Exhibit
10.1
AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC,
as Issuer
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee and Series 2005-2 Agent
_____________________
AMENDED AND RESTATED SERIES 2005-2 SUPPLEMENT
dated as of May 20, 2008
to
SECOND AMENDED AND RESTATED BASE INDENTURE
dated as of June 3, 2004
_____________________
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Page
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ARTICLE
I DEFINITIONS
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2
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ARTICLE
II SERIES 2005-2 ALLOCATIONS
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25
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Section
2.1 Establishment of Series 2005-2 Collection Account, Series
2005-2
Excess
Collection Account and Series 2005-2 Accrued Interest
Account
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25
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Section
2.2 Allocations with Respect to the Series 2005-2
Notes
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25
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Section
2.3 Payments to Noteholders and Each Series 2005-2 Interest
Rate Swap Counterparty
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29
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Section
2.4 Payment of Note Interest
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33
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Section
2.5 Payment of Note Principal
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33
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Section
2.6 Administrator’s Failure to Instruct the Trustee to
Make a Deposit or Payment
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37
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Section
2.7 Series-2005-2 Reserve Account
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38
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Section
2.8 Series 2005-2 Letters of Credit and Series 2005-2 Cash
Collateral Account
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40
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Section
2.9 Series 2005-2 Distribution Account
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44
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Section
2.10 Series 2005-2 Interest Rate Swaps
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46
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Section
2.11 Series 2005-2 Accounts Permitted Investments
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47
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Section
2.12 Series 2005-2 Demand Notes Constitute Additional
Collateral for Series 2005-2 Notes
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47
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ARTICLE
III AMORTIZATION EVENTS
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48
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ARTICLE
IV RIGHT TO WAIVE PURCHASE RESTRICTIONS
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49
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ARTICLE
V FORM OF SERIES 2005-2 NOTES
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51
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Section
5.1 Restricted Global Series 2005-2 Notes
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51
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Section
5.2 Temporary Global Series 2005-2 Notes; Permanent Global
Series 2005-2 Notes
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51
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ARTICLE
VI GENERAL
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51
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Section
6.1 Optional Repurchase
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51
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Section
6.2 Information
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52
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Section
6.3 Exhibits
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52
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Section
6.4 Ratification of Base Indenture
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52
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Section
6.5 Counterparts
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52
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Section
6.6 Governing Law
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52
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Section
6.7 Amendments
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52
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Section
6.8 Discharge of Indenture
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53
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Table of Contents
(continued)
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Page
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Section
6.9 Notice to Surety Provider, Rating Agencies and each Series
2005-2 Interest Rate Swap Counterparty
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53
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Section
6.10 Certain Rights of Surety Provider
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53
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Section
6.11 Surety Provider Deemed Noteholder and Secured
Party
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53
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Section
6.12 Capitalization of ABRCF
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54
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Section
6.13 [RESERVED]
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54
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Section
6.14 Third Party Beneficiary
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54
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Section
6.15 Prior Notice by Trustee to Surety Provider
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54
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Section
6.16 Effect of Payments by the Surety Provider
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54
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Section
6.17 Series 2005-2 Demand Notes
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55
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Section
6.18 Subrogation
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55
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Section
6.19 Termination of Supplement
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55
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Section
6.20 Condition to Termination of ABRCF’s
Obligations
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55
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Section
6.21 Confidential Information.
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56
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Section
6.22 Conditions to Effectiveness.
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57
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AMENDED
AND RESTATED SERIES 2005-2 SUPPLEMENT, dated as of May 20,
2008 (this “ Supplement ”), among AVIS
BUDGET RENTAL CAR FUNDING (AESOP) LLC (formerly known as
Cendant Rental Car Funding (AESOP) LLC), a special purpose
limited liability company established under the laws of
Delaware (“ ABRCF ”), The Bank of New York
Trust Company, N.A. (as successor in interest to The Bank of
New York) (“ BNY ”), a limited purpose
national banking association with trust powers, as trustee (in
such capacity, and together with its successors in trust
thereunder as provided in the Base Indenture referred to
below, the “ Trustee ”), and BNY, as agent
(in such capacity, the “ Series 2005-2 Agent
”) for the benefit of the Series 2005-2 Noteholders,
each Series 2005-2 Interest Rate Swap Counterparty and the
Surety Provider, to the Second Amended and Restated Base
Indenture, dated as of June 3, 2004, between ABRCF and the
Trustee (as amended, modified or supplemented from time to
time, exclusive of Supplements creating a new Series of Notes,
the “ Base Indenture ”).
PRELIMINARY STATEMENT
WHEREAS,
ABRCF, the Trustee and the Series 2005-2 Agent entered into
the Series 2005-2 Supplement, dated as of March 22, 2005 (the
“ Original Series 2005-2 Supplement ”),
pursuant to which the Series 2005-2 Notes were
issued;
WHEREAS,
pursuant to Section 12.2 of the Base Indenture, any
Supplement may be amended with the consent of ABRCF, the
Trustee, any applicable Enhancement Provider and the Required
Noteholders of a Series of Notes;
WHEREAS,
pursuant to Section 11.11 of the Original Series 2005-2
Supplement, the requirement contained in Section 12.2
of the Base Indenture shall be satisfied upon attaining the
consent of the Requisite Noteholders and the Surety Provider;
and
WHEREAS,
the parties hereto desire to amend and restate the Original
Series 2005-2 Supplement as set forth herein and upon (i) the
effectiveness of the letter dated as of the date hereof (the
“ Terminated Surety Provider Consent & Release
Letter ”) between ABRCF, the Trustee and the
Terminated Surety Provider, (ii) the effectiveness of the
letter dated as of the date hereof (collectively, the “
Series 2005-2 Noteholder Consent Letter ”)
between ABRCF, the Trustee and each of the Series 2005-2
Noteholders and (iii) the satisfaction of the conditions
precedent set forth in Section 6.22 hereof, each of the
Terminated Surety Provider and the Surety Provider will have
consented to the amendment and restatement of the Original
Series 2005-2 Supplement as set forth herein.
NOW,
THEREFORE, the parties hereto agree as follows:
DESIGNATION
There
was created a Series of Notes issued pursuant to the Base
Indenture and the Original Series 2005-2 Supplement and
such Series of Notes was designated generally as Series 2005-2
Floating Rate Rental Car Asset Backed Notes (the “
Series 2005-2 Notes ”).
The
proceeds from the initial sale of the Series 2005-2 Notes were
deposited in the Collection Account and were paid to ABRCF and
used to make Loans under the Loan
Agreements
to the extent that the Borrowers have requested Loans
thereunder and Eligible Vehicles were available for
acquisition or refinancing thereunder on the date of the
Original Series 2005-2 Supplement. Any such portion
of proceeds not so used to make Loans were deemed to be
Principal Collections.
The
Series 2005-2 Notes are a non-Segregated Series of Notes (as
more fully described in the Base
Indenture). Accordingly, all references in this
Supplement to “all” Series of Notes (and all
references in this Supplement to terms defined in the Base
Indenture that contain references to “all” Series
of Notes) shall refer to all Series of Notes other than
Segregated Series of Notes.
ARTICLE I
DEFINITIONS
(a) All
capitalized terms not otherwise defined herein are defined in
the Definitions List attached to the Base Indenture as
Schedule I thereto. All Article, Section,
Subsection or Exhibit references herein shall refer to
Articles, Sections, Subsections or Exhibits 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 2005-2 Notes
and not to any other Series of Notes issued by
ABRCF. In the event that a term used herein shall
be defined both herein and in the Base Indenture, the
definition of such term herein shall govern.
(b) The
following words and phrases shall have the following meanings
with respect to the Series 2005-2 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:
“
A&R Effective Date ” shall mean the date upon
which the conditions precedent set forth in Section 6.22
hereto have been satisfied.
“
ABCR ” means Avis Budget Car Rental, LLC
(formerly known as Cendant Car Rental Group,
LLC).
“
Adjusted Net Book Value ” means, as of any date
of determination, with respect to each Adjusted Program
Vehicle as of such date, the product of 0.965 and the Net Book
Value of such Adjusted Program Vehicle as of such
date.
“
Authorized Newspaper ” means the Luxemburger
Wort or other daily newspaper of general circulation in
Luxembourg (or if publication is not practical in Luxembourg,
in Europe).
“
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 City or in the city in
which the corporate trust office of the Trustee is located are
authorized or obligated by law or executive order to
close.
“
Certificate of Lease Deficit Demand ” means a
certificate substantially in the form of Annex A to the
Series 2005-2 Letters of Credit.
“
Certificate of Termination Date Demand ” means a
certificate substantially in the form of Annex D to the
Series 2005-2 Letters of Credit.
“
Certificate of Termination Demand ” means a
certificate substantially in the form of Annex C to the
Series 2005-2 Letters of Credit.
“
Certificate of Unpaid Demand Note Demand ” means
a certificate substantially in the form of Annex B to
the Series 2005-2 Letters of Credit.
“
Clearstream ” is defined in Section
5.2.
“
Confirmation Condition ” means, with respect to
any Bankrupt Manufacturer which is a debtor in Chapter 11
Proceedings, a condition that shall be satisfied upon the
bankruptcy court having competent jurisdiction over such
Chapter 11 Proceedings issuing an order that remains in effect
approving (i) the assumption of such Bankrupt
Manufacturer’s Manufacturer Program (and the related
Assignment Agreements) by such Bankrupt Manufacturer or the
trustee in bankruptcy of such Bankrupt Manufacturer under
Section 365 of the Bankruptcy Code and at the time of such
assumption, the payment of all amounts due and payable by such
Bankrupt Manufacturer under such Manufacturer Program and the
curing of all other defaults by the Bankrupt Manufacturer
thereunder or (ii) the execution, delivery and performance by
such Bankrupt Manufacturer of a new post-petition Manufacturer
Program (and the related assignment agreements) on the same
terms and covering the same Vehicles as such Bankrupt
Manufacturer’s Manufacturer Program (and the related
Assignment Agreements) in effect on the date such Bankrupt
Manufacturer became subject to such Chapter 11 Proceedings
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 90 th
calendar day following the initial filing in respect of such
Chapter 11 Proceedings.
“
Consent ” is defined in Article IV.
“
Consent Period Expiration Date ” is defined in
Article IV.
“
Demand Note Issuer ” means each issuer of a
Series 2005-2 Demand Note.
“
Designated Amounts ” is defined in Article
IV.
“
Disbursement ” means any Lease Deficit
Disbursement, any Unpaid Demand Note Disbursement, any
Termination Date Disbursement or any Termination Disbursement
under a Series 2005-2 Letter of Credit, or any combination
thereof, as the context may require.
“
Euroclear ” is defined in Section
5.2.
“
Excess Collections ” is defined in Section
2.3(f)(i).
“
Excluded Receivable Amount ” means, as of any
date of determination, the greater of the Moody’s
Excluded Receivable Amount and the Standard & Poor’s
Excluded Receivable Amount as of such date.
“
Finance Guide ” means the Black Book Official
Finance/Lease Guide.
“
Fixed Rate Payment ” means, for any Distribution
Date, the amount, if any, payable by ABRCF as the “Fixed
Amount” under any Series 2005-2 Interest Rate Swap after
the netting of payments due to ABRCF as the “Floating
Amount” from the Series 2005-2 Interest Rate Swap
Counterparty under such Series 2005-2 Interest Rate Swap on
such Distribution Date.
“
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.
“
Insurance Agreement ” means the Insurance
Agreement, dated as of A&R Effective Date, among the
Surety Provider, the Trustee and ABRCF, which shall constitute
an “Enhancement Agreement” with respect to the
Series 2005-2 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 2005-2 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 2005-2 Available Reserve
Account Amount on such Distribution Date (after only giving
effect to the withdrawal of any amounts in the Series 2005-2
Reserve Account made pursuant to Section 2.3(d) on such
Distribution Date), the Series 2005-2 Letter of Credit Amount
on such Distribution Date (after giving effect only to the
withdrawal of any amounts in the Series 2005-2 Cash Collateral
Account pursuant to Section 2.3(c) on such Distribution Date)
and the Series 2005-2 AESOP I Operating Lease Loan Agreement
Borrowing Base on such Distribution Date.
“
Lease Deficit Disbursement ” means an amount
drawn under a Series 2005-2 Letter of Credit pursuant to a
Certificate of Lease Deficit Demand.
“
LIBOR ” means, with respect to each Series 2005-2
Interest Period, a rate per annum to be determined by the
Trustee as follows:
(i) On
each LIBOR Determination Date, the Trustee will determine the
London interbank offered rate for U.S. dollar deposits for one
month that appears on the Reuters Screen LIBOR01 Page as it
relates to U.S. dollars as of 11:00 a.m., London time, on such
LIBOR Determination Date;
(ii) If,
on any LIBOR Determination Date, such rate does not appear on
the Reuters Screen LIBOR01 Page, the Trustee will request that
the principal London offices of each of four major banks in
the London interbank market selected by the
Trustee
provide
the Trustee with offered quotations for deposits in U.S.
dollars for a period of one month, commencing on the first day
of such Series 2005-2 Interest Period, to prime banks in the
London interbank market at approximately 11:00 a.m., London
time, on such LIBOR Determination Date and in a principal
amount equal to an amount of not less than $250,000 that is
representative of a single transaction in such market at such
time. If at least two such quotations are provided,
“LIBOR” for such Series 2005-2 Interest Period
will be the arithmetic mean of such quotations;
or
(iii) If
fewer than two such quotations are provided pursuant to clause
(ii), “LIBOR” for such Series 2005-2 Interest
Period will be the arithmetic mean of rates quoted by three
major banks in the City of New York selected by the Trustee at
approximately 11:00 a.m., New York City time, on such
LIBOR Determination Date for loans in U.S. dollars to leading
European banks, for a period of one month, commencing on the
first day of such Series 2005-2 Interest Period, and in a
principal amount equal to an amount of not less than $250,000
that is representative of a single transaction in such market
at such time; provided , however , that if the
banks selected as aforesaid by such Trustee are not quoting
rates as mentioned in this sentence, “LIBOR” for
such Series 2005-2 Interest Period will be the same as
“LIBOR” for the immediately preceding Series
2005-2 Interest Period.
“
LIBOR Determination Date ” means, with respect to
any Series 2005-2 Interest Period, the second London Banking
Day preceding the first day of such Series 2005-2 Interest
Period.
“
London Banking Day ” means any business day on
which dealings in deposits in United States dollars are
transacted in the London interbank market.
“
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 Total Principal Allocation ” means for
any Related Month the sum of all Series 2005-2 Principal
Allocations with respect to such Related Month.
“
Moody’s Excluded Manufacturer Receivable Specified
Percentage ” means, as of any date of determination,
with respect to each Moody’s Non-Investment Grade
Manufacturer as of such date, the percentage (not to exceed
100%) most recently specified in writing by Moody’s to
ABRCF and the Trustee and consented to by the Surety Provider
with respect to such Moody’s Non-Investment Grade
Manufacturer; provided , however , that as of
the A&R Effective
Date
the Moody’s Excluded Manufacturer Receivable Specified
Percentage for each Moody’s Non-Investment Grade
Manufacturer shall be 100%; provided further
that the initial Moody’s Excluded Manufacturer
Receivable Specified Percentage with respect to any
Manufacturer that becomes a Moody’s Non-Investment Grade
Manufacturer after the A&R Effective Date shall be
100%.
“
Moody’s Excluded Receivable Amount ” means,
as of any date of determination, the sum of the following
amounts with respect to each Moody’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 Moody’s
Non-Investment Grade Manufacturer and (ii) the Moody’s
Excluded Manufacturer Receivable Specified Percentage for such
Moody’s Non-Investment Grade Manufacturer as of such
date.
“
Moody’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
“Baa3” from Moody’s; provided that
any Manufacturer whose long-term senior unsecured debt rating
is downgraded from at least “Baa3” to below
“Baa3” by Moody’s after the A&R
Effective Date shall not be deemed a Moody’s
Non-Investment Grade Manufacturer until the thirtieth (30
th )
calendar day following such downgrade.
“
Original Series 2005-2 Closing Date ” means March
22, 2005.
“
Past Due Rent Payment ” is defined in Section
2.2(g).
“
Permanent Global Series 2005-2 Note” is defined
in Section 5.2.
“
Pre-Preference Period Demand Note Payments ”
means, as of any date of determination, the aggregate amount
of all proceeds of demands made on the Series 2005-2 Demand
Notes included in the Series 2005-2 Demand Note Payment Amount
as of the Series 2005-2 Letter of Credit Termination Date that
were paid by the Demand Note Issuers more than one year before
such date of determination; provided , however ,
that if an Event of Bankruptcy (or the
occurrence of an event described in clause (a) of the
definition thereof, without the lapse of a period of sixty
(60) consecutive days) with respect to a Demand Note Issuer
occurs during such one-year period, (x) the Pre-Preference
Period Demand Note Payments as of any date during the period
from and including the date of the occurrence of such Event of
Bankruptcy to and including the conclusion or dismissal of the
proceedings giving rise to such Event of Bankruptcy without
continuing jurisdiction by the court in such proceedings shall
equal the Pre-Preference Period Demand Note Payments as of the
date of such occurrence for all Demand Note Issuers and (y)
the Pre-Preference Period Demand Note Payments as of any date
after the conclusion or dismissal of such proceedings shall
equal the Series 2005-2 Demand Note Payment Amount as of the
date of the conclusion or dismissal of such
proceedings.
“
Premium Letter ” means the premium letter, dated
as of the A&R Effective Date, among the Surety Provider,
the Trustee and ABRCF.
“
Principal Deficit Amount ” means, as of any date
of determination, the excess, if any, of (i) the Series 2005-2
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
2005-2 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 any of
the Lessees of a petition for relief under Chapter 11 of the
Bankruptcy Code to but excluding the date on which each of the
Lessees shall have resumed making all payments of the portion
of Monthly Base Rent relating to Loan Interest required to be
made under the AESOP I Operating Lease, shall mean the excess,
if any, of (x) the Series 2005-2 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 2005-2
AESOP I Operating Lease Loan Agreement Borrowing Base on such
date and (2) the lesser of (a) the Series 2005-2 Liquidity
Amount on such date and (b) the Series 2005-2 Required
Liquidity Amount on such date.
“
Pro Rata Share ” means, with respect to any
Series 2005-2 Letter of Credit Provider as of any date, the
fraction (expressed as a percentage) obtained by dividing (A)
the available amount under such Series 2005-2 Letter of Credit
Provider’s Series 2005-2 Letter of Credit as of such
date by (B) an amount equal to the aggregate available amount
under all Series 2005-2 Letters of Credit as of such date;
provided , that only for purposes of calculating the
Pro Rata Share with respect to any Series 2005-2 Letter of
Credit Provider as of any date, if such Series 2005-2 Letter
of Credit Provider has not complied with its obligation to pay
the Trustee the amount of any draw under its Series 2005-2
Letter of Credit made prior to such date, the available amount
under such Series 2005-2 Letter of Credit Provider’s
Series 2005-2 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 2005-2 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 2005-2 Letter of Credit).
“
Qualified Interest Rate Swap Counterparty ” means
a counterparty (A) who is acceptable to the Surety Provider
(in the exercise of its reasonable judgment) and (B) who is a
bank or other financial institution, which is acceptable to
each Rating Agency or which has, or which has all of its
obligations under its Series 2005-2 Interest Rate Swap
guaranteed by a Person that has, (i) a short-term senior,
unsecured debt, deposit, claims paying or credit (as the case
may be) rating of at least “A-1”, or if such bank,
financial institution or Person does not have a short-term
senior, unsecured debt rating, then a long-term senior,
unsecured debt, deposit, claims paying or credit (as the case
may be) rating of at least “A+”, in each case,
from Standard & Poor’s and (ii) a short-term senior,
unsecured debt, deposit, claims paying or credit (as the case
may be) rating of “P-1”, or if such bank,
financial institution or Person does not have a short-term
senior, unsecured debt rating, then a long-term senior,
unsecured debt, deposit, claims paying or credit (as the case
may be) rating of at least “A1”, in each case,
from Moody’s.
“
Requisite Noteholders ” means Series 2005-2
Noteholders holding more than 50% of the Series 2005-2
Invested Amount.
“
Restricted Global Series 2005-2 Note ” is defined
in Section 5.1.
“
Reuters Screen LIBOR01 Page ” means the display
page currently designated as the Reuters Screen LIBOR01 Page
(or such other page as may replace such page on such service
for the purpose of displaying comparable rates) as reported by
Bloomberg Financial Market Commodities News.
“
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 ABRCF based on the average equipment and average
mileage of each Vehicle of such model class and model year
then leased under the AESOP I Operating Lease or the Finance
Lease; provided , further , that if no such
third-party data source or methodology shall have been so
approved or any such third-party data source or methodology is
not available, the Market Value of such Vehicle shall be equal
to a reasonable estimate of the wholesale market value of such
Vehicle as determined by the Administrator, based on the Net
Book Value of such Vehicle and any other factors deemed
relevant by the Administrator.
“
Series 2002-2 Notes ” means the Series of Notes
designated as the Series 2002-2 Notes.
“
Series 2002-3 Notes ” means the Series of Notes
designated as the Series 2002-3 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 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 Notes ” means the Series of Notes
designated as the Series 2006-2 Notes.
“
Series 2007-2 Notes ” means the Series of Notes
designated as the Series 2007-2 Notes.
“
Series 2008-1 Notes ” means the Series of Notes
designated as the Series 2008-1 Notes.
“
Series 2005-2 Accounts ” means each of the Series
2005-2 Distribution Account, the Series 2005-2 Reserve
Account, the Series 2005-2 Collection Account, the Series
2005-2 Excess Collection Account, the Series 2005-2 Cash
Collateral Account and the Series 2005-2 Accrued Interest
Account.
“
Series 2005-2 Accrued Interest Account ” is
defined in Section 2.1(b).
“
Series 2005-2 Adjusted Monthly Interest ” means,
for any Distribution Date, the sum of (i) an amount equal to
the product of (1) the Series 2005-2 Note Rate for the Series
2005-2 Interest Period ending on the day preceding such
Distribution Date, (2) the Series 2005-2 Outstanding Principal
Amount on the first day of such Series 2005-2 Interest Period
and (3) a fraction, the numerator of which is the actual
number of days in such Series 2005-2 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 at the
Series 2005-2 Note Rate).
“
Series 2005-2 AESOP I Operating Lease Loan Agreement
Borrowing Base ” means, as of any date of
determination, the product of (a) the Series 2005-2 AESOP I
Operating Lease Vehicle Percentage as of such date and (b) the
excess of (i) the AESOP I Operating Lease Loan Agreement
Borrowing Base as of such date over (ii) the
Excluded Receivable Amount as of such date.
“
Series 2005-2 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
2005-2 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 2005-2 Agent ” is defined in the recitals
hereto.
“
Series 2005-2 Available Cash Collateral Account Amount
” means, as of any date of determination, the amount on
deposit in the Series 2005-2 Cash Collateral Account (after
giving effect to any deposits thereto and withdrawals and
releases therefrom on such date).
“
Series-2005-2 Available Reserve Account Amount ”
means, as of any date of determination, the amount on deposit
in the Series 2005-2 Reserve Account (after giving effect to
any deposits thereto and withdrawals and releases therefrom on
such date).
“
Series 2005-2 Carryover Controlled Amortization Amount
” means, with respect to any Related Month during the
Series 2005-2 Controlled Amortization Period, the amount, if
any, by which the portion of the Monthly Total Principal
Allocation paid to the Series 2005-2 Noteholders pursuant to
Section 2.5(e) for the previous Related Month was less than
the Series 2005-2 Controlled Distribution Amount for the
previous Related Month; provided , however, that
for the first Related Month in the Series 2005-2 Controlled
Amortization Period, the Series 2005-2 Carryover Controlled
Amortization Amount shall be zero.
“
Series 2005-2 Cash Collateral Account ” is
defined in Section 2.8(f).
“
Series 2005-2 Cash Collateral Account Collateral
” is defined in Section 2.8(a).
“
Series 2005-2 Cash Collateral Account Surplus ”
means, with respect to any Distribution Date, the lesser of
(a) the Series 2005-2 Available Cash Collateral Account Amount
and (b) the lesser of (A) the excess, if any, of the Series
2005-2 Liquidity Amount (after giving effect to any withdrawal
from the Series 2005-2 Reserve Account on such Distribution
Date) over the Series 2005-2 Required Liquidity Amount on such
Distribution Date and (B) the excess, if any, of the Series
2005-2 Enhancement Amount (after giving effect to any
withdrawal from the Series 2005-2 Reserve Account on such
Distribution Date) over the Series 2005-2 Required Enhancement
Amount on such Distribution Date; provided ,
however that, on any date after the Series 2005-2
Letter of Credit Termination Date, the Series 2005-2 Cash
Collateral Account Surplus shall mean the excess, if any, of
(x) the Series 2005-2 Available Cash Collateral
Account
Amount
over (y) the Series 2005-2 Demand Note Payment Amount
minus the Pre-Preference Period Demand
Note Payments as of such date.
“
Series 2005-2 Cash Collateral Percentage ” means,
as of any date of determination, the percentage equivalent of
a fraction, the numerator of which is the Series 2005-2
Available Cash Collateral Amount as of such date and the
denominator of which is the Series 2005-2 Letter of Credit
Liquidity Amount as of such date.
“
Series 2005-2 Collateral ” means the Collateral,
each Series 2005-2 Letter of Credit, each Series 2005-2 Demand
Note, the Series 2005-2 Distribution Account Collateral, the
Series 2005-2 Interest Rate Swap Collateral, the Series 2005-2
Cash Collateral Account Collateral and the Series 2005-2
Reserve Account Collateral.
“
Series 2005-2 Collection Account ” is defined in
Section 2.1(b).
“
Series 2005-2 Controlled Amortization Amount ”
means (i) with respect to any Related Month during the Series
2005-2 Controlled Amortization Period other than the Related
Month immediately preceding the Series 2005-2 Expected Final
Distribution Date, $41,666,666.66 and (ii) with respect
to the Related Month immediately preceding the Series 2005-2
Expected Final Distribution Date, $41,666,666.70.
“
Series 2005-2 Controlled Amortization Period ”
means the period commencing at the opening of business on
November 1, 2011 (or, if such day is not a Business Day,
the Business Day immediately preceding such day) and
continuing to the earliest of (i) the commencement of the
Series 2005-2 Rapid Amortization Period, (ii) the date on
which the Series 2005-2 Notes are fully paid and (iii) the
termination of the Indenture.
“
Series 2005-2 Controlled Distribution Amount ”
means, with respect to any Related Month during the Series
2005-2 Controlled Amortization Period, an amount equal to the
sum of the Series 2005-2 Controlled Amortization Amount and
any Series 2005-2 Carryover Controlled Amortization Amount for
such Related Month.
“
Series 2005-2 Demand Note ” means each demand
note made by a Demand Note Issuer, substantially in the form
of Exhibit C , as amended, modified or restated from
time to time.
“
Series 2005-2 Demand Note Payment Amount ” means,
as of the Series 2005-2 Letter of Credit Termination Date, the
aggregate amount of all proceeds of demands made on the Series
2005-2 Demand Notes pursuant to Section 2.5(b) or (c)
that were deposited into the Series 2005-2 Distribution
Account and paid to the Series 2005-2 Noteholders during the
one year period ending on the Series 2005-2 Letter of Credit
Termination Date; provided , however , that if
an Event of Bankruptcy (or the occurrence of an event
described in clause (a) of the definition thereof, without the
lapse of a period of sixty (60) consecutive days) with respect
to a Demand Note Issuer shall have occurred during such one
year period, the Series 2005-2 Demand Note Payment Amount as
of the Series 2005-2 Letter of Credit Termination Date shall
equal the Series 2005-2 Demand Note Payment Amount as if it
were calculated as of the date of such
occurrence.
“
Series 2005-2 Deposit Date ” is defined in
Section 2.2.
“
Series 2005-2 Distribution Account ” is defined
in Section 2.9(a).
“
Series 2005-2 Distribution Account Collateral ”
is defined in Section 2.9(d).
“
Series 2005-2 Eligible Letter of Credit Provider
” means a Person satisfactory to ABCR, the Demand Note
Issuers and the Surety Provider and having, at the time of the
issuance of the related Series 2005-2 Letter of Credit, a
long-term senior unsecured debt rating (or the equivalent
thereof in the case of Moody’s or Standard &
Poor’s, as applicable) of at least “A+” from
Standard & Poor’s and at least “Al” from
Moody’s and a short-term senior unsecured debt rating of
at least “A-1” from Standard & Poor’s
and “P-1” from Moody’s that is (a) a
commercial bank having total assets in excess of $500,000,000,
(b) a finance company, insurance company or other financial
institution that in the ordinary course of business issues
letters of credit and has total assets in excess of
$200,000,000 or (c) any other financial institution;
provided , however , that if a Person is not a
Series 2005-2 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 2005-2 Eligible Letter
of Credit Provider until ABRCF has provided 10 days’
prior notice to the Rating Agencies that such Person has been
proposed as a Series 2005-2 Letter of Credit
Provider.
“
Series 2005-2 Enhancement ” means the Series
2005-2 Cash Collateral Account Collateral, the Series 2005-2
Letters of Credit, the Series 2005-2 Demand Notes, the Series
2005-2 Overcollateralization Amount and the Series 2005-2
Available Reserve Account Amount.
“
Series 2005-2 Enhancement Amount ” means, as of
any date of determination, the sum of (i) the Series 2005-2
Overcollateralization Amount as of such date, (ii) the Series
2005-2 Letter of Credit Amount as of such date, (iii) the
Series 2005-2 Available Reserve Account Amount as of such date
and (iv) the amount of cash and Permitted Investments on
deposit in the Series 2005-2 Collection Account (not including
amounts allocable to the Series 2005-2 Accrued Interest
Account) and the Series 2005-2 Excess Collection Account as of
such date.
“
Series 2005-2 Enhancement Deficiency ” means, on
any date of determination, the amount by which the Series
2005-2 Enhancement Amount is less than the Series 2005-2
Required Enhancement Amount as of such date.
“
Series 2005-2 Excess Collection Account ” is
defined in Section 2.1(b).
“
Series 2005-2 Expected Final Distribution Date ”
means the May 2012 Distribution Date.
“
Series 2005-2 Final Distribution Date ” means the
May 2013 Distribution Date.
“
Series 2005-2 Initial Invested Amount ” means the
aggregate initial principal amount of the Series 2005-2 Notes,
which, on each of the Original Series 2005-2 Closing Date and
on the A&R Effective Date, is $250,000,000.
“
Series 2005-2 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 2005-2 Interest Period shall have commenced on
and include the Original Series 2005-2 Closing Date and end on
and include April 19, 2005.
“
Series 2005-2 Interest Rate Swap ” is defined in
Section 2.10(a).
“
Series 2005-2 Interest Rate Swap Collateral ” is
defined in Section 2.10(d).
“
Series 2005-2 Interest Rate Swap Counterparty ”
means ABRCF’s counterparty under any Series 2005-2
Interest Rate Swap.
“
Series 2005-2 Interest Rate Swap Proceeds ” means
the amounts received by the Trustee from a Series 2005-2
Interest Rate Swap Counterparty from time to time in respect
of any Series 2005-2 Interest Rate Swap (including
amounts received from a guarantor or from
collateral).
“
Series 2005-2 Invested Amount ” means, when used
with respect to any date, an amount equal to the Series 2005-2
Outstanding Principal Amount plus the sum of (a) the
amount of any principal payments made to the Series 2005-2
Noteholders on or prior to such date with the proceeds of a
demand on the Surety Bond and (b) the amount of any principal
payments made to Series 2005-2 Noteholders that have been
rescinded or otherwise returned by the Series 2005-2
Noteholders for any reason.
“
Series 2005-2 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 2005-2 Invested Amount and the Series 2005-2
Overcollateralization Amount, determined during the Series
2005-2 Revolving Period as of the end of the Related Month,
or, during the Series 2005-2 Controlled Amortization Period
and the Series 2005-2 Rapid Amortization Period, as of the end
of the Series 2005-2 Revolving Period, and the denominator of
which shall be the greater of (I) the Aggregate Asset Amount
as of the end of the Related Month and (II) as of
the same date as in clause (I), the sum of the numerators used
to determine (i) invested percentages for allocations with
respect to Principal Collections (for all Series of Notes and
all classes of such Series of Notes) and (ii)
overcollateralization percentages for allocations with respect
to Principal Collections (for all Series of Notes that provide
for credit enhancement in the form of overcollateralization);
and
(b) when
used with respect to Interest Collections, the percentage
equivalent (which percentage shall never exceed 100%) of a
fraction, the numerator of which shall be the Accrued Amounts
with respect to the Series 2005-2 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 2005-2 Lease Interest Payment Deficit ”
means, on any Distribution Date, an amount equal to the
excess, if any, of (a) the aggregate amount of Interest
Collections which pursuant to Section 2.2(a), (b), (c) or (d)
would have been allocated to the Series 2005-2 Accrued
Interest Account if all payments of Monthly Base Rent required
to have been made under the Leases from and excluding the
preceding Distribution Date to and including such Distribution
Date were made in full over (b) the aggregate amount of
Interest Collections which pursuant to Section 2.2(a), (b),
(c) or (d) have been allocated to the Series 2005-2 Accrued
Interest Account (excluding any amounts paid into the Series
2005-2 Accrued Interest Account pursuant to the proviso in
Sections 2.2(c)(ii) and/or 2.2(d)(ii)) from and excluding the
preceding Distribution Date to and including such Distribution
Date.
“
Series 2005-2 Lease Payment Deficit ” means
either a Series 2005-2 Lease Interest Payment Deficit or a
Series 2005-2 Lease Principal Payment Deficit.
“
Series 2005-2 Lease Principal Payment Carryover Deficit
” means, for any Distribution Date, the excess of (x)
the Series 2005-2 Lease Principal Payment Deficit, if any, on
the preceding Distribution Date over (y) the amount
deposited in the Distribution Account on such preceding
Distribution Date pursuant to Section 2.5(b) on account of
such Series 2005-2 Lease Principal Payment
Deficit.
“
Series 2005-2 Lease Principal Payment Deficit ”
means on any Distribution Date the sum of (a) the Series
2005-2 Monthly Lease Principal Payment Deficit for such
Distribution Date and (b) the Series 2005-2 Lease Principal
Payment Carryover Deficit for such Distribution
Date.
“
Series 2005-2 Letter of Credit ” means an
irrevocable letter of credit, if any, substantially in the
form of Exhibit D issued by a Series 2005-2 Eligible
Letter of Credit Provider in favor of the Trustee for the
benefit of the Series 2005-2 Noteholders, each Series 2005-2
Interest Rate Swap Counterparty and the Surety Provider in
form and substance satisfactory to the Surety
Provider.
“
Series 2005-2 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 2005-2 Letter of Credit on which no draw has been
made pursuant to Section 2.8(c), as specified therein, and
(ii) if the Series 2005-2 Cash Collateral Account has been
established and funded pursuant to Section 2.8, the Series
2005-2 Available Cash Collateral Account Amount on such date
and (b) the aggregate outstanding principal amount of the
Series 2005-2 Demand Notes on such date.
“
Series 2005-2 Letter of Credit Expiration Date ”
means, with respect to any Series 2005-2 Letter of Credit, the
expiration date set forth in such Series 2005-2 Letter of
Credit, as such date may be extended in accordance with the
terms of such Series 2005-2 Letter of Credit.
“
Series 2005-2 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 2005-2 Letter of Credit on which no draw has been made
pursuant to Section 2.8(c),
as
specified therein, and (b) if the Series 2005-2 Cash
Collateral Account has been established and funded pursuant to
Section 2.8, the Series 2005-2 Available Cash Collateral
Account Amount on such date.
“
Series 2005-2 Letter of Credit Provider ” means
the issuer of a Series 2005-2 Letter of Credit.
“
Series 2005-2 Letter of Credit Termination Date ”
means the first to occur of (a) the date on which the
Series 2005-2 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 2005-2
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 2005-2 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 (j) of Article III; provided , however ,
that any event or condition of the type specified in clauses
(a) through (e) and (h) through (j) of Article III shall not
constitute a Series 2005-2 Limited Liquidation Event of
Default if (i) within the thirty (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 2005-2 Limited
Liquidation Event of Default or (ii) the Trustee shall have
received the written consent of the Surety Provider waiving
the occurrence of such Series 2005-2 Limited Liquidation Event
of Default.
“
Series 2005-2 Liquidity Amount ” means, as of any
date of determination, the sum of (a) the Series 2005-2 Letter
of Credit Liquidity Amount on such date and (b) the Series
2005-2 Available Reserve Account Amount on such
date.
“
Series 2005-2 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 2005-2 Maximum Amount ” means any of the
Series 2005-2 Maximum Manufacturer Amounts, the Series 2005-2
Maximum Non-Eligible Manufacturer Amount, the Series 2005-2
Maximum Non-Program Vehicle Amount or the Series 2005-2
Maximum Specified States Amount.
“
Series 2005-2 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 2005-2 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 2005-2 Maximum Manufacturer Amount ”
means, as of any day, any of the Series 2005-2 Maximum
Mitsubishi Amount, the Series 2005-2 Maximum Individual
Kia/Isuzu/Subaru Amount, the Series 2005-2 Maximum Individual
Hyundai/Suzuki Amount or the Series 2005-2 Maximum Aggregate
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount.
“
Series 2005-2 Maximum Mitsubishi Amount ” means,
as of any day, an amount equal to 10% of the aggregate Net
Book Value of all Vehicles leased under the Leases on such
day.
“
Series 2005-2 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 2005-2 Maximum Non-Program Vehicle Amount
” means, as of any day, an amount equal to the Series
2005-2 Maximum Non-Program Vehicle Percentage of the aggregate
Net Book Value of all Vehicles leased under the Leases on such
day.
“
Series 2005-2 Maximum Non-Program Vehicle Percentage
” means, as of any date of determination, the sum of (a)
60% 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 2005-2 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 2005-2 Monthly Interest ” means, with
respect to any Series 2005-2 Interest Period, an amount equal
to the product of (A) the Series 2005-2 Invested Amount on the
first day of such Series 2005-2 Interest Period, after giving
effect to any principal payments made on such date, (B) the
Series 2005-2 Note Rate for such Series 2005-2 Interest Period
and (C) the actual number of days in such Series 2005-2
Interest Period divided by 360.
“
Series 2005-2 Monthly Lease Principal Payment Deficit
” means, on any Distribution Date, an amount equal to
the excess, if any, of (a) the aggregate amount of Principal
Collections which pursuant to Section 2.2(a), (b), (c) or (d)
would have been allocated to the Series 2005-2 Collection
Account if all payments required to have been made under the
Leases from and excluding the preceding Distribution Date to
and including such Distribution Date were made in full over
(b) the aggregate amount of Principal Collections which
pursuant to Section 2.2(a), (b), (c) or (d) have been
allocated to the Series 2005-2 Collection Account (without
giving effect to any amounts paid into the Series 2005-2
Accrued Interest Account pursuant to the proviso in Sections
2.2(c)(ii) and/or 2.2(d)(ii)) from and excluding the preceding
Distribution Date to and including such Distribution
Date.
“
Series 2005-2 Moody’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
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 2005-2 Moody’s Highest Enhancement Rate
” means, as of any date of determination, the greater of
(a) 38.50% and (b) the sum of (i) 38.50% and (ii) the highest,
for any calendar month within the preceding twelve calendar
months, of the greater of (x) an amount (not less than zero)
equal to 100% minus the Measurement Month Average for
the immediately preceding Measurement Month and (y) an amount
(not less than zero) equal to 100% minus the Market
Value Average as of the Determination Date within such
calendar month (excluding the Market Value Average for any
Determination Date which has not yet occurred).
“
Series 2005-2 Moody’s Intermediate Enhanced Vehicle
Percentage ” means, as of any date of determination,
100% minus the sum of (a) the Series 2005-2
Moody’s Lowest Enhanced Vehicle Percentage and (b) the
Series 2005-2 Moody’s Highest Enhanced Vehicle
Percentage.
“
Series 2005-2 Moody’s Intermediate Enhancement
Rate ” means, as of any date of determination,
35.00%.
“
Series 2005-2 Moody’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 “Baa2” or higher from Moody’s as of such
date, (2) so long as any Eligible Non-Program Manufacturer has
a long-term senior unsecured debt rating of “Baa2”
or higher from Moody’s and no Manufacturer Event of
Default has occurred and is continuing with respect to such
Eligible Non-Program Manufacturer, the aggregate Net Book
Value of all Non-Program Vehicles leased under the AESOP I
Operating Lease manufactured by each such Eligible Non-Program
Manufacturer that are subject to a Manufacturer Program and
remain eligible for repurchase thereunder as of such date and
(3) the lesser of (A) the sum of (x) if as of such date any
Eligible Program Manufacturer has a long-term senior unsecured
debt rating of “Baa3” from Moody’s, the
aggregate Net Book Value of all Program Vehicles leased under
the AESOP I Operating Lease manufactured by each such Eligible
Program Manufacturer as of such date and (y) if as of such
date any Eligible Non-Program Manufacturer has a long-term
senior unsecured debt rating of “Baa3” from
Moody’s and no Manufacturer Event of Default has
occurred and is continuing with respect to such Eligible
Non-Program Manufacturer, the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease
manufactured by each such Eligible Non-Program Manufacturer
that are subject to a Manufacturer Program and remain eligible
for repurchase thereunder as of such date and (B) 10% of the
aggregate Net Book Value of all Vehicles leased under the
AESOP I Operating Lease as of such date and (b) the
denominator of which is the aggregate Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of such
date.
“
Series 2005-2 Moody’s Lowest Enhancement Rate
” means, as of any date of determination,
16.00%.
“
Series 2005-2 Moody’s Required Enhancement
Percentage ” means, as of any date of determination,
the sum of (i) the product of (A) the Series 2005-2
Moody’s Lowest Enhancement Rate and (B) the Series
2005-2 Moody’s Lowest Enhanced Vehicle Percentage as of
such date, (ii) the product of (A) the Series 2005-2
Moody’s Intermediate Enhancement Rate as of such date
and (B) the Series 2005-2 Moody’s Intermediate Enhanced
Vehicle Percentage as of such date, and (iii) the product of
(A) the Series 2005-2 Moody’s Highest Enhancement Rate
as of such date and (B) the Series 2005-2 Moody’s
Highest Enhanced Vehicle Percentage as of such
date.
“
Series 2005-2 Non-Investment Grade Manufacturer ”
means, as of any date of determination, any Moody’s
Non-Investment Grade Manufacturer or any Standard &
Poor’s Non-Investment Grade Manufacturer as of such
date.
“
Series 2005-2 Non-Investment Grade Manufacturer
Percentage ” means, with respect to any Series
2005-2 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 2005-2 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 2005-2 Note Owner ” means each beneficial
owner of a Series 2005-2 Note.
“
Series 2005-2 Note Rate ” means, for any Series
2005-2 Interest Period, the sum of 0.20% plus LIBOR for
such Series 2005-2 Interest Period.
“
Series 2005-2 Noteholder ” means the Person in
whose name a Series 2005-2 Note is registered in the Note
Register.
“
Series 2005-2 Notes ” means any one of the Series
2005-2 Floating Rate Rental Car Asset Backed Notes, executed
by ABRCF and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-1 , Exhibit
A-2 or Exhibit A-3 . Definitive Series
2005-2 Notes shall have such insertions and deletions as are
necessary to give effect to the provisions of Section 2.18 of
the Base Indenture.
“
Series 2005-2 Outstanding Principal Amount ”
means, when used with respect to any date, an amount equal to
(a) the Series 2005-2 Initial Invested Amount minus (b)
the amount of principal payments made to Series 2005-2
Noteholders on or prior to such date.
“
Series 2005-2 Overcollateralization Amount ”
means (i) as of any date on which no AESOP I Operating Lease
Vehicle Deficiency exists, the Series 2005-2 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
2005-2 AESOP I
Operating
Lease Loan Agreement Borrowing Base as of such date over (y)
the Series 2005-2 Invested Amount as of such
date.
“
Series 2005-2 Past Due Rent Payment ” is defined
in Section 2.2(g).
“
Series 2005-2 Percentage ” means, as of any date
of determination, a fraction, expressed as a percentage, the
numerator of which is the Series 2005-2 Invested Amount as of
such date and the denominator of which is the Aggregate
Invested Amount as of such date.
“
Series 2005-2 Principal Allocation ” is defined
in Section 2.2(a)(ii).
“
Series 2005-2 Rapid Amortization Period ” means
the period beginning at the close of business on the Business
Day immediately preceding the day on which an Amortization
Event is deemed to have occurred with respect to the Series
2005-2 Notes and ending upon the earliest to occur of (i) the
date on which the Series 2005-2 Notes are fully paid, the
Surety Provider has been paid all Surety Provider Fees and all
other Surety Provider Reimbursement Amounts then due and the
Series 2005-2 Interest Rate Swaps have been terminated and
there are no amounts due and owing thereunder, (ii) the Series
2005-2 Termination Date and (iii) the termination of the
Indenture.
“
Series 2005-2 Reimbursement Agreement ” means any
and each agreement providing for the reimbursement of a Series
2005-2 Letter of Credit Provider for draws under
its Series 2005-2 Letter of Credit as the same may be amended,
supplemented, restated or otherwise modified from time to
time.
“
Series 2005-2 Repurchase Amount ” is defined in
Section 6.1.
“
Series 2005-2 Required AESOP I Operating Lease Vehicle
Amount ” means, as of any date of determination, the
sum of the Series 2005-2 Invested Amount and the
Series 2005-2 Required Overcollateralization Amount
as of such date.
“
Series 2005-2 Required Enhancement Amount ”
means, as of any date of determination, the sum of (i) the
product of the Series 2005-2 Required Enhancement Percentage
as of such date and the Series 2005-2 Invested Amount as of
such date, (ii) the Series 2005-2 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 2005-2 Maximum Non-Program
Vehicle Amount as of such date, (iii) the Series 2005-2 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 2005-2
Maximum Mitsubishi Amount as of such date, (iv) the Series
2005-2 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 2005-2 Maximum
Individual Kia/Isuzu/Subaru Amount as of such date, (v) the
Series 2005-2 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 2005-2 Maximum
Individual Hyundai/Suzuki Amount as of such date, (vi)
the
Series
2005-2 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 2005-2
Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki Amount as of
such date, (vii) the Series 2005-2 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 2005-2 Maximum Specified States
Amount as of such date and (viii) the Series 2005-2 AESOP I
Operating Lease Vehicle Percentage as of the immediately
preceding Business Day of the excess, if any, of the
Non-Eligible Manufacturer Amount as of such date over the
Series 2005-2 Maximum Non-Eligible Manufacturer Amount as of
such date.
“
Series 2005-2 Required Enhancement Percentage ”
means, as of any date of determination, the greater of (i) the
Series 2005-2 Standard & Poor’s Required Enhancement
Percentage as of such date and (ii) the Series 2005-2
Moody’s Required Enhancement Percentage as of such
date.
“
Series 2005-2 Required Liquidity Amount ” means,
as of any date of determination, an amount equal to the
product of 4.00% and the Series 2005-2 Invested Amount as of
such date.
“
Series 2005-2 Required Overcollateralization Amount
” means, as of any date of determination, the excess, if
any, of the Series 2005-2 Required Enhancement Amount over the
sum of (i) the Series 2005-2 Letter of Credit Amount as of
such date, (ii) the Series 2005-2 Available Reserve Account
Amount on such date and (iii) the amount of cash and Permitted
Investments on deposit in the Series 2005-2 Collection Account
(not including amounts allocable to the Series 2005-2 Accrued
Interest Account) and the Series 2005-2 Excess Collection
Account on such date.
“
Series 2005-2 Required Reserve Account Amount ”
means, for any date of determination, an amount equal to the
greater of (a) the excess, if any, of the Series 2005-2
Required Liquidity Amount as of such date over the Series
2005-2 Letter of Credit Liquidity Amount as of such date and
(b) the excess, if any, of the Series 2005-2 Required
Enhancement Amount over the Series 2005-2 Enhancement Amount
(excluding therefrom the Series 2005-2 Available Reserve
Account Amount and calculated after giving effect to any
payments of principal to be made on the Series 2005-2 Notes)
as of such date.
“
Series 2005-2 Reserve Account ” is defined in
Section 2.7(a).
“
Series 2005-2 Reserve Account Collateral ” is
defined in Section 2.7(d).
“
Series 2005-2 Reserve Account Surplus ” means,
with respect to any Distribution Date, the excess, if any, of
the Series 2005-2 Available Reserve Account Amount over the
Series 2005-2 Required Reserve Account Amount on such
Distribution Date.
“
Series 2005-2 Revolving Period ” means the period
from and including the Original Series 2005-2 Closing Date to
the earlier of (i) the commencement of the Series
2005-2
Controlled
Amortization
Period and (ii) the commencement of the Series 2005-2 Rapid
Amortization Period.
“
Series 2005-2 Shortfall ” is defined in Section
2.3(g).
“
Series 2005-2 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 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) 34.75% 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 2005-2 Standard & Poor’s Highest
Enhancement Rate ” means, as of any date of
determination, the sum of the Series 2005-2 Standard &
Poor’s Intermediate Enhancement Rate as of such date and
10.00%.
“
Series 2005-2 Standard & Poor’s Intermediate
Enhanced Vehicle Percentage ” means, as of any date
of determination, 100% minus the sum of (a) the Series
2005-2 Standard & Poor’s Lowest Enhanced Vehicle
Percentage and (b) the Series 2005-2 Standard &
Poor’s Highest Enhanced Vehicle Percentage.
“
Series 2005-2 Standard & Poor’s Intermediate
Enhancement Rate ” means, as of any date of
determination, the greater of (a) 24.75% and (b) the sum of
(i) 24.75% and (ii) the highest, for any calendar month within
the preceding twelve calendar months, of the greater of (x) an
amount (not less than zero) equal to 100% minus the
Measurement Month Average for the immediately preceding
Measurement Month and (y) an amount (not less than zero) equal
to 100% minus the Market Value Average as of the
Determination Date within such calendar month (excluding the
Market Value Average for any Determination Date which has not
yet occurred).
“
Series 2005-2 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 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 2005-2 Standard & Poor’s Lowest
Enhancement Rate ” means, as of any date of
determination, 18.00%.
“
Series 2005-2 Standard & Poor’s Required
Enhancement Percentage ” means, as of any date of
determination, the sum of (i) the product of (A) the Series
2005-2 Standard & Poor’s Lowest Enhancement Rate and
(B) the Series 2005-2 Standard & Poor’s Lowest
Enhanced Vehicle Percentage as of such date, (ii) the product
of (A) the Series 2005-2 Standard & Poor’s
Intermediate Enhancement Rate as of such date and (B) the
Series 2005-2 Standard & Poor’s Intermediate
Enhanced Vehicle Percentage as of such date, and (iii) the
product of (A) the Series 2005-2 Standard & Poor’s
Highest Enhancement Rate as of such date and (B) the Series
2005-2 Standard & Poor’s Highest Enhanced Vehicle
Percentage as of such date.
“
Series 2005-2 Termination Date ” means the May
2013 Distribution Date.
“
Series 2005-2 Trustee’s Fees ” means, for
any Distribution Date during the Series 2005-2 Rapid
Amortization Period on which there exists a Series 2005-2
Lease Interest Payment Deficit, a portion of the fees payable
to the Trustee in an amount equal to the product of (i) the
Series 2005-2 Percentage as of the beginning of the Series
2005-2 Interest Period ending on the day preceding such
Distribution Date and (ii) the fees owing to the Trustee under
the Indenture; provided that the Series 2005-2
Trustee’s Fees in the aggregate for all Distribution
Dates shall not exceed 1.1% of the Series 2005-2 Required
AESOP I Operating Lease Vehicle Amount as of the last day of
the Series 2005-2 Revolving Period.
“
Series 2005-2 Unpaid Demand Amount ” means, with
respect to any single draw pursuant to Section 2.5(c) or (d)
on the Series 2005-2 Letters of Credit, the aggregate amount
drawn by the Trustee on all Series 2005-2 Letters of
Credit.
“
Shadow Rating ” means the rating of the Series
2005-2 Notes by Standard & Poor’s or Moody’s,
as applicable, without giving effect to the Surety
Bond.
“
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 ABRCF 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 A&R
Effective 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 A&R Effective 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.
“
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
A&R Effective Date shall not be deemed a Standard &
Poor’s Non-Investment Grade Manufacturer until the
thirtieth (30 th )
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
2005-2 Non-Investment Grade Manufacturer Percentages as of
such date.
“
Supplement ” is defined in the preamble
hereto.
“
Surety Bond ” means the Financial Guaranty
Insurance Policy No. SM-2008-293 dated as of the A&R
Effective Date, 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 Assured Guaranty Corp., a
Maryland corporation. The Surety Provider shall
constitute an “Enhancement Provider” with respect
to the Series 2005-2 Notes for all purposes under the
Indenture and the other Related Documents.
“
Surety Provider Fee ” is defined in the Insurance
Agreement.
“
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 this Supplement and 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 unpaid amounts due through such date
(including interest thereon determined in accordance with the
Insurance Agreement) to the Surety Provider pursuant to this
Supplement and the Insurance Agreement.
“
Temporary Global Series 2005-2 Note ” is defined
in Section 5.2.
“
Terminated Insurance Agreement ” means the
Insurance Agreement, dated as of the Original Series 2005-2
Closing Date, among the Terminated Surety Provider, the
Trustee and ABRCF.
“
Terminated Surety Bond ” means the Note Guaranty
Insurance Policy No. 05030005, dated the Original Series
2005-2 Closing Date, issued by the Terminated Surety
Provider.
“
Terminated Surety Provider ” means Financial
Guaranty Insurance Company, a New York stock insurance
company.
“
Termination Date Disbursement ” means an amount
drawn under a Series 2005-2 Letter of Credit pursuant to a
Certificate of Termination Date Demand.
“
Termination Disbursement ” means an amount drawn
under a Series 2005-2 Letter of Credit pursuant to a
Certificate of Termination Demand.
“
Trustee ” is defined in the recitals
hereto.
“
Unpaid Demand Note Disbursement ” means an amount
drawn under a Series 2005-2 Letter of Credit pursuant to a
Certificate of Unpaid Demand Note Demand.
“
Waivable Amount ” is defined in Ar
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