposes.
Section
11.16. Capitalization
of CRCF.
CRCF
agrees that on the Series 2006-2 Closing Date and on the date of any increase
in
the Series 2006-2 Maximum Invested Amount it will have capitalization in an
amount equal to or greater than 3% of the sum of (x) the Series 2006-2 Maximum
Invested Amount and (y) the invested amount of the Series 2000-2 Notes, the
Series 2001-2 Notes, the Series 2002-1 Notes, the Series 2002-2 Notes, the
Series 2002-3 Notes, the Series 2003-1 Notes, the Series 2003-2 Notes, the
Series 2003-3 Notes, the Series 2003-4 Notes, the Series 2003-5 Notes, the
Series 2004-1 Notes, the Series 2004-2 Notes, the Series 2004-4 Notes, the
Series 2005-1 Notes, the Series 2005-2 Notes, the Series 2005-4 Notes and the
Series 2006-1 Notes.
Section
11.17. Third
Party Beneficiary.
The
Surety Provider and each Series 2006-2 Interest Rate Swap Counterparty is an
express third party beneficiary of (i) the Base Indenture to the extent of
provisions relating to any Enhancement Provider and (ii) this
Supplement.
Section
11.18. Prior
Notice by Trustee to Surety Provider.
Subject
to Section 10.1
of the
Base Indenture, the Trustee agrees that, so long as no Amortization Event shall
have occurred and be continuing with respect to any Series of Notes other than
the Series 2006-2 Notes, it shall not exercise any rights or remedies available
to it as a result of the occurrence of an Amortization Event with respect to
the
Series 2006-2 Notes (except those set forth in clauses (g) and (h) of
Article
IV)
or a
Series 2006-2 Limited Liquidation Event of Default until after the Trustee
has given prior written notice thereof to the Surety Provider and each Series
2006-2 Interest Rate Hedge Counterparty and obtained the written direction
of
the
100
Surety
Provider. The Trustee agrees to notify the Surety Provider promptly following
any exercise of rights or remedies available to it as a result of the occurrence
of any Amortization Event or a Series 2006-2 Limited Liquidation Event of
Default.
Section
11.19. Effect
of Payments by the Surety Provider.
Anything herein to the contrary notwithstanding, any distribution of principal
of or interest on the Series 2006-2 Notes that is made with moneys received
pursuant to the terms of the Surety Bond shall not (except for the purpose
of
calculating the Principal Deficit Amount) be considered payment of the
Series 2006-2 Notes by CRCF. The Trustee acknowledges that, without the
need for any further action on the part of the Surety Provider, (i) to the
extent the Surety Provider makes payments, directly or indirectly, on account
of
principal of or interest on (including the Liquidity Fees) the
Series 2006-2 Notes to the Trustee for the benefit of the
Series 2006-2 Noteholders or to the Series 2006-2 Noteholders
(including any Preference Amounts as defined in the Surety Bond), the Surety
Provider will be fully subrogated to the rights of such Series 2006-2
Noteholders to receive such principal and interest and will be deemed to the
extent of the payments so made to be a Series 2006-2 Noteholder and
(ii) the Surety Provider shall be paid principal and interest in its
capacity as a Series 2006-2 Noteholder until all such payments by the
Surety Provider have been fully reimbursed, but only from the sources and in
the
manner provided herein for the distribution of such principal, interest and
Liquidity Fees and in each case only after the Series 2006-2 Noteholders
have received all payments of principal and interest due to them hereunder
on
the related Distribution Date.
Section
11.20. Purchaser
Group Consent.
Each
Purchaser Group hereto acknowledges that the Surety Provider may require CRCF
to
contest the calculation of the Series 2006-2 Invested Amount.
Section
11.21. Series
2006-2 Demand Notes.
Other
than pursuant to a demand thereon pursuant to Section 3.5,
CRCF
shall not reduce the amount of the Series 2006-2 Demand Notes or forgive amounts
payable thereunder so that the outstanding principal amount of the Series 2006-2
Demand Notes after such reduction or forgiveness is less than the Series 2006-2
Letter of Credit Liquidity Amount. CRCF shall not agree to any amendment of
the
Series 2006-2 Demand Notes without first satisfying the Rating Agency
Confirmation Condition and the Rating Agency Consent Condition.
Section
11.22. Subrogation.
In
furtherance of and not in limitation of the Surety Provider’s equitable right of
subrogation, each of the Trustee, the Series 2006-2 Agent and CRCF acknowledge
that, to the extent of any payment made by the Surety Provider under the Surety
Bond with respect to interest on or principal of the Series 2006-2 Notes,
including any Preference Amount, as defined in the Surety Bond, the Surety
Provider is to be fully subrogated to the extent of such payment and any
additional interest due on any late payment, to the rights of the Series 2006-2
Noteholders under the Indenture. Each of CRCF and the Trustee agree to such
subrogation and, further, agree to take such actions as the Surety Provider
may
reasonably request in writing to evidence such subrogation.
Section
11.23. Termination
of Supplement.
This
Supplement shall cease to be of further effect when all outstanding Series
2006-2 Notes theretofore authenticated and issued have been delivered (other
than destroyed, lost, or stolen Series 2006-2 Notes which have been
101
replaced
or paid) to the Trustee for cancellation and CRCF has paid all sums payable
hereunder, the Surety Provider has been paid all Surety Provider Fees and all
other Surety Provider Reimbursement Amounts due hereunder, under the Surety
Bond
and under the Insurance Agreement, all Series 2006-2 Interest Rate Swaps shall
have been terminated and there are no amounts due and owing thereunder and,
if
the Series 2006-2 Demand Note Payment Amount on the Series 2006-2 Letter of
Credit Termination Date was greater than zero, the Series 2006-2 Cash Collateral
Account Surplus shall equal zero and all amounts have been withdrawn from the
Series 2006-2 Cash Collateral Account in accordance with Section 3.8(h).
Section
11.24. Condition
to Termination of CRCF’s Obligations.
Notwithstanding anything to the contrary in Section 11.1
of the
Base Indenture, so long as this Supplement is in effect, CRCF may not terminate
its obligations under the Indenture unless CRCF shall have delivered to the
Surety Provider and each Series 2006-2 Interest Rate Swap Counterparty an
Opinion of Counsel, in form and substance acceptable to the Surety Provider
and
each Series 2006-2 Interest Rate Swap Counterparty, to the effect that, in
the
event of a bankruptcy proceeding under the Bankruptcy Code in respect of CRCF,
the Lessor or any Lessee, the bankruptcy court would not avoid any amounts
distributed to the Series 2006-2 Noteholders, the Surety Provider or any Series
2006-2 Interest Rate Swap Counterparty in connection with such
termination.
Section
11.25. Collateral
Representations and Warranties of CRCF.
CRCF
hereby represents and warrants to the Trustee, the Administrative Agent, each
Funding Agent, each Purchaser Group, the Surety Provider and any Series 2006-2
Interest Rate Swap Counterparty that:
(a) the
Base
Indenture creates a valid and continuing security interest (as defined in the
applicable UCC) in the Collateral in favor of the Trustee for the benefit of
the
Noteholders, the Surety Provider and any Series 2006-2 Interest Rate Swap
Counterparty, which security interest is prior to all other liens, and is
enforceable as such as against creditors of and purchasers from CRCF. This
Supplement will create a valid and continuing security interest (as defined
in
the applicable UCC) in the Series 2006-2 Collateral in favor of the Trustee
for
the benefit of the Series 2006-2 Noteholders, the Surety Provider and any Series
2006-2 Interest Rate Swap Counterparty, which security interest is prior to
all
other liens, and is enforceable as such as against creditors of and purchasers
from CRCF.
(b) The
Collateral and the Series 2006-2 Collateral (in each case, other than the
Vehicles) consist of “investment property,” “securities accounts,”
“instruments,” “general intangibles” and “deposit accounts” within the meaning
of the applicable UCC.
(c) CRCF
owns
and has good and marketable title to the Collateral and the Series 2006-2
Collateral free and clear of any lien, claim or encumbrance of any
Person.
(d) With
respect to the portion of the Collateral and
the
Series 2006-2 Collateral that
consists of instruments, all original executed copies of each instrument that
constitute or evidence part of the Collateral and the Series 2006-2 Collateral
have been delivered to the Trustee. None of the instruments that constitute
or
evidence the
102
Collateral
and the Series 2006-2 Collateral have any marks or notations indicating that
they have been pledged, assigned or otherwise conveyed to any Person other
than
the Trustee.
(e) With
respect to the portion of the Collateral and the Series 2006-2 Collateral that
consists of general intangibles, CRCF has caused the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest
in
the Collateral and the Series 2006-2 Collateral granted to the Trustee under
the
Base Indenture.
(f) With
respect to the portion of the Collateral and the Series 2006-2 Collateral that
consists of deposit or securities accounts maintained with a bank other than
the
Trustee (collectively, the “Bank
Accounts”),
CRCF
has delivered to the Trustee a fully executed agreement pursuant to which the
bank maintaining the Bank Accounts has agreed to comply with all instructions
originated by the Trustee directing disposition of the funds in the Bank
Accounts without further consent by CRCF. The Bank Accounts are not in the
name
of any person other than CRCF, the Series 2006-2 Agent or the Trustee. CRCF
has
not consented to the bank maintaining the Bank Accounts to comply with
instructions of any person other than the Trustee.
(g) Other
than the security interest granted to the Trustee under the Base Indenture
and
this Supplement, CRCF has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Collateral or the Series 2006-2
Collateral. CRCF has not authorized the filing of and is not aware of any
financing statements against CRCF that includes a description of collateral
covering the Collateral other than any financing statement under the Base
Indenture or that has been terminated. CRCF is not aware of any judgment or
tax
lien filings against CRCF.
(h) CRCF
has
not authorized the filing of and is not aware of any financing statements
against CRCF that include a description of collateral covering the
Collateral
and the
Series 2006-2 Collateral other than any financing statements (i) relating to
the
security interest granted to the Trustee in the Base Indenture or (ii) that
has
been terminated.
Section
11.26. No
Waiver; Cumulative Remedies.
No
failure to exercise and no delay in exercising, on the part of the Trustee,
the
Administrative Agent, the Surety Provider, any Funding Agent, any CP Conduit
Purchaser or any APA Bank, any right, remedy, power or privilege hereunder
shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative
and
not exhaustive of any rights, remedies, powers and privileges provided by
law.
Section
11.27. Waiver
of Setoff.
Notwithstanding any other provision of this Supplement or any other agreement
to
the contrary, all payments to the Administrative Agent, the Funding Agents,
the
CP Conduit Purchasers, the APA Banks hereunder and to the Surety Provider as
the
subrogee of the Noteholders shall be made without set-off or
counterclaim.
103
Section
11.28. Notices.
All
notices, requests, instructions and demands to or upon any party hereto to
be
effective shall be given (i) in the case of CRCF, the Administrator and the
Trustee, in the manner set forth in Section 13.1
of the
Base Indenture, (ii) in the case of the Surety Provider and any Series 2006-2
Interest Rate Hedge Counterparty, in the manner set forth in Section
11.13
and
(iii) in the case of the Administrative Agent, the CP Conduit Purchasers, the
APA Banks and the Funding Agents, in writing, and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand or three days after being deposited in the mail, postage prepaid, in
the
case of facsimile notice, when received, or in the case of overnight air
courier, one Business Day after the date such notice is delivered to such
overnight courier, addressed as follows in the case of the Administrative Agent
and to the addresses therefor set forth in Schedule I, in the case of the
CP Conduit Purchasers, the APA Banks and the Funding Agents; or to such other
address as may be hereafter notified by the respective parties
hereto:
Administrative
Agent: Barclays
Bank PLC, as Administrative Agent
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇.
▇▇▇▇ ▇▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Section
11.29. Confidential
Information.
(a) The Trustee and each Series 2006-2 Noteholder will maintain the
confidentiality of all Confidential Information in accordance with procedures
adopted by the Trustee or such Series 2006-2 Noteholder in good faith to protect
Confidential Information of third parties delivered to such Person; provided,
that
such Person may deliver or disclose Confidential Information to: (i) such
Person’s directors, trustees, officers, employees, agents, attorneys,
independent or internal auditors and affiliates who agree to hold confidential
the Confidential Information substantially in accordance with the terms of
this
Section 11.29;
(ii) such Person’s financial advisors and other professional advisors who
agree to hold confidential the Confidential Information substantially in
accordance with the terms of this Section 11.29;
(iii)
any other Series 2006-2 Noteholder; (iv) any Person of the type that would
be,
to such Person’s knowledge, permitted to acquire Series 2006-2 Notes in
accordance with the requirements of the Indenture to which such Person sells
or
offers to sell any such Series 2006-2 Note or any part thereof or any
participation therein and that agrees to hold confidential the Confidential
Information substantially in accordance with this Section 11.29
(or in
accordance with such other confidentiality procedures as are acceptable to
CRCF); (v) any federal or state or other regulatory, governmental or judicial
authority having jurisdiction over such Person; (vi) the National Association
of
Insurance Commissioners or any similar organization, or any nationally
recognized rating agency that requires access to information about the
investment portfolio of such Person, (vii) any reinsurers or liquidity or credit
providers that agree to hold confidential the Confidential Information
substantially in accordance with this Section 11.29
(or in
accordance with such other confidentiality procedures as are acceptable to
CRCF); (viii) any Person acting as a placement agent or dealer with respect
to
any Commercial Paper (provided
that any
Confidential Information provided to any such placement agent or dealer does
not
reveal the identity of Cendant or any of its Affiliates); (ix) any other Person
with
104
the
consent of CRCF; or (x) any other Person to which such delivery or disclosure
may be necessary or appropriate (A) to effect compliance with any law, rule,
regulation, statute or order applicable to such Person, (B) in response to
any subpoena or other legal process upon prior notice to CRCF (unless prohibited
by applicable law, rule, order or decree or other requirement having the force
of law), (C) in connection with any litigation to which such Person is a party
upon prior notice to CRCF (unless prohibited by applicable law, rule, order
or
decree or other requirement having the force of law) or (D) if an
Amortization Event with respect to the Series 2006-2 Notes has occurred and
is continuing, to the extent such Person may reasonably determine such delivery
and disclosure to be necessary or appropriate in the enforcement or for the
protection of the rights and remedies under the Series 2006-2 Notes, the
Indenture or any other Related Document; and provided, further,
however,
that
delivery to Series 2006-2 Noteholders of any report or information required
by
the terms of the Indenture to be provided to Series 2006-2 Noteholders shall
not
be a violation of this Section 11.29.
Each
Series 2006-2 Noteholder agrees, except as set forth in clauses (v), (vi) and
(x) above, that it shall use the Confidential Information for the sole purpose
of making an investment in the Series 2006-2 Notes or administering its
investment in the Series 2006-2 Notes. In the event of any required disclosure
of the Confidential Information by such Series 2006-2 Noteholder, such Series
2006-2 Noteholder agrees to use reasonable efforts to protect the
confidentiality of the Confidential Information. Each Series 2006-2 Noteholder,
by its acceptance of a Series 2006-2 Note, will be deemed to have agreed to
be
bound by and to be entitled to the benefits of this Section 11.29.
(b) For
the
purposes of this Section 11.29,
“Confidential
Information”
means
information delivered to the Trustee or any Series 2006-2 Noteholder by or
on
behalf of CRCF in connection with and relating to the transactions contemplated
by or otherwise pursuant to the Indenture and the Related Documents;
provided,
that
such term does not include information that: (i) was publicly known or otherwise
known to the Trustee or such Series 2006-2 Noteholder prior to the time of
such
disclosure; (ii) subsequently becomes publicly known through no act or omission
by the Trustee, any Series 2006-2 Noteholder or any person acting on behalf
of
the Trustee or any Series 2006-2 Noteholder; (iii) otherwise is known or becomes
known to the Trustee or any Series 2006-2 Noteholder other than (x) through
disclosure by CRCF or (y) as a result of the breach of a fiduciary duty to
CRCF
or a contractual duty to CRCF; or (iv) is allowed to be treated as
non-confidential by consent of CRCF.
105
IN
WITNESS WHEREOF, each of the parties hereto have caused this Supplement to
be
duly executed by their respective officers thereunto duly authorized as of
the
day and year first above written.
|
CENDANT
RENTAL CAR FUNDING (AESOP)LLC,
as
Issuer
|
||||
|
By:
|
/s/:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
|
|||
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title:
Vice President, Assistant Secretary and
Assistant
Treasurer
|
|
AVIS
BUDGET CAR RENTAL, LLC,
as
Administrator
|
||||
|
By:
|
/s/:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice President, Assistant Secretary and
Assistant
Treasurer
|
|
BARCLAYS
BANK PLC,
as
Administrative Agent
|
||||
|
By:
|
/s/:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Director
|
|
STRATFORD
RECEIVABLES COMPANY, LLC,
as
a CP Conduit Purchaser
|
||||
|
By:
|
/s/:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Director
|
|
BARCLAYS
BANK PLC,
as
a Funding Agent and an APA Bank
|
||||
|
By:
|
/s/:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Associate Director
|
|
THE
BANK OF NEW YORK,
as
Trustee
|
||||
|
By:
|
/s/:
▇▇▇▇ ▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
|
|
THE
BANK OF NEW YORK,
as
Series 2006-2 Agent
|
||||
|
By:
|
/s/:
▇▇▇▇ ▇▇▇▇▇
|
|||
|
Name:
▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
|
SCHEDULE I
TO SERIES 2006-2 SUPPLEMENT
|
CP
Conduit
|
APA
Banks
|
Funding
Agent
|
APA
Bank Percentage
|
Commitment
Amount
|
Mandatory
Liquidity Percentage
|
|
|
1.
|
Stratford
Receivables Company, LLC
|
Barclays
Bank PLC
|
Barclays
Bank PLC
|
100%
|
$600,000,000
|
20%
|