Exhibit 4.15


 


EXECUTION COPY


 


NATIONAL CAR
RENTAL FINANCING LIMITED PARTNERSHIP




as Issuer



and


 


THE BANK OF NEW
YORK,

as Trustee


 


 






 


FIFTH AMENDED AND
RESTATED BASE INDENTURE

Dated as of April 13, 2006


 






 


 


Rental Car Asset
Backed Notes

(Issuable in Series)


 

















 


FIFTH AMENDED AND
RESTATED BASE INDENTURE, dated as of April 13, 2006, between National Car
Rental Financing Limited Partnership, a special purpose limited partnership
established under the laws of Delaware, as issuer (“Issuer”). and The
Bank of New York, a New York banking corporation, as trustee (in such capacity,
the “Trustee”).


 


W
I  T  N  E  S  S  E  T  H:


 


WHEREAS, the parties
hereto have entered into that certain Fourth Amended and Restated Base
Indenture, dated as of March 4, 2005 (the “Original Base Indenture”);
and


 


WHEREAS, Section 12.2 of
the Original Base Indenture permits the Issuer and the Trustee, any applicable
Enhancement Provider and the Requisite Investors to enter into one or more
indentures supplemental to the Original Base Indenture; and


 


WHEREAS, the parties
hereto desire to amend and restate the Original Base Indenture; and


 


WHEREAS, the Issuer has
duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of one or more series of Rental Car Asset Backed
Notes (the “Notes”), issuable as provided in this Indenture; and


 


WHEREAS, all things
necessary to make this Indenture a legal, valid and binding agreement of
Issuer, enforceable in accordance with its terms, have been done, and Issuer proposes
to do all the things necessary to make the Notes, when executed by Issuer and
authenticated and delivered by the Trustee hereunder and duly issued by Issuer,
the legal, valid and binding obligations of Issuer as hereinafter provided.


 


NOW, THEREFORE, the
parties hereto agree that the Original Base Indenture shall be and hereby is
amended and restated in its entirety to read as follows:


 


ARTICLE 1.


 


DEFINITIONS AND
INCORPORATION BY REFERENCE


 


Section 1.1   Definitions.


 


Certain capitalized terms
used herein (including the preamble and the recitals hereto) shall have the
meanings assigned to such terms in the Definitions List attached hereto as Schedule
I (the “Definitions List”), as such Definitions List may be amended,
restated, supplemented or modified from time to time in accordance with the
provisions hereof.


 

















 


Section 1.2   Cross-References.


 


Unless otherwise
specified, references in this Indenture and in each other Related Document to
any Article or Section are references to such Article or Section of this
Indenture or such other Related Document, as the case may be, and, unless
otherwise specified, references in any Article, Section or definition to any
clause are references to such clause of such Article, Section or definition.


 


Section 1.3   Accounting and Financial Determinations; No
Duplication.


 


Where the character or
amount of any asset or liability or item of income or expense is required to be
determined, or any accounting computation is required to be made, for the
purpose of this Indenture, such determination or calculation shall be made; to
the extent applicable and except as otherwise specified in this Indenture, in
accordance with GAAP applied on a consistent basis. When used herein, the term “financial
statement” shall include the notes and schedules thereto. All accounting
determinations and computations hereunder or under any other Related Documents
shall be made without duplication.


 


Section 1.4   Rules of Construction.


 


In this Indenture, unless
the context otherwise requires:


 


(i)                                     “or”
is not exclusive;


 


(ii)                                  the
singular includes the plural and vice versa;


 


(iii)                               reference
to any Person includes such Person’s successors and assigns but, if applicable,
only if such successors and assigns are permitted by this Indenture, and reference
to any Person in a particular capacity only refers to such Person in such
capacity;


 


(iv)                              reference
to any gender includes the other gender;


 


(v)                                 reference
to any Requirement of Law means such Requirement of Law as amended, modified,
codified or reenacted, in whole or in part, and in effect from time to time;


 


(vi)                              “including”
(and with correlative meaning “include”) means including without limiting the
generality of any description preceding such term; and


 


(vii)                           with
respect to the determination of any period of time, “from” means “from and
including” and “to” means “to but excluding”.


 


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Section 1.5   Other Definitional Provisions.


 


(i)                                     All
terms defined in this Indenture or any Series Supplement shall have the
defined meanings when used in any certificate or document made or delivered
pursuant hereto unless otherwise defined therein.


 


(ii)                                  The
words “hereof,” “herein” and “hereunder” and words of similar import when used
in this Indenture shall refer to this Indenture as a whole and not to any
particular provision of this Indenture; and Section, subsection, Schedule and
Exhibit references contained in this Indenture are references to Sections,
subsections, Schedules and Exhibits in or to this Indenture unless otherwise
specified.


 


ARTICLE 2.


 


THE NOTES


 


Section 2.1   Designation and Terms of Notes.


 


Each Series of Notes
shall be substantially in the form specified in the applicable Series
Supplement and shall bear, upon its face, the designation for such Series to
which it belongs so selected by Issuer. All Notes of any Series shall, except
as specified in the related Series Supplement, be equally and ratably entitled
as provided herein to the benefits hereof without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terns and provisions of this Indenture and
the applicable Series Supplement. The aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is unlimited. Each
Series of Notes shall be issued in the minimum denominations set forth in the
related Series Supplement.


 


Section 2.2   Notes Issuable in Series.


 


The Notes may be issued
in one or more Series. Each Series of Notes shall be created by a Series
Supplement. Notes of a new Series may from time to time be executed by the
Issuer and delivered to the Trustee for authentication and thereupon the same
shall be authenticated and delivered by the Trustee upon the receipt by a Responsible
Officer of the Trustee of a Company Request at least two (2) Business Days (or
such shorter time as is acceptable to the Trustee) in advance of the related
Series Closing Date and upon delivery by the Issuer to the Trustee, and receipt
by a Responsible Officer of the Trustee, of the following:


 


(a)                                  a
Company Order authorizing and directing the authentication and delivery of the
Notes of such new Series by the Trustee and specifying the designation of such
new Series, the aggregate principal amount of Notes of such new Series to be


 


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authenticated and the Note Rate (or the method for
allocating interest payments or other cash flow) with respect to such new
Series;


 


(b)                                 a
Series Supplement in form satisfactory to the Trustee executed by the Issuer,
the General Partner and the Trustee and specifying the Principal Terms of such
new Series;


 


(c)                                  the
related Enhancement Agreement, if any, executed by each of the parties thereto,
other than the Trustee;


 


(d)                                 written
confirmation that the Rating Agency Confirmation Condition with respect to each
Outstanding Series of Notes shall have been satisfied with respect to such
issuance; provided, however, that if such Series is not a
Segregated Series, the Trustee shall have received written confirmation that
the Rating Agency Confirmation and Consent Condition with respect to each
Outstanding Series of Notes shall have been satisfied with respect to such
issuance;


 


(e)                                  an
Officer’s Certificate of the Issuer dated as of the applicable Series Closing
Date to the effect that (i) unless otherwise provided in a Series Supplement
for a Segregated Series in respect of the issuance of such Segregated Series (except
that an Amortization Event under Section 9.1(c) may not be waived in any
Series Supplement), no Amortization Event with respect to any Outstanding
Series of Notes, Enhancement Agreement Event of Default with respect to any
Outstanding Series of Notes, Enhancement Deficiency with respect to any
Outstanding Series of Notes, Lease Event of Default, Potential Amortization
Event with respect to any Outstanding Series of Notes, Potential Enhancement
Agreement Event of Default with respect to any Outstanding Series of Notes or
Potential Lease Event of Default is continuing or will occur as a result of the
issuance of the new Series of Notes, (ii) the issuance of the new Series of
Notes will not result in any breach of any of the terms, conditions or
provisions of or constitute a default under any indenture, mortgage, deed of
trust or other agreement or instrument to which the Issuer is a party or by
which it or its property is bound or any order of any court or administrative
agency entered in any suit, action or other judicial or administrative
proceeding to which the Issuer is a party or by which it or its property may be
bound or to which it or its property may be subject, (iii) unless otherwise
specified in the related Series Supplement for a Segregated Series in respect
of the issuance of such Segregated Series, all representations and warranties
of the Issuer set forth in the Indenture and each Related Document with respect
to each Outstanding Series of Notes are true and correct, without giving effect
to any limitations contained therein excluding Related Documents relating
solely to a Segregated Series, in all material respects (to the extent any such
representations and warranties do not incorporate a materiality limitation in
their terms) as of the Series Closing Date, (iv) all instruments furnished to
the Trustee conform in all material respects to the requirements of this Base
Indenture and the related Series Supplement and constitute all the documents
required to be delivered hereunder and thereunder for the Trustee to
authenticate and deliver the new Series of Notes, (v) all conditions precedent
provided in this Base Indenture and the related Series Supplement with respect
to the authentication and delivery of the new Series of Notes have been


 


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complied with and (vi) if such new Series of Notes is
a Segregated Series, the criteria used to select the Series-Specific Collateral
for such Notes will not have a material adverse effect on the quality of the
Collateral or any other Series-Specific Collateral securing any other
outstanding Series of Notes;


 


(f)                                    unless
otherwise specified in the related Series Supplement, an Opinion of Counsel,
subject to the assumptions and qualifications stated therein, and in a form
substantially acceptable to the Trustee, dated the applicable Series Closing
Date, substantially to the effect that:


 


(i)                                     (x)
the new Series of Notes will be treated as indebtedness for Federal income tax
purposes and (y) the issuance of such Series will not adversely affect the
Federal tax characterization of the Outstanding Notes of any Series;


 


(ii)                                  all
conditions precedent provided for in this Base Indenture and the related Series
Supplement with respect to the authentication and delivery of the new Series of
Notes have been complied with in all material respects;


 


(iii)                               (w)
the Issuer is duly organized under the jurisdiction of its formation and has,
or at the time of execution and delivery had, the power and authority to
execute and deliver the related Series Supplement, this Base Indenture and each
other Related Document to which it is a party (other than any Series
Supplement, Enhancement Agreement or other Related Document relating solely to
another Series of Notes) and to issue the new Series of Notes, (x) the General
Partner is duly organized under the jurisdiction of its organization and has,
or at the time of execution and delivery had, the power and authority to
execute and deliver the related Series Supplement, this Base Indenture and each
other Related Document to which it is a party (other than any Series
Supplement, Enhancement Agreement or other Related Document relating solely to
another Series of Notes) and to issue the new Series of Notes; (y) Vanguard, in
its capacity as Lessee and Servicer, and each Additional Lessee, is duly
incorporated or formed, as the case may be, in the jurisdiction of its
incorporation or formation, as the case may be, and had the corporate, limited
partnership or limited liability company, as the case may be, power and
authority to execute and deliver each of the Related Documents to which it is a
party relating solely to the newly issued Series of Notes and (z) Vanguard
Holdings, in its capacity as guarantor under the Lease, is duly incorporated in
the jurisdiction of its incorporation and had the power and authority to execute
and deliver the Lease and each other Related Document to which it is a party
relating solely to the newly issued Series of Notes;


 


(iv)                              the
related Series Supplement, this Base Indenture and each of the other Related
Documents to which the Issuer, the General Partner, each Lessee, the Servicer
or Vanguard Holdings is a party (other than any Series Supplement, Enhancement
Agreement or other Related Document relating solely to another Series of Notes)
have been duly authorized, executed and delivered by the Issuer,


 


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the General Partner, each
Lessee, the Servicer or Vanguard Holdings, as he case may be;


 


(v)                                 the
new Series of Notes has been duly authorized and executed and, when
authenticated and delivered in accordance with the provisions of this Base
Indenture and the related Series Supplement, will constitute valid, binding and
enforceable obligations of the Issuer entitled to the benefits of this Base
Indenture and the related Series Supplement, subject, in the case of
enforcement, to bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors’ rights generally and to general principles of
equity and by an implied covenant of good faith and fair dealing;


 


(vi)                              this
Base Indenture, the related Series Supplement and each of the other Related
Documents to which the Issuer, the General Partner, each Lessee, the Servicer
or Vanguard Holdings is a party (other than any Series Supplement, Enhancement
Agreement or other Related Document relating solely to another Series of Notes)
are legal, valid and binding agreements of the Issuer, the General Partner,
such Lessee, the Servicer or Vanguard Holdings, as the case may be, enforceable
in accordance with their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors’ rights
generally and to general principles of equity and by an implied covenant of
good faith and fair dealing;


 


(vii)                           the
Issuer is not, and is not controlled by, an “investment company” within the
meaning of, and is not required to register as an “investment company” under,
the Investment Company Act, and this Base Indenture and the related Series
Supplement are not required to be registered under the Trust Indenture Act;


 


(viii)                        the
offer and sale of the new Series of Notes is not required to be registered
under the Securities Act;


 


(ix)                                the
Indenture and the related Series Supplement are effective to create a legal,
valid and enforceable security interest in the Collateral and that such
security interest constitutes a first priority, perfected security interest in
the Collateral;


 


(x)                                   the
assets of the Issuer or the General Partner will not be substantively
consolidated with the assets of Vanguard Holdings or any Lessee in the event of
the insolvency of Vanguard Holdings or such Lessee;


 


(xi)                                there
does not exist any pending or threatened litigation which, if adversely
determined, would materially and adversely affect the ability of the Issuer,
any Lessee, Vanguard Holdings or the Servicer to perform its obligations under
any of the Related Documents;


 


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(xii)                             there
is no conflict with or violation of any court decree, injunction, writ or order
applicable to the Issuer or any breach or default of any indenture, agreement
or other instrument as a result of the issuance of such Series of Notes by
Issuer; and


 


(xiii)                          such
other matters as the Trustee may reasonably require;


 


(g)                                 executed
counterparts of the Lease, duly executed by the parties thereto;


 


(h)                                 evidence
that each of the parties to the Related Documents has covenanted and agreed
that, prior to the date which is one year and one day after the payment in full
of the latest maturing Note, it will not institute against, or join with any
other Person in instituting, against the Issuer, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings, under any Federal or state bankruptcy or similar law;


 


(i)                                     evidence
of the grant by the Issuer to the Trustee of a first priority, perfected
security interest in and to the Collateral;


 


(j)                                     evidence
(which, in the case of the filing of financing statements on form UCC-1, may be
telephonic, followed by prompt written confirmation) that the Issuer has caused
all filings (including filing of financing statements on form UCC-1) and
recordings to be accomplished as may be reasonably required by law to
establish, perfect, protect and preserve the rights, titles, interests, remedies,
powers, privileges, licenses and security interest of the Trustee in the
Collateral for the benefit of the Secured Parties; and


 


(k)                                  such
other documents, instruments, certifications, agreements or other items as the
Trustee may reasonably require.


 


Upon satisfaction of such conditions, the Trustee
shall authenticate and deliver, as provided above, such Series of Notes upon
execution thereof by the Issuer. There is no limit to the number of issuances
of new Series of Notes under this Base Indenture. For so long as any Group I
Notes shall remain outstanding, no other series of Notes designated as Group I
Notes may be issued under this Base Indenture.


 


Section 2.3   Series Supplement for Each Series.


 


(a)                                  In
conjunction with the issuance of a new Series, the parties hereto shall execute
a Series Supplement, which shall specify the relevant terms with respect to
such new Series of Notes, which shall include, as applicable: (i) its name or
designation, (ii) the aggregate principal amount of Notes of such Series to be
issued and a method for determining the aggregate principal amount of Notes of
any Series with a variable principal amount, (iii) the Note Rate (or the method
for calculating such Note Rate) with respect to such Series, (iv) the interest
payment date or dates and the date or dates from which interest shall accrue,
(v) the method of allocating Collections with respect to such


 


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Series and the method by which the principal amount of
Notes of such Series shall amortize or accrete, (vi) the names of any accounts
to be used by such Series and the terms governing the operation of any such
account, (vii) the terms of any Enhancement, (viii) the Enhancement Provider,
if any, (ix) whether the Notes may be issued in bearer form and any limitations
imposed thereon, (x) the Series Termination Date, (xi) whether the Notes will
be issued in multiple classes and, if so, the method of allocating Collections
among such classes, (xii) whether such Series of Notes shall have the benefit
of Series-Specific Collateral and (xiii) any other relevant terms of such
Series of Notes that do not (subject to Section 2.3(b) and Article
12) change the terms of any Outstanding Series of Notes or otherwise
materially conflict with the provisions of this Indenture and that do not
prevent the satisfaction of the Rating Agency Confirmation Condition with
respect to each Outstanding Series of Notes with respect to the issuance of
such new Series (all such terms, the “Principal Terms” of such Series);


 


(b)                                 (i)
A Series Supplement may specify that the related Series of Notes (each, a “Segregated
Series”) will have collateral that is to be solely for the benefit of the
Noteholders of such Segregated Series of Notes and any other Segregated Series
of Notes specified in such Series Supplement (such collateral being referred to
as “Series-Specific Collateral”). If any Series-Specific Collateral with
respect to a Segregated Series is specified, such Series Supplement shall
expressly designate the related Segregated Series of Notes as a “Segregated
Series” for purposes of this Base Indenture; provided, however,
that no such Segregated Series of Notes will be issued unless (x) the Rating
Agency Confirmation Condition with respect to each Outstanding Series of Notes
is met with respect to the issuance of such Segregated Series of Notes, (y) the
Issuer shall have delivered to the Trustee an Officer’s Certificate to the
effect that the issuance of such Segregated Series of Notes will not have a
material adverse effect (excluding any impact from the dilution of the
interests or voting percentage of the existing Noteholders as a result of such
issuance) upon the Noteholders of any Series of Notes outstanding at the time
of the issuance of the Segregated Series of Notes, and (z) the applicable
Series Supplement provides, in form satisfactory to the Trustee, for the
changes and modifications to the Indenture and the other Related Documents as
are described in clause (ii) below.


 


(ii)                                  In
the event any Segregated Series of Notes is issued, the related Series
Supplement will (A) provide that the Servicer, the Master Collateral Agent and
the Trustee will identify the Series-Specific Collateral for such Segregated
Series of Notes such that (x) the Series-Specific Collateral will secure only
the Segregated Series of Notes to which such Series-Specific Collateral is
applicable, (y) the Noteholders with respect to any other Series of Notes will
not be entitled to the benefit of such Series-Specific Collateral and (z) the
Noteholders of the Segregated Series of Notes will not be entitled to the
benefit of the Collateral or any Series-Specific Collateral securing other
Segregated Series of Notes, (B) provide that the Trustee will adjust the
allocations and distributions to be made under the Indenture at the written
direction of the Servicer so that the Noteholders with respect to the
Segregated Series of Notes will be entitled to allocations and


 


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distributions arising
solely from the Series-Specific Collateral applicable to such Segregated Series
of Notes and the Noteholders with respect to the non-Segregated Series of Notes
will be entitled to allocations and distributions arising solely from the
non-Series-Specific Collateral, (C) provide that the Trustee will act as
collateral agent under the Indenture (and in such capacity the Trustee,
together with the Master Collateral Agent, shall (x) establish and maintain a
segregated collection account with respect to each Segregated Series of Notes
or group of Segregated Series of Notes sharing in the same Series-Specific
Collateral, into which collections on such Series-Specific Collateral will be
deposited and (y) hold its lien encumbering the non-Series-Specific Collateral
for the benefit of the non-Segregated Series of Notes and hold its lien
encumbering the Series-Specific Collateral for the benefit of the applicable
Segregated Series of Notes), (D) provide that the Servicer and the Master
Collateral Agent each will designate on its computer system the source of the
funds for the financing of each Vehicle, (E) provide that the Noteholders of
the Segregated Series of Notes will, subject to the limitations contained in
this Base Indenture and the applicable Series Supplement, be entitled to direct
the Trustee and the Master Collateral Agent in writing to exercise the remedies
under the Indenture and the Master Collateral Agency Agreement, as applicable,
solely on behalf of such Segregated Series of Notes, (F) provide that separate monthly
reports and other information will be furnished under the Indenture for the
Series-Specific Collateral, which monthly reports and other information will
contain substantially the same type of information as the monthly reports
provided under the Indenture prior to the issuance of such Segregated Series of
Notes, (G) provide that separate notes secured by separate leases pertaining
solely to the Series-Specific Collateral will be issued by the Issuer and such
separate leases will be executed and delivered by the Lessee and, if
applicable, Vanguard Holdings, (H) provide that to the extent specified in the
Series Supplement for such Segregated Series of Notes, the Issuer and each
Lessee, as the case may be, will take such actions as are necessary to perfect
(1) the Master Collateral Agent’s interest in the portion of the
Series-Specific Collateral that would constitute Pledged Master Collateral and
to designate the Trustee, on behalf of the Noteholders of such Series and any
other Segregated Series specified in such Series Supplement, as the “Financing
Source” and the Noteholders of such Segregated Series or their agent, as the “Beneficiary”
under the Master Collateral Agency Agreement with respect to the Series
-Specific Collateral and (2) the Trustee’s interest on behalf of the
Noteholders of such Segregated Series in the Series-Specific Collateral, (I)
provide that amendments will be made to this Indenture and the other Related
Documents, if necessary, to reflect the foregoing, which amendments will, among
other things, provide for revisions to the terms “Aggregate Asset Amount”, “Secured
Parties”, “Collateral”, “Collection Account”, “Collateral Agreements”, “Issuer
Obligations”, “Lease”, “Related Documents” and such other terms as may be
appropriate to reflect the creation of the Segregated Series, provided that any
such amendment shall not have a material adverse effect (excluding any impact
from the dilution of the interests or voting percentage of the existing
Noteholders as a


 


9

















 


result of such issuance)
on the Noteholders of any Series unless the Required Noteholders of such Series
shall have given their prior written consent thereto (and, with respect to each
Series, the Trustee may conclusively rely on an Officer’s Certificate of any
Lessee as sufficient evidence of such lack of a material adverse effect), (J)
provide that for purposes of the Segregated Series, terms that are defined both
in the applicable Series Supplement and in the Definitions List, shall for
purposes of such Series Supplement and the Base Indenture as it relates to such
Segregated Series, have the meanings assigned to them in such Series
Supplement, (K) provide that references herein to “all” or “each” Series of
Notes or words of similar import (other than as specifically stated herein)
shall be modified to refer to all or each Series of Notes other than any
Segregated Series of Notes which may hereafter be issued and (L) incorporate
provisions with respect to such Segregated Series of Notes which are
substantially similar to those contained in Sections 3.2, 3.3, 3.4,
13.16 and 13.17 and Articles 5, 6, 7, 8,
9 and 10.


 


Section 2.4   Execution and Authentication.


 


(a)                                  Each
Note shall be executed by the manual or the facsimile signature of an
Authorized Officer. Notes bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Issuer shall not be rendered invalid, notwithstanding
that such individual has ceased to be so authorized or does not hold such
office, in each case whether prior or subsequent to the authentication and
delivery of such Notes,


 


(b)                                 At
any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Notes of any particular Series executed by
the Issuer to the Trustee for authentication, together with one or more Company
Orders for the authentication and delivery of such Notes, and the Trustee, in
accordance with such Company Order and this Indenture, shall authenticate and
deliver such Notes.


 


(c)                                  No
Note shall be entitled to any benefit under this Indenture or be valid for any
purpose unless there appears on such Note a certificate of authentication substantially
in the form provided for herein, duly executed by the Trustee by the manual signature
of a Responsible Officer, Such signatures on such certificate shall be conclusive
evidence, and the only evidence, that the Note has been duly authenticated under
this Indenture. The Trustee may appoint an authenticating agent acceptable to
the Issuer to authenticate Notes. Unless limited by the term of such
appointment, an authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Issuer or an Affiliate of the Issuer.
The Trustee’s certificate of authentication shall be in substantially the
following form:


 


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This is one of the Notes
of a series issued under the within mentioned Indenture.


 


	
   

  	
  THE BANK OF NEW YORK,

  as Trustee

  
	
   

  	
   

  
	
   

  	
  Dated:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  



 


(d)                                 Each
Note shall be dated and issued as of the date of its authentication by the
Trustee.


 


(e)                                  Notwithstanding
the foregoing, if any Note shall have been authenticated and delivered
hereunder but never issued and sold by the Issuer, and the Issuer shall deliver
such Note to the Trustee for cancellation as provided in Section 2.14 together
with a written statement (which need not comply with Section 13.3 and
need not be accompanied by an Opinion of Counsel) stating that such Note has
never been issued and sold by the Issuer, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall not be entitled to the benefits of this Indenture.


 


Section 2.5   Form of Notes.


 


(a)                                  Notes
Issued to Affiliate Issuer. Any Series of Notes issued only to an Affiliate
Issuer shall be issued in the form of one or more Notes in fully registered form
without interest coupons substantially in the form set forth in the applicable
Series Supplement with such legends as may be applicable thereto, duly executed
by the Issuer and authenticated by the Trustee as provided in Section 2.4.
The aggregate initial principal amount of a Note issued to an Affiliate Issuer
may from time to time be increased or decreased in accordance with the
applicable Series Supplement by adjustments made on the records of the Note
Register.


 


(b)                                 Restricted
Global Note. If provided for in an applicable Series Supplement, any Series
of Notes (other than any Series of Notes issued only to an Affiliate Issuer),
or any class of such Series to be issued in the United States will be in registered
form and sold initially to institutional “accredited investors” within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act (each an “Institutional
Accredited Investor”) in reliance on an exemption from the registration
requirements of the Securities Act and thereafter (i) to “qualified
institutional buyers” (each a “Qualified Institutional Buyer”) within
the meaning of, and in reliance on, Rule 144A under the Securities Act (“Rule
144A”), (ii) outside the United States to a non-U.S. Person (as such term
is defined in Regulation S of the Securities Act) in a transaction in
compliance with Regulation S of the Securities Act, (iii) pursuant to an
effective registration statement


 


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under the Securities Act or (iv) in reliance on
another exemption under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States and any other applicable
jurisdiction, and as provided in the applicable Series Supplement, and prior to
any such sale, each such purchaser shall be deemed to have represented and
agreed as set forth in the applicable Series Supplement.


 


In addition, such
purchaser shall be responsible for providing additional information or
certification, as shall be reasonably requested by the Trustee or the Issuer,
to support the truth and accuracy of the foregoing acknowledgements,
representations and agreements, it being understood that such additional
information is not intended to create additional restrictions on the transfer
of the Notes. Such Series of Notes, unless otherwise provided in the applicable
Series Supplement and other than any Series of Notes only issued to an Affiliate
Issuer, shall be issued in the form of and represented by one or more permanent
global Notes in fully registered form without interest coupons (each, a “Restricted
Global Note”), substantially in the form set forth in the applicable Series
Supplement, with such legends as may be applicable thereto, which shall be
deposited on behalf of the subscribers for the Notes represented thereby with a
custodian for DTC, and registered in the name of DTC or a nominee of DTC, duly
executed by the Issuer and authenticated by the Trustee as provided in Section
2.4 for credit to the accounts of the subscribers at DTC. The aggregate
initial principal amount of a Restricted Global Note may from time to time be
increased or decreased by adjustments made on the records of the custodian for
DTC, DTC or its nominee, as the case may be, as hereinafter provided.


 


(c)                                  Temporary
Global Note; Permanent Global Note. If provided for in any applicable
Series Supplement, any Series of Notes (other than any Series of Notes issued
only to an Affiliate Issuer), or any class of such Series, offered and sold
outside of the United States will be offered and sold in reliance on Regulation
S (“Regulation S”) under the Securities Act and shall initially be issued
in the form of one or more temporary global Notes (each, a “Temporary Global
Note”) in fully registered form without interest coupons substantially in
the form set forth in the applicable Series Supplement with such legends as may
be applicable thereto, which shall be deposited on behalf of the subscribers of
the Notes represented thereby with a custodian for DTC registered in the name
of DTC or a nominee of DTC, duly executed by the Issuer and authenticated by
the Trustee as provided in Section 2.4, for credit to the respective
accounts of Euroclear and Clearstream. Interests in a Temporary Global Note
will be exchangeable, in whole or in part, for interests in a permanent global
note (a “Permanent Global Note”) in fully registered form without
interest coupons, representing Notes of the same Series, substantially in the
form set forth in the applicable Series Supplement, in accordance with the
provisions of the Temporary Global Note and this Indenture. Beneficial
interests in a Temporary Global Note may only be held through Euroclear or Clearstream.
The aggregate initial principal amount of the Temporary Global Note may from
time to time be increased or decreased by adjustments made on the records of
the custodian for DTC, DTC or its nominee, as the case may be, as hereinafter
provided.


 


12

















 


(d)                                 Variable
Funding Note. Any Series of variable funding notes shall initially be sold
to investors in reliance on an exemption from the registration requirements of
the Securities Act. Such Series of Notes shall be issued in the form of one or
more variable funding notes (each, a “Variable Funding Note”) in fully
registered form without interest coupons substantially in the form set forth in
the applicable Series Supplement with such legends as may be applicable
thereto, duly executed by the Issuer and authenticated by the Trustee as
provided in Section 2.4. The aggregate outstanding principal amount of a
Variable Funding Note may from time to time be increased or decreased in
accordance with the applicable Series Supplement by adjustments made on the
records of the Note Register.


 


Section 2.6   Registrar and Paving Agent.


 


(a)                                  The
Issuer shall (i) maintain an office or agency where Notes may be presented for
registration of transfer or for exchange (“Registrar”) and (ii) appoint
a paying agent (“Paying Agent”) at whose office or agency Notes may be
presented for payment. The Registrar shall keep a register of the Notes and of
their transfer and exchange (the “Note Register”). The Issuer may
appoint one or more co-registrars and one or more additional paying agents. The
term “Paying Agent” includes any additional paying agent and the term “Registrar”
includes any co-registrars. The Issuer may change any Paying Agent or Registrar
without prior notice to any Noteholder. The Issuer shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture. The
Trustee is hereby initially appointed as the Registrar, Paying Agent and agent
for service of notices and demands in connection with the Notes.


 


(b)                                 The
Issuer shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture. Such agency agreement shall implement the provisions
of this Indenture that relate to such Agent. The Issuer shall notify the Trustee
in writing of the name and address of any such Agent. If the Issuer fails to
maintain a Registrar or Paying Agent and a Responsible Officer has actual
knowledge of such failure, or if the Issuer fails to give the foregoing notice,
the Trustee shall act as such, and shall be entitled to appropriate
compensation in accordance with this Indenture, until the Issuer shall appoint
a replacement Registrar and Paying Agent.


 


Section 2.7  Paying Agent to Hold Money in Trust.


 


(a)                                  The
Issuer will cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee (and if the Trustee acts as Paying Agent, it hereby so
agrees), subject to the provisions of this Section, that such Paying Agent
will:


 


(i)                                     hold
all sums held by it for the payment of amounts due with respect to the Notes in
trust for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and pay such
sums to such Persons as herein provided;


 


13

















 


(ii)                                  give
the Trustee written notice of any default by the Issuer (or any other obligor
under the Notes) of which it (or, in the case of the Trustee, a Responsible
Officer) has actual knowledge in the making of any payment required to be made
with respect to the Notes;


 


(iii)                               at
any time during the continuance of any such default, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent;


 


(iv)                              immediately
resign as a Paying Agent and forthwith pay to the Trustee all sums held by it
in trust for the payment of Notes if at any time it ceases to meet the
standards required to be met by a Trustee hereunder at the time of its
appointment; and


 


(v)                                 comply
with all requirements of the Code with respect to the withholding from any
payments made by it on any Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting requirements in connection
therewith.


 


(b)                                 The
Issuer may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Company Order direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
the sums were held by such Paying Agent; and upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.


 


(c)                                  Subject
to applicable laws with respect to escheat of funds, any money held by the
Trustee, any Paying Agent or any Clearing Agency in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such
trust and be paid to the Issuer on Company Request; and the Holder of such Note
shall thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Trustee, such Paying Agent or such Clearing Agency
with respect to such trust money shall thereupon cease; provided, however,
that the Trustee, such Paying Agent or such Clearing Agency, before being
required to make any such repayment, may at the expense of the Issuer cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in New York
City and, if the related Series of Notes has been listed on the Luxembourg
Stock Exchange, and if the Luxembourg Stock Exchange so requires, in a
newspaper customarily published on each Luxembourg business day and of general circulation
in Luxembourg City, Luxembourg, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the


 


14

















 


Issuer. The Trustee may also adopt and employ, at the
expense of the Issuer, any other reasonable means of notification of such
repayment.


 


Section 2.8   Noteholder List.


 


The Trustee shall
preserve in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of Noteholders of each Series of
Notes. If the Trustee is not the Registrar, the Issuer shall furnish to the
Trustee at least seven Business Days before each Distribution Date and at such
other time as the Trustee may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of
Noteholders of each Series of Notes.


 


Section 2.9   Transfer and Exchange.


 


(a)                                  When
Notes of any particular Series are presented to the Registrar or a co-registrar
with a request to register a transfer or to exchange them for an equal principal
amount of Notes of other authorized denominations of the same Series, the Registrar
shall register the transfer or make the exchange if its requirements for such transaction
are met; provided, however, that the Notes surrendered for
transfer or exchange (a) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Registrar,
duly executed by the holder thereof or its attorney, duly authorized in writing
and (b) shall only be transferred or exchanged in compliance with the
applicable provisions set forth in the related Series Supplement.


 


(b)                                 Except
as otherwise provided in Section 2.16(d), the Trustee or the Registrar
shall not register the exchange of interests in a Note for a Definitive Note or
the transfer of or exchange of a Note during the period beginning on any Record
Date and ending on the next following Distribution Date.


 


(c)                                  The
Issuer or the Trustee may require payment of a sum sufficient to cover any
transfer tax or other governmental charge that may be imposed in connection with
any exchange or registration of transfer of Notes (other than any such transfer
tax or similar governmental charge payable upon exchanges pursuant to Section
2.13 hereof in which event the Registrar will be responsible for the
payment of any such taxes). No service charge shall be made for any such
transaction.


 


(d)                                 Reserved.


 


(e)                                  Reserved.


 


(f)                                    All
Notes issued upon any registration of transfer or exchange of Notes shall be
the valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.


 


15

















 


(g)                                 Prior
to due presentment for registration of transfer of any Note, the Trustee, any Agent and the
Issuer may deem and treat the Person in whose name any Note is registered (as
of the day of determination) as the absolute owner of such Note for the purpose
of receiving payment of principal of and interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and neither the Trustee, any Agent nor the
Issuer shall be affected by notice to the contrary.


 


(h)                                 Notwithstanding
any other provision of this Section 2.9, the typewritten Note or Notes
representing Book-Entry Notes for any Series may be transferred, in whole but
not in part, only to another nominee of the Clearing Agency for such Series, or
to a successor Clearing Agency for such Series selected or approved by the
Issuer or to a nominee of such successor Clearing Agency, only if in accordance
with this Section 2.9.


 


Section 2.10   Legending
of Notes.


 


Each Note shall bear a
legend in substantially the form set forth in the related Series Supplement, if
any.


 


Section 2.11   Replacement
Notes.


 


(a)                                  If
(i) any mutilated Note is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, and
(ii) there is delivered to the Trustee such security or indemnity as may be
required by it to hold the Issuer and the Trustee harmless and provided that
the requirements of Section 8-405 of the UCC (which generally permit Issuer to
impose reasonable requirements) are met, the Issuer shall execute and upon its
request the Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Note, a replacement Note of
like tenor and aggregate principal balance; provided, however,
that if any such destroyed, lost or stolen Note, but not a mutilated Note,
shall have become or within seven days shall be due and payable or shall have
been called for redemption, instead of issuing a replacement Note, the Issuer
may pay such destroyed, lost or stolen Note when so due or payable without
surrender thereof. If, after the delivery of such replacement Note or payment
of a destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note, the Issuer
and the Trustee shall be entitled to recover such replacement Note (or such
payment) from the Person to whom it was delivered or any Person taking such
replacement Note from such Person to whom such replacement Note was delivered or
any assignee of such Person, except a protected purchaser, and shall be
entitled to recover upon the security or indemnity provided therefor to the
extent of any loss, damage, cost or expense incurred by the Issuer or the
Trustee in connection therewith.


 


(b)                                 Upon
the issuance of any replacement Note under this Section 2.11, the
Registrar, the Trustee or the Issuer may require the payment by the Holder of such
Note of a sum sufficient to cover any tax or other governmental charge that may
be


 


16

















 


imposed in relation thereto and any other reasonable
expenses (including the fees and expenses of the Trustee) connected therewith.


 


(c)                                  Every
replacement Note issued pursuant to this Section 2.11 in replacement of any mutilated, destroyed,
lost or stolen Note shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Notes duly issued hereunder.


 


(d)                                 The
provisions of this Section 2.11 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.


 


Section 2.12   Treasury
Notes.


 


In determining whether
the Noteholders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Issuer or any Affiliate of the
Issuer (other than an Affiliate Issuer or as set forth in the related Series
Supplement) shall be considered as though they are not Outstanding, except that
for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes of which a
Responsible Officer of the Trustee has received written notice of such
ownership shall be so disregarded. Absent written notice to the Trustee of such
ownership, the Trustee shall not be deemed to have knowledge of the identity of
the individual beneficial owners of the Notes.


 


Section 2.13   Temporary
Notes.


 


(a)                                  Pending
the preparation of Definitive Notes, the Issuer may prepare and the Trustee,
upon receipt of a Company Order, shall authenticate and deliver temporary Notes
of such Series. Temporary Notes shall be substantially in the form of Definitive
Notes of like Series but may have variations that are not inconsistent with the
terms of this Indenture as the officers executing such Notes may determine, as
evidenced by their execution of such Notes.


 


(b)                                 If
temporary Notes are issued pursuant to Section 2.13(a) above, the Issuer
will cause Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive
Notes upon surrender of the temporary Notes at the office or agency of the Issuer
to be maintained as provided in Section 8.2, without charge to the
Noteholder. Upon surrender for cancellation of any one or more temporary Notes,
the Issuer shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.


 


17

















 


Section 2.14   Cancellation.


 


The Issuer may at any
time deliver to the Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Issuer may have acquired in any manner
whatsoever, and all Notes so delivered shall be promptly cancelled by the
Trustee. The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation. The Issuer may not issue new
Notes to replace Notes that it has redeemed or paid or that have been delivered
to the Trustee for cancellation. All cancelled Notes held by the Trustee shall
be disposed of in accordance with the Trustee’s standard disposition procedures
unless by a written order, signed by two Authorized Officers and received by a
Responsible Officer of the Trustee in a timely fashion, the Issuer shall direct
that cancelled Notes be returned to it.


 


Section 2.15   Principal
and Interest.


 


(a)                                  The
principal of each Series of Notes shall be payable at the times and in the
amounts set forth in the related Series Supplement and in accordance with Section
6.1.


 


(b)                                 Each
Series of Notes shall accrue interest as provided in the related Series
Supplement and such interest shall be payable at the times and in the amounts
set forth in the related Series Supplement and in accordance with Section
6.1.


 


(c)                                  Except
as provided in the following sentence, the Person in whose name any Note is
registered at the close of business on any Record Date with respect to a Distribution
Date for such Note shall be entitled to receive the principal and interest payable
on such Distribution Date notwithstanding the cancellation of such Note upon any
registration of transfer, exchange or substitution of such Note subsequent to
such Record Date. Any interest payable at maturity shall be paid to the Person
to whom the principal of such Note is payable.


 


(d)                                 If
the Issuer defaults in the payment of interest on the Notes of any Series, such
interest, to the extent paid on any date that is more than five (5) Business Days
after the applicable due date, shall, at the option of the Issuer, cease to be
payable to the Persons who were Noteholders of such Series at the applicable
Record Date and the Issuer shall pay the defaulted interest in any lawful
manner, plus, to the extent lawful, interest payable on the defaulted interest,
to the Persons who are Noteholders of such Series on a subsequent special
record date which date shall be at least five (5) Business Days prior to the
payment date, at the rate provided in this Indenture and in the Notes of such
Series. The Issuer shall fix or cause to be fixed each such special record date
and payment date, and at least 15 days before the special record date, the
Issuer (or the Trustee, in the name of and at the expense of the Issuer) shall
mail to Noteholders of such Series a notice that states the special record
date, the related payment date and the amount of such interest to be paid.


 


18

















 


Section 2.16 Book-Entry Notes.


 


(a)           For
each Series of Notes to be issued in registered form (other than the Variable
Funding Notes), the Issuer shall duly execute the Notes, and the Trustee shall,
in accordance with Section 2.4, authenticate and deliver initially one
or more Global Notes that (i) shall be registered on the Note Register in the
name of a Clearing Agency or such Clearing Agency’s nominee, and (ii) shall
bear such legends as are required by the related Series Supplement.


 


So long as the Clearing Agency or its nominee is the
registered owner or holder of a Global Note, the Clearing Agency or its
nominee, as the case may be, will be considered the sole owner or holder of the
Notes represented by such Global Note for purposes of this Indenture and such
Notes. Clearing Agency Participants shall have no rights under this Indenture
with respect to any Global Note held on their behalf by the Clearing Agency,
and the Clearing Agency may be treated by the Issuer, the Trustee, any Agent
and any agent of such entities as the absolute owner of such Global Note for
all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Issuer, the Trustee, any Agent and any agent of such entities from
giving effect to any written certification, proxy or other authorization
furnished by the Clearing Agency or impair, as between the Clearing Agency and
Clearing Agency Participants, the operation of customary practices governing
the exercise of the rights of a holder of any Note.


 


(b)           Subject
to Section 2.9(h), the provisions of the “Operating Procedures of the
Euroclear System” and the “Terms and Conditions Governing Use of Euroclear” and
the “Management Regulations” and “Instructions to Participants” of Clearstream,
respectively, shall be applicable to the Global Note insofar as interests in a Global
Note are held by the Clearing Agency Participants. Account holders, members of or
participants in Euroclear and Clearstream shall have no rights under this
Indenture with respect to such Global Note and the registered holder may be
treated by Issuer, the Trustee, any Agent and any agent of Issuer or the
Trustee as the owner of such Global Note for all purposes whatsoever.


 


(c)           Title
to the Notes shall pass only by registration in the Note Register maintained by
the Registrar pursuant to Section 2.6.


 


(d)           Any
typewritten Note or Notes representing Book Entry Notes shall provide that they
represent the aggregate or a specified amount of Outstanding Notes from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Notes represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a typewritten Note or Notes representing Book- Entry
Notes to reflect the amount, or any increase or decrease in the amount, or
changes in the rights of Note Owners represented thereby, shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 2.4.
Subject to the provisions of Section 2.5, the Trustee shall deliver and
redeliver any typewritten Note or Notes representing Book- Entry Notes in the
manner and upon instructions given by the Person or Persons specified


 


19

















 


therein or in the applicable Company Order. Any
instructions by the Issuer with respect to endorsement or delivery or
redelivery of a typewritten Note or Notes representing the Book-Entry Notes
shall be in writing but need not comply with Section 13.3 and need not
be accompanied by an Opinion of Counsel.


 


(e)                                  Unless
and until definitive Notes in fully registered form without interest coupons (“Definitive
Notes”) have been issued to Note Owners in accordance with Section 2.18:


 


(i)                                     the
provisions of this Section 2.16 shall be in full force and effect;


 


(ii)                                  the
Paying Agent, the Registrar and the Trustee may deal with the Clearing Agency
and the Clearing Agency Participants for all purposes of this Indenture
(including the making of payments on the Notes and the giving of instructions
or directions hereunder) as the authorized representatives of the Note Owners;


 


(iii)                               to
the extent that the provisions of this Section 2.16 conflict with any
other provisions of this Indenture, the provisions of this Section 2.16
shall control;


 


(iv)                              whenever
this Indenture requires or permits actions to be taken based upon instructions
or directions of Holders of Notes evidencing a specified percentage of the
Outstanding principal amount of the Notes, the applicable Clearing Agency shall
be deemed to represent such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or their related Clearing
Agency Participants owning or representing, respectively, such required percentage of the
beneficial interest in the Notes and has delivered such instructions to the
Trustee; and


 


(v)                                 the
rights of Note Owners shall be exercised only through the applicable Clearing
Agency and their related Clearing Agency Participants and shall be limited to
those established by law and agreements between such Note Owners and their
related Clearing Agency and/or the Clearing Agency Participants. Unless and
until Definitive Notes are issued, the applicable Clearing Agencies will make
book-entry transfers among their related Clearing Agency Participants and
receive and transmit payments of principal and interest on the Notes to such
Clearing Agency Participants.


 


Section 2.17   Notices
to Clearing Agency.


 


Whenever notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners, the Trustee and
the Issuer shall give all such notices and communications specified herein to
be given to Noteholders to the applicable Clearing Agency for distribution to
the Note Owners.


 


20

















 


Section 2.18   Definitive
Notes.


 


(a)                                  Conditions
for Issuance. Unless otherwise specified in a related Series Supplement,
interests in a Restricted Global Note or Permanent Global Note deposited with
DTC or a custodian of DTC pursuant to Section 2.5 shall be transferred
to the beneficial owners thereof in the form of Definitive Notes only if such
transfer complies with Section 2.9 and (x) DTC notifies the Issuer that
it is unwilling or unable to continue as depositary for such Restricted Global
Note or Permanent Global Note or at any time ceases to be a “clearing agency”
registered under the Exchange Act, and, in either case, a successor depositary
so registered is not appointed by the Issuer within 90 days of such notice or
(y) the Issuer determines that the Restricted Global Note or Permanent Global
Note with respect to the relevant Series of Notes shall be exchangeable for
Definitive Notes, in which case Definitive Notes shall be issuable or
exchangeable only in respect of such Global Notes or the category of Definitive
Notes represented thereby or (z) DTC notifies the Trustee that any Note Owner
or Noteholder, purchaser or transferee of a beneficial interest in a Restricted
Global Note or a Permanent Global Note requests the same in the form of a
Definitive Note and the Issuer, in its sole discretion, consents to such
request (in which case a Definitive Note shall be issuable or transferable only
to such Note Owner, Noteholder, purchaser or transferee). In such event, the
Issuer will deliver Definitive Notes in exchange for the Restricted Global
Notes or the Permanent Global Notes or, in the case of an exchange or transfer
described in clause (y) or (z) above, in exchange for the applicable beneficial
interest in one or more Global Notes. Unless otherwise provided in a related
Series Supplement, Definitive Notes shall be issued only in minimum
denominations of U.S. $200,000 and integral multiples of U.S. $1,000 in excess
thereof, subject to compliance with all applicable legal an i regulatory
requirements.


 


(b)                                 Issuance.
If interests in any Restricted Global Note or Permanent Global Note, as the
case may be, are to be transferred to the beneficial owners thereof in the form
of Definitive Notes pursuant to this Section 2.18, such Restricted
Global Note or Permanent Global Note, as the case may be, shall be surrendered
by DTC or the custodian for DTC to the office or agency of the Registrar
located in the Borough of Manhattan, The City of New York, or if the Notes are
listed on the Luxembourg Stock Exchange, to the applicable Luxembourg Agent in
Luxembourg, to be so transferred, without charge. The Trustee shall
authenticate and deliver, upon such transfer of interests in such Restricted
Global Note or Permanent Global Note, an equal aggregate principal amount of
Definitive Notes of authorized denominations. The Definitive Notes transferred
pursuant to this Section 2.18 shall be registered in such names as DTC
shall direct in writing. Upon the occurrence of any of the events set forth in
the first sentence of Section 2.18(a), the Issuer will promptly make
available to the Trustee a reasonable supply of Definitive Notes. Upon receipt
of such Definitive Notes and the applicable registration information, the
Trustee shall promptly authenticate and deliver such Definitive Notes. The
Issuer shall bear the costs and expenses of printing or preparing any
Definitive Notes.


 


21

















 


Section 2.19   Tax
Treatment.


 


The Issuer has structured
this Indenture and the Notes have been (or will be) issued with the intention
that the Notes will qualify under applicable tax law as indebtedness and any
entity acquiring any direct or indirect interest in any Note by acceptance of
its Notes (or, in the case of a Note Owner, by virtue of such Note Owner’s
acquisition of a beneficial interest therein) agrees to treat the Notes (or
beneficial interests therein) for purposes of Federal, state and local income
or franchise taxes and any other tax imposed on or measured by income, as
indebtedness. Each Noteholder agrees that it will cause any Note Owner
acquiring an interest in a Note through it to comply with this Indenture as to
treatment as indebtedness for such tax purposes.


 


Section 2.20   CUSIP
Numbers.


 


The Issuer may use “CUSIP”
numbers in respect of any Series of Notes (if then generally in use), and, if
so, the Trustee shall use “CUSIP” numbers in notices of redemption in respect
of such Series of Notes as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Notes of such Series or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes of such Series, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Issuer will promptly notify the Trustee of any change in any such “CUSIP”
numbers.


 


ARTICLE 3.


 


SECURITY


 


Section 3.1   Grant of Security Interest.


 


(a)                                  To
secure the Issuer Obligations, the Issuer hereby pledges, assigns, conveys,
delivers, transfers and sets over to the Trustee, for the benefit of the Group
I Noteholders (the “Secured Parties”), and hereby grants to the Trustee,
for the benefit of the Secured Parties, a security interest in all of the
Issuer’s right, title and interest in, to and under the following assets,
property and interests in property, whether now owned or subsequently acquired
or arising, together with the portion of the Pledged Master Collateral with
respect to which the ARG Trustee is named as Beneficiary (all of such right,
title and interest being referred to as the “Collateral”):


 


(i)                                     the
Collateral Agreements (with respect to the Master Collateral Agency Agreement,
solely with respect to the portion of the Pledged Master Collateral for which
the Trustee (on behalf of the Secured Parties) is designated as a Financing Source
and the ARG Trustee is designated as a Beneficiary thereunder, and with respect
to the Assignment Agreements, solely as each such Assignment Agreement relates
to Vehicles), including, without limitation, all monies due and to become due
to the Issuer from any Lessee or the Servicer


 


22

















 


under or in connection
with the Collateral Agreements (with respect to the Master Collateral Agency
Agreement, solely with respect to the portion of the Pledged Master Collateral
for which the Trustee (on behalf of the Secured Parties) is designated as a
Financing Source and the ARG Trustee is designated as a Beneficiary thereunder,
and with respect to the Assignment Agreements, solely as each such Assignment
Agreement relates to Vehicles), whether payable as fees, expenses, costs,
indemnities, insurance recoveries, damages for the breach of any of the
Collateral Agreements (with respect to the Master Collateral Agency Agreement,
solely with respect to the portion of the Pledged Master Collateral for which
the Trustee (on behalf of the Secured Parties) is designated as a Financing
Source and the ARG Trustee is designated as a Beneficiary thereunder, and with
respect to the Assignment Agreements, solely as each such Assignment Agreement
relates to Vehicles) or otherwise, all security for amounts payable thereunder
and all rights, remedies, powers, privileges and claims of the Issuer against
any other party under or with respect to the Collateral Agreements (with
respect to the Master Collateral Agency Agreement, solely with respect to the
portion of the Pledged Master Collateral for which the Trustee (on behalf of
the Secured Parties) is designated as a Financing Source and the ARG Trustee is
designated as a Beneficiary thereunder, and with respect to the Assignment
Agreements, solely as each such Assignment Agreement relates to Vehicles)
(whether arising pursuant to the terms of such Collateral Agreements (with
respect to the Master Collateral Agency Agreement, solely with respect to the
portion of the Pledged Master Collateral for which the Trustee (on behalf of
the Secured Parties) is designated as a Financing Source and the ARG Trustee is
designated as a Beneficiary thereunder, and with respect to the Assignment
Agreements, solely as each such Assignment Agreement relates to Vehicles) or
otherwise available to the Issuer at law or in equity), the right to enforce
any of the Collateral Agreements (with respect to the Master Collateral Agency
Agreement, solely with respect to the portion of the Pledged Master Collateral
for which the Trustee (on behalf of the Secured Parties) is designated as a
Financing Source and the ARG Trustee is designated as a Beneficiary thereunder,
and with respect to the Assignment Agreements, solely as each such Assignment
Agreement relates to Vehicles) as provided herein and to give or withhold any
and all consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to the Collateral Agreements (with respect to the
Master Collateral Agency Agreement, solely with respect to the portion of the
Pledged Master Collateral for which the Trustee (on behalf of the Secured
Parties) is designated as a Financing Source and the ARG Trustee is designated
as a Beneficiary thereunder, and with respect to the Assignment Agreements,
solely as each such Assignment Agreement relates to Vehicles) or the
obligations of any party thereunder;


 


(ii)                                  (a)
the Collection Account, (b) all funds on deposit therein from time to time, (c)
all certificates and instruments, if any, representing or evidencing any or all
of the Collection Account or the funds on deposit therein from time to


 


23

















 


time, and (d) all
Permitted Investments made at any time and from time to time with the moneys in
the Collection Account or any administrative subacccount thereof (including
income thereon);


 


(iii)                               all
right, title and interest of the Issuer in, to and under the Master Collateral
Agency Agreement with respect to the portion of the Pledged Master Collateral
for which Trustee (on behalf of the Secured Parties) is designated as the
Financing Source and the ARG Trustee is designated as the Beneficiary
thereunder;


 


(iv)                              all
right, title and interest of the Issuer in, to and under all Eligible
Receivables from time to time financed by the Issuer hereunder;


 


(v)                                 all
additional property that may from time to time hereafter (pursuant to the terms
of any Series Supplement or otherwise) be subjected to the grant and pledge
hereof by the Issuer or by anyone on its behalf; and


 


(vi)                              all
proceeds, products, rents or profits of any and all of the foregoing including,
without limitation, payments under insurance (whether or not the Master
Collateral Agent or the Trustee is the loss payee thereof) or Vehicle
warranties and cash, but excluding Excluded Payments or Transferred Vehicle
Repurchase Rights from the time such Transferred Vehicle Repurchase Rights
become Transferred Vehicle Repurchase Rights as a result of the sale or pledge
of such Transferred Vehicle Repurchase Rights to the related Manufacturer
Receivables Transferee or Manufacturer Receivables Purchaser, as applicable.


 


(b)                                 To
secure the Issuer Obligations, the Issuer hereby confirms the grant, pledge,
hypothecation, assignment, conveyance, delivery and transfer to the Master Collateral
Agent under the Master Collateral Agency Agreement for the benefit of the Trustee
(on behalf of the Secured Parties) of a continuing first priority, perfected
Lien on all right, title and interest of Issuer in, to and under the Pledged
Master Collateral.


 


(c)                                  Reserved.


 


(d)                                 The
foregoing grant is made in trust to secure the Issuer Obligations and to secure
compliance with the provisions of this Indenture and any Group I Supplement,
all as provided in this Indenture. The Trustee, as Trustee on behalf of the
Secured Parties, acknowledges such grant, accepts the trusts under this
Indenture in accordance with the provisions of this Indenture and subject to Sections
10.1 and 10.2, agrees to perform its duties required in this
Indenture to the best of its abilities to the end that the interests of the
Secured Parties may be adequately and effectively protected. The Collateral
shall secure the Group I Notes equally and ratably without prejudice, priority or
distinction (except, in each case, with respect to any Series of Group I Notes,
as otherwise stated in the applicable Group I Supplement).


 


The Collateral has been
pledged to the Trustee to secure each Series of


 


24

















 


Group I Notes. For all purposes hereunder and for the
avoidance of doubt, the Collateral will be held by the Trustee solely for the
benefit of the Holders of the Group I Notes, and no Noteholder of a Segregated
Series of Notes will be considered a Secured Party with respect to the
Collateral. In addition, the Issuer may identify and pledge to the Trustee
additional pools of Series-Specific Collateral to secure a Segregated Series of
Notes, as specified in the Series Supplement with respect to such Segregated
Series of Notes. For all purposes hereunder and for the avoidance of doubt, any
Series-Specific Collateral pledged to the Trustee for the benefit of a
Segregated Series of Notes will be held by the Trustee solely for the benefit
of the Noteholders of such Segregated Series of Notes and no other Noteholders
shall be considered a Secured Party with respect to such Series-Specific
Collateral unless specifically provided in the Series Supplement for such
Segregated Series of Notes. For the avoidance of doubt, if it is determined
that the Noteholders of a Segregated Series of Notes have an interest in, to or
under the Collateral or Series-Specific Collateral other than the
Series-Specific Collateral securing such Segregated Series of Notes, then such Noteholders
agree that their interest in, to or under the Collateral or such
Series-Specific Collateral not securing such Noteholder’s Segregated Series of
Notes shall be subordinate in all respects to the claims or rights of the
Noteholders with respect to any Series of Notes entitled to the benefit of such
Collateral or Series-Specific Collateral. Similarly, if it is determined that
the Group I Noteholders have an interest in, to or under any Series-Specific
Collateral, then such Noteholders agree that their interest in, to or under
such Series-Specific Collateral shall be subordinate in all respects to the
claims or rights of the Noteholders with respect to the Segregated Series of
Notes entitled to the benefit of such Series-Specific Collateral. This Base
Indenture shall constitute a subordination agreement for purposes of Section
510(a) of the Bankruptcy Code.


 


Section 3.2   Certain Rights and Obligations of the
Issuer Unaffected.


 


(a)                                  Notwithstanding
the assignment and security interest so granted to the Trustee on behalf of the
Secured Parties, the Issuer shall nevertheless be permitted, subject to the
Trustee’s right to revoke such permission in the event of an Amortization Event
and subject to the provisions of Section 3.3, to give all consents,
requests, notices, directions, approvals, extensions or waivers, if any, which
are required or permitted to be given in the normal course of business (which
does not include waivers of defaults under any of the Collateral Agreements or
any of the Manufacturer Programs or revocation of powers of attorney to the
Lessees) (i) by the Issuer to any Lessee and (ii) by the Issuer to the
Manufacturers by the specific terms of each Manufacturer Program.


 


(b)                                 The
grant of the security interest in the Collateral to the Trustee on behalf of
the Secured Parties shall not (i) relieve the Issuer from the performance of
any term, covenant, condition or agreement on the Issuer’s part to be performed
or observed under or in connection with any of the Collateral Agreements or any
of the Manufacturer Programs or from any liability to the Lessees or the
Manufacturers, as the case may be, or (ii) impose any obligation on the Trustee
or any of the Secured Parties to perform or observe any such term, covenant,
condition or agreement on the Issuer’s part to be so


 


25

















 


performed or observed or impose any liability on the Trustee or any of
the Secured Parties for any act or omission on the part of the Issuer or from
any breach of any representation or warranty on the part of the Issuer. The
Issuer hereby agrees to indemnify and hold harmless the Trustee and each Group
I Noteholder (including, in each case, their respective assigns, directors,
officers, employees and agents) from and against any and all losses,
liabilities (including liabilities for penalties), claims, demands, actions,
suits, judgments, out-of-pocket costs and expenses arising out of or resulting
from the security interest granted hereby or by any Assignment Agreement,
whether arising by virtue of any act or omission on the part of the Issuer or
otherwise, including, without limitation, the reasonable out-of-pocket costs,
expenses, and disbursements (including reasonable attorneys’ fees and expenses)
incurred by the Trustee and any of the Group I Noteholders in enforcing this
Base Indenture or preserving any of their respective rights to, or realizing
upon, any of the Collateral; provided, however, the foregoing
indemnification shall not extend to any action by the Trustee or a Group I
Noteholder which constitutes negligence or willful misconduct by the Trustee,
such Group I Noteholder or any other indemnified person hereunder. The
indemnification provided for in this Section 3.2 shall survive the
removal of, or a resignation by, such Person as Trustee as well as the
termination of this Indenture, any Series Supplement or any Assignment
Agreement.


 


Section 3.3   Performance
of Collateral Agreements.


 


Upon the occurrence of an Amortization Event, promptly
following a request from the Trustee or the Master Collateral Agent to do so
and at the Issuer’s expense, the Issuer agrees to take all such lawful action
as permitted under this Indenture as is reasonably necessary or as the Trustee
or the Master Collateral Agent may request to compel or secure the performance
and observance by: (i) any Lessee or any other party to any of the Collateral
Agreements of its obligations to the Issuer and (ii) a Manufacturer under a
Manufacturer Program of its obligations to any Lessee, the Issuer or the Master
Collateral Agent, as assignee, in each case in accordance with the applicable
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer to the extent and in the manner as
is reasonably necessary or as directed by the Trustee or the Master Collateral
Agent, as applicable, including, without limitation, the transmission of
notices of default and the institution of legal or administrative actions or
proceedings to compel or secure performance by such Lessee (or such other party
to any Collateral Agreement), or by a Manufacturer under a Manufacturer
Program, of their respective obligations thereunder. If (i) the Issuer shall
have failed, within 30 days of receiving the direction of the Trustee or the
Master Collateral Agent, as applicable, to take commercially reasonable action
to accomplish such directions of the Trustee or the Master Collateral Agent, as
applicable, (ii) the Issuer refuses to take any such action, or (iii) the
Trustee or the Master Collateral Agent, as applicable, reasonably determines
that such action must be taken immediately, the Trustee or the Master
Collateral Agent, as applicable, may take such previously directed action and
any related action permitted under this Indenture which the Trustee or the
Master Collateral Agent, as applicable, thereafter determines is appropriate
(without the


 


26

















 


need under this provision or any other provision under
the Indenture to direct the Issuer to take such action), on behalf of the
Issuer and the Secured Parties,


 


Section 3.4  Release of Lien on Vehicles.


 


The Lien of the Trustee
on the Vehicles shall automatically be deemed to be released concurrently with
any release thereof as provided in Section 27 of the Lease, or Sections 2.3 or
2.7 of the Master Collateral Agency Agreement.


 


Section 3.5   Stamp, Other Similar Taxes and Filing
Fees.


 


The Issuer shall
indemnify and hold harmless the Trustee, the Master Collateral Agent and each
Group I Noteholder from any present or future claim for liability for any stamp
or other similar tax and any penalties or interest with respect thereto, that
may be assessed, levied or collected by any jurisdiction in connection with
this Indenture or any Collateral. The Issuer shall pay, or reimburse the
Trustee for, any and all amounts in respect of, all search, filing, recording
and registration fees, taxes, excise taxes and other similar imposts that may
be payable or reasonably determined to be payable in respect of the execution,
delivery, performance and/or enforcement of this Indenture.


 


Section 3.6   Pledge or Sale of Vehicle Repurchase
Rights.


 


(a)                                  The
Issuer will have the option, exercisable with respect to any Vehicle Repurchase
Rights related to a Vehicle, to sell such Vehicle Repurchase Rights to a
Manufacturer Receivables Purchaser for a price equal to the amount due from the
Manufacturer under the Manufacturer Receivables comprising such Vehicle
Repurchase Rights or any lesser amount to the extent that either (i) after
giving effect to any such sale, no Amortization Event with respect to any
Outstanding Series of Notes, Enhancement Agreement Event of Default with
respect to any Outstanding Series of Notes, Enhancement Deficiency with respect
to any Outstanding Series of Notes, Lease Event of Default, Potential
Amortization Event with respect to any Outstanding Series of Notes, Potential
Enhancement Agreement Event of Default with respect to any Outstanding Series
of Notes or Potential Lease Event of Default would result from such sale at a
lesser price or (ii) the Required Noteholders of each Series have consented to
such sale. The Issuer shall direct in the related Manufacturer Receivables
Purchase Agreement that the proceeds of any such sale of Vehicle Repurchase
Rights be deposited directly into the Master Collateral Account or the
Collection Account. Upon deposit of such funds into the Master Collateral
Account or the Collection Account, as the case may be, the Issuer shall cause
title to any such Vehicle Repurchase Rights to be transferred to the related
Manufacturer Receivables Purchaser and the lien of the Trustee and Master
Collateral Agent (pursuant to the terms of die Master Collateral Agency
Agreement) in such Vehicle Repurchase Rights will automatically be released.
Prior to any Manufacturer Receivables Purchase Agreement becoming effective, it
must contain a


 


27

















 


non-petition clause with respect to the Issuer
providing equivalent protections to the provisions of Section 13.16
hereof and the Trustee shall have received an Opinion of Counsel addressing the
matters set forth in Section 2.2(f)(x).


 


(b)                                 The
Issuer will have the option, exercisable with respect to any Vehicle Repurchase
Rights related to a Vehicle, to pledge such Vehicle Repurchase Rights to a
Manufacturer Receivables Transferee for proceeds equal to the amount due from
the Manufacturer under the Manufacturer Receivables comprising such Vehicle
Repurchase Rights or any lesser amount to the extent that either (i) after
giving effect to any such pledge and the release of the Master Collateral Agent’s
Lien in such Vehicle Repurchase Rights pursuant to Section 2.7(d) of the
Master Collateral Agency Agreement, no Amortization Event with respect to any
Outstanding Series of Notes, Enhancement Agreement Event of Default with
respect to any Outstanding Series of Notes, Enhancement Deficiency with respect
to any Outstanding Series of Notes, Lease Event of Default, Potential
Amortization Event with respect to any Outstanding Series of Notes, Potential
Enhancement Agreement Event of Default with respect to any Outstanding Series
of Notes or Potential Lease Event of Default would result from such pledge for
proceeds in an amount less than the amount due under the relevant Vehicle
Repurchase Rights or (ii) the Required Noteholders of each Series have
consented to such pledge. The Issuer shall direct in the related Manufacturer
Receivables Transfer Agreement that the proceeds of any such pledge of Vehicle
Repurchase Rights be deposited directly into the Master Collateral Account or
the Collection Account. Upon deposit of such funds into the Master Collateral
Account or the Collection Account, as the case may be, the Issuer shall cause
the lien of the Trustee and Master Collateral Agent (pursuant to the terms of
the Master Collateral Agency Agreement) in such Vehicle Repurchase Rights to be
released. Prior to any Manufacturer Receivables Transfer Agreement becoming
effective, it must contain a non-petition clause with respect to the Issuer
providing equivalent protections to the provisions of Section 13.16
hereof and the Trustee shall have received an Opinion of Counsel addressing the
matters set forth in Section 2.2(f)(x).


 


ARTICLE 4.


 


REPORTS


 


Section 4.1   Agreement of Servicer to Provide Reports
and Instructions.


 


(a)                                  Pursuant
to the Lease and the Master Collateral Agency Agreement, the Servicer has
agreed to provide certain reports specified therein and may act on behalf of
the Issuer hereunder. The Noteholders by their acceptance of the Notes consent
to the provision of such reports by the Servicer in lieu of the Trustee or the
Issuer and such actions by the Servicer.


 


(b)                                 The
Trustee and the Paying Agent shall promptly follow the lie instructions of the
Servicer given pursuant to the Lease to withdraw funds from the


 


28

















 


Collection Account and make drawings under any
Enhancement, as provided in the applicable Series Supplement.


 


ARTICLE 5.


 


ALLOCATION AND
APPLICATION OF COLLECTIONS


 


Section 5.1   Collection
Account.


 


(a)                                  Establishment
of Collection Account. The Trustee shall establish and maintain in the name
of the Trustee for the benefit of the Secured Parties, or cause to be
established and maintained, an account (the “Collection Account”),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Secured Parties. The Trustee shall possess all
right, title and interest in all moneys, instruments, securities and other
property on deposit from time to time in the Collection Account and the
proceeds thereof for the benefit of the Secured Parties. The Collection Account
shall be under the sole dominion and control of the Trustee for the benefit of
the Secured Parties, The Collection 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 Collection
Account; provided that, if such account is not a segregated trust
account and is maintained with a Qualified Institution and at any time such
Qualified Institution fails to satisfy the definition of Qualified Institution,
then the Trustee shall, within 10 Business Days of such failure, establish a
new Collection 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 Collection Account. In connection with the establishment of a
new Collection Account pursuant to the preceding sentence, the Trustee shall
transfer into the new Collection Account all cash and investments from the
non-qualifying Collection Account. Initially, the Collection Account will be
established with The Bank of New York, For all purposes hereunder and for the
avoidance of doubt, the Collection Account has been established solely for the benefit
of the Group I Noteholders, and in connection with the issuance of a Segregated
Series of Notes, the Issuer will establish with the Trustee a separate and
segregated trust account with respect to collections under the Series-Specific
Collateral related to such Segregated Series of Notes as contemplated by Section
2.3(b).


 


(b)                                 Establishment
of Additional Accounts. To the extent specified in the Series Supplement
with respect to any Series of Notes, the Trustee may establish and maintain one
or more additional accounts and/or Administrative Subaccounts to facilitate the
proper allocation of Collections in accordance with the terms of such Series Supplement.


 


(c)                                  Administration
of the Collection Account. The Issuer, the Servicer or a Person designated
in writing by the Servicer to act on behalf of the Servicer with written
notification to the Trustee, shall instruct the institution maintaining the
Collection


 


29

















 


Account in writing to invest funds on deposit in the
Collection Account (including any administrative subaccounts thereof) at all
times in Permitted Investments selected by the Issuer (by standing instructions
or otherwise); provided, however, that except as provided in any
Group I Supplement, any such investment shall mature not later than the Business
Day prior to the Distribution Date following the date on which such funds were
so invested, except for any Permitted Investment held in the Collection Account
(including any administrative subaccounts thereof) which is in an investment
made by the Paying Agent institution, in which event 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 Collection 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) or Uncertificated Securities
(and that is not a United States Security Entitlement or a Security
Entitlement) shall be delivered to the Trustee in accordance with the
definition of “Delivery” and shall be held by the Trustee pending maturity or
disposition and (ii) United States Security Entitlements or Security
Entitlements shall be Controlled by the Trustee pending maturity or
disposition. The Trustee shall, at the expense of the Issuer take such action
as is requested of it to maintain the Trustee’s security interest in the
Permitted Investments credited to the Collection Account. In the absence of
written investment instructions hereunder, funds on deposit in the Collection
Account shall remain uninvested. Neither the Issuer nor the Trustee shall
dispose of (or permit the disposal of) any Permitted Investments prior to the
maturity thereof to the extent such disposal would result in a loss of the
purchase price of such Permitted Investment.


 


(d)                                 Earnings
from Collection Account. Subject to the restrictions set forth above, the
Issuer, the Servicer or a Person designated in writing by the Servicer to act
on behalf of the Servicer with written notification to the Trustee shall have
the authority to instruct the Trustee (which instructions shall be in writing)
with respect to (i) the investment of funds on deposit in the Collection
Account and (ii) liquidation of such investments. All interest and earnings
(net of losses and investment expenses) paid on funds on deposit in the
Collection Account shall be deemed to be available and on deposit for distribution.


 


Section 5.2   Collections and Allocations.


 


(a)                                  Collections
in General. Until this Indenture is terminated pursuant to Section 11.1,
the Issuer shall, and the Trustee is authorized to, direct all Collections due
and to become due to the Issuer or the Trustee, as the case may be, (i) under
or in connection with the Pledged Master Collateral for which the Trustee (on
behalf of the Secured Parties) is designated as the Financing Source and the
ARG Trustee is designated as the Beneficiary under the Master Collateral Agency
Agreement (including, without limitation, amounts due from Manufacturers and
related auction houses under their Manufacturer Programs with respect to
Vehicles other than Exchanged Vehicles but excluding amounts representing the
proceeds from sales of Vehicles by any Lessee or the Lessor to third parties
other than the Manufacturers, warranty payments and insurance proceeds) to be
paid directly to the Master Collateral Agent for deposit into a Master


 


30

















 


Collateral Account; (ii) with respect to amounts
representing the proceeds from sales of Vehicles (other than Exchanged
Vehicles) by any Lessee or the Lessor to third parties other than the
Manufacturers to be deposited by such Lessee or the Lessor, as the case may be,
within two Business Days of its receipt thereof into a Master Collateral
Account or the Collection Account; (iii) under the Lease to be paid directly to
the Trustee for deposit into the Collection Account; and (iv) from any other
source (other than Collections excluded under clause (i) above) to be
paid either (a) directly into the Collection Account at such times as such
amounts are due or (b) by any Lessee or the Lessor, as the case may be, into
the Collection Account within two Business Days of its receipt thereof (and, in
each case, the Issuer represents to the Secured Parties that it has instructed
the Lessees, the Servicer, the Manufacturers, and any other source of
Collections, as applicable, to so remit such amounts). Upon the occurrence and
during the continuance of an Amortization Event, Potential Amortization Event
or Affiliate Issuer Liquidation Event of Default, insurance proceeds and
warranty payments (with respect to Vehicles other than Exchanged Vehicles) will
be deposited in a Master Collateral Account within two Business Days of their
receipt by any Lessee, the Lessor or the Servicer, as applicable; provided,
however, upon the delivery of an Officer’s Certificate of the Servicer
to the Trustee (upon which it may conclusively rely) certifying (i) that a
Vehicle for which insurance proceeds or warranty payments (which are not
Excluded Payments), as the case may be, have been received in the Collection
Account has been repaired and (ii) as to the dollar amount of such repairs, the
Trustee shall release to the Lessee thereof insurance proceeds or warranty
payments, as the case may be, in such dollar amount (to the extent not
previously applied hereunder). The Issuer agrees that if any such monies,
instruments, cash or other proceeds shall be received by the Issuer in an account other than a Master Collateral
Account and the Collection Account
or in any other manner, such monies, instruments, cash and other proceeds will
not be commingled by the Issuer with any of its other funds or property, if
any, but will be held separate and apart therefrom and shall be held in trust
by the Issuer for, and immediately (but in any event within two Business Days
from receipt) paid over to the Trustee or the Master Collateral Agent, as
applicable, with any necessary endorsement. All amounts on deposit in the
Master Collateral Accounts shall be allocated and distributed to the Trustee
and other Beneficiaries as provided in the Master Collateral Agency Agreement.
Subject to Section 9.10, all monies, instruments, cash and other
proceeds received by the Trustee pursuant to this Indenture (including amounts
received from the Master Collateral Agent) shall be promptly deposited in the
Collection Account and, except for the amounts payable by the Issuer to GM as
described in Section 5.2(e) shall be applied as provided in this Article
5.


 


(b)                                 Disqualification
of Institution Maintaining Collection Account. Upon and after the
establishment of a new Collection Account with a Qualified Institution or
qualified corporate trust department pursuant to Section 5.1(a), the
Issuer, the Servicers and the Lessees shall deposit or cause to be deposited
all Collections as set forth in Section 5.2(a) into the new Collection
Account, and in no such event shall deposit or cause to be deposited any
Collections thereafter into any account established, held or maintained with
the institution formerly maintaining the Collection Account


 


31

















 


(unless it later becomes a Qualified Institution or
qualified corporate trust department maintaining the Collection Account). The
Issuer will instruct the Lessees and the Servicer as to the foregoing
requirements of this subsection (b).


 


(c)                                  Sharing
Collections. In the manner described in the related Series Supplement, to
the extent that Principal Collections that are allocated to any Series of Group
I Notes are not needed to make payments to Noteholders of such Series of Group
I Notes or required to be deposited in a reserve account or a Distribution
Account for such Series of Group I Notes, such Principal Collections, subject
to any restrictions in such related Series Supplement, may, at the direction of
the Issuer, be applied to cover principal payments due to or for the benefit of
Noteholders of another Series of Group I Notes. Any such reallocation will not
result in a reduction in the Invested Amount of the Series to which such
Principal Collections were initially allocated.


 


(d)                                 Unapplied
Principal Collections. If, after giving effect to Section 5.2(c), Principal
Collections allocated to any Series of Group I Notes are in excess of the amount
required to be paid in respect of such Series, then any such excess Principal Collections
shall be allocated to the Issuer or such other party as may be entitled thereto
as set forth in any Series Supplement. Notwithstanding anything to the contrary
contained herein, no Series of Notes that are not Group I Notes shall have any
right or claim to any such excess Principal Collections.


 


(e)                                  Payments
To GM. Notwithstanding anything herein to the contrary, the Issuer agrees
that it will, and the Trustee agrees that the Issuer will, to the extent that
it receives payments under the Lease (i) that are applied in accordance with Section
10(g)(iv) of the Lease Annex as Depreciation Charges that accrued on GM Freeze
Vehicles during a GM Freeze Period or (ii) that are applied in accordance with Section
10(g)(v) of the Lease Annex as Monthly GM Mileage Charges, be obligated to pay
to GM the Monthly GM Mileage Charges to the extent of the payments under the Lease
that are applied in accordance with Section 10(g)(v) of the Lease Annex as Monthly
GM Mileage Charges and an amount equal to the amount referred to in (i) above times
the GM Pro Rata Share on the date such payments are received.


 


The Servicer shall
determine the amount of the payments made by the Lessees or the Guarantor under
the Lease and deposited into the Collection Account that are properly
characterized as GM Past Due Monthly Depreciation Charges or Monthly GM Mileage
Charges in accordance with the Lease Annex and the Servicer shall deliver an
Officer’s Certificate of the Servicer to the Trustee and the Issuer certifying
the amount, if any, of any such payments. Upon the receipt of any such Officer’s
Certificate, the Trustee shall withdraw from the Collection Account and pay to
GM the amount set forth in such Officer’s Certificate.


 


32

















 


Section 5.3   Determination of Monthly Interest.


 


Monthly interest with
respect to each Series of Notes shall be determined, allocated and distributed
in accordance with the procedures set forth in the applicable Series
Supplement.


 


Section 5.4   Determination of Monthly Principal.


 


Monthly principal with
respect to each Series of Notes shall be determined, allocated and distributed
in accordance with the procedures set forth in the applicable Series
Supplement. However, all principal or interest with respect to any Series of
Notes shall be due and payable no later than the Series Termination Date with
respect to such Series.


 


Section 5.5   Paired Series.


 


To the extent provided in
a Series Supplement, any Series of Notes may be paired with one or more other
Series (each, a “Paired Series”). Each Paired Series may be prefunded
with an initial deposit to a pre-funding account in an amount up to the initial
principal balance of such Paired Series, primarily from the proceeds of the
sale of such Paired Series, or will have a variable principal amount. Any such
pre-funding account will be held for the benefit of such Paired Series and not
for the benefit of the
Noteholders of the Series paired therewith. As funds are accumulated in a
principal funding account or paid to Noteholders of the Series paired to the
Paired Series, either (i) in the case of a pre-funded Paired Series, an equal
amount of funds on deposit in any pre-funding account for such prefunded Paired
Series will be released and paid to the Issuer or (ii) in the case of a Paired
Series having a variable principal amount, an interest in such variable Paired
Series in an equal or lesser amount may be sold by the Issuer and, in either
case, the invested amount of such Paired Series will increase by up to a
corresponding amount. Upon payment in full of the Series paired to the Paired
Series, the aggregate invested amount of such related Paired Series will have
been increased by an amount up to an aggregate amount equal to the Invested
Amount of such series paid to the Noteholders thereof. The issuance of a Paired
Series may be subject to certain conditions described in the related Series
Supplement.


 


[THE REMAINDER OF
ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN ANY SERIES SUPPLEMENT WITH
RESPECT TO ANY SERIES.]


 


ARTICLE 6.


 


DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS


 


Section 6.1   Distributions in General.


 


(a)                                  Unless
otherwise specified in the applicable Series Supplement, on each Distribution
Date with respect to each Outstanding Series, (i) the Trustee or the


 


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Paying Agent shall deposit (in accordance with the
Monthly Certificate delivered to the Trustee) in the Distribution Account for
each such Series the amounts on deposit in the Collection Account (or in the
case of a Segregated Series of Notes, the collection account established
pursuant to the related Series Supplement) allocable to Noteholders of such
Series as interest and, if during an Amortization Period, principal, and (ii)
to the extent provided for in the applicable Series Supplement, the Trustee
shall deposit in the Distribution Account for each such Series the amount of
Enhancement for such Series drawn in connection with such Distribution Date.


 


(b)                                 Unless
otherwise specified in the applicable Series Supplement, on each Distribution
Date, the Trustee or the Paying Agent shall distribute to the Noteholders of
each Series, to the extent amounts are on deposit in the Distribution Account
for such Series, an amount sufficient to pay all principal and interest due on
such Series on such Distribution Date. Such distribution shall be to each
Noteholder of record of such Series on the preceding Record Date based on such
Noteholder’s pro  rata share of the aggregate principal amount of
the Notes of such Series held by such Noteholder; provided, however,
that, the final principal payment due on a Note shall only be paid to the
holder of a Note on due presentment of such Note for cancellation in accordance
with the provisions of the Note.


 


(c)                                  Unless
otherwise specified in the applicable Series Supplement, amounts distributable
to a Noteholder pursuant to this Section 6.1 shall be payable by wire
transfer of immediately available funds released by the Trustee or the Paying
Agent from the Distribution Account no later than 10:00 a.m. (New York City
time) for credit to the account designated by such Noteholder.


 


(d)                                 Unless
otherwise specified in the applicable Series Supplement (i) all distributions
to Noteholders of all classes within a Series of Notes will have the same priority
and (ii) in the event that on any date of determination the amount available to
make payments to the Noteholders of a Series is not sufficient to pay all sums
required to be paid to such Noteholders on such date, then each class of
Noteholders will receive its ratable share (based upon the aggregate amount due
to such class of Noteholders) of the aggregate amount available to be
distributed in respect of the Notes of such Series.


 


(e)                                  All
distributions in respect of Notes represented by a Temporary Global Note will
be made only with respect to that portion of the Temporary Global Note in
respect of which Euroclear or Clearstream shall have delivered to the Trustee a
certificate or certificates substantially in the form of Exhibit A. The
delivery to the Trustee by Euroclear or Clearstream of the certificate or
certificates referred to above may be relied upon by the Issuer and the Trustee
as conclusive evidence that the certificate or certificates referred to therein
has or have been delivered to Euroclear or Clearstream pursuant to the terms of
this Base Indenture and the Temporary Global Note. No payments of interest will
be made on a Temporary Global Note after the Exchange Date therefor.


 


34

















 


Section 6.2  Optional Repurchase of Notes.


 


On or after the date set
forth in the Series Supplement related to a Series of Notes, the Issuer shall
have the option to purchase all Outstanding Notes of such Series, or class of
such Series, at a purchase price set forth in such Series Supplement. Unless
otherwise specified in the related Series Supplement, the Issuer shall give the
Trustee at least 30 days’ prior written notice of the date on which the Issuer
intends to exercise such option to purchase. Not later than 12:00 noon, New
York City time, on the date set for purchase, an amount equal to the purchase
price for the Notes of such Series will be deposited into the Distribution
Account or the Collection Account (or in the case of a Segregated Series of
Notes, the collection account established pursuant to the related Series
Supplement) for such Series in immediately available funds. The funds dsposited
into such Distribution Account or the Collection Account (or in the case of a
Segregated Series of Notes, the collection account established pursuant to the
related Series Supplement) or distributed to the Trustee or the Paying Agent
will be passed through in full to the Noteholders of such Series on such date.


 


Section 6.3   Monthly Noteholders’ Statement.


 


Unless otherwise
specified in the related Series Supplement, on each Distribution Date, the
Trustee or the Paying Agent shall forward to each Noteholder of record of each
Outstanding Series the Monthly Noteholders’ Statement with respect to such
Series, with a copy to the Trustee (if other than the Paying Agent) and any
Enhancement Provider with respect to such Series.


 


Section 6.4   Annual Noteholders’ Tax Statement.


 


Unless otherwise
specified in the related Series Supplement, on or before January 31 of each
calendar year, beginning with calendar year 2006, the Trustee or the Paying
Agent shall furnish to each Person who at any time during the preceding
calendar year was a Noteholder a statement prepared by the Issuer (or the
Servicer on its behalf) containing the information which is required to be
contained in the Monthly Noteholders’ Statements with respect to each Series of
Notes aggregated for such calendar year or the applicable portion thereof
during which such Person was a Noteholder, together with such other customary
information (consistent with the treatment of the Notes as debt) as the Issuer
or the Servicer deems necessary or desirable to enable the Noteholders to
prepare their tax returns (each such statement, an “Annual Noteholders’ Tax
Statement”). Such obligations of the Issuer to prepare and the Trustee or
the Paying Agent to distribute the Annual Noteholders’ Tax Statement shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Trustee or the Paying Agent pursuant to
any requirements of the Code as from time to time in effect.


 


35

















 


ARTICLE 7.


 


REPRESENTATIONS
AND WARRANTIES


 


The Issuer hereby
represents and warrants, for the benefit of the Tustee and the Secured Parties, as follows as of each Series
Closing Date:


 


Section 7.1   Existence and Power.


 


(a)                                  The
Issuer (i) is a limited partnership duly formed, validly existing and in good
standing under the laws of the State of Delaware, (ii) is duly qualified to do business
as a foreign limited partnership and in good standing under the laws of each jurisdiction
where the character of its property, the nature of its business or the performance
of its obligations make such qualification necessary and (iii) has all limited partnership
powers and all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted and for purposes of the transactions
contemplated by this Indenture and the other Related Documents.


 


(b)                                 The
General Partner (i) is the sole general partner of the Issuer, (ii) is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware, (iii) is duly qualified to do business
as a foreign limited liability company and in good standing under the laws of
each jurisdiction where the character of its property, the nature of its
business or the performance of its obligations make such qualification
necessary and (iv) has all powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted and
for purposes of the transactions contemplated by this Indenture and the other
Related Documents.


 


Section 7.2   Limited Partnership and Governmental
Authorization.


 


The execution, delivery
and performance by the Issuer of this Indenture, the related Series Supplement
and the other Related Documents to which it is a party (other than any Related
Document relating solely to a Segregated Series) (a) are within the Issuer’s
limited partnership powers, have been duly authorized by all necessary limited
partnership action and (b) do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the certificate of limited
partnership or limited partnership agreement of the Issuer or of any law or
governmental regulation, rule, contract, agreement, judgment, injunction,
order, decree or other instrument binding upon the Issuer or any of its Assets
or result in the creation or imposition of any Lien on any Asset of the Issuer,
except for Liens created by this Indenture or the other Related Documents. This
Indenture and each of the other Related Documents to which the Issuer is a
party (other than any Related Document relating solely to a Segregated Series)
have been executed and delivered by a duly authorized officer of the Issuer.


 


36

















 


Section 7.3   Binding Effect.


 


This Indenture and each
other Related Document (other than any Related Document relating solely to a
Segregated Series) are legal, valid and binding obligations of the Issuer
enforceable against the Issuer in accordance with their respective terms
(except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors’ rights generally or by general equitable principles,
whether considered in a proceeding at law or in equity and by an implied
covenant of good faith and fair dealing).


 


Section 7.4  Registered Organization.


 


The Issuer is a
Registered Organization.


 


Section 7.5   Litigation.


 


There is no action, suit
or proceeding pending against or, to the knowledge of the Issuer, threatened
against the Issuer before any court or arbitrator or any Governmental Authority
with respect to which there is a reasonable possibility of an adverse decision
that could materially adversely affect the financial position, results of
operations, business, properties, performance or condition (financial or otherwise)
of the Issuer or which in any manner draws into question the validity or
enforceability of this Indenture, any Series Supplement or any other Related
Document (other than any Related
Document relating solely to a Segregated Series) or the ability of the Issuer
to perform its obligations hereunder or thereunder.


 


Section 7.6  No ERISA Plan.


 


The Issuer has not
established and does not maintain or contribute to any Pension Plan that is
covered by Title IV of ERISA.


 


Section 7.7   Tax Filings and Expenses.


 


The Issuer has filed all
federal, state and local tax returns and all other tax returns which, to the
knowledge of the Issuer, are required to be filed (whether informational
returns or not), and has paid all taxes due, if any, pursuant to said returns
or pursuant to any assessment received by the Issuer, except such taxes, if
any, as are being contested in good faith and for which adequate reserves have
been set aside on its books. The Issuer has paid all fees and expenses required
to be paid by it in connection with the conduct of its business, the
maintenance of its existence and its qualification as a foreign limited
partnership authorized to do business in each State in which it is required to
so qualify, except where the failure to pay any such fees and expenses is not
reasonably likely to have a Material Adverse Effect.


 


37

















 


Section 7.8   Disclosure.


 


All certificates,
reports, statements, documents and other information furnished to the Trustee
by or on behalf of the Issuer pursuant to any provision of this Indenture or
any Related Document (other than any Related Document relating solely to a
Segregated Series), or in connection with or pursuant to any amendment or
modification of, or waiver under, this Indenture or any Related Document (other
than any Related Document relating solely to a Segregated Series), shall, at
the time the same are so furnished, be complete and correct to the extent
necessary to give the Trustee true and accurate knowledge of the subject matter
thereof in all material respects, and the furnishing of the same to the Trustee
shall constitute a representation and warranty by the Issuer made on the date
the same are furnished to the Trustee to the effect specified herein.


 


Section 7.9   Investment Company Act; Securities Act.


 


The Issuer is not, and is
not controlled by, an “investment company” within the meaning of, and is not
required to register as an “investment company” under, the Investment Company
Act. It is not necessary in connection with the issuance and sale of the Notes
under the circumstances contemplated in the related Series Supplement to
register any security under the Securities Act or to qualify any indenture
under the Trust Indenture Act.


 


Section 7.10   Regulations
T, U and X.


 


The proceeds of the Notes
will not be used to purchase or carry any “margin stock” (as defined or used in
the regulations of the Board of Governors of the Federal Reserve System,
including Regulations T, U and X thereof). The Issuer is not engaged in the
business of extending credit for the purpose of purchasing or carrying any
margin stock.


 


Section 7.11   No
Consent.


 


No consent, action by or
in respect of, approval or other authorization of, or registration, declaration
or filing with, any Governmental Authority or other Person is required for the
valid execution and delivery of this Indenture or any related Series Supplement
or for the performance by the Issuer of any of its obligations hereunder or
thereunder or under any other Related Document (other than any Related Document
relating solely to a Segregated Series) other than such consents, approvals,
authorizations, registrations, declarations or filings as shall have been
obtained by the Issuer and are currently in effect.


 


Section 7.12   Solvency.


 


Both before and after
giving effect to the transactions contemplated by this Indenture and the other
Related Documents, the Issuer is solvent within the meaning of


 


38

















 


the Bankruptcy Code and the Issuer is not the subject
of any voluntary or involuntary case or proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy or insolvency law and no Event of Bankruptcy has occurred with respect
to the Issuer.


 


Section 7.13   Ownership of Limited Partnership
Interests; Subsidiary.


 


The sole general partner
of the Issuer is the General Partner and the sole limited partner of the Issuer
is Vanguard, all of the issued and outstanding common stock of the General
Partner is owned by Vanguard, all of which common stock has been validly
issued, is fully paid and non-assessable and is owned of record by such
corporation. The Issuer has no subsidiaries and owns no capital stock of, or
other interest in, any other Person.


 


Section 7.14   Security Interests.


 


(a)                                  All
action necessary (including the filing of UCC-1 financing statements, the
assignment of rights under the Manufacturer Programs to the Master Collateral
Agent and the notation on the Certificates of Title for all Vehicles of the Master
Collateral Agent’s Lien), to protect and perfect the Trustee’s security
interest in the Collateral and the Master Collateral Agent’s security interest
in the Pledged Master Collateral now in existence and hereafter acquired or
created has been duly and effectively taken.


 


(b)                                 No
security agreement, financing statement, equivalent security or lien instrument
or continuation statement listing the Issuer as debtor covering all or any part
of the Collateral is on file or of record in any jurisdiction, except such as
may have been filed, recorded or made by the Issuer in favor of the Trustee in
connection with this Indenture or the Master Collateral Agent in connection
with the Master Collateral Agency Agreement.


 


(c)                                  This
Base Indenture creates a valid and continuing Lien on the Collateral in favor
of the Trustee on behalf of the Secured Parties, which Lien will be prior to
all other Liens (other than Permitted Liens), and the Master Collateral Agency Agreement
creates a valid and continuing Lien on the Pledged Master Collateral in favor of
the Master Collateral Agent prior to all other Liens (other than Permitted
Liens) and, in each case, will be enforceable as such as against creditors of
and purchasers from the Issuer in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors’ rights
generally or by general equitable principles, whether considered in a
proceeding at law or in equity and by an implied covenant of good faith and
fair dealing. All action necessary to perfect such prior security interests has
been duly taken.


 


39

















 


(d)                                 Except
for a change made pursuant to Section 8.21, (i) the Issuer’s sole place
of business and chief executive office shall be at, and the place where its
records concerning the Collateral are kept is at: 7700 France Avenue South,
Minneapolis, Minnesota and (ii) the Issuer’s jurisdiction of organization is
Delaware. The Issuer does not transact, and has not transacted, business under
any other name.


 


(e)                                  All
authorizations in this Indenture for the Trustee to endorse checks, instruments
and securities and to file financing statements, continuation statements,
security agreements, Certificates of Title, and other instruments with respect to
the Collateral are powers coupled with an interest and are irrevocable.


 


(f)                                    This
Base Indenture creates a valid and continuing Lien (as defined in the New York
UCC) in the General Intangibles Collateral and the Collection Account
Collateral in favor of the Trustee on behalf of the Secured Parties, which Lien
is prior to all other Liens (other than Permitted Liens) and is enforceable as
such as against creditors of and purchasers from the Issuer in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors’ rights generally or by general equitable principles,
whether considered in a proceeding at law or in equity and by an implied
covenant of good faith and fair dealing. All action necessary to perfect such
first priority security interest has been duly taken.


 


(g)                                 The
General Intangibles Collateral constitutes “general intangibles” within the
meaning of the New York UCC.


 


(h)                                 The
Issuer owns and has good and marketable title to the General Intangibles
Collateral and the Collection Account Collateral free and clear of any Liens
(except for Permitted Liens), claim or encumbrance of any Person.


 


(i)                                     The
Issuer has caused or will have caused, within ten days, 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 General Intangibles Collateral granted to the Trustee in favor of the
Secured Parties hereunder.


 


(j)                                     Other
than the security interest granted to the Trustee in favor of the Secured
Parties herein, the Issuer has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the General Intangibles Collateral.
The Issuer has not authorized the filing of and is not aware of any financing
statements against the Issuer that include a description of collateral covering
the General Intangibles Collateral other than any financing statement relating
to the security interest granted to the Trustee in favor of the Secured Parties
hereunder or that has been terminated. The Issuer is not aware of any judgment
or tax lien filings against the Issuer.


 


40














 


Section 7.15   Binding Effect of Lease.


 


The Lease is in full
force and effect and there are no outstanding Lease Events of Default or
Potential Lease Events of Default.


 


Section 7.16   Non-Existence of Other Agreements.


 


As of the date of the
issuance of the first Series of Notes, other than as permitted by Section
8.24 and Section 8.26 hereof (i) the Issuer is not a party to any
contract or agreement of any kind or nature and (ii) the Issuer is not subject
to any obligations or liabilities of any kind or nature in favor of any third
party, including, without limitation, Contingent Obligations.


 


Section 7.17   Manufacturer Programs.


 


The Issuer is an
Authorized Fleet Purchaser under each Manufacturer Program and no Manufacturer
Event of Default or Potential Manufacturer Event of Default has occurred and is
continuing with respect to each Manufacturer providing any such Manufacturer
Program, in each case in respect of which (i) Program Vehicles will be acquired
or refinanced by the Issuer and leased under the Lease or (ii) Eligible
Receivables will be financed or refinanced by the Issuer hereunder.


 


Section 7.18   Other Representations.


 


All representations and
warranties of the Issuer made in each Related Document (other than any Related
Document relating solely to a Segregated Series) to which it is a party are
true and correct (in all material respects to the extent any such
representations and warranties do not incorporate a materiality limitation in
their terms) and are repeated herein as though fully set forth herein (except
to the extent such representations and warranties relate to an earlier date, in
which event, such representations and warranties are repeated herein as of such
earlier date).


 


ARTICLE 8.


 


COVENANTS


 


Section 8.1   Payment of Notes.


 


The Issuer shall pay the
principal of (and premium, if any) and interest on the Notes pursuant to the
provisions of this Indenture and any applicable Series Supplement. Principal
and interest shall be considered paid on the date due if the Trustee or the Paying
Agent holds on that date money designated for and sufficient to pay all
principal and interest then due.


 


41

















 


Section 8.2   Maintenance of Office or Agency.


 


The Issuer will maintain
an office or agency (which may be an office of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or
exchange, where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served, and where, at any time when the Issuer
is obligated to make a payment of principal and premium upon the Notes, the
Notes may be surrendered for payment. The Issuer will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Issuer shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.


 


The Issuer may also from
time to time designate one or more other offices or agencies where the Notes
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations. The Issuer will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.


 


The Issuer hereby
designates the Corporate Trust Office of the Trustee as one such office or agency
of the Issuer.


 


Section 8.3   Information.


 


The Issuer will deliver
or cause to be delivered to the Trustee:


 


(a)                                  promptly
upon the delivery by the Servicer to the Issuer, a copy of the financial
information and other materials required to be delivered by the Servicer to the
Issuer and the Master Collateral Agent pursuant to the Lease (delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuer’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’
Certificates));


 


(b)                                 from
time to time such additional information regarding the financial position,
results of operations or business of any Lessee, Vanguard or Vanguard Holdings,
as the Trustee may reasonably request to the extent that such Lessee, Vanguard or
Vanguard Holdings, as the case may be, delivers such information to the Issuer pursuant
to the Lease (delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Issuer’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers’ Certificates));


 


42

















 


(c)                                  at
the time of delivery of the items described in clause (a) above, a certificate
of an officer of the Issuer that, except as provided in any certificate
deivered in accordance with Section 8.10, no Amortization Event, Lease
Event of Default or (to the best of such officer’s knowledge) Potential
Amortization Event or Potential lease Event of Default has occurred or is
continuing during the applicable fiscal quarter;


 


(d)                                 on
or prior to June 30 of each year, a certificate of an Authorized Officer of the
Issuer certifying that no change in the Manufacturer Program of any Manufacturer
in respect of any new model year shall have given rise to any request on the part
of the Rating Agencies that any modification be made to the Lease or any other Related
Document, and the Issuer has apprised the Rating Agencies of all material changes
in the Manufacturer Programs occurring since the date of this Indenture;


 


(e)                                  on
or prior to the twentieth day of each month (or if such day is not a Business
Day, on the next succeeding Business Day), a copy of the Monthly Vehicle Statement
relating to the Collateral as of the last Business Day of the immediately preceding
month received by the Issuer from the Servicer pursuant to the Lease; and


 


(f)                                    promptly
following the introduction of any prospective change in any Manufacturer
Program or the introduction of any new Manufacturer Program by an existing
Manufacturer, or, if later, the date the Issuer or any Lessee obtains notice
thereof, notice of the same and notice thereof to the Rating Agencies
describing the principal terms thereof, and at least annually a copy of each
Manufacturer Program to the Rating Agencies.


 


Section 8.4   Payment of Obligations.


 


The Issuer will pay and
discharge, at or before maturity, all of its respective material obligations
and liabilities, including, without limitation, tax liabilities and other
governmental claims, except where the same may be contested in good faith by
appropriate proceedings, and will maintain, in accordance with GAAP applied on
a consistent basis, reserves as appropriate for the accrual of any of the same.


 


Section 8.5   Rule 144A Information Requirement.


 


For so long as any of the
Notes remain outstanding and are “restricted securities” within the meaning of
Rule 144(a)(3) under the Securities Act, the Issuer covenants and agrees that
it shall, during any period in which it is not subject to Section 13 or 15(d)
under the Exchange Act, make available to any Noteholder in connection with any
sale thereof and any prospective purchaser of Notes from such Noteholder in
each case upon request, the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Securities Act.


 


43

















 


Section 8.6   Conduct of Business and Maintenance of
Existence.


 


The Issuer will maintain
its existence as a limited partnership validly existing, and in good standing
under the laws of the State of Delaware and duly qualified as a foreign limited
partnership licensed under the laws of each state in which the failure to so
qualify would have a Material Adverse Effect with respect to the Issuer.


 


Section 8.7   Compliance with Laws.


 


The Issuer will comply in
all respects with all Requirements of Law and all applicable laws, ordinances,
rules, regulations, and requirements of Governmental Authorities (including,
without limitation, ERISA and the rules and regulations thereunder) except
where such noncompliance would not have a Material Adverse Effect with respect
to the Issuer; provided, however, such noncompliance will
not result in a Lien (other than a Permitted Lien) on any Assets of the Issuer.


 


Section 8.8   Inspection of Property, Books and Records.


 


The Issuer will keep
proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions in relation to its Assets,
business and activities in accordance with GAAP applied on a consistent basis;
and will permit the Trustee, and/or any Person designated by the Trustee, to
visit and inspect any of its properties, to examine and make abstracts from any
of its books and records and to discuss its affairs, finances and accounts with
its officers, directors, employees and independent public accountants, all at
such reasonable times upon reasonable notice and as often as may reasonably be
requested.


 


Section 8.9   Compliance with Related Documents.


 


The Issuer will perform
and comply with each and every obligation, covenant and agreement required to
be performed or observed by it in or pursuant to this Indenture and each other
Related Document to which it is a party, subject to the grace periods set forth
therein, and will not take any action which would permit any Lessee to have the
right to refuse to perform any of its respective obligations under any such
Related Document.


 


Section 8.10   Notice of Defaults.


 


(a)                                  Promptly
(and in any event within five Business Days) upon becoming aware of any
Potential Amortization Event, Amortization Event, Lease Event of Default or
Potential Lease Event of Default, the Issuer shall give the Trustee and the
Rating Agencies written notice thereof, together with a certificate of an
Authorized Officer of the Issuer setting forth the details thereof and any
action with respect thereto taken or contemplated to be taken by the Issuer;
and


 


44

















 


(b)                                 Promptly
upon becoming aware of any default under any Related Document or under any
Manufacturer Program, the Issuer shall give the Trustee and the Rating Agencies
written notice thereof.


 


Section 8.11   Notice
of Material Proceedings.


 


Promptly upon becoming
aware thereof, the Issuer shall give the Trustee written notice of the
commencement or existence of any proceeding by or before any Governmental
Authority against or affecting the Issuer which is reasonably likely to have a
Material Adverse Effect with respect to the Issuer.


 


Section 8.12   Further
Requests.


 


The Issuer will promptly
furnish to the Trustee such other information as, and in such form as, the
Trustee may reasonably request in connection with the transactions contemplated
hereby.


 


Section 8.13   Further
Assurances.


 


(a)                                  The
Issuer shall do such further acts and things, and execute and deliver to the
Trustee such additional assignments, agreements, powers and instruments, as is
required or as the Trustee or the Requisite Investors reasonably determines to
be necessary to carry into effect the purposes of this Indenture or the other
Related Documents or to better assure and confirm unto the Trustee or the
Noteholders their rights, powers and remedies hereunder including, without
limitation, the filing of any financing or continuation statements under the
Uniform Commercial Code in effect in any jurisdiction with respect to the liens
and security interests granted hereby or pursuant to the Master Collateral
Agency Agreement. If any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any promissory note, chattel paper
or other instrument, such note, chattel paper or instrument shall be deemed to
be held in trust and immediately pledged to the Trustee hereunder, and shall,
subject to the rights of any Person in whose favor a prior Lien has been
perfected, be duly endorsed in a manner satisfactory to the Trustee and
physically delivered to the Trustee promptly. Without limiting the generality
of the foregoing provisions of this Section 8.13(a), the Issuer shall
take all actions that are required to maintain the security interest of the
Trustee in the Collateral and of the Master Collateral Agent in the Pledged
Master Collateral as a perfected security interest subject to no prior Liens,
including, without limitation (i) filing all Uniform Commercial Code financing
statements, continuation statements and amendments thereto necessary to achieve
the foregoing, (ii) causing the Lien of the Master Collateral Agent to be noted
on all Certificates of Title and (iii) except as otherwise provided in the
Master Collateral Agency Agreement, causing the Servicer, as agent for the
Master Collateral Agent, to maintain possession of the applicable Certificates
of Title for the benefit of the Master Collateral Agent pursuant to and in
accordance with Section 2.6 of the Master Collateral Agency Agreement. If the
Issuer fails to perform any of its agreements or obligations under this Section
8.13(a), the Trustee may (but shall not be required to) itself perform such
agreement or obligation,


 


45

















 


and the expenses of the Trustee incurred in connection
therewith shall be payable by the Issuer upon the Trustee’s demand therefor; provided,
however, prior to taking any such action, the Trustee shall give notice
of such intention to the Issuer and provide the Issuer with a reasonable
opportunity to take such action itself. The Issuer also hereby authorizes the
Trustee, and appoints the Trustee as its agent and attorney in fact, to file
any such financing statement or continuation statement in order to perfect or
maintain the first-priority Lien created by this Indenture in the Collateral,
but Trustee shall not be obligated to so file.


 


(b)                                 The
Issuer will warrant and defend the Trustee’s right, title and interest in and
to the Collateral and the income, distributions and proceeds thereof, for the benefit
of the Trustee on behalf of the Secured Parties, against the claims and demands
of all Persons whomsoever.


 


(c)                                  If
so requested by Noteholders holding 10% or in excess of 10% of the aggregate
Invested Amount of any Series of Notes (excluding for the purposes of making
the foregoing calculation, any Notes held by Vanguard Holdings or any Affiliate
of Vanguard Holdings (other than any Series of Notes held by an Affiliate
Issuer)), the Issuer will provide, no more frequently than annually and,
without the request of Noteholders six months prior to the fifth anniversary of
the date hereof, an Opinion of Counsel to the effect that no UCC financing or
continuation statements are required to be filed with respect to any of the Collateral
in which a security interest may be perfected by the filing of UCC financing
statements.


 


Section 8.14   Manufacturer
Programs.


 


(a)                                  Prior
to acquiring any Program Vehicles, the Issuer will have received (i) an
executed Assignment Agreement with respect to the Manufacturer Program covering
such Program Vehicle, (ii) if any Series of Outstanding Notes is held by an
Affiliate Issuer and any series of securities issued by an Affiliate Issuer is
then being rated by a Rating Agency and, if so required by any such Rating
Agency, a written confirmation from such Rating Agency that the acquisition of
Vehicles pursuant to such Manufacturer Program satisfies the Rating Agency
Confirmation Condition with respect to such Series of Notes and (iii) if there
is a material change to a Manufacturer program during a model year, written
confirmation from each such Rating Agency that the acquisition of Program
Vehicles pursuant to such Manufacturer Program satisfies the Rating Agency
Confirmation Condition with respect to each Outstanding Series of Notes; provided
that the satisfaction of the Confirmation Condition with respect to a Manufacturer
shall not constitute a material change for purposes of this Section 8.14. A copy
of the rating confirmations set forth in clauses (ii) and (iii)
will promptly be delivered to the Trustee for delivery to the Noteholders of
any Outstanding series of Notes.


 


(b)                                 The
Issuer will (a) provide the Trustee and the Rating Agencies with at least 15
days’ prior written notice of its intention to finance Program Vehicles from
any new Manufacturer and (b) provide the Trustee with a copy of the draft


 


46

















 


Manufacturer Program of such Manufacturer as it exists
at the time of such notice and a copy of the final Manufacturer Program
promptly upon its being available. In no event shall the Issuer agree, to the
extent any consent of the Issuer is solicited or required by the Manufacturer
or any assignor of such Manufacturer Program, to any change in any Manufacturer
Program that is reasonably likely to materially adversely affect its rights or
the rights of the Noteholders with respect to any Program Vehicle previously
purchased or financed under such Manufacturer Program.


 


Section 8.15   Liens.


 


The Issuer will not
create, incur, assume or permit to exist any Lien upon any of its Assets
(including the Collateral), other than (i) Liens in favor of the Trustee for
the benefit of the Secured Parties, (ii) Liens upon Exchanged Vehicle Repurchase
Rights and Exchanged Vehicle Insurance Payments in favor of the Exchange
Lender, (iii) Permitted Liens, (iv) Liens under the Second Base Indenture
existing as of the date hereof that do not encumber the Collateral and (v)
Liens upon Transferred Vehicle Repurchase Rights in favor of a Manufacturer
Receivables Transferee or a Manufacturer Receivables Purchaser.


 


Section 8.16   Other Indebtedness.


 


Neither the Issuer nor
the General Partner will create, assume, incur, suffer to exist or otherwise
become or remain liable in respect of any Indebtedness other than (i)
Indebtedness hereunder, (ii) Indebtedness existing as of the date hereof and
permitted under the Second Base Indenture, (iii) Indebtedness permitted under
any other Related Document, (iv) Indebtedness to an Exchange Lender for the
purchase of Replacement Vehicles, which Indebtedness is non-recourse to the
Issuer, the General Partner or any Pledged Master Collateral, and is created
pursuant to an Exchange Financing Agreement, and (v) Indebtedness to a
Manufacturer Receivables Transferee pursuant to a Manufacturer Receivables
Transfer Agreements which Indebtedness is non-recourse to the Issuer, the
General Partner and any Pledged Master Collateral,


 


Section 8.17   Mergers.


 


Neither the Issuer nor
the General Partner will merge or consolidate with or into any other Person.


 


Section 8.18   Sales of Assets.


 


The Issuer will not sell,
lease, transfer, liquidate or otherwise dispose of any Assets, except as
contemplated by the Related Documents, the Second Base Indenture (solely with
respect to Assets not constituting Collateral), the GM Side Letter and the Note
Receivables Trust Agreement and provided that if such Assets constitute
Collateral or Pledged Master Collateral with respect to which the ARG Trustee
is Beneficiary the proceeds received by the Issuer are paid directly to the
Collection Account (or a similar collection account established by the Issuer
with the Trustee as


 


47

















 


contemplated by Section 2.3(b) and 5.1 in respect of a
new pool of Series-Specific Collateral) or the Master Collateral Account or
deposited by the Issuer into the Collection Account (or a similar collection
account established by the Issuer with the Trustee as contemplated by Section
2.3(b) and 5.1 in respect of a new pool of Series-Specific
Collateral) or the Master Collateral Account within two Business Days after receipt
thereof by the Issuer (except that amounts payable to the Issuer with respect
to Exchanged Vehicles by the related Manufacturer under its Manufacturer Program
shall be paid into the Exchange Account).


 


Section 8.19 Acquisition of Assets.


 


Neither the Issuer nor the General Partner will
acquire, by long-term or operating lease or otherwise, any Assets except in
accordance with the terms of the Related Documents or the Second Base
Indenture.


 


Section 8.20 Dividends, Officers’ Compensation, etc.


 


Neither the Issuer nor the General Partner will (i)
declare or pay any distributions on any of its partnership interests or shares
of its capital stock, as the case may be. or make any purchase, redemption or
other acquisition of, any of its partnership interests or shares of its capital
stock, as the case may be provided, however, that so long as no
Amortization Event or Potential Amortization Event has occurred and is continuing
or would result therefrom, the Issuer and the General Partner may declare and pay
distributions out of capital or earnings computed in accordance with GAAP applied
on a consistent basis or (ii) pay any wages or salaries or other compensation
to officers, directors, employees or others except out of capital or earnings
computed in accordance with GAAP applied on a consistent basis.


 


Section 8.21 Name; Principal Office.


 


The Issuer will neither (a) change its jurisdiction of
organization or the location of its chief executive office or sole place of
business (within the meaning of the applicable UCC) without thirty (30) days’
prior written notice to the Trustee and the Master Collateral Agent nor (b)
change its name or corporate structure to such an extent that any financing
statement filed in connection with this Base Indenture would become misleading
without prior written notice to the Trustee and the Master Collateral Agent
sufficient to allow the Trustee and the Master Collateral Agent to make all filings
(including filings of financing statements on form UCC-1) and recordings necessary
to maintain the perfection of the interest of the Trustee in the Collateral or
of the Master Collateral Agent in the Pledged Master Collateral pursuant to
this Base Indenture or the Master Collateral Agency Agreement, as the case may
be. In the event that Issuer desires to so change its jurisdiction of
organization, its name or corporate structure, the Issuer will make any
required filings and prior to actually changing its jurisdiction of
organization, its name or corporate structure, the Issuer will deliver to the
Trustee and the Master Collateral Agent (i) an Officers’ Certificate and an
Opinion of Counsel confirming that all required filings have been made to
continue the perfected interest of


 


48

















 


the Trustee in the Collateral and the perfected
interest of the Master Collateral Agent in the Pledged Master Collateral in
respect of the new jurisdiction of organization, new name or corporate
structure of the Issuer and (ii) copies of all such required filings with the
filing information duly noted thereon by the office in which such filings were
made.


 


Section 8.22   Organizational Documents.


 


Neither the Issuer nor
the General Partner will amend any of its organizational documents, including
the certificate of limited partnership or limited partnership agreement of the
Issuer and the certificate of formation and limited liability company agreement
of the General Partner unless, prior to such amendment, each Rating Agency
confirms that after such amendment the Rating Agency Confirmation Condition
with respect to each Outstanding Series of Notes will be met.


 


Section 8.23   Investments.


 


Neither the Issuer nor the General Partner will make,
incur, or suffer to exist any loan, advance, extension of credit to, or other
investment in, any Person other than (in the case of the Issuer) pursuant to
the Subordinated Note or as permitted by the Related Documents and the Second
Base Indenture and with respect to Permitted Investments and (in the case of
the General Partner) in the Issuer; provided, however, that upon
the occurrence and during the continuance of an Amortization Event, the Issuer
shall not advance any additional amounts under the Subordinated Note. In
addition, without limiting the generality of the foregoing, the Issuer will not
cause the Trustee to make any Permitted Investments on the Issuer’s behalf that
would have the effect of causing the Issuer to be an “investment company”
within the meaning of the Investment Company Act.


 


Section 8.24   No Other Agreements.


 


The Issuer will not (a)
enter into or be a party to any agreement or instrument other than any Related
Document, the Second Base Indenture (and any documents permitted under the
Second Base Indenture that do not affect the Collateral), the GM Side Letter,
any Manufacturer Receivables Transfer Agreement, the Note Receivables Trust
Agreement or any documents related to any Enhancement, an Exchange Agreement,
an Exchange Financing Agreement or documents and agreeements incidental thereto
or entered into as contemplated in Section 8.26 or (b) except as
provided for in Sections 12.1 or 12.2, amend, modify or waive any
provision of my Related Document to which it is a party, or (c) give any
approval or consent or permission provided for in any Related Document, except
as permitted in Section 13.2(a).


 


Section 8.25   Other Business.


 


Neither the Issuer nor
the General Partner will engage in any business or enterprise or enter into any
transaction other than (i) the acquisition, financing, refinancing and
disposition of Eligible Receivables and Eligible Vehicles and the leasing


 


49

















 


of Eligible Vehicles in accordance with the Related
Documents, the related exercise of its rights as lessor under the Lease, the
making of loans to Vanguard pursuant to the Subordinated Note in accordance with Section 8.23,
the incurrence and payment of ordinary course operating expenses, the issuing
and selling of the Notes and other activities related to or incidental to
either of the foregoing (including transactions contemplated in Sections
8.24 and 8.26). or (ii) such transactions entered into as of the
date hereof under the Second Base Indenture in effect on the date hereof.


 


Section 8.26   Maintenance
of Separate Existence.


 


Each of the Issuer and
the General Partner will do all things necessary to maintain its limited
partnership or limited liability company existence separate and apart from that
of Vanguard Holdings and Affiliates of Vanguard Holdings including, without
limitation, (i) practicing and adhering to limited partnership or limited
liability company formalities, such as maintaining appropriate books and
records; (ii) owning or leasing (including through shared arrangements with
Affiliates) all office furniture and equipment necessary to operate its
business; (iii) not (A) guaranteeing or otherwise becoming liable for any
obligations of any of its Affiliates, (B) having obligations guaranteed by any
of its Affiliates, (C) holding itself out as responsible for debts of any of
its Affiliates or for decisions or actions with respect to the affairs of any
of its Affiliates and (D) being directly or indirectly named as a direct or
contingent beneficiary or loss payee on any insurance policy of any Affiliate
other than as required by the Related Documents with respect to insurance on
the Vehicles; (iv) other than as provided in the Related Documents, maintaining
its deposit and other bank accounts and all of its assets separate from those
of any other Person; (v) maintaining its financial records and books of account
separate and apart from those of any other Person; (vi) compensating all its
employees, officers, consultants and agents for services provided to it by such
Persons, or reimbursing any of its Affiliates in respect of services provided
to it by employees, officers, consultants and agents of such Affiliate, out of
its own funds; (vii) maintaining office space separate and apart from that of
any of its Affiliates (even if such office space is subleased from or is on or
near premises occupied by any of its Affiliates) and a telephone number
separate and apart from that of any of its Affiliates; (viii) accounting for
and managing all of its liabilities separately from those of any of its
Affiliates; (ix) allocating, on an arm’s-length basis, all shared corporate,
limited partnership or limited liability company operating services, leases and
expenses, including, without limitation, those associated with the services of
shared consultants and agents and shared computer and other office equipment
and software; (x) refraining from filing or otherwise initiating or supporting
the filing of a motion in any bankruptcy or other insolvency proceeding
involving the Issuer, the General Partner, Vanguard, Vanguard Holdings or any
Affiliate of Vanguard Holdings, to substantively consolidate the Issuer or the
General Partner with Vanguard, Vanguard Holdings or any Affiliate of Vanguard
Holdings; (xi) remaining solvent and (xii) conducting all of its business
(whether written or oral) solely in its own name. Each of the Issuer and the
General Partner acknowledges its receipt of a copy of those certain opinion
letters issued by Weil, Gotshal & Manges LLP dated the date of issuance of
the initial Series of Notes addressing the issue of substantive consolidation
as


 


50

















 


it may relate to Vanguard, Vanguard Holdings, the
General Partner and the Issuer and the characterization of the Lease as a “true
lease”. The Issuer and the General Partner hereby agree to maintain in place
all policies and procedures, and take and continue to take all action,
described in the factual assumptions set forth in such opinion letters and
relating to the Issuer or the General Partner. On an annual basis, commencing
on October 31, 2005, the Issuer will provide to the Rating Agencies, the
Trustee and the Master Collateral Agent, an Officer’s Certificate certifying
that it is in compliance with its obligations under this Section 8.26.


 


Section 8.27   Use
of Proceeds of Notes.


 


The Issuer shall use the
proceeds of Notes solely for one or more of the following purposes: (a) to pay
amortizing Group I Notes when due or to prepay Group I Notes, in accordance
with this Indenture and any Series Supplement; (b) to acquire Eligible Vehicles
in accordance with the Lease; (c) to refinance Eligible Receivables; or (d) to
make loans pursuant to the Subordinated Note in accordance with Section 8.23
or (d) any other purpose permitted under the related Series Supplement.


 


Section 8.28   Vehicles.


 


The Issuer shall use
commercially reasonable efforts to maintain, and to cause the Lessees to
maintain, good, legal and marketable title to the Vehicles leased under the
Lease, free and clear of all Liens except for Permitted Liens.


 


Section 8.29   Amendments
to Exchange Documents.


 


The Issuer shall not
agree to any amendment of or waiver under (a) any Exchange Agreement, except
such amendments or waivers as will not, in the aggregate, result in a material
adverse effect on the interest of the Noteholders of any Series, or (b) any
Exchange Financing Agreement, except such amendments or waivers as are made
only to cure any ambiguity, defect or inconsistency in, or to correct or
supplement any provision of, this Indenture or such Exchange Financing
Agreement, unless, in each case, prior to the effectiveness of any such
amendment or waiver, the Rating Agency Confirmation Condition with respect to
each Outstanding Series of Notes shall have been satisfied with respect to such
amendment or waiver.


 


Section 8.30   No
ERISA Plan.


 


The Issuer will not
establish or maintain or contribute to any Pension Plan that is covered by
Title IV of ERISA.


 


Section 8.31   Registered
Organization.


 


The Issuer will maintain
its status as a Registered Organization.


 


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ARTICLE 9.


 


AMORTIZATION EVENTS AND REMEDIES


 


Section 9.1   Amortization Events.


 


If any one of the
following events shall occur during the Revolving Period, the Accumulation
Period or the Controlled Amortization Period with respect to any Series of
Notes (each, an “Amortization Event”‘):


 


(a)                                  the
occurrence of an Event of Bankruptcy with respect to the Issuer or the General
Partner;


 


(b)                                 reserved;


 


(c)                                  the
Issuer shall have become an “investment company” or shall have become under the
“control” of an “investment company” under the Investment Company Act of 1940,
as amended;


 


(d)                                 reserved;


 


(e)                                  reserved;
and


 


(f)                                    any
other event shall occur which may be specified in any Series Supplement as an “Amortization
Event”:


 


then (i) in the case of any event described in clause
(f) above, subject to clause (iii) below, either the Trustee, by
written notice to the Issuer, or the Required Noteholders of the applicable
Series of Notes, by written notice to the Issuer and the Trustee, may declare
that an Amortization Event has occurred with respect to such Series as of the
date of the notice, or (ii) in the case of any event described in clause (a)
or (c) above, an Amortization Event with respect to all Series of Notes
then outstanding shall immediately occur without any notice or other action on
the part of the Trustee or any Noteholders or (iii) in the case of any event
described in clause (f) above, if the Amortization Event arising from
such event is only subject to waiver by 100% of the applicable Noteholders as
set forth in the applicable Series Supplement, an Amortization Event with
respect to the related Series of Notes shall immediately occur without any
notice or other action on the part of the Trustee or any Noteholders; provided,
however, that the Trustee shall have no liability in connection with any
action or inaction taken or not taken by it upon the occurrence of an
Amortization Event unless a Responsible Officer has actual knowledge of such
Amortization Event; and provided, further the provisions of this
sentence shall not insulate the Trustee from liability arising out of its
negligence or willful misconduct.


 


52

















 


Section 9.2   Rights of the Trustee upon Amortization
Event or Certain Other Events of Default.


 


(a)                                  General.
If and whenever an Amortization Event shall have occurred and be continuing,
the Trustee may and, at the written direction of the ARG Trustee shall,
exercise (or direct the Master Collateral Agent and/or Disposition Agent to exercise)
from time to time any rights and remedies available to it under applicable law or
any Related Document. Any amounts obtained by the Trustee (or by the Master Collateral
Agent) on account of or as a result of the exercise by the Trustee of any right
shall be held by the Trustee as additional collateral for the repayment of the
Issuer Obligations and shall be applied as provided in Article 5 hereof.
If so specified in the applicable Series Supplement, the Trustee may agree to
limit its exercise of rights and remedies available to it as a result of the
occurrence of an Amortization Event to the extent set forth therein.


 


(b)                                 Lease.
If a Liquidation Event of Default or a Limited Liquidation Event of Default
shall have occurred and be continuing, the Trustee, at the written direction of
the ARG Trustee, shall direct the Issuer to exercise (and the Issuer agrees to exercise),
to the extent necessary, all rights, remedies, powers, privileges and claims of
the Issuer against the Lessees and the Guarantor under or in connection with
the Lease and any of the Related Documents and against any party to any Related
Document, including the right or power to take any action to compel performance
or observance by the Lessees, the Guarantor or any such party of its
obligations to the Issuer, the right to take possession of any of the Vehicles,
and to give any consent, request, notice, direction, approval, extension or
waiver in respect of the Lease, and any right of the Issuer to take such action
independent of such direction shall be suspended.


 


(c)                                  Manufacturer
Programs and Vehicles. (i) Upon the occurrence of a Liquidation Event of
Default, the Trustee, upon direction of the ARG Trustee, shall exercise its
rights under the Lease and cause the Issuer or the Lessees to return the Program
Vehicles to the related Manufacturers (after the minimum holding period specified
in the Manufacturer’s Manufacturer Program and so long as a Manufacturer Event
of Default has not occurred and is continuing with respect to the related Manufacturer)
and then, to the extent any Manufacturer fails to accept any such Program Vehicles
under the terms of the applicable Manufacturer Program (or if a Manufacturer Event
of Default has occurred and is continuing with respect to the related
Manufacturer), shall cause the Issuer or the Lessees to liquidate the Program
Vehicles in accordance with the rights of the Issuer under the Lease and to
otherwise sell or cause to be sold to third parties all Non-Program Vehicles.
Upon the occurrence of a Limited Liquidation Event of Default with respect to
any Series of Notes, the Trustee, upon direction of the ARG Trustee, shall
exercise its rights under the Lease and cause the Issuer or the Lessees to return
Program Vehicles to the related Manufacturers (after the minimum holding period
specified in the Manufacturer’s Manufacturer Program and so long as a
Manufacturer Event of Default has not occurred and is continuing with respect
to the related Manufacturer) and to sell Non-Program Vehicles or cause
Non-Program Vehicles to be sold to third parties in an amount sufficient to pay
the lesser of all interest and principal


 


53

















 


on such Series of Notes and the amount payable in
respect of such Series of Notes after the occurrence of an Affiliate Issuer
Liquidation Event set forth in the applicable Series Supplement, taking into account
the availability of proceeds of Vehicles being disposed of under the Leasing
Company Leases, and to the extent that any Manufacturer fails to accept any
such Program Vehicles under the terms of the applicable Manufacturer Program
(or if a Manufacturer Event of Default has occurred and is continuing with
respect to the related Manufacturer), shall cause the Issuer or the Lessees to
liquidate such Program Vehicles in accordance with the rights of the Issuer
under the Lease; provided, however, that the Issuer shall select
the Program Vehicles to be returned to the related Manufacturers and the
Non-Program Vehicles to be sold to third parties in a manner that does not
adversely affect in any material respect the interests of the Noteholders of
any Series of Notes or any Enhancement Provider.


 


(ii)                                  In
addition to, and not in limitation of, the remedies and duties of the Trustee
set forth in subsection (i) above or (iii) below, if a
Liquidation Event of Default or a Limited Liquidation Event of Default shall have
occurred and be continuing, the Trustee may, and at the written direction of
the ARG Trustee, shall cause the Issuer or the Lessees to exercise all rights,
remedies, powers, privileges and claims of the Issuer or the Lessees, as the
case may be, against the Manufacturers under or in connection with the
Manufacturer Programs.


 


(iii)                               Following
the occurrence of a Liquidation Event of Default It or a Limited Liquidation
Event of Default, in the event that either (i) an Event of Bankruptcy with
respect to any Manufacturer of Program Vehicles shall have occurred and such
Manufacturer shall fail to repurchase any Eligible Vehicles in accordance with
the terms of the related Manufacturer Program or (ii) if there has occurred and
is continuing any other Manufacturer Event of Default, the Trustee shall cause
the Issuer or the Lessees to sell any and all Program Vehicles covered by the
related Manufacturer Program of such Manufacturer for the highest purchase
price offered and, promptly upon receipt, to deposit the proceeds of such sale
into a Master Collateral Account for allocation under the Master Co: lateral
Agency Agreement.


 


(iv)                              The
Lessor agrees that upon revocation of the Power of Attorney given to the
Lessees and the Servicer pursuant to Section 9 of the Lease, at the direction
of the Trustee, it will execute a Power of Attorney (substantially in the form of Exhibit B to the
Lease) and such other related documents as are necessary to allow any
Beneficiary Agent (as defined in the Master Collateral Agency Agreement) acting
for the ARG Trustee to dispose of the Vehicles.


 


(d)                                 Failure
of the Issuer, the Master Collateral Agent or any Lessee to Take Action. If
(i) the Issuer or any Lessee shall have failed, within 15 Business Days of
receiving the direction of the Trustee, to take commercially reasonable action
to accomplish the directions of the Trustee given pursuant to clause (a),
(b) or (c) above, (ii) the Issuer or any Lessee refuses to take
such action, or (iii) the Trustee reasonably determines that such action must
be taken immediately, the Trustee may (and at the


 


54

















 


written direction of the ARG Trustee shall), take such
previously directed action (and any related action as permitted under this
Indenture thereafter determined by the Trustee to be appropriate without the
need under this provision or any other provision under this Indenture to direct
the Issuer or such Lessee to take such action). In the event that the Trustee
determines to take action pursuant to the immediately preceding sentence, the
Trustee may institute legal proceedings for the appointment of a receiver or
receivers pursuant to the powers of sale granted by this Indenture or to a
judgment, order or decree made in any judicial proceeding for the foreclosure
or involving the enforcement of this Indenture.


 


(e)                                  Sale
of Collateral. Upon any sale of any of the Collateral directly by the
Trustee (or its agent), or by the Master Collateral Agent (or its agent) at the
direction of the ARG Trustee, whether made under the power of sale given under
this Section 9.2 or under judgment, order or decree in any judicial
proceeding for the foreclosure or involving the enforcement of this Indenture;


 


(i)                                     the
Trustee, any Noteholder and/or any Enhancement Provider may bid for and
purchase the property being sold, and upon compliance with the terms of sale
may hold, retain and possess and dispose of such property in its own absolute
right without further accountability;


 


(ii)                                  the
Trustee (or its agent), or the Master Collateral Agent (or its agent) at the
direction of the ARG Trustee, may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and instrument of
assignment and transfer of the property sold;


 


(iii)                               all
right, title, interest, claim and demand whatsoever, either at law or in equity
or otherwise, of the Issuer of, in and to the property so sold shall be
divested; and such sale shall be a perpetual bar both at law and in equity
against the Issuer, its successors and assigns, and against any and all Persons
claiming or who may claim the property sold or any part thereof from, through
or under the Issuer its successors or assigns;


 


(iv)                              the
receipt of the Trustee or of the agent thereof making such sale shall be a
sufficient discharge to the purchaser or purchasers at such sale for his or
their purchase money, and such purchaser or purchasers, and his or their
assigns or personal representatives, shall not, after paying such purchase
money and receiving such receipt of the Trustee or of such agent therefor, be
obliged to see to the application of such purchase money or be in any way
answerable for any loss, misapplication or nonapplication thereof; and


 


(v)                                 to
the extent that it may lawfully do so, the Issuer agrees that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any appraisal, valuation, stay, extension or
redemption laws, or any law permitting it to direct the order in which the
Vehicles shall be sold, now or at any time hereafter in force, which may delay,
prevent or


 


55

















 


otherwise affect the
performance or enforcement of this Indenture or any of the Related Documents.


 


(f)                                    Additional
Remedies. In addition to any rights and remedies now or hereafter granted
hereunder or under applicable law with respect to the Collateral, the Trustee
shall (subject to the foregoing provisions in respect of the Vehicles) have all
of the rights and remedies of a secured
party under the UCC as enacted in any applicable jurisdiction.


 


(g)                                 Certain
Other Series of Group I Notes. Certain Series of Group I Notes may provide
for allocations of Collections to such Series of Group I Notes only in respect
of specified items of Collateral upon the occurrence of certain Amortization Events.
Upon the occurrence of such an Amortization Event relating to such a Series of Group
I Notes, the Trustee shall, to the extent specified in the applicable Series Supplement,
limit any recourse hereunder to the related specified items of Collateral to satisfy
the payment of all interest and principal on such Series of Group I Notes up to
the Invested Amount of such Series of Group I Notes.


 


(h)                                 Segregated
Series. Upon the occurrence of an Amortization Event relating to any
Outstanding Segregated Series of Notes, the Trustee shall limit any recourse
hereunder to the related Series-Specific Collateral in satisfying the payment
of interest and principal due on such Segregated Series of Notes. For all purposes
hereunder and for the avoidance of doubt, the Requisite Investors with respect
to each Segregated Series of Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Series-Specific
Collateral relating to such Segregated Series of Notes. However, subject to Section
10.1, the Trustee may refuse to follow any direction that conflicts with
law or this Base Indenture, or that, in the Trustee’s sole discretion, may
involve the Trustee in personal liability.


 


(i)                                     Lease
Assumption/Rejection During GM Freeze Period. At any time that the GM
Freeze Agreement is in effect and there are Vehicles which are GM Freeze
Vehicles, the Trustee, to the extent it has actual knowledge thereof, shall use
its best efforts, during any GM Freeze Period, to file a motion with the United
States bankruptcy court or other court exercising jurisdiction over the
bankruptcy proceeding involving the Lessee seeking entry of an order compelling
the Lessee to immediately assume or reject the Leases in accordance with
Section 365 of the Bankruptcy Code.


 


Section 9.3   Other Remedies.


 


Subject to the terms and
conditions of this Indenture, if an Amortization Event occurs and is
continuing, the Trustee may pursue any remedy available under applicable law or
in equity to collect the payment of principal of or interest on the Notes (or
the applicable Series of Notes, in the case of an Amortization Event that affects
only one or more particular Series of Notes) or to enforce the performance of
any provision of the Notes, this Indenture or any Series Supplement with
respect to that Series of Notes.


 


56

















 


In addition, the Trustee may, or shall at the written
direction of the Requisite Investors (or the Required Noteholders of one or
more Series of Notes, in the case of an Amortization Event that affects only
such Series of Notes), direct the Issuer or the Master Collateral Agent to
exercise any rights or remedies available under any Related Document or under
applicable law or in equity with respect to that Series of Notes.


 


The Trustee may maintain
a proceeding even if it does not possess any of the Notes or does not produce any
of them in the proceeding, and any such proceeding instituted by the Trustee
shall be in its own name as trustee. All remedies are cumulative to the extent
permitted by law.


 


Section 9.4   Waiver of Past Events.


 


Unless otherwise
specified in the Series Supplement for a Series, the Noteholders of any Series
owning an aggregate principal amount of Notes in excess of 66-2/3% of the
aggregate principal amount of the Outstanding Notes of such Series (excluding
any Notes held by the Issuer or any Affiliate of the Issuer (other than an
Affiliate Issuer)), by written notice to the Trustee, may waive any existing
Potential Amortization Event or Amortization Event described in clause (f)
of Section 9.1 (solely to the extent that the applicable Series
Supplement does not require 100% of the applicable Noteholders to waive such
Potential Amortization Event or Amortization Event) which relate to such Series
and its consequences. 100% of the Noteholders may waive any Potential
Amortization Event or an Amortization Event described in clause (a), (c)
or (f) of Section 9.1 (with respect to clause (f), solely to the extent that the
applicable Series Supplement requires 100% of the applicable Noteholders to
waive such Potential Amortization Event or Amortization Event); provided
that notice of such waiver is provided to the Rating Agencies. Upon any such
waiver pursuant to either of the two preceding sentences, such Potential
Amortization Event shall cease to exist with respect to such Series, and any
Amortization Event with respect to such Series arising therefrom shall be
deemed to have been cured for every purpose of the Indenture; but no such
waiver shall extend to any subsequent or other Potential Amortization Event or
impair any right consequent thereon.


 


Section 9.5   Control by Requisite Investors or
Required Noteholders.


 


The Requisite Investors
(or, to the extent such remedy relates only to a particular Series of Notes,
the Required Noteholders of such Series) may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee. However, subject to Section
10.1, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture, that the Trustee determines may be unduly prejudicial to
the rights of other Noteholders, or that, in the Trustee’s sole discretion, may
involve the Trustee in personal liability.


 


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Section 9.6   Limitation on Suits.


 


Any other provision of
this Indenture to the contrary notwithstanding, a Noteholder may pursue a
remedy with respect to this Indenture or the Notes only if:


 


(a)                                  the
Noteholder gives to the Trustee written notice of a continuing Amortization
Event;


 


(b)                                 the
Noteholders of at least 25% in principal amount of all then Outstanding Notes
of such Series make a written request to the Trustee to pursue the remedy;


 


(c)                                  such
Noteholder or Noteholders offer and, if requested, provide to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or expense;


 


(d)                                 the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and


 


(e)                                  during
such 60 day period the Required Noteholders do not give the Trustee a direction
inconsistent with the request.


 


A Noteholder may
not use this Indenture to prejudice the rights of another Noteholder or to
obtain a preference or priority over another Noteholder.


 


Section 9.7   Unconditional Rights of Holders to
Receive Payment.


 


(a)                                  Notwithstanding
any other provision of this Indenture, the right of any Noteholder of a Note to
receive payment of principal of and interest on the Note, on or after the
respective due dates expressed in the Note, or to bring suit for the enforcement
of any such payment on or after such respective dates, is absolute and unconditional
and shall not be impaired or affected without the consent of the Noteholder.


 


(b)                                 The
Paying Agent shall (or if the Trustee is not the Paying Agent, the Trustee
shall cause the Paying Agent to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee that such Paying Agent
shall) comply with all requirements of the Code regarding the withholding of payments
in respect of Federal income taxes due from Noteholders and otherwise comply with
the provisions of this Indenture applicable to it.


 


Section 9.8   Collection Suit by the Trustee.


 


If any Amortization Event
consisting of a payment default under a Series of Notes occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Issuer for the whole amount of
principal and interest remaining unpaid on such Series of Notes and interest on
overdue


 


58

















 


principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.


 


Section 9.9  The Trustee May File Proofs of Claim.


 


The Trustee is authorized
to file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Noteholders allowed in any judicial
proceedings relative to the Issuer (or any other obligor upon the Notes), its
creditors or its property, and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on
any such claim and any custodian in any such judicial proceeding is hereby
authorized by each Noteholder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Noteholders, to pay the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 10.5.
To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 10.5 out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, Notes and other properties which the Noteholders of the Notes
may be entitled to receive in such proceeding whether in liquidation or under
any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Noteholder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Noteholder thereof, or to authorize the Trustee to vote in respect of the claim
of any Noteholder in any such proceeding.


 


Section 9.10   Priorities.


 


If the Trustee collects
any money with respect to a Series of Group I Notes pursuant to this Article,
the Trustee shall pay out the money net of any liquidation expenses incurred by
the Trustee, its agents and counsel, in accordance with the provisions of Article
5.


 


Section 9.11   Undertaking
for Costs.


 


In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys’ fees and expenses,
against any party litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the


 


59

















 


party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Noteholder pursuant to Section 9.6, or a
suit by Noteholders of more than 10% in principal amount of all then
outstanding Notes.


 


Section 9.12   Rights
and Remedies Cumulative.


 


No right or remedy herein
conferred upon or reserved to the Trustee or to the holders of Notes is
intended to be exclusive of any other right or remedy, and every right or
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given under this Indenture or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy under this Indenture, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.


 


Section 9.13   Delay
or Omission Not Waiver.


 


No delay or omission of
the Trustee or of any holder of any Note to exercise any right or remedy
accruing upon any Amortization Event shall impair any such right or remedy or
constitute a waiver of any such Amortization Event or an acquiescence therein.
Every right and remedy given by this Article 9 or by law to the Trustee
or to the holders of Notes may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the holders of Notes, as the case
may be.


 


Section 9.14   Reassignment of Surplus.


 


Promptly after
termination of this Indenture and the payment in full of the Issuer
Obligations, any proceeds of all the Collateral received or held by the Trustee
shall be turned over to the Issuer and the Collateral shall be reassigned to
the Issuer by the Trustee without recourse to the Trustee and without any
representations, warranties or agreements of any kind.


 


ARTICLE 10.


 


THE TRUSTEE


 


Section 10.1   Duties
of the Trustee.


 


(a)                                  If
an Amortization Event has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs; provided, however,
that the Trustee shall have no liability in connection with any action or
inaction taken, or not taken, by it upon the deemed occurrence of an
Amortization Event of which a Responsible Officer has not received written
notice; and provided further that the preceding sentence
shall not have the effect of insulating the Trustee from liability arising out
of the Trustee’s negligence or willful misconduct.


 


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(b)                                 Except
during the occurrence and continuance of an Amortization Event:


 


(i)                                     The
Trustee undertakes to perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and


 


(ii)                                  In
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of any
mathematical calculations or other facts stated therein).


 


(c)                                  The
Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:


 


(i)                                     This
clause does not limit the effect of clause (b) of this Section 10.1.


 


(ii)                                  The
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.


 


(iii)                               The
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section
9.3.


 


(iv)                              The
Trustee shall not be charged with knowledge of any Amortization Event, Custody
Revocation Trigger Event, Limited Liquidation Event of Default, Liquidation
Event of Default, any default by the Lessor, ARG, the Servicer, any Lessee or
other Person in the performance of its obligations under any Related Document
or any other event described in Section 8.10(a), unless a Responsible
Officer of the Trustee receives written notice of such failure from the
Servicer, any Lessee or any Holders of Notes evidencing not less than 10% of
the aggregate principal amount of the Notes of any Series adversely affected
thereby or otherwise has actual knowledge thereof.


 


(d)                                 Notwithstanding
anything to the contrary contained in this Indenture or any of the Related
Documents, no provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability if there is reasonable ground (as
determined by the Trustee in its sole discretion) for believing that the


 


61

















 


repayment of such funds is not reasonably assured to
it by the security afforded to it by the terms of this Indenture. The Trustee
may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.


 


(e)                                  In
the event that the Paying Agent or the Registrar shall fail to perform any
obligation, duty or agreement in the manner or on the day required to be performed
by the Paying Agent or the Registrar, as the case may be, under this Indenture,
the Trustee shall be obligated as soon as practicable upon actual knowledge of
a Responsible Officer thereof and receipt of appropriate records and information,
if any, to perform such obligation, duty or agreement in the manner so
required.


 


(f)                                    Subject
to Section 10.3, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they were
received, but need not be segregated from other funds except to the extent
required by law or the Related Documents. The Trustee may allow and credit to
the Issuer interest agreed upon by the Issuer and the Trustee from time to time
as may be permitted by law.


 


(g)                                 In
the event that each person acting as Independent Director (as defined in the GP
Limited Liability Company Agreement) shall resign or refuse to be admitted to
the General Partner as the Special Member (as defined in the GP Limited Liability
Company Agreement) under the circumstances contemplated by Section 15(c) of the
GP Limited Liability Company Agreement, the Trustee shall appoint a person meeting
the requirements of an Independent Director to act as the Special Member in accordance
with Section 5(c) of the GP Limited Liability Company Agreement. If the Trustee
fails to so appoint a person to act as the Special Member within thirty (30)
days of the occurrence of the event that caused Vanguard to cease to be a
member of the General Partner, the Trustee shall provide written notice of such
event to the Noteholders, and the Requisite Noteholders shall have the right to
select a person for the Trustee to appoint to act as the Special Member of the
General Partner. The General Partner shall provide prompt written notice to the
Trustee of any event that causes Vanguard to cease to be a member of the
General Partner.


 


Section 10.2   Rights
of the Trustee.


 


Except as otherwise
provided by Section 10.1:


 


(a)                                  The
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting based upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed by or presented by the
proper person.


 


(b)                                 The
Trustee may consult with counsel of its selection and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.


 


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(c)                                  The
Trustee may act through agents, custodians and nominees and shall not be liable
for any misconduct or negligence on the part of, or for the supervision of, any
such agent, custodian or nominee so long as such agent, custodian or nominee is
appointed with due care.


 


(d)                                 The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers conferred
upon it by the Indenture.


 


(e)                                  The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture or any Series Supplement, or to in institute, conduct
or defend any litigation hereunder or in relation hereto, at the request, order
or direction of any of the Noteholders, pursuant to the provisions of this
Indenture or any Series Supplement, unless such Noteholders shall have offered
to the Trustee security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligations, upon the occurrence of a default by any Lessee or the Issuer (which
has not been cured), to exercise such of the rights and powers vested in it by
this Indenture or any Series Supplement, and to use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.


 


(f)                                    The
Trustee shall not be bound to make any investigation into the facts of matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by the Required Noteholders of any Series
which could be adversely affected if the Trustee does not perform such acts,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuer, personally
or by agent or attorney at the sole cost of the Issuer and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.


 


(g)                                 The
Trustee shall not be liable for any losses or liquidation penalties in
connection with Permitted Investments, unless such losses or liquidation penalties
were incurred through the Trustee’s own willful misconduct or negligence.


 


(h)                                 The
Trustee shall not be liable for the acts or omissions of any successor to the
Trustee so long as such acts or omissions were not the result of the
negligence, bad faith or willful misconduct of the predecessor Trustee.


 


(i)                                     The
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder, and
to each agent, custodian and other Person employed to act hereunder.


 


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(j)                                     In
no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.


 


(k)                                  In
no event shall the Trustee be responsible or liable for any failure or delay in
the performance of its obligations under this Indenture arising out of or
caused by, directly or indirectly, forces beyond its reasonable control,
including without limitation strikes, work stoppages, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God.


 


Section 10.3   Individual
Rights of the Trustee.


 


The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or an Affiliate of the Issuer with the same
rights it would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee is subject to Section 10.8.


 


Section 10.4   Notice
of Amortization Events and Potential Amortization Events.


 


If an Amortization Event
or a Potential Amortization Event occurs and is continuing and if a Responsible
Officer of the Trustee receives written notice or has actual knowledge thereof,
the Trustee shall promptly provide the Noteholders and each Rating Agency with
notice of such Amortization Event or the Potential Amortization Event, to the
extent such Notes are represented by a Global Note, by telephone and facsimile,
and, otherwise, by first class mail.


 


Section 10.5   Compensation.


 


(a)                                  The
Issuer shall promptly pay to the Trustee from time to time such compensation
for its acceptance of this Indenture and services hereunder as has been agreed
to in writing by the Issuer and the Trustee. The Trustee’s compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Issuer shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include (i) the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel
and (ii) the reasonable expenses of the Trustee’s agents in administering the
Collateral.


 


(b)                                 The
indemnification provisions in favor of the Trustee and its officers, directors,
agents and employees provided for in the Lease are hereby incorporated by
reference with the same force and effect as if set forth herein in full. The Issuer
shall not be required to reimburse any expense or indemnify the Trustee against
any loss, liability, or expense incurred by the Trustee through the Trustee’s
own willful misconduct or negligence.


 


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(c)                                  When
the Trustee incurs expenses or renders services after an Amortization Event
occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under the Bankruptcy Code.


 


(d)                                 The
provisions of this Section 10.5 shall survive the termination of this
Indenture and the resignation and removal of the Trustee.


 


Section 10.6   Replacement of the Trustee.


 


(a)                                  A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section 10.6.


 


(b)                                 The
Trustee may, after giving sixty (60) days prior written notice to the Issuer,
each Noteholder and each Rating Agency, resign at any time and be discharged
from the trust hereby created by so notifying the Issuer and the Servicer; provided,
however, that no such resignation of the Trustee shall be effective
until a successor trustee has assumed the obligations of the Trustee hereunder.
The Requisite Investors may remove the Trustee by so notifying the Trustee, the
Servicer, the Rating Agencies and the Issuer. The Issuer may remove the Trustee
if:


 


(i)                                     the
Trustee fails to comply with Section 10.8;


 


(ii)                                  the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under the Bankruptcy Code;


 


(iii)                               a
custodian or public officer takes charge of the Trustee or its property; or


 


(iv)                              the
Trustee becomes incapable of acting.


 


If the Trustee resigns or
is removed or if a vacancy exists in the office of the Trustee for any reason,
the Issuer shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Requisite Investors may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuer.


 


(c)                                  If
a successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Issuer or any Secured Party
may petition at the expense of the Issuer any court of competent jurisdiction
for the appointment of a successor Trustee.


 


(d)                                 If
the Trustee after written request by any Noteholder who has been a Noteholder
for at least six months fails to comply with Section 10.8, such Noteholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.


 


65

















 


(e)                                  A
successor Trustee shall deliver a written acceptance of its appointment to the
retiring or removed Trustee and to the Issuer. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture and any Series Supplement. The successor Trustee shall mail a notice
of its succession to Noteholders. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee; provided, however,
that all sums owing to the retiring Trustee hereunder (and its agents and
counsel) have been paid. Notwithstanding replacement of the Trustee pursuant to
this Section 10.6, the Issuer’s obligations under Section 10.5
hereof shall continue for the benefit of the retiring Trustee.


 


Section 10.7   Successor Trustee by Mergers; etc.


 


Subject to Section 10.8,
if the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.


 


Section 10.8   Eligibility Disqualification.


 


(a)                                  There
shall at all times be a Trustee hereunder which shall (i) be a corporation
organized and doing business under the laws of the United States of America or
of any state thereof authorized under such laws to exercise corporate trustee
power, (ii) have an unsecured long-term debt rating of at least A2 from Moody’s,
(iii) be subject to supervision or examination by Federal or state authority
and shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and (iv) if such
Trustee is other than The Bank of New York as the original Trustee hereunder,
acceptable to the Requisite Investors.


 


(b)                                 If
at any time the Trustee shall cease to satisfy the eligibility requirements of clauses
(a)(i) or (a)(ii) above, the Trustee shall resign immediately in the
manner and with the effect specified in Section 10.6.


 


Section 10.9   Appointment of Co-Trustee or Separate
Trustee.


 


(a)                                  Notwithstanding
any other provisions of this Indenture or any Series Supplement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any part of the Collateral may at the time be located, the Trustee shall have
the power and may execute and deliver all instruments to appoint one or more
persons to act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Collateral, and to vest in such Person or
Persons, in such capacity and for the benefit of the Secured Parties, such
title to the Collateral, or any part thereof, 
and, subject to the other provisions of this Section 10.9, such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor


 


66

















 


trustee under Section 10.8 and no notice to
Noteholders of the appointment of any co-trustee or separate trustee shall be
required under Section 10.6. No co-trustee shall be appointed without
the consent of the Servicer unless such appointment is required as a matter of
state law or to enable the Trustee to perform its functions hereunder.


 


(b)                                 Every
separate trustee and co-trustee shall, to the extent permitted by law, be appointed
and act subject to the following provisions and conditions:


 


(i)                                     the
Notes of each Series shall be authenticated and delivered solely by the Trustee
or an authenticating agent appointed by the Trustee;


 


(ii)                                  all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed, the
Trustee shall be incompetent or unqualified to perform, such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Assets or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;


 


(iii)                               no
trustee hereunder shall be personally liable by reason of any act or omission
of any other trustee hereunder;


 


(iv)                              the
Trustee may at any time accept the resignation of or remove any separate
trustee or co-trustee; and


 


(v)                                 the
Trustee shall remain primarily liable for the actions of any co-trustee.


 


(c)                                  Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee or
co-trustee shall refer to this Indenture and the conditions of this Article
10. Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Indenture and
any Series Supplement, specifically including every provision of this Indenture
or any Series Supplement relating to the conduct of, affecting the liability
of, or affording protection to, the Trustee. Every such instrument shall be
filed with the Trustee and a copy thereof given to the Servicer.


 


(d)                                 Any
separate trustee or co-trustee may at any time constitute the Trustee, its
agent or attorney-in-fact with full power and authority, to the extent not


 


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prohibited by law, to do any lawful act under or in
respect to this Indenture or any Series Supplement on its behalf and in its
name. If any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.


 


(e)                                  In
connection with the appointment of a co-trustee, the Trustee may, at any time,
at the Trustee’s sole cost and expense, without notice to the Noteholders,
delegate its duties under this Base Indenture and any Series Supplement to any
Person who agrees to conduct such duties in accordance with the terms hereof; provided,
however, that no such delegation shall relieve the Trustee of its
obligations and responsibilities hereunder with respect to any such delegated
duties.


 


Section 10.10                          Representations
and Warranties of Trustee.


 


The Trustee represents
and warrants to the Issuer and the Secured Parties that:


 


(i)                                     the
Trustee is a banking corporation organized, existing and in good standing under
the laws of the State of New York;


 


(ii)                                  the
Trustee has full power, authority and right to execute, deliver and perform
this Indenture and any Series Supplement issued concurrently with this
Indenture and to authenticate the Notes, and has taken all necessary action to
authorize the execution, delivery and performance by it of this Indenture and
any Series Supplement issued concurrently with this Indenture and to
authenticate the Notes;


 


(iii)                               this
Indenture has been duly executed and delivered by the Trustee;


 


(iv)                              the
Trustee meets the requirements of eligibility as a trustee hereunder set forth
in Section 10.8;


 


(v)                                 the
Collection Account Collateral constitutes a “deposit account” or a “securities
account” within the meaning of the New York UCC; and


 


(vi)                              the
Trustee in favor of the Secured Parties is the account holder of the Collection
Account Collateral.


 


Section 10.11                          Issuer
Indemnification of the Trustee.


 


The Issuer shall fully
indemnify and hold harmless the Trustee (and any predecessor Trustee) and its
directors, officers, agents and employees from and against any and all loss,
liability, claim, expense, damage or injury suffered or sustained by reason of
any acts, omissions or alleged acts or omissions arising out of the activities
of


 


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the Trustee pursuant to this Indenture or any Series
Supplement, including but not limited to any judgment, award, settlement,
reasonable attorneys’ fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim; provided,
however, that the Issuer shall not indemnify the Trustee or its
directors, officers, employees or agents if such acts, omissions or alleged
acts or omissions constitute negligence or willful misconduct by the Trustee.
The indemnity provided herein shall survive the termination of this Indenture
and the resignation and removal of the Trustee.


 


Section 10.12                          Trustee’s
Application for Instructions from Issuer.


 


Any application by the
Trustee for written instructions from the Issuer or the Servicer may, at the
option of the Trustee, set forth in writing any action proposed to be taken or
omitted by the Trustee under this Indenture and the date on and/or after which
such action shall be taken or such omission shall be effective. Subject to Section
10.1, the Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on
or after the date specified in such application (which date shall not be less
than five Business Days after the date any Authorized Officer of the Issuer or
the Servicer actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any such
action (or the effective date in the case of an omission), the Trustee shall
have received written instructions in response to such application specifying
the action to be taken or omitted.


 


ARTICLE 11.


 


DISCHARGE OF
INDENTURE


 


Section 11.1   Termination of the Issuer’s Obligations.


 


(a)                                  This
Indenture shall cease to be of further effect (except that the Issuer’s
obligations under Section 10.5 and Section 10.11 and the Trustee’s
and Paying Agent’s obligations under Section 11.3 shall survive) when
all Outstanding Notes theretofore authenticated and issued have been delivered
(other than destroyed, lost or stolen Notes which have been replaced or paid)
to the Trustee for cancellation and the Issuer has paid all sums payable
hereunder.


 


(b)                                 In
addition, except as may be provided to the contrary in any Series Supplement,
the Issuer may terminate all of its obligations under this Indenture if:


 


(i)                                     the
Issuer irrevocably deposits in trust with the Trustee or at the option of the
Trustee, with a trustee reasonably satisfactory to the Trustee and the Issuer
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, money or U.S. Government Obligations in an amount
sufficient, in the opinion of a nationally recognized firm of independent
certified


 


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public accountants
expressed in a written certification thereof delivered to the Trustee, to pay,
when due, principal and interest on the Notes to maturity or redemption, as the
case may be, and to pay all other sums payable by it hereunder; provided,
however, that (1) the trustee of the irrevocable trust shall have been
irrevocably instructed to pay such money or the proceeds of such U.S.
Government Obligations to the Trustee and (2) the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of said principal and interest with
respect to the Notes;


 


(ii)                                  the
Issuer delivers to the Trustee an Officer’s Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture have been
complied with, and an Opinion of Counsel to the same effect;


 


(iii)                               the
Issuer delivers to the Trustee an Officer’s Certificate stating that no
Potential Amortization Event or Amortization Event, in either case, described
in Section 9.1(c) shall have occurred and be continuing on the date of
such deposit; and


 


(iv)                              the
Rating Agency Confirmation Condition is satisfied with respect to each
Outstanding Series of Notes.


 


Then, this Indenture shall cease to be of further
effect (except as provided in this Section 11.1), and the Trustee, on
demand of the Issuer, shall execute proper instruments acknowledging confirmation
of and discharge under this Indenture.


 


(c)                                  After
such irrevocable deposit made pursuant to Section 11.1(b) and
satisfaction of the other conditions set forth herein, the Trustee promptly
upon request shall acknowledge in writing the discharge of the Issuer’s
obligations under this Indenture except for those surviving obligations
specified above.


 


In order to have money
available on a payment date to pay principal or interest on the Notes, the U.S.
Government Obligations shall be payable as to principal or interest at least
one Business Day before such payment date in such amounts as will provide the
necessary money. U.S. Government Obligations shall not be callable at the
Issuer’s option.


 


Section 11.2   Application
of Trust Money.


 


The Trustee or a trustee
satisfactory to the Trustee and the Issuer shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 11.1. The
Trustee shall apply the deposited money and the money from U.S. Government
Obligations in accordance with this Indenture to the payment of principal and
interest on the Notes.


 


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The provisions of this Section
11.2 shall survive the expiration or earlier termination of this Indenture.


 


Section 11.3   Repayment to the Issuer.


 


The Trustee and the
Paying Agent shall promptly pay to the Issuer upon written request any excess
money or, pursuant to Sections 2.11 and 2.14, return any Notes
held by them at any time.


 


Subject to Section
2.7(c), the Trustee and the Paying Agent shall pay to the Issuer upon
written request any money held by them for the payment of principal or interest
that remains unclaimed for two years after the date upon which such payment
shall have become due.


 


The provisions of this Section
11.3 shall survive the expiration or earlier termination of this Indenture.


 


ARTICLE 12.


 


AMENDMENTS


 


Section 12.1   Without
Consent of the Noteholders.


 


Without the consent of
any Noteholder, the Issuer, the Trustee and any applicable Enhancement Provider,
at any time and from time to time, may enter into one or more Supplements
hereto, in form satisfactory to the Trustee, for any of the following purposes;
provided that the Rating Agency Confirmation Condition with respect to
each Outstanding Series of Notes is met with respect to such Supplement:


 


(a)                                  to
create a new Series of Notes in accordance with the terms hereof (including,
without limitation, making such modifications to the Indenture and the other Related
Documents as may be required to issue a Segregated Series of Notes);


 


(b)                                 (i)
to add to the covenants of the Issuer for the benefit of any Secured Parties
(and if such covenants are to be for the benefit of less than all Series of Notes,
stating that such covenants are expressly being included solely for the benefit
of such Series) or (ii) to surrender any right or power herein conferred upon
the Issuer (provided, however, that the Issuer will not pursuant
to this subsection (b) surrender any right or power it has against the
Servicer, the Guarantor, any of the Lessees or any Manufacturer);


 


(c)                                  to
mortgage, pledge, convey, assign and transfer to the Trustee any property or
assets as security for the Notes and to specify the terms and conditions upon which
such property or assets are to be held and dealt with by the Trustee and to set
forth such other provisions in respect thereof as may be required by the
Indenture or as may, consistent with the provisions of the Indenture, be deemed
appropriate by the Issuer and


 


71

















 


the Trustee, or to correct or amplify the description
of any such property or assets at any time so mortgaged, pledged, conveyed and
transferred to the Trustee;


 


(d)                                 to
cure any mistake, ambiguity, defect, or inconsistency or to correct or
supplement any provision contained herein or in any Series Supplement or in any
Notes issued hereunder;


 


(e)                                  to
provide for uncertificated Notes in addition to certificated Notes;


 


(f)                                    to
add to or change any of the provisions of the Indenture to such extent as shall
be necessary to permit or facilitate the issuance of Notes in bearer form, registrable
or not registrable as to principal, and with or without interest coupons;


 


(g)                                 to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes of one or more Series and to add to or change
any of the provisions of the Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee;


 


(h)                                 at
such time as there is no requirement under the Related Documents that there be
a Disposition Agent, to remove any provision of the Indenture relating to the
Disposition Agent; or


 


(i)                                     to
correct or supplement any provision herein which may be inconsistent with any
other provision herein or to make any other provisions with respect to matters
or questions arising under this Indenture;


 


provided,
however, that such action shall not adversely affect in any material
respect the interests of any Noteholders, as evidenced in the case of any
amendment pursuant to Sections 12.1(a), (b)(ii), (d), (g)
and (i) by an Opinion of Counsel (which Opinion of Counsel may rely as
to factual matters upon Officer’s Certificates of the Issuer and other
parties). Upon the request of the Issuer and upon receipt by the Trustee of the
documents described in Section 2.2, the Trustee shall join with the
Issuer in the execution of any Series Supplement authorized or permitted by the
terms of this Indenture and shall make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into such Series Supplement which affects its own rights,
duties or immunities under this Indenture or otherwise.


 


Section 12.2   With Consent of the Noteholders.


 


Except as provided in Section
12.1, the provisions of this Base Indenture and any Series Supplement
(unless otherwise provided in such Series Supplement) and each other Related
Document to which the Issuer is a party may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to in writing by the Issuer, the Trustee, any applicable Enhancement
Provider, and the Requisite Investors (or the Required Noteholders of a Series
of Notes,


 


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in respect of any amendment, modification or waiver of
or to this Base Indenture, the Series Supplement with respect to such Series of
Notes or any Related Document which affects only the Noteholders of such Series
of Notes and does not affect the Noteholders of any other Series of Notes, as
substantiated by an Opinion of Counsel to such effect); provided, that
no consent of Noteholders shall be required to any amendment, modification or
waiver of or to any Related Document if such amendment, modification or waiver
does not adversely affect in any material respect the Noteholders of any Series
of Notes (as substantiated by an Opinion of Counsel to such effect) and provided further
that the Rating Agency Confirmation Condition is satisfied with respect to each
affected Series of Notes. Notwithstanding the foregoing:


 


(i)                                     any
modification of this Section 12.2, any change in any requirement
hereunder that any particular action be taken by Noteholders holding the
relevant percentage in principal amount of the Notes or any change in the
definition of the terms “Aggregate Asset Amount”, “Manufacturer
Program” (other than in connection with a waiver of such eligibility
requirement by the Noteholders of any Series of Notes, but only to the extent
so provided in the related Series Supplement in respect of such Series of
Notes), “Invested Amount”, “Invested Percentage”, or the
applicable amount of Enhancement or any defined term used for the purpose of
any such definitions shall require the consent of each affected Noteholder; and


 


(ii)                                  any
amendment, waiver or other modification that would (a) extend the due date for,
or reduce the amount of any scheduled repayment or prepayment of principal of
or interest on any Note (or reduce the principal amount of or rate of interest
on any Note) shall require the consent of each affected Noteholder; (b) approve
the assignment or transfer by the Issuer of any of its rights or obligations
hereunder or under any other Related Document to which it is a party except
pursuant to the express terms hereof or thereof shall require the consent of
each affected Noteholder; (c) release any obligor under any Related Document to
which it is a party except pursuant to the express terms of such Related
Document shall require the consent of each affected Noteholder; provided,
however, that the Liens on Vehicles may be released as provided in Section 3.4;
(d) affect adversely the interests, rights or obligations of any Noteholder
individually in comparison to any other Noteholder shall require the consent of
such Noteholder; or (e) amend or otherwise modify any Amortization Event shall
require the consent of each affected Noteholder.


 


(iii)                               any
amendment, waiver or other modification to Section 7.14 shall require
the consent of each Noteholder.


 


No failure or delay on the part of any Noteholder or
the Trustee in exercising any power or right under this Indenture or any other
Related Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right.


 


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Section 12.3   Supplements.


 


Each amendment or other
modification to this Indenture or the Notes shall be set forth in a Supplement
hereto. In addition to the manner provided in Sections 12.1 and 12.2,
each Series Supplement may be amended as provided in such Series Supplement.


 


Section 12.4   Revocation and Effect of Consents.


 


Until an amendment or
waiver becomes effective, a consent to it by a Noteholder of a Note is a
continuing consent by the Noteholder and every subsequent Noteholder of a Note
or portion of a Note that evidences the same debt as the consenting Noteholder’s
Note, even if notation of the consent is not made on any Note. However, any
such Noteholder or subsequent Noteholder may revoke the consent as to his Note
or portion of a Note if the Trustee receives written notice of revocation
before the date the amendment or waiver becomes effective. An amendment or
waiver becomes effective in accordance with its terms and thereafter binds
every Noteholder. The Issuer may fix a record date for determining which
Noteholders must consent to such amendment or waiver.


 


Section 12.5   Notation on or Exchange of Notes.


 


The Trustee may place an
appropriate notation about an amendment or waiver on any Note thereafter
authenticated. The Issuer in exchange for all Notes may issue and the Trustee
shall authenticate new Notes that reflect the amendment or waiver. Failure to
make the appropriate notation or issue a new Note shall not affect the validity
and effect of such amendment or waiver.


 


Section 12.6   The Trustee to Sign Amendments, etc.


 


The Trustee shall sign
any Supplement authorized pursuant to this Article 12 if the Supplement
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does have such an adverse effect, the Trustee may, but need not,
sign it. In signing any waiver, amendment or supplement, whether to this Base
Indenture or to any of the Related Documents, the Trustee shall be entitled to
receive, if requested, an indemnity reasonably satisfactory to it and to
receive and, subject to Section 10.1, shall be fully protected in
relying upon, at the election of the Trustee, an Officer’s Certificate and/or
an Opinion of Counsel as conclusive evidence that such waiver, amendment or
supplement is authorized or permitted by this Indenture, that all conditions
precedent under this Indenture have been satisfied and that the waiver,
amendment or supplement will be valid and binding upon the Issuer in accordance
with its terms.


 


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ARTICLE 13.


 


MISCELLANEOUS


 


Section 13.1   Notices.


 


(a)                                  Any
notice or communication by the Issuer, the General Partner or the Trustee to
the other shall be in writing and delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next day delivery, to the other’s address:


 


If to the Issuer:


 


6929 North Lakewood
Avenue


Suite 100, Mod 1.2 202


Tulsa, Oklahoma 74117


Attn:                    Gerard
Kennell


Phone:           (918)
401-6477


Fax:                           (952)
837-9690


 


If to the General
Partner:


 


6929 North Lakewood
Avenue


Suite 100, Mod 1.2 202


Tulsa, Oklahoma 74117


Attn:                    Gerard
Kennell


Phone:           (918)
401-6477


Fax:                           (952)
837-9690


 


with a copy to the
Servicer:


 


Vanguard Car Rental USA
Inc.


6929 North Lakewood
Avenue


Suite 100


Tulsa, OK 74117


Attn:  Gerard Kennell


 


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If to the Trustee:


 


The Bank of New York


101 Barclay Street, Floor
8 West


New York, NY 10286


Attn:                    Corporate
Trust Administration – 

Asset Backed Securities Unit


Phone:           (212)
815-4389


Fax:                           (212)
815-2493


 


The Issuer, the General
Partner or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications; provided, however,
the Issuer may not at any time designate more than a total of three (3)
addresses to which notices must be sent in order to be effective.


 


Any notice (i) given in
person shall be deemed delivered on the date of delivery of such notice, (ii)
given by first class mail shall be deemed given five (5) days after the date
that such notice is mailed, (iii) delivered by telex or telecopier shall be
deemed given on the date of delivery of such notice, and (iv) delivered by
overnight air courier shall be deemed delivered one Business Day after the date
that such notice is delivered to such overnight courier.


 


Notwithstanding any
provisions of this Indenture to the contrary, the Trustee shall have no
liability based upon or arising from the failure to receive any notice required
by or relating to this Indenture or the Notes.


 


If the Issuer mails a
notice or communication to Noteholders, it shall mail a copy to the Trustee at
the same time.


 


(b)                                 Where
the Indenture provides for notice to Noteholders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if
sent in writing and mailed, first-class postage prepaid, to each Noteholder
affected by such event, at its address as it appears in the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
(if any) for the giving of such notice. in any case where notice to Noteholder
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Noteholder shall affect the sufficiency
of such notice with respect to other Noteholders, and any notice which is
mailed in the manner herein provided shall be conclusively presumed to have
been duly given. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.


 


In the case by reason of
the suspension of regular mail service or by reason of any other cause it shall
be impracticable to give such notice by mail, then such


 


76

















 


notification as shall be made that is satisfactory to
the Trustee shall constitute a sufficient notification for every purpose
hereunder.


 


Section 13.2   Communication by Noteholders With Other
Noteholders.


 


Noteholders may
communicate with other Noteholders with respect to their rights under this
Indenture or the Notes.


 


Section 13.3   Certificate and Opinion as to Conditions
Precedent.


 


Upon any request or
application by the Issuer to the Trustee to take any action under this
Indenture, the Issuer shall furnish to the Trustee an Officer’s Certificate in
form and substance reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 13.4) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been complied with.


 


Section 13.4   Statements Required in Certificate.


 


Each certificate with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:


 


(a)                                  a
statement that the Person giving such certificate has read such covenant or
condition;


 


(b)                                 a
brief statement as to the nature and scope of the examination or investigation
upon which the statements contained in such certificate are based;


 


(c)                                  a
statement that, in the opinion of such Person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and


 


(d)                                 a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been complied with.


 


Section 13.5   Rules by the Trustee.


 


The Trustee may make
reasonable rules for action by or at a meeting of Noteholders.


 


Section 13.6   No Recourse Against Others.


 


A director, Authorized
Officer, employee or stockholder of the Issuer, as such, shall not have any
liability for any obligations of the Issuer under the Notes or this


 


77

















 


Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. Each Noteholder by accepting a
Note waives and releases all such liability.


 


Section 13.7   Duplicate Originals.


 


The parties may sign any
number of copies of this Indenture. One signed copy is enough to prove this
Indenture.


 


Section 13.8   Benefits of Indenture.


 


Except as set forth in a
Series Supplement, nothing in this Indenture or in the Notes, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under the Indenture.


 


Section 13.9   Payment on Business Day.


 


In any case where any
payment date, redemption date or maturity date of any Note shall not be a
Business Day, then (notwithstanding any other provision of this Indenture)
payment of interest or principal (and premium, if any), as the case may be,
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on the payment date, redemption
date, or maturity date; provided, however, that no interest shall
accrue for the period from and after such payment date, redemption date, or
maturity date, as the case may be.


 


Section 13.10                          Governing
Law.


 


The laws of the State of
New York shall govern and be used to construe this Indenture, the Notes and all
matters arising out of or in any manner relating to this Indenture and the
Notes and the rights and duties of the Issuer, the Trustee, Registrar, Paying
Agent, Noteholders and Note Owners.


 


Section 13.11                          Successors.


 


All agreements of the
Issuer in this Indenture and the Notes shall bind its successor; provided,
however, the Issuer may not assign its obligations or rights under this
Indenture or any Related Document. All agreements of the Trustee in this
Indenture shall bind its successor.


 


Section 13.12                          Severability.


 


In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. If any provision of this Indenture
shall be, or shall be deemed to be, illegal, invalid or unenforceable under the
applicable laws and regulations of one jurisdiction, such provision shall not
solely thereby be rendered illegal, invalid or unenforceable in any other
jurisdiction.


 


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Section 13.13                          Counterpart
Originals.


 


The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.


 


Section 13.14                          Table
of Contents. Headings, etc.


 


The Table of Contents,
Cross-Reference Table, and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.


 


Section 13.15                          Termination;
Collateral.


 


This Indenture, and any grants,
pledges and assignments hereunder, shall become effective concurrently with the
issuance of the first Series of Notes and shall terminate when (a) all the
Issuer Obligations shall have been fully paid and satisfied, (b) the
obligations of each Enhancement Provider under any Enhancement and related
documents have terminated, and (c) any Enhancement shall have terminated, at
which time the Trustee, at the request of the Issuer and upon receipt of an
Officer’s Certificate from the Issuer to the effect that the conditions in clauses
(a), (b) and (c) above have been complied with and upon
receipt of a certificate from the Trustee and each Enhancement Provider to the
effect that the conditions in clauses (a), (b) and (c)
above relating to the Issuer Obligations to the Noteholders and each
Enhancement Provider have been complied with, shall reassign (without recourse
upon, or any warranty whatsoever by, the Trustee) and deliver all Collateral
and documents then in the custody or possession of the Trustee promptly to the
Issuer.


 


The Issuer and the
Secured Parties hereby agree that, if any funds remain on deposit in the
Collection Account after the termination of this Indenture, such amounts shall
be released by the Trustee and paid to the Issuer.


 


Section 13.16                          No
Bankruptcy Petition Against Issuer or the General Partner.


 


Each of the Secured
Parties and the Trustee hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of the latest maturing
Note, it will not institute against, or join with any other Person in
instituting against, the Issuer or the General Partner any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings, under any Federal or state bankruptcy or similar law; provided,
however, that nothing in this Section 13.16 shall constitute a
waiver of any right to indemnification, reimbursement or other payment from the
Issuer or the General Partner pursuant to this Indenture. In the event that any
such Secured Party or the Trustee takes action in violation of this Section
13.16, the Issuer, the General Partner or its Independent Manager, as
applicable, shall file an answer with the bankruptcy court or otherwise
properly contesting the filing of such a petition by any


 


79

















 


such
Secured Party or the Trustee against the Issuer, the General Partner or its
Independent Manager or the commencement of such action and raising the defense
that such Secured Party or the Trustee has agreed in writing not to take such
action and should be estopped and precluded therefrom and such other defenses,
if any, as its counsel advises that it may assert. The provisions of this Section
13.16 shall survive the termination of this Indenture, and the resignation or
removal of the Trustee. Nothing contained herein shall preclude participation
by any Secured Party or the Trustee in the assertion or defense of its claims
in any such proceeding involving the Issuer, the General Partner or its
Independent Manager.


 


Section
13.17       No Recourse.


 


The obligations of the Issuer under this Indenture are solely the
obligations of the Issuer. The Group I Notes and the payment of any fees,
expenses or costs payable by the Issuer hereunder shall be non-recourse
obligations of the Issuer and shall be limited in right of payment to amounts
available from the Collateral as provided in this Base Indenture and the Issuer
shall not otherwise be liable for payments on the Group I Notes. No recourse
shall be had for the payment of any amount owing in respect of any fee
hereunder or any other obligation or claim arising out of or based upon this
Indenture against any limited partner of the Issuer or against the capital or
any other asset of the General Partner or any member thereof or against any
stockholder, employee, officer, director or incorporator of the General Partner
or any such member. Fees, expenses or costs payable by the Issuer hereunder
shall be payable by the Issuer to the extent and only to the extent that the
Issuer is reimbursed therefor pursuant to the Lease or the Related Documents,
or funds are then available or thereafter become available for such purpose
pursuant to Article 5. Nothing in this Section 13.17 shall be
construed to limit the Trustee from exercising its rights hereunder with
respect to the Collateral.


 


Section
13.18       Waiver of Set-Off.


 


The Trustee waives any right to, and agrees not to, set-off or
appropriate and apply, any and all deposits and any other indebtedness at any
time held or owing thereby to or for the credit or the account of the Issuer,
against or on account of any obligation or liability of the Issuer to the
Trustee; provided that such waiver and agreement shall only be effective
until one year and one day after the latest maturing Note is paid in full.


 


80

















 


IN WITNESS WHEREOF, the Trustee and the Issuer have
caused this Base Indenture to be duly executed by their respective duly
authorized officers as of the day and year first written above.


 


 


	
   

  	
  NATIONAL CAR RENTAL
  FINANCING

  LIMITED PARTNERSHIP, as Issuer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: NATIONAL CAR RENTAL
  FINANCING

  CORPORATION,

  	
   

  
	
   

  	
   

  	
  its General Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jill A. Gordon

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Jill A.
  Gordon

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK, as
  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Bobko

  	
   

  
	
   

  	
   

  	
  Name: John Bobko

  	
   

  
	
   

  	
   

  	
  Title: Vice President

  	
   

  



 


 


[Fifth Amended and Restated Base Indenture]


(National Car Rental Financing Limited Partnership)