Exhibit 4.19


 




 





 


AMENDED AND RESTATED

MASTER EXCHANGE AGREEMENT



dated as of April 13, 2006



among



Car for a Car, Corp.,



Alamo Financing L.P.



and



Vanguard Car Rental USA Inc.


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITIONS

  	
  3

  
	
  Section 1.1.

  	
  Definitions

  	
  3

  
	
   

  	
   

  
	
  ARTICLE II

  	
  GENERAL
  MASTER EXCHANGE PROVISIONS

  	
  10

  
	
  Section 2.1.

  	
  Exchange of
  Property

  	
  10

  
	
  Section 2.2.

  	
  Disposition
  and Transfer of Relinquished Property

  	
  10

  
	
  Section 2.3.

  	
  Transfer of
  Relinquished Property Subject to Liabilities

  	
  10

  
	
  Section 2.4.

  	
  Acquisition
  and Transfer of Replacement Property

  	
  10

  
	
  Section 2.5.

  	
  Assignment
  of Agreements

  	
  11

  
	
  Section 2.6.

  	
  Notice to
  Purchasers and Sellers

  	
  12

  
	
  Section 2.7.

  	
  Direct
  Transfers

  	
  12

  
	
  Section 2.8.

  	
  Matching of
  Relinquished and Replacement Property

  	
  13

  
	
  Section 2.9.

  	
  Disclosure
  of Relationship

  	
  13

  
	
  Section 2.10.

  	
  Exclusivity

  	
  13

  
	
  Section 2.11.

  	
  Records

  	
  13

  
	
  Section 2.12.

  	
  Master
  Exchange Financing Agreements

  	
  14

  
	
  Section 2.13.

  	
  Manufacturer
  Receivables Transfer Agreements

  	
  14

  
	
   

  	
   

  
	
  ARTICLE III

  	
  IDENTIFICATION

  	
  15

  
	
  Section 3.1.

  	
  Identification
  of Replacement Property

  	
  15

  
	
  Section 3.2.

  	
  Revocation
  of Identification

  	
  15

  
	
   

  	
   

  
	
  ARTICLE IV

  	
  ACCOUNTS

  	
  15

  
	
  Section 4.1.

  	
  Accounts

  	
  15

  
	
  Section 4.2.

  	
  Separation
  and Application of Funds in Joint Collection Accounts; Proceeds from Transfer
  of Relinquished Property by the QI

  	
  17

  
	
  Section 4.3.

  	
  Payment for
  Replacement Property

  	
  19

  
	
  Section 4.4.

  	
  Investment
  of Funds in the Master Exchange Account and Joint Collection Account

  	
  21

  
	
  Section 4.5.

  	
  Disbursements
  from Account

  	
  21

  
	
   

  	
   

  
	
  ARTICLE V

  	
  INDEMNITY BY
  THE EXCHANGOR

  	
  21

  
	
  Section 5.1.

  	
  No Personal
  Liability

  	
  21

  
	
  Section 5.2.

  	
  Indemnity
  Agreement

  	
  21

  
	
   

  	
   

  
	
  ARTICLE VI

  	
  REPRESENTATIONS,
  WARRANTIES AND COVENANTS

  	
  21

  
	
  Section 6.1.

  	
  Representations
  and Warranties of the QI

  	
  21

  
	
  Section 6.2.

  	
  Representations
  and Warranties of the Exchangor

  	
  24

  
	
  Section 6.3.

  	
  Survival of
  Representations and Warranties

  	
  25

  
	
  Section 6.4.

  	
  Maintenance
  of Separate Existence

  	
  25

  
	
  Section 6.5.

  	
  Mergers

  	
  27

  
					



 


i

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  Section 6.6.

  	
  Organizational
  Documents

  	
  27

  
	
  Section 6.7.

  	
  No Other
  Agreements

  	
  27

  
	
  Section 6.8.

  	
  Other
  Business

  	
  27

  
	
   

  	
   

  
	
  ARTICLE VII

  	
  TERM AND
  COMPENSATION

  	
  27

  
	
  Section 7.1.

  	
  Term

  	
  27

  
	
  Section 7.2.

  	
  Compensation

  	
  28

  
	
   

  	
   

  
	
  ARTICLE VIII

  	
  MISCELLANEOUS

  	
  28

  
	
  Section 8.1.

  	
  Pending
  Litigation

  	
  28

  
	
  Section 8.2.

  	
  Notices

  	
  28

  
	
  Section 8.3.

  	
  Amendments

  	
  29

  
	
  Section 8.4.

  	
  Successors
  and Assigns; No Third-Party Beneficiaries

  	
  29

  
	
  Section 8.5.

  	
  Scope of
  Master Exchange Agreement and the QI

  	
  30

  
	
  Section 8.6.

  	
  Governing
  Law, Venue, Jury Trial Waiver, and Attorneys’ Fees

  	
  31

  
	
  Section 8.7.

  	
  Indebtedness

  	
  32

  
	
  Section 8.8.

  	
  Strict
  Performance

  	
  32

  
	
  Section 8.9.

  	
  Severability;
  Interpretation

  	
  32

  
	
  Section 8.10.

  	
  Dates,
  Descriptions, Values, and Matching

  	
  32

  
	
  Section 8.11.

  	
  Counterparts

  	
  32

  
	
  Section 8.12.

  	
  Entire
  Agreement

  	
  32

  
	
  Section 8.13.

  	
  Electronic
  Signature

  	
  33

  
	
  Section 8.14.

  	
  Acknowledgment
  of Independent Relationship

  	
  33

  
	
  Section 8.15.

  	
  Headings

  	
  33

  
	
  Section 8.16.

  	
  Force
  Majeure

  	
  33

  
	
  Section 8.17.

  	
  Consequential
  Damages

  	
  33

  
	
  Section 8.18.

  	
  Investment
  Losses

  	
  34

  
	
  Section 8.19.

  	
  Treasury
  Regulations Disclosure Requirements

  	
  34

  
	
  Section 8.20.

  	
  No Petitions

  	
  34

  
	
  Section 8.21.

  	
  No Recourse

  	
  35

  
	
  Section 8.22.

  	
  Master
  Exchange Agreement Constitutes a Collateral Agreement

  	
  35

  
	
  Section 8.23.

  	
  Master
  Servicer to Act

  	
  35

  
	
  Section 8.24.

  	
  Ownership of
  the QI

  	
  35

  
	
   

  	
   

  
	
  Exhibit A

  	
   

  
	
  Exhibit B

  	
   

  
	
  Schedule A

  	
   

  
					



 


ii

















 


AMENDED AND RESTATED

MASTER EXCHANGE AGREEMENT


 


This AMENDED
AND RESTATED MASTER EXCHANGE AGREEMENT (this “Agreement”) is entered
into as of April 13, 2006, by and among, Car for a Car, Corp., a Delaware
corporation (the “QI” or the “Intermediary”), Alamo Financing
L.P., a Delaware limited partnership (“Alamo LP” or the “Exchangor”)
and Vanguard Car Rental USA Inc., as servicer (“Vanguard” or the “Servicer”).


 


WITNESSETH:


 


WHEREAS, the
Exchangor owns Vehicles that are held for productive use in connection with its
business operations;


 


WHEREAS, the
Exchangor, as part of its business operations, desires to exchange pursuant to
one or more Master Exchanges (as defined herein) certain Vehicles used in its business
for other vehicles that are like-kind to the Relinquished Property to be held
for productive use in connection with its business operations;


 


WHEREAS, the
Relinquished Property will be sold to various buyers (each a “Buyer”)
from time to time, including Manufacturers and purchasers at auctions;


 


WHEREAS, the
Replacement Property will be purchased from various Manufacturers and vehicle
dealers (each a “Seller”) from time to time;


 


WHEREAS, it is
the intention of the parties that each Master Exchange of Relinquished Property
for Replacement Property, and the transactions related thereto, be effectuated
pursuant to the terms of this Agreement;


 


WHEREAS, the
Exchangor and the QI desire and intend that the Master Exchanges accomplished
by the Exchangor and the QI under this Agreement (the “LKE Program”)
satisfy the requirements of a “like kind exchange program” pursuant to Section
3.02 of Revenue Procedure 2003-39;


 


WHEREAS, the
Exchangor desires to effectuate each Master Exchange in a manner that will qualify
as a like-kind exchange within the meaning of Section 1031 of the Internal
Revenue Code of 1986, as amended (the “Code”), and the treasury
regulations (the “Treasury Regulations”) promulgated thereunder (and any
applicable corresponding provisions of state tax legislation) pursuant to one
or more of the “safe harbors” described in Section 1.1031(k)-1(g) of the
Treasury Regulations and Revenue Procedure 2003-39;


 


WHEREAS, the
QI is willing to act as a “qualified intermediary” within the meaning of Section
1031 of the Code and Section 1.1031(k)-1(g)(4) of the Treasury Regulations
(such entity, a “Qualified Intermediary”) in order to facilitate Master
Exchanges of Relinquished Property for Replacement Property;


 

















 


WHEREAS, it is
the intention of the parties hereto that, subject to the terms and provisions
of this Agreement, the Exchangor assign to the QI, acting as the Exchangor’s
Qualified Intermediary, the Exchangor’s Rights with respect to each disposition
of Relinquished Property and each acquisition of Replacement Property pursuant
to the terms of this Agreement;


 


WHEREAS, it is
the intention of the parties hereto that, as provided in, and for purposes of,
Sections 1.1031(k)-1(g)(4)(iv) and (v) of the Treasury Regulations, the QI be
considered to have acquired the Relinquished Property from the Exchangor and
transferred it to the applicable Buyer where in fact the Exchangor transfers
the Relinquished Property directly to such Buyer;


 


WHEREAS, it is
the intention of the parties hereto that, as provided in, and for purposes of,
Sections 1.1031(k)-(1)(g)(4)(iv) and (v) of the Treasury Regulations, the QI be
considered to have acquired the Replacement Property from the Seller and
transferred such Replacement Property to the Exchangor where in fact the Exchangor
acquires such Replacement Property directly from such Seller;


 


WHEREAS, it is
the intention of the parties to maintain a Master Exchange Account and one or
more Joint Collection Accounts and Joint Disbursement Accounts so that for
purposes of the Treasury Regulations the Exchangor will not be determined to be
in actual or constructive receipt of proceeds (including any earnings thereon)
from the disposition of any Relinquished Property;


 


WHEREAS, it is
the intention of the parties hereto that, as provided in Section 1.1031(b)-1(c)
of the Treasury Regulations, consideration received by the Exchangor, in the
form of relief of liabilities (or a transfer subject to a liability), shall be
offset against consideration given by the Exchangor in the form of cash, an
assumption of liabilities, or a receipt of property subject to a liability;


 


WHEREAS, the
Exchangor and the QI desire and intend this Agreement to satisfy the
requirement of a written agreement referred to in Section
1.1031(k)-1(g)(4)(iii)(B) of the Treasury Regulations with respect to the
applicable Relinquished Property and the applicable Replacement Property;


 


WHEREAS, the
Intermediary, Alamo LP and Vanguard are parties to a Master Exchange Agreement,
dated as of March 4, 2005 (amended to date, the “Existing Master Exchange
Agreement”); and


 


WHEREAS, the
parties to the Existing Master Exchange Agreement desire to amend and restate
the Existing Master Exchange Agreement in it entirety, among other things, to
provide for the ability of the QI to sell receivables and related rights it
acquires upon the return of Relinquished Vehicles to a Manufacturer, or to
pledge such receivables and related rights as security for financing for the
purchase of Replacement Property.


 


2

















 


NOW,
THEREFORE, in consideration of the mutual covenants,
conditions and agreements set forth herein, the Exchangor and the QI hereby
agree as follows:


 


ARTICLE I

DEFINITIONS


 


Section 1.1.            Definitions.
Capitalized terms used herein and not otherwise defined herein shall have the
meaning set forth in the Master Collateral Agency Agreement. The following
terms used in this Agreement shall have the following meanings, unless
otherwise expressly provided herein:


 


“Accounts”
shall mean the Master Exchange Account, any Joint Collection Accounts and/or
any Joint Disbursement Accounts, as the context requires.


 


“Additional
Subsidies” shall mean funds other than Relinquished Property Proceeds that
the Exchangor may use to have the QI acquire Replacement Property and to make
Non-LKE Disbursements, which consist of:


 


(i)            funds on deposit in
the Master Exchange Account that no longer constitute Relinquished Property
Proceeds because they have been identified to Relinquished Property with
respect to which either (i) the Identification Period has expired with no
identification having been made or (ii) the Master Exchange Period has expired;


 


(ii)           funds on deposit in the
Master Exchange Account that no longer constitute Relinquished Property
Proceeds because the Exchangor has received all of the Replacement Property to
which it is entitled under this Agreement in accordance with Section
1.1031(k)-1(g)(6)(iii) of the Treasury Regulations; and/or


 


(iii)          funds on deposit in a
Joint Disbursement Account that never were Relinquished Property Proceeds.


 


“Agreement”
shall have the meaning set forth in the preamble hereto.


 


“Alamo LP”
shall have the meaning set forth in the preamble hereto.


 


“Automated
Clearing House” shall mean a facility that processes debit and credit
transactions under rules established by a Federal Reserve Bank operating
circular on automated clearing house items or under rules of an automated
clearing house association.


 


“Base
Indenture” shall mean the Fifth Amended and Restated Base Indenture, dated
as of the date hereof, between Alamo LP and The Bank of New York, as trustee,
as amended, modified or supplemented from time to time.


 


3

















 


“Business
Day” shall mean any day except a Saturday, Sunday or legal holiday on which
the offices of the Master Collateral Agent, the Trustee, the Exchangor, the QI,
Vanguard or, with respect to any matter involving any Master Exchange Account,
the Escrow Agent (or any successor thereto) or, with respect to any matter
involving a Joint Disbursement Account, The Bank of New York (or any successor
thereto) are not open for business.


 


“Buyer”
shall have the meaning set forth in the recitals hereto.


 


“Disbursement
Occurrence” shall mean any one of the following occurrences:  (i) the Exchangor has not identified
Replacement Property with respect to any Relinquished Property on or before the
end of the Identification Period with respect to such Relinquished Property, or
(ii) after the identification of Replacement Property with respect to any
Relinquished Property and the expiration of the Identification Period with
respect to such Relinquished Property, the Exchangor has received all of such
identified Replacement Property to which the Exchangor is entitled, or (iii)
the expiration of the Master Exchange Period for any Relinquished Property, or
(iv) any occurrence otherwise provided for in Section 1.1031(k)-1(g)(6)(iii)(B)
of the Treasury Regulations.


 


“Disqualified
Person” shall have the meaning set forth in Section 6.1(xi) hereof.


 


“Electronic
Funds Transfer” shall mean any funds transfer initiated by an electronic
instruction, including, without limitation, any funds transfer via the
Automated Clearing House system, any wire transfer via the Federal Reserve
System and any funds transfer recorded on the books and records of the banking
institution maintaining the relevant accounts.


 


“Escrow
Accounts” shall mean the “Escrow Accounts” under and as defined in the
Escrow Agreement.


 


“Escrow
Agent” shall mean JPMorgan Chase Bank, N.A.


 


“Escrow
Agreement” shall mean that amended and restated agreement by and among
JPMorgan Chase Bank, N.A., Vanguard, the Exchangor and the QI, dated as of the
date hereof, pursuant to which the Master Exchange Account shall be maintained
as an escrow account on behalf of the Exchangor.


 


“Exchangor”
shall have the meaning set forth in the preamble hereto.


 


“Identification
Period” shall mean, with respect to the Relinquished Property of the
Exchangor transferred in a Master Exchange, the period beginning on the date
the Exchangor transfers such Relinquished Property to the QI and ending at
11:59 p.m. (New York City time) on the forty-fifth (45th) calendar day
thereafter (irrespective of whether such day is a weekend day or a holiday).


 


“Intermediary”
shall have the meaning set forth in the preamble hereto.


 


4

















 


“Joint
Collection Account(s)” shall mean the account or accounts maintained by the
Master Collateral Agent, in the joint name of the QI and the Master Collateral
Agent, pursuant to Section 2.5(a)(I) of the Master Collateral Agency
Agreement for (1) the deposit of vehicle disposition proceeds collected from
Manufacturers, auction houses and other purchasers of Vehicles and/or Vehicle
Repurchase Rights and (2) the identification and subsequent separation of the
portion of such funds that are Relinquished Property Proceeds from the portion
of such funds that are Non-Qualified Funds, which account or accounts are
intended to be “joint accounts” within the meaning of Section 5.02 of Revenue
Procedure 2003-39.


 


“Joint
Disbursement Account(s)” shall mean an account or series of accounts as
defined in Section 5.02 of Revenue Procedure 2003-39 maintained on behalf of
the Exchangor and the QI at a bank that disburses funds on behalf of the
Exchangor to acquire Replacement Property in the form of vehicles from
Manufacturers and other Sellers.


 


“JPMPH”
shall have the meaning set forth in Section 6.1(ix) hereto.


 


“Lender”
shall mean the Beneficiary (as defined in the Master Collateral Agency
Agreement) for whose benefit a Relinquished Vehicle giving rise to Relinquished
Property Proceeds was pledged (as determined in accordance with the procedures
set forth in the Master Collateral Agency Agreement).


 


“LKE
Program” shall have the meaning set forth in the recitals hereto.


 


“LKE
Reallocation Trigger Event” means either (i) a QI Parent Downgrade Event
has occurred and continued through 45 consecutive days, (ii) an Event of
Bankruptcy has occurred with respect to the Intermediary or (iii) the LKE
Program is no longer in effect, as determined by Vanguard or the Exchangor in
their sole discretion, unless in the case of clauses (i) or (ii)
above, (a) the Intermediary has been replaced, subject with respect to each
Lender, to any restrictions to such replacement set forth in the Financing
Documents of such Lender and with respect to each Master Exchange Lender, to
any restrictions to such replacement set forth in the Master Exchange Financing
Agreement of such Master Exchange Lender or (b) the Rating Agency Confirmation
Condition, if any, with respect to each Lender and Master Exchange Lender has
been satisfied with respect to any alternative arrangement relating to the
Intermediary following the occurrence of an LKE Reallocation Trigger Event.


 


“LKE
Supplement” means a Series Supplement, the Related Vehicles (as defined in
the Master Collateral Agency Agreement) of which are subject to an LKE Program.


 


“Manufacturer
Receivables Purchaser” means, any Person that, from time to time, enters
into a Manufacturer Receivables Transfer Agreement for the purchase of Master
Exchanged Vehicle Repurchase Rights.


 


5

















 


“Manufacturer
Receivables Transfer Agreement” means any agreement entered into among the
Exchangor and/or the QI, as applicable, and a Manufacturer Receivables
Purchaser pursuant to which such Manufacturer Receivables Purchaser agrees to
purchase Master Exchanged Vehicle Repurchase Rights from the Issuer and/or the
QI, as applicable; provided that any such Manufacturer Receivables
Transfer Agreement will not become effective until satisfaction of the
conditions set forth in Section 2.13 hereof.


 


“Master
Collateral Agency Agreement” means the Eighth Amended and Restated Master
Collateral Agency Agreement, dated as of April 13, 2006 among National Car
Rental Financing Limited Partnership and Alamo LP, as grantors, Vanguard Car
Rental USA Inc., as grantor and as master servicer, the various Financing
Sources from time to time parties thereto, the various Beneficiaries from time
to time parties thereto, and the Master Collateral Agent, as further amended,
restated, modified or supplemented from time to time in accordance with its
terms.


 


“Master
Collateral Agent” means Citibank, N.A., in its capacity as master
collateral agent under the Master Collateral Agency Agreement and any successor
thereto or permitted assign in such capacity thereunder.


 


“Master
Exchange” shall mean, with respect to the Exchangor, each of a series of “exchanges”,
as defined in Sections 1.1031(k)-1(b)(i) and 1.1031(k)-1(b)(ii) of the Treasury
Regulations, pursuant to this Agreement, as determined by the Exchangor,
consisting of one or more transfers of Relinquished Property and one or more
subsequent related acquisitions of Replacement Property within the relevant
Master Exchange Period that are of like-kind, as defined in Sections
1.1031(a)-1(b) and 1.1031(a)-2 of the Treasury Regulations.


 


“Master
Exchange Account” shall mean an account (1) established by the QI pursuant
to the Escrow Agreement, (2) used to receive funds relating to the Exchangor’s
LKE Program from a Joint Collection Account in the circumstances described in Section
4.2(b) hereof, and (3) used to provide funds relating to the Exchangor’s
LKE Program to a Joint Disbursement Account (to the extent of the funds in the
Master Exchange Account attributable to the Exchangor’s LKE Program including
any Qualified Earnings from the investment of such funds held in the Master
Exchange Account pursuant to the Escrow Agreement).


 


“Master
Exchange Financing Agreement” means an agreement entered into between the
Intermediary acting in its capacity as the Qualified Intermediary of the
Exchangor and the Master Exchange Lender pursuant to which the Master Exchange
Lender agrees to finance the purchase of Replacement Property by the
Intermediary on behalf of the Exchangor, which financing is non-recourse to the
Exchangor and the Intermediary and is secured by Master Exchanged Vehicle
Repurchase Rights arising from time to time; provided that any such
Master Exchange Financing Agreement will not become effective until
satisfaction of the conditions set forth in Section 2.12 hereof.


 


6

















 


“Master
Exchanged Vehicle Repurchase Rights” means, with respect to Relinquished
Property, all Rights in, to and under any Relinquished Property Agreement
associated with such Relinquished Property, solely to the extent such right,
title and interest relate to such Relinquished Property, including any amendments
thereof and all monies due and to become due in respect of such Relinquished
Property under or in connection with such Relinquished Property Agreement,
whether payable as Vehicle repurchase prices, auction sales proceeds, fees,
expenses, costs, indemnities, insurance recoveries, damages for breach of the
Relinquished Property Agreement or otherwise and all rights to compel
performance and otherwise exercise remedies thereunder.


 


“Master
Exchange Period” shall mean, with respect to the Relinquished Property of
the Exchangor transferred in a Master Exchange, the period beginning on the
date the Exchangor transfers such Relinquished Property to the QI and ending at
11:59 p.m. (New York City time) on the earlier of (a) the one hundred eightieth
(180th) calendar day thereafter (irrespective of whether such day is a weekend
day or a holiday) and (b) the due date (including extensions) for the Exchangor’s
U.S. federal income tax return for the year in which the transfer of the
Relinquished Property takes place.


 


“Non-LKE
Disbursements” shall mean disbursements relating to the LKE Program in
respect of fees, expenses and other costs, including but not limited to those
required to be paid pursuant to Section 7.2 hereof and disbursements for
acquisitions of Vehicles that are not Replacement Property, but excluding in
any case disbursements for the acquisition of Replacement Property.


 


“Non-Qualified
Funds” shall mean all amounts that are deposited into the Joint Collection
Accounts that are not Relinquished Property Proceeds.


 


“QI Parent
Downgrade Event” shall mean, on any date of determination, either (i)
JPMorgan Chase Bank, N.A. (or any entity that is a successor to JPMorgan Chase
Bank, N.A. as the ultimate parent of the QI) shall have a short-term credit rating
of below “A-1+” from S&P or below “P-1” from Moody’s or (ii) if at any time
JPMorgan Chase Bank, N.A. (or any entity that is a successor to JPMorgan Chase
Bank, N.A. as the ultimate parent of the QI) does not have a short-term credit
rating, JPMorgan Chase Bank, N.A. (or any entity that is a successor to
JPMorgan Chase Bank, N.A. as the ultimate parent of the QI) shall have a
long-term credit rating of below “AA-” from S&P or below “Aa3” from Moody’s.


 


“Qualified
Earnings” shall mean, with respect to any Relinquished Property, the
earnings received on the Relinquished Property Proceeds from such Relinquished
Property that have been held in an Escrow Account, a Joint Disbursement Account
or a Joint Collection Account for a period not exceeding the Master Exchange
Period for such Relinquished Property.


 


“Qualified
Intermediary” shall have the meaning set forth in the recitals hereto.


 


7

















 


“Rating
Agency Confirmation Condition” with respect to any Lender, shall have the
meaning, if any, specified in the Financing Documents of such Lender and with
respect to each Master Exchange Lender, shall have the meaning, if any,
specified in the Master Exchange Financing Agreement of such Master Exchange
Lender.


 


“Related Documents”
shall have the meanings set forth in (i) the Base Indenture (as amended,
restated, supplemented or otherwise modified from time to time), (ii) the
Fourth Amended and Restated Base Indenture, between ARG Funding Corp and The
Bank of New York, as trustee (as amended, restated, supplemented or otherwise
modified from time to time) and (iii) the Base Indenture, between Vanguard SPE
I Inc. and The Bank of New York, as trustee (as amended, restated, supplemented
or otherwise modified from time to time).


 


“Relinquished
Property” shall mean certain vehicles used in the Exchangor’s business,
which pursuant to an agreement, the Exchangor is transferring, and qualifying
as “relinquished property” within the meaning of Section 1.1031(k)-1(a) of the
Treasury Regulations, and which have been identified as such by the Exchangor
or its agents.


 


“Relinquished
Property Agreement” shall mean any agreement (other than the Master
Collateral Agency Agreement and the Lease) pursuant to which Relinquished
Property is transferred insofar as such agreement relates to the Relinquished
Property, including but not limited to each agreement arising from the exercise
by the Exchangor of its right to sell a Vehicle that is Relinquished Property
to a Manufacturer pursuant to the terms of its Manufacturer Program and each
agreement by the Exchangor to sell a Vehicle that is Relinquished Property to
any third party.


 


“Relinquished
Property Proceeds” shall mean, with respect to any Relinquished Property,
the amount received from, or on behalf of, the relevant Buyer with respect to
such Buyer’s acquisition of such Relinquished Property, (including, without
limitation, any amounts received from a Manufacturer Receivables Purchaser or a
Master Exchange Lender in respect of a sale or pledge of Master Exchanged
Vehicle Repurchase Rights) or otherwise received in connection with the
disposition of such Relinquished Property, under the related Relinquished
Property Agreement(s), unless and until such amount (i) becomes Additional
Subsidies as a result of the occurrence of a Disbursement Occurrence or (ii) is
transferred to the applicable Lender pursuant to Section 4.2(b)(2); provided
that for the avoidance of doubt, any Master Exchanged Vehicle Repurchase Rights
sold and/or pledged to a Manufacturer Receivables Purchaser or a Master
Exchange Lender, as applicable, shall not constitute Relinquished Property
Proceeds.


 


“Relinquished
Property Subject to Liabilities” shall mean any Relinquished Property that
is subject to (i) a requirement or obligation that debt secured by such
Relinquished Property must be repaid as a result of such Relinquished Property
being transferred or (ii) a requirement that the sale proceeds from the
disposition of such Relinquished Property be applied to satisfy the debt secured
by such Relinquished Property.


 


8

















 


“Replacement
Property” shall mean vehicles that are like-kind, as defined in Sections
1.1031(a)-1(b) and 1.1031(a)-2 of the Treasury Regulations, to the Relinquished
Property and held for productive use, as described in Section 1.1031(a)-1 of
the Treasury Regulations, in connection with the Exchangor’s business
operations and qualifying as “replacement property” within the meaning of
Section 1.1031(k)-1(a) of the Treasury Regulations, and which have been
identified as such by the Exchangor or its agents.


 


“Replacement
Property Acquisition Cost” shall mean, with respect to Replacement
Property, the amount of consideration required to be paid to the Seller of such
Replacement Property under the related Replacement Property Agreement(s).


 


“Replacement
Property Agreement” shall mean any agreement (other than the Master
Collateral Agency Agreement and the Lease) (including an obligation of the
Exchangor) pursuant to which Replacement Property is acquired insofar as such
agreement relates to the Replacement Property, including but not limited to
each agreement by the Exchangor to purchase a Vehicle which is Replacement
Property from a Manufacturer or vehicle dealer whether such agreement to
purchase arises under a Manufacturer Program or otherwise.


 


“Revenue
Procedure 2003-39” shall mean the revenue procedure 2003-39 contained in
Bulletin Number 2003-22, dated June 2, 2003, released by the Department of the
Treasury, Internal Revenue Service.


 


“Rights”
shall mean (1) with respect to any Relinquished Property, the Exchangor’s
rights (but not obligations) in the applicable Relinquished Property Agreement
(but not any of the Exchangor’s rights related to Excluded Payments under such
Relinquished Property Agreement) and (2) with respect to any Replacement
Property, the Exchangor’s rights (but not obligations) in the applicable
Replacement Property Agreement (but not any of the Exchangor’s rights related
to Excluded Payments under such Replacement Property Agreement).


 


“Safe
Harbor” shall mean any one or more of the safe harbors described in Section
1.1031(k)-1(g) of the Treasury Regulations and any one or more of the safe
harbor provisions of Revenue Procedure 2003-39.


 


“Seller”
shall have the meaning set forth in the recitals hereto.


 


“Start Date”
shall mean the date on which the Exchangor begins exchanging vehicles in the
applicable LKE Program.


 


“Termination
Date” shall have the meaning set forth in Section 7.1 hereof.


 


“Treasury
Regulations” shall have the meaning set forth in the recitals hereto.


 


“Vanguard”
shall have the meaning set forth in the preamble hereto.


 


9

















 


ARTICLE II

GENERAL MASTER EXCHANGE PROVISIONS


 


Section 2.1.            Exchange
of Property. (a)  In accordance with the terms of this Agreement,
the QI agrees to transfer Relinquished Property to a Buyer, pursuant to the
terms of Section 2.2 hereof, and to subsequently acquire Replacement
Property of a like-kind from a Seller pursuant to the terms of Section 2.4
hereof.


 


(b)           Transfer
by the Exchangor of Relinquished Property pursuant to this Agreement shall be
subject to such conditions as may be provided under the Financing Documents
relating to the Lender with respect to such Relinquished Property.


 


Section 2.2.            Disposition
and Transfer of Relinquished Property. The Exchangor has entered, and/or
from time to time may enter, into one or more Relinquished Property Agreements
with one or more Buyers for the sale of Relinquished Property. In connection
with each Master Exchange, the Exchangor shall, in accordance with Section
1.1031(k)-1(g)(4)(v) of the Treasury Regulations:  (a) assign to the QI all of its Rights under
the applicable Relinquished Property Agreements with respect to such Relinquished
Property in accordance with Section 2.5 hereof, such assignment to be
made without recourse to the QI (and the QI agrees to accept such assignments);
(b) notify all parties to such Relinquished Property Agreements in writing of
the assignment in accordance with Section 2.6 prior to or concurrent
with the date of transfer of the Relinquished Property to the applicable
Buyer(s), and (c) transfer its interest in the Relinquished Property to the
applicable Buyer(s) pursuant to such Relinquished Property Agreements.


 


Section 2.3.            Transfer
of Relinquished Property Subject to Liabilities. The parties to this
Agreement acknowledge and agree that the Exchangor shall be permitted to
transfer Relinquished Property Subject to Liabilities. If the Exchangor transfers
Relinquished Property Subject to Liabilities pursuant to Section 2.2
hereof, then the QI shall, in accordance with the procedures set forth in Section
4.2 hereof, repay the liabilities required to be repaid with the sale
proceeds of such Relinquished Property; provided that if the amount
required to be paid in respect of such liabilities as a result of the
disposition of such Relinquished Property Subject to Liabilities is greater
than the proceeds received from the sale of such Relinquished Property Subject
to Liabilities, the Exchangor shall remain obligated to make payment of such
excess amount directly to the holder of such liability to the extent set forth
in, and in accordance with the terms of, the documents governing such
liabilities.


 


Section 2.4.            Acquisition
and Transfer of Replacement Property. The Exchangor has entered, and/or
from time to time may enter, into one or more Replacement Property Agreements
with one or more Sellers for the purchase of Replacement Property. In
connection with each Master Exchange, the Exchangor shall, in accordance with
Section 1.1031(k)-1(g)(4)(v) of the Treasury Regulations:  (a) assign to the QI the Rights under the
applicable Replacement Property Agreements with respect to the Replacement
Property in respect of such Master Exchange pursuant to Section 2.5


 


10

















 


hereof, any
such assignment to be made without recourse to the QI (and the QI agrees to
accept such assignments); (b) notify all parties to such Replacement Property
Agreements in writing of the assignment in accordance with Section 2.6
prior to or concurrent with the date of transfer of the Replacement Property
from the applicable Seller(s), and (c) receive an ownership interest in the
Replacement Property from the applicable Seller(s) pursuant to such Replacement
Property Agreements.


 


Section 2.5.            Assignment
of Agreements.


 


(a)           Existing
Agreements. The Exchangor hereby assigns to the QI, solely in the QI’s
capacity as Qualified Intermediary, the Exchangor’s Rights, but not its
obligations, under each related Relinquished Property Agreement to which the
Exchangor is a party as of the date hereof, such assignment to be effective
only upon the Exchangor’s transfer of the related Relinquished Property
pursuant to Section 2.2 hereof and only with respect to such
Relinquished Property, and the QI hereby agrees to accept such assignment,
solely in its capacity as the Exchangor’s Qualified Intermediary. The Exchangor
hereby assigns to the QI, solely in the QI’s capacity as Qualified
Intermediary, the Exchangor’s Rights, but not its obligations, under each
related Replacement Property Agreement to which the Exchangor is a party as of
the date hereof, such assignment to be effective only upon the Seller’s
transfer of the related Replacement Property pursuant to Section 2.4
hereof and only with respect to such Replacement Property, and the QI hereby
accepts such assignment, solely in its capacity as the Exchangor’s Qualified
Intermediary.


 


(b)           New
Agreements. The Exchangor hereby assigns to the QI, solely in the QI’s
capacity as Qualified Intermediary, the Exchangor’s Rights, but not its
obligations, under each related Relinquished Property Agreement that it enters
into after the date of this Agreement, such assignment to be effective only
upon the Exchangor’s transfer of such Relinquished Property pursuant to Section
2.2 hereof and only with respect to such Relinquished Property. The
Exchangor hereby assigns to the QI, solely in the QI’s capacity as Qualified
Intermediary, the Exchangor’s Rights, but not its obligations, under each
Replacement Property Agreement that it enters into after the date of this
Agreement with respect to such Replacement Property. Unless otherwise agreed by
the parties, the Exchangor shall make available to the QI a report of daily
activity listing such new agreements into which it entered during the period
covered by such report. The QI shall and hereby does accept each assignment
pursuant to this Section 2.5(b) from the Exchangor, solely in its capacity
as the Exchangor’s Qualified Intermediary.


 


(c)           Revocation
of, or Change in, Assignment. By notice to the QI, the Exchangor may revoke
its assignment to the QI of its Rights with respect to any Replacement Property
identified in such notice. Similarly, by notice to the QI, the Exchangor may
cease assigning to the QI the Exchangor’s Rights pursuant to this Section
2.5 with respect to any of its Relinquished Property identified in such
notice. Not later than the termination date specified in any notice of
termination delivered pursuant to


 


11

















 


Section 7.1
hereof, the Exchangor shall cease assigning to the QI its Rights with respect
to any Relinquished Property arising on or after such date.


 


(d)           Safe
Harbor. Each assignment to the QI made by the Exchangor pursuant to this Section
2.5 is made pursuant to the assignment Safe Harbor set forth in Section
6.02 of Revenue Procedure 2003-39 and, except as may be otherwise required by
applicable law, shall be effective when provided in Section 2.5(a) or 2.5(b)
hereof, as applicable, without the need for any further actions other than
those provided in Sections 2.1, 2.2, 2.4, 2.5(a)
and/or 2.5(b) hereof by the Exchangor or the QI with respect to the
transfer of any Relinquished Property or any Replacement Property.


 


(e)           Limitation
on Rights Transferred to QI. Each of the parties hereto agrees and
acknowledges that any assignment to the QI hereunder shall not give the QI any
rights under any Relinquished Property Agreement to which the Exchangor is a
party relating to the disposition of a Vehicle except the Rights in respect of
a Vehicle that becomes Relinquished Property. The QI hereby acknowledges that
it shall have no interest in any Relinquished Property Agreement with respect
to any Vehicle that is not Relinquished Property.


 


Section 2.6.            Notice
to Purchasers and Sellers. The Exchangor represents and agrees that it will
provide notice, on or before the date of the relevant transfer of property, to
the other party(ies) to any Relinquished Property Agreement or any Replacement
Property Agreement with respect to which any of its Rights thereunder have been
assigned to the QI that the Exchangor’s Rights in such Relinquished Property
Agreement or such Replacement Property Agreement, as the case may be, have been
assigned, to the extent set forth herein, to the QI, as its Qualified
Intermediary.


 


Section 2.7.            Direct
Transfers. For purposes of this Agreement, the QI shall be considered to
have (1) acquired Relinquished Property from the Exchangor and transferred it
to the Buyer thereof in each case where such Relinquished Property is in fact
transferred by the Exchangor directly to such Buyer pursuant to the relevant
Relinquished Property Agreement in accordance with Section 2.2 hereof
(notwithstanding the fact that the QI may sell and/or pledge certain
receivables arising upon any such transfer of Relinquished Property to a Master
Exchange Lender or a Manufacturer Receivables Purchaser, as a Buyer, pursuant
to a Master Exchange Financing Agreement or a Manufacturer Receivables Transfer
Agreement), and (2) acquired Replacement Property from the Seller thereof and
transferred it to the Exchangor in each case where the Replacement Property is
in fact transferred by such Seller directly to the Exchangor pursuant to the
relevant Replacement Property Agreement in accordance with Section 2.4
hereof, in each case as provided by Sections 1.1031(k)-1(g)(4)(iv) and (v) of
the Treasury Regulations.


 


The Exchangor
and the QI agree that, as described in the preceding paragraph, all
Relinquished Property and Replacement Property shall be transferred directly
from the Exchangor to the applicable Buyer or directly from the applicable
Seller to the Exchangor, as the case may be. As a result, the QI shall not (1)
take possession of, (2)


 


12

















 


hold legal
title to, or (3) be the owner of, any Relinquished Property or Replacement
Property.


 


Section 2.8.            Matching
of Relinquished and Replacement Property. The Exchangor shall match
Replacement Property with Relinquished Property for each Master Exchange on its
books and records in accordance with Section 1.1031(a)-2 of the Treasury
Regulations and the Safe Harbor set forth in Sections 4.01 and 4.02 of Revenue
Procedure 2003-39. Alamo LP shall match Replacement Property to be used in
Alamo LP’s trade or business with Relinquished Property used in Alamo LP’s
trade or business.


 


Section 2.9.            Disclosure
of Relationship. The Exchangor acknowledges and agrees that the QI shall
have the right to disclose the relationships set forth in this Agreement to any
Seller, Buyer or other person and that the QI is, and is acting in the sole
capacity as, the Exchangor’s Qualified Intermediary.


 


Section 2.10.          Exclusivity.
Except as permitted under this Agreement and the Escrow Agreement, the QI
agrees that it will not enter into any agreements or conduct any transactions
or other business other than agreements, transactions or business with the
Exchangor pursuant to agreements between the Exchangor and the QI, or any
transactions directly ancillary thereto.


 


Section 2.11.          Records.
The QI agrees that it will monitor and keep detailed and accurate records of
the transactions carried out pursuant to this Agreement, including without limitation
the dollar amounts involved in each of such transactions. Such records shall
include, but shall not be limited to, information concerning the date of each
transfer of Relinquished Property to a Buyer (including, without limitation,
information relating to (i) the Master Exchanged Vehicle Repurchase Rights
pledged under any Master Exchange Financing Agreement and amounts received in
respect of such pledged Master Exchanged Vehicle Repurchase Rights, (ii)
amounts advanced and repaid under each Master Exchange Financing Agreement and
(iii) any Master Exchanged Vehicle Repurchase Rights sold to a Manufacturer
Receivables Purchaser pursuant to any Manufacturer Receivables Transfer
Agreement) and the date of each receipt of Replacement Property from a Seller. Such
records shall be maintained in accordance with recognized accounting practices
and in such a manner so as they may be readily audited. All such records will
be available for inspection by the Master Collateral Agent, the Trustee, each
Enhancement Provider, any Manufacturer Receivables Purchaser, any Master
Exchange Lender and the Exchangor, or its designated representatives, upon the
Exchangor’s request, at reasonable, mutually agreeable times, while this
Agreement remains in force. After expiration, termination or cancellation of
this Agreement, at the Exchangor’s expense (which expenses shall be reasonable
and approved by the Exchangor), the QI shall continue to maintain such records,
and to allow the Exchangor to audit or inspect the records, until such time as
the Exchangor notifies the QI that the records are no longer required. The QI
shall cooperate with the Exchangor, or its designated representatives, in the
conduct of any such inspection. Notwithstanding anything set forth above,
unless otherwise requested by the Exchangor, the records


 


13

















 


relating to
any particular day’s activities may be destroyed at any time after the date
which is ten (10) years from the date such record was originated.


 


Section 2.12.          Master
Exchange Financing Agreements.


 


(a)           Notwithstanding
anything herein to the contrary, upon written direction from the Exchangor or
the Servicer, the QI may, subject to terms and conditions reasonably
satisfactory to the QI, from time to time enter into Master Exchange Financing
Agreements to provide for the pledge of Manufacturer Receivables and related
rights to provide financing for the purchase of Replacement Property; provided
that no such Master Exchange Financing Agreement will become effective unless
such Master Exchange Financing Agreement contains (x) a non-petition covenant
with respect to the QI providing equivalent protections to those set forth in Section
8.20(a) hereof and with respect to Alamo LP providing equivalent protections
to those set forth in Section 8.20(b) hereof and (y) contains provisions
providing equivalent protections to the provisions set forth in Exhibit B
hereto, and until (i) satisfaction of the Rating Agency Confirmation Condition,
if any, with respect to each Lender and Master Exchange Lender, if any, and
(ii) satisfaction of any conditions to entry into such Master Exchanged
Financing Agreement set forth in the Financing Documents of the applicable
Lender.


 


(b)           Upon
the entry into any Master Exchange Financing Agreement, (i) the proceeds of any
advance made thereunder shall be deposited into the Joint Collection Accounts
for application as Relinquished Property Proceeds and (ii) repayment of any
such advances made thereunder shall be made solely from proceeds received in
respect of the Master Exchanged Vehicle Repurchase Rights pledged under such
Master Exchange Financing Agreement as Non-Qualified Funds in accordance with
the terms of Section 4.2(b) hereof.


 


Section 2.13.          Manufacturer
Receivables Transfer Agreements. Notwithstanding anything herein to the
contrary, upon written direction from the Exchangor or the Servicer, the QI
may, subject to terms and conditions reasonably satisfactory to the QI, from
time to time enter into Manufacturer Receivables Transfer Agreements to provide
for the sale of Manufacturer Receivables and related rights to a Manufacturer
Receivables Purchaser; provided that no such Manufacturer Receivables
Transfer Agreement (x) may violate or cause the Exchangor to violate Sections
1.1031(k)-1(g)(4)(ii) or (g)(6) of the Treasury Regulations or Revenue
Procedure 2003-39 or (y) will become effective unless such Manufacturer
Receivables Transfer Agreement (x) contains a non-petition covenant with
respect to the QI providing equivalent protections to those set forth in Section
8.20(a) hereof and with respect to Alamo LP providing equivalent
protections to those set forth in Section 8.20(b) hereof and (y)
contains provisions providing equivalent protections to the provisions set
forth in Exhibit B hereto, and until satisfaction of the conditions, if
any, to entry into such Manufacturer Receivables Transfer Agreement set forth
in the Financing Documents of the applicable Lender. Upon the entry into any
Manufacturer Receivables Transfer Agreement, the proceeds of any sale made
thereunder shall be deposited into the Joint Collection Accounts for
application as Relinquished Property Proceeds. Upon receipt of such funds by
the QI, the QI shall cause title to any


 


14

















 


such
Manufacturer Receivable to be transferred to the Manufacturer Receivables
Purchaser.


 


ARTICLE III

IDENTIFICATION


 


Section 3.1.            Identification
of Replacement Property. The Exchangor may, at any time during the
Identification Period, with respect to a Master Exchange, by written notice to
the QI, signed by the Exchangor and sent to the QI in any manner prescribed by
Section 1.1031(k)-1(c)(2) of the Treasury Regulations, identify and designate
the Replacement Property with respect to the Relinquished Property transferred
in such Master Exchange. The Exchangor shall only designate Replacement
Property that is like-kind to such Relinquished Property, as defined in
Sections 1.1031(a)-(b) and 1.1031(a)-2 of the Treasury Regulations. The Exchangor
shall identify as Replacement Property either (a) no more than three vehicles
in the aggregate or (b) any number of vehicles whose aggregate fair market
value does not exceed 200% of the aggregate fair market value of the related
Relinquished Property involved in such Master Exchange.


 


Section 3.2.            Revocation
of Identification. Any identification by the Exchangor pursuant to Section
3.1 hereof may be revoked by written notice from the Exchangor to the QI
prior to the end of the Identification Period.


 


ARTICLE IV

ACCOUNTS


 


Section 4.1.            Accounts.
The Exchangor and the QI shall enter into the Escrow Agreement with JPMorgan
Chase Bank, N.A., pursuant to which the Exchangor and the QI shall maintain the
Master Exchange Account at JPMorgan Chase Bank, N.A. One or more Joint
Collection Accounts have been established and will be maintained by the Master
Collateral Agent in accordance with Section 2.5(a)(I) of the Master
Collateral Agency Agreement, in the name of “Citibank, N.A., as Master
Collateral Agent, and Car for a Car, Corp., as Qualified Intermediary, for
Alamo Financing L.P.” and shall be operated in accordance with the terms of
this Agreement and the Master Collateral Agency Agreement. Initially, the Joint
Collection Accounts will be maintained at Citibank N.A. One or more Joint
Disbursement Accounts have been or will be established in the name of Alamo LP
and Car for a Car, Corp., as Qualified Intermediary for Alamo LP, with respect
to each Lender. The Joint Disbursement Accounts with respect to each Lender are
specified in Schedule B attached hereto (as such Schedule B may
from time to time be updated by Vanguard with the prior written consent of the
related Lender).


 


(a)           The
Joint Collection Accounts are intended to facilitate the orderly and efficient
collection of proceeds from the disposition of the Relinquished Property,
including the collection of all Relinquished Property Proceeds, and to allow
for the identification and separation of funds that are Relinquished Property
Proceeds from funds that are Non-Qualified Funds. All proceeds received from
(i) Buyers by or on behalf of


 


15

















 


the QI, (ii)
the Exchangor in respect of sales of Relinquished Property, (iii) any
Manufacturer Receivables Purchaser and (iv) advances under any Master Exchange
Financing Agreement, in each case shall be immediately deposited in a Joint
Collection Account. The QI hereby covenants and agrees that it will not create,
incur or assume (and will not permit to exist any such created, incurred or
assumed) lien upon a Joint Collection Account or any funds on deposit therein; provided
that the foregoing shall not prevent the QI (i) from entering into any Master
Exchange Financing Agreement in accordance with Section 2.12 and the other
requirements hereof, which grants a lien to a Master Exchange Lender on funds
on deposit in the Joint Collection Account representing proceeds of Master
Exchanged Vehicle Repurchase Rights that have been pledged to such Master
Exchange Lender or (ii) entering into a Manufacturer Receivables Transfer
Agreement in accordance with Section 2.13 hereof and the other
requirements hereof, that provides for the sale of Master Exchanged Vehicle
Repurchase Rights to a Manufacturer Receivables Purchaser, and the deposit of
the proceeds of such sold Master Exchanged Vehicle Repurchase Rights into the
Joint Collection Account.


 


(b)           The
Master Exchange Account is intended (i) to receive all Relinquished Property
Proceeds that are not used for other qualified purposes including, but not
limited to, the payment of liabilities required to be paid in respect of
Relinquished Property and (ii) to provide Relinquished Property Proceeds to the
Joint Disbursement Accounts (to the extent of the funds in the Master Exchange
Account and funds then invested pursuant to the Escrow Agreement). Relinquished
Property Proceeds with respect to Relinquished Property transferred by Alamo LP
on deposit in the Joint Collection Accounts shall be deposited into the Master
Exchange Account to the extent, and only to the extent, that any portion of
such proceeds remain in such Joint Collection Accounts after all of the amounts
set forth in the instructions described in Section 4.2(b)(2) hereof to
be transferred from such Joint Collection Accounts to the account specified
with respect to the related Lender in Schedule A attached hereto (as
such Schedule A may from time to time be updated by Vanguard, solely
with respect to the information relating to a Lender, with the prior written
consent of such Lender) have been transferred.


 


(c)           The
Joint Disbursement Accounts are intended to facilitate the orderly and
efficient disbursement of funds to the Sellers, including the disbursement of
all funds relating to the acquisition of Replacement Property under the LKE
Program.


 


(d)           Pursuant
to the Escrow Agreement, Relinquished Property Proceeds held by the QI on
behalf of the Exchangor in the Master Exchange Account shall be invested until
such funds are used to fund a Joint Disbursement Account in order to purchase
Replacement Property. The QI hereby covenants and agrees that it will not
create, incur or assume (and will not permit to exist any such created,
incurred or assumed) lien upon the Master Exchange Account or any funds on
deposit therein; provided that the foregoing shall not prevent the QI
from entering into any Master Exchange Financing Agreement in accordance with Section
2.12 and the other requirements hereof, that grants a lien to a Master
Exchange Lender on funds on deposit in the Master Exchange Account representing
proceeds of Master Exchanged Vehicle


 


16

















 


Repurchase
Rights that have been pledged to such Master Exchange Lender or (ii) entering
into a Manufacturer Receivables Transfer Agreement in accordance with Section
2.13 hereof and the other requirements hereof, that provides for the sale
of Master Exchanged Vehicle Repurchase Rights to a Manufacturer Receivables
Purchaser, and the deposit of the proceeds of such sold Master Exchanged
Vehicle Repurchase Rights into the Joint Collection Account.


 


(e)           The
Exchangor shall have no right to receive, pledge, borrow, or otherwise obtain
the benefits of Relinquished Property Proceeds and earnings thereon held by the
QI; provided that the QI may enter into Master Exchange Financing
Agreements and Manufacturer Receivables Transfer Agreements in accordance with Section
2.12 and Section 2.13, respectively, and the other requirements
hereof. In addition, all Relinquished Property Proceeds (and any earnings thereon),
whether in a Joint Collection Account, a Joint Disbursement Account or the
Master Exchange Account, shall be held subject to Sections
1.1031(k)-1(g)(4)(ii) and 1.1031(k)-1(g)(6) of the Treasury Regulations. Relinquished
Property Proceeds (1) first, shall be applied to pay all amounts and any
other liabilities required to be repaid with the sale proceeds of the related
Relinquished Property as provided in Sections 2.3 and 4.2(b)
hereof and (2) second, after payment of all such amounts and other
liabilities specified in clause (1) above, may be withdrawn from the
Master Exchange Account or any Joint Disbursement Account upon a Disbursement
Occurrence with respect to the related Relinquished Property. Upon any
Disbursement Occurrence, the QI shall, at such time and in satisfaction of the
QI’s remaining obligations under this Agreement as to the related Master
Exchange with respect to such Disbursement Occurrence, have the bank
maintaining the Account where the applicable funds are on deposit pay any remaining
amount relating to such Master Exchange, including without limitation
accumulated interest as to such Master Exchange in the Master Exchange Account,
to, or as directed by, the Exchangor.


 


Section 4.2.            Separation
and Application of Funds in Joint Collection Accounts; Proceeds from Transfer
of Relinquished Property by the QI.


 


(a)           Reports.
On each Business Day on which funds have been identified pursuant to Section
4.2(b), the Exchangor shall make available to the QI a report with respect
to each Joint Collection Account setting forth as of such Business Day (1) the
aggregate Relinquished Property Proceeds identified on such Business Day in
such Joint Collection Account, and (2) the amount of Non-Qualified Funds, if
any, identified on such Business Day in such Joint Collection Account.


 


(b)           Identification
of Funds. Promptly (but in no event more than seven (7) days) after the
date of the receipt of funds (the “Receipt Date”) in the Joint
Collection Accounts, the Exchangor shall: 
(1) identify any funds received on such Receipt Date in the Joint
Collection Accounts which constitute Non-Qualified Funds and allocate and apply
such funds as provided in the Master Collateral Agency Agreement; (2) initiate
on the Business Day on which the Exchangor identifies such funds proposed
Electronic Funds Transfers from the Joint Collection Accounts in order to apply
any funds in the


 


17

















 


Joint
Collection Accounts as of such Business Day which have been identified as
Relinquished Property Proceeds with respect to Relinquished Property
transferred by the Exchangor hereunder in the following order:  first, transfer an amount of such
funds sufficient to repay in full all amounts payable, and other liabilities
outstanding, which were secured by such Relinquished Property under the Base
Indenture, as supplemented by the related LKE Supplements thereto, to the
Lender (with respect to which such funds represent (as determined by the
Exchangor) payments arising from its Related Vehicles and Related Master
Collateral (as determined in accordance with the procedures set forth in the
Master Collateral Agency Agreement including, without limitation, Section
2.2 thereof)) to the account specified with respect to such Lender in Schedule
A attached hereto (as such Schedule A may from time to time be
updated by Vanguard, solely with respect to information relating to a Lender,
with the prior written consent of the related Lender), and second,
transfer to the Master Exchange Account any remaining amount of such funds; and
(3) notify the QI, the Master Collateral Agent and the Trustee of such proposed
transfers.


 


(c)           Approval
of Certain Transfers. If upon notification to the QI of the proposed
Electronic Funds Transfers of Relinquished Property Proceeds pursuant to clause
(2) of Section 4.2(b) hereof, the QI approves of such proposed
Electronic Funds Transfers, the QI agrees to take, within one hour of the
receipt of such notification of transfers, all appropriate actions needed to
approve and transmit such transfers. If the QI does not approve of any of such
proposed Electronic Funds Transfers of Relinquished Property Proceeds, the QI
shall immediately notify the Exchangor, the Trustee and the Master Collateral
Agent via telephone or fax (any such notice given by telephone to be confirmed
in writing), of the disapproval and the reasons for such disapproval; provided,
that no such disapproval shall relieve the QI from its obligation under Section
2.3 hereof to apply Relinquished Property Proceeds to the repayment of the
liabilities required to be paid with such Relinquished Property Proceeds on the
Business Day on which the Exchangor identifies funds in the Joint Collection
Account as Relinquished Property Proceeds and the Lender with respect thereto pursuant
to Section 4.2(b) hereof. In the event that the QI disapproves of any
such proposed Electronic Funds Transfer of Relinquished Property Proceeds to
the account specified with respect to such Lender in Schedule A attached
hereto (as such Schedule A may from time to time be updated by Vanguard,
solely with respect to information relating to a Lender, with the prior written
consent of the related Lender), that was to be applied to repay any amounts
payable, and other liabilities outstanding, under the Base Indenture, as
supplemented by the related LKE Supplements thereto, to such Lender, and the
Master Collateral Agent or Vanguard certifies to the QI that amounts remain due
and owing under the Base Indenture, as supplemented by the related LKE Supplements
thereto, with respect to such Lender, the QI shall then be obligated to approve
such transfer up to the amount so certified to be due and owing under the Base
Indenture, as supplemented by the related LKE Supplements thereto, to such
Lender. The QI shall direct the bank maintaining the Joint Collection Accounts
to accept each Electronic Funds Transfer described in Section 4.2(b)
hereof that is subsequently approved by the QI pursuant to this Section
4.2(c).


 


18

















 


(d)           Ownership
of Funds; Restricted Transfers. The Exchangor and the QI hereby acknowledge
and agree that it is the intent of the parties hereto that funds deposited into
the Master Exchange Account and funds held in accounts maintained by the Escrow
Agent shall be used solely to enable the QI to perform its obligations
hereunder to acquire Replacement Property and shall not be considered part of
the QI’s general assets nor subject to claims by the QI’s creditors (other than
a Master Exchange Lender to the extent that such funds represent proceeds of
Master Exchanged Vehicle Repurchase Rights that have been pledged to such
Master Exchange Lender pursuant to a Master Exchange Financing Agreement to the
extent permitted herein), nor, except as previously noted, shall the QI have
any right, title and interest in and to such funds.


 


(e)           Non-Qualified
Funds. The QI shall apply any Non-Qualified Funds, or shall cooperate with
the Exchangor for purposes of executing any authorization to cause any
Non-Qualified Funds to be applied, as directed by the Exchangor pursuant to clause
(1) of Section 4.2(b) hereof.


 


(f)            Effectuation
of Transfer. On each Business Day, the QI shall direct the bank maintaining
each Joint Collection Account to cause the amount, if any, set forth in the
instructions described in Section 4.2(b)(2) hereof, to be transferred
from such Joint Collection Account to the account specified with respect to a
Lender in Schedule A attached hereto (as such Schedule A may from
time to time be updated by Vanguard, solely with respect to information
relating to a Lender, with the prior written consent of the related Lender), or
if no such amounts are payable, from such Joint Collection Account to the
Master Exchange Account. The QI hereby agrees that it shall not approve any
transfer of Relinquished Property Proceeds from the Joint Collection Accounts
to any account other than the Master Exchange Account or an account specified
with respect to a Lender in Schedule A attached hereto (as such Schedule
A may from time to time be updated by Vanguard, solely with respect to
information relating to a Lender, with the prior written consent of the related
Lender). The Exchangor shall provide notice to the Master Collateral Agent, the
Trustee and each Enhancement Provider of any transfer from a Joint Collection
Account to the Master Exchange Account.


 


(g)           LKE
Reallocation Trigger Event. The QI shall apply all funds in the Accounts,
or shall cooperate with the Master Collateral Agent and the Exchangor for
purposes of executing any authorization to cause any such funds to be applied,
as provided under the Master Collateral Agency Agreement, including without
limitation, following the occurrence of an LKE Reallocation Trigger Event.


 


Section 4.3.            Payment
for Replacement Property.


 


(a)           Reports.
On each Business Day, the Exchangor shall provide the QI with a report with
respect to each Joint Disbursement Account setting forth for such day (1) the
aggregate Replacement Property Acquisition Cost expected to be disbursed from
such Joint Disbursement Account, (2) the aggregate amount to be transferred to
such Joint Disbursement Account from the Master Exchange Account, if any, to
fund such aggregate Replacement Property Acquisition Cost, (3) the amount (if
any) to be


 


19

















 


transferred to
such Joint Disbursement Account from any other source, including the proceeds
of Notes (issued under the Base Indenture, as supplemented by the LKE
Supplements thereto)  to be made directly
or indirectly to the Exchangor, to fund such aggregate Replacement Property
Acquisition Cost, (4) the aggregate amount (if any) to be transferred to such
Joint Disbursement Account from any other account, to fund disbursements not
related to the LKE Program, (5) adjustments, if any, to amounts previously
funded from the Master Exchange Account, and (6) the aggregate amount to be
repaid under any Master Exchange Financing Agreement.


 


(b)           Funding
by the QI. On each Business Day, the Exchangor shall initiate a series of
proposed Electronic Funds Transfers in order to withdraw from the Master
Exchange Account and transfer to one or more Joint Disbursement Accounts on
such day amounts to fund the aggregate Replacement Property Acquisition Cost on
such day in accordance with the report delivered pursuant to Section 4.3(a)
hereof and shall notify the QI of such proposed Electronic Funds Transfers. If
upon such notification of the proposed Electronic Funds Transfers the QI
approves of the proposed Electronic Funds Transfers, the QI agrees to take,
within one hour of the receipt of such notification, all appropriate actions
needed to approve and transmit such transfers. If the QI does not approve of
any of such proposed Electronic Funds Transfers, the QI shall immediately
notify the Exchangor, via telephone or fax (any such notice given by telephone
to be confirmed in writing), of the disapproval and the reasons for such
disapproval. The QI shall direct the bank maintaining each Joint Disbursement
Account to accept each Electronic Funds Transfer described above that is
subsequently approved by the QI.


 


(c)           Shortfalls
in Funding. If, for any reason, the sum of the amounts proposed to be
transferred from the Master Exchange Account to a Joint Disbursement Account
for the purchase of Replacement Property on any Business Day exceeds the total
amount of funds in the Master Exchange Account available for such purpose on
such Business Day, including any funds earned from the investment of funds held
in the Master Exchange Account pursuant to the Escrow Agreement, the amounts to
be transferred to a Joint Disbursement Account from the Master Exchange Account
on such Business Day to fund the aggregate Replacement Property Acquisition
Cost shall be reduced by the amount of such shortfall.


 


(d)           Effectuation
of Transfers. On each Business Day, the QI shall direct the Escrow Agent to
cause the bank maintaining the Master Exchange Account to cause the amounts, if
any, set forth in the instructions described in Section 4.3(b) hereof,
reduced, if necessary, as described in Section 4.3(c) hereof, to be
transferred from the Master Exchange Account to the applicable Joint
Disbursement Account.


 


(e)           Funding
by the Exchangor. In the event that the aggregate funds transferred from
the Master Exchange Account to the Joint Disbursement Accounts on any Business
Day are insufficient to fund all Replacement Property Acquisition Costs and
Non-LKE Disbursements to be made from each Joint Disbursement Account on such
day, the Exchangor may borrow funds under any Master Exchange Financing
Agreement (to the extent that funds are available thereunder), sell Master
Exchanged Vehicle


 


20

















 


Repurchase
Rights to a Manufacturer Receivables Purchaser in accordance with Section
2.13 hereof or transfer Additional Subsidies (including funds received
pursuant to Notes (issued under the Base Indenture, as supplemented by the LKE
Supplements thereto)) to the applicable Joint Disbursement Account in an amount
sufficient for the QI to acquire the Replacement Property. The QI shall not be
required to pay Replacement Property Acquisition Costs or make Non-LKE
Disbursements for which sufficient funds are not available.


 


Section 4.4.            Investment
of Funds in the Master Exchange Account and Joint Collection Account.


 


(a)           Investment
of Funds. On each Business Day, all funds in the Master Exchange Account
shall be invested in accordance with the terms of the Escrow Agreement. The
Exchangor shall provide the QI instructions from time to time in accordance
with the Escrow Agreement setting forth the manner in which such funds shall be
invested.


 


(b)           Interest
Reporting. The Exchangor and the QI acknowledge and agree that the income
earned on funds invested pursuant to the Escrow Agreement will be attributed to
the Exchangor for income tax purposes.


 


(c)           Investment
of Non-Qualified Funds. Vanguard, as Servicer, shall provide the QI
instructions from time to time setting forth the manner in which Non-Qualified
Funds in the Joint Collection Account shall be invested. The QI shall instruct
the Master Collateral Agent to invest such funds in accordance with Vanguard’s
instructions.


 


Section 4.5.            Disbursements
from Account. All Relinquished Property Proceeds shall be held subject to
the terms of this Agreement (including, without limitation, the terms of Section
4.1(e)) and, following any transfer of such Relinquished Property Proceeds
to the Master Exchange Account in accordance with the terms hereof, the Escrow
Agreement.


 


ARTICLE V

INDEMNITY BY THE EXCHANGOR


 


Section 5.1.            No
Personal Liability. The parties hereto agree that no director, officer,
employee, member, shareholder or agent of any party to this Agreement shall
have any personal liability under or in connection with this Agreement.


 


Section 5.2.            Indemnity
Agreement. The Exchangor agrees to defend, indemnify and hold the QI
harmless in accordance with the terms of the Indemnity Agreement which is
attached hereto as Attachment I and incorporated herein.


 


21

















 


ARTICLE VI

REPRESENTATIONS, WARRANTIES AND COVENANTS


 


Section 6.1.            Representations
and Warranties of the QI. The QI hereby represents and warrants to the
Exchangor as of the date hereof and throughout the term of this Agreement and
covenants, where applicable, with the Exchangor as follows:


 


(i)            Organization,
Power, Standing, and Qualification. The QI is a corporation duly organized,
validly existing, and in good standing under the laws of the state of its
incorporation, and the QI has the requisite corporate power and authority to
carry on its business as it is presently being conducted, and as it is intended
and reasonably contemplated to be conducted under this Agreement and as part of
the LKE Program, and to own and operate the property and assets presently owned
and operated by it, if any, and contemplated to be owned and operated by it in
the future. The QI will only qualify to do business or register as a sales and
use tax vendor in those states requested in writing by the Exchangor, and all
costs and expenses of same shall be paid solely by the Exchangor. The QI shall
at all times operate in a manner consistent with its certificate of
incorporation and its bylaws.


 


(ii)           Corporate Power and
Authority. The QI has the corporate power and authority to execute, deliver
and perform this Agreement, to acquire the Rights under the assignments set
forth herein, and to otherwise perform its obligations under this Agreement,
including to effect the Master Exchanges contemplated hereby on behalf of the
Exchangor. The execution, delivery, and performance of this Agreement and the
consummation of each Master Exchange and the transactions related thereto
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the QI. This Agreement is a valid and binding obligation of the
QI, enforceable in accordance with its terms.


 


(iii)          Validity of
Contemplated Transactions. The execution, delivery, and performance of this
Agreement does not and will not (a) contravene any provisions of the certificate
of incorporation or bylaws of the QI, (b) violate, conflict with, constitute a
default under, cause the acceleration of any payments pursuant to, or otherwise
impair the good standing, validity, or effectiveness of any agreement,
contract, indenture, lease, or mortgage to which the QI is now, or may in the
future be a party, (c) require any action by or in respect of, or filing with,
any governmental body, agency or official which has not been obtained or (d)
contravene, or constitute a default under, any provision of applicable law or
governmental regulation, rule, contract, agreement, judgment, injunction,
order, decree or other instrument binding upon the QI.


 


(iv)          Indebtedness and
Liens. Except as expressly provided in this Agreement, including, without
limitation, Section 2.12 and Section 2.13 hereof, and the Escrow
Agreement, neither the QI, nor any Person acting on behalf of or


 


22

















 


as an agent
for the QI, has incurred or will incur any indebtedness for borrowed money, or
guarantee any obligations of any other Person, or pledge, assign, transfer, or
otherwise encumber (or permit or suffer to exist any Lien or any other of the
foregoing encumbrances with respect to) its assets or any aspect of this Agreement
whatsoever, including the Rights assigned herein to the QI by the Exchangor.


 


(v)           Litigation and
Compliance. There is no civil or criminal suit, action, claim, arbitration,
administrative, legal or other proceeding or governmental investigation pending
or, to the knowledge of the QI, threatened against the QI or its officers or
directors in such capacity nor has there been any failure by the QI or its
officers or directors to comply with nor has there been any violation of, or
default with respect to, any issued or pending order, writ, injunction,
judgment or decree of any court or federal, state or local department,
official, commission, authority, board, bureau, agency or other instrumentality
against the QI or its officers or directors in their capacity as, or in
connection with their capacity as, officers and directors of the QI.


 


(vi)          Tax Advice. The
QI represents that, except as expressly stated in this Agreement, at no time
has it or its officers, directors, shareholders, employees or agents made any
representation or rendered any advice with respect to the tax aspects of the
Master Exchanges contemplated herein.


 


(vii)         No Consent. No
consent of, action by or in respect of, approval of 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 Agreement
by the QI or for the performance of any of the QI’s obligations hereunder.


 


(viii)        Solvency. Before
and after giving effect to the transactions contemplated by this Agreement, the
QI is solvent within the meaning of the Bankruptcy Code and the QI is not the
subject of any voluntary or involuntary case or proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debt under any
bankruptcy or insolvency law and no Event of Bankruptcy has occurred with
respect to the QI.


 


(ix)           Ownership. Except
as otherwise provided under Section 8.24 hereof, all of the issued and
outstanding shares of the QI are owned by J.P. Morgan Property Holdings LLC (“JPMPH”),
and have been validly issued, are fully paid and non-assessable. The QI has no
subsidiaries and owns no capital stock or any interest in any other Person.


 


(x)            No Other Agreements.
Other than as contemplated by this Agreement and the Escrow Agreement, (i) the
QI is not a party to any contract or any agreement of any kind or nature and
(ii) the QI is not subject to any obligations or liabilities of any kind or
nature in favor of any third party.


 


23

















 


(xi)           Not a Disqualified
Person. The QI hereby represents and warrants to the Exchangor that prior
to, as of and after the date hereof and all of the time that this Agreement is
in force and effect, the QI is not a disqualified person within the meaning of
such term as set forth in Section 1.1031(k)-1(k) of the Treasury Regulations (a
“Disqualified Person”), taking into account all exceptions and
exclusions therefrom. The QI shall not knowingly cause the QI to become a Disqualified
Person during the period commencing on the date hereof through the Termination
Date and, if any Master Exchange is pending after the Termination Date,
including the Master Exchange Period relating to the same.


 


Section 6.2.            Representations
and Warranties of the Exchangor. The Exchangor hereby represents and
warrants to the QI as of the date hereof and on the date of each of the
transactions described in Article II, Article III and Article
IV hereof and covenants, where applicable, with the QI as follows:


 


(i)            Organization,
Power, Standing, and Qualification. The Exchangor is a limited partnership
duly organized, validly existing, and in good standing under the laws of the
state of its formation and has the requisite limited partnership power and authority
to carry on its business as it has been conducted in the past and is presently
being conducted.


 


(ii)           Corporate Power and
Authority. The Exchangor has the limited partnership power and authority to
execute, deliver and perform this Agreement, to sell the Relinquished Property,
and to acquire the Replacement Property and to otherwise perform its
obligations under this Agreement including the Master Exchanges and the
transactions related thereto contemplated hereby. The execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary limited
partnership action on the part of the Exchangor. This Agreement is a valid and
binding obligation of the Exchangor, enforceable in accordance with its terms.


 


(iii)          Validity of
Contemplated Transactions. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby do not
and will not (i) contravene any provision of the certificate of limited
partnership or limited partnership agreement of the Exchangor, (ii) violate,
conflict with, constitute a default under, cause the acceleration of any
payments pursuant to, or otherwise impair the good standing, validity or effectiveness
of the transfer of any Relinquished Property or the acquisition of Replacement
Property, where applicable, or any indenture, mortgage, contract, commitment or
agreement to which the Exchangor is a party or by which it is bound, or (iii)
violate any provision of any law, rule, regulation, order, permit or license to
which the Exchangor is subject.


 


(iv)          Litigation and
Compliance. There is no material suit, action, claim, arbitration,
administrative or legal or other proceeding or governmental


 


24

















 


investigation
pending or, to the reasonable knowledge of the Exchangor, threatened against
the Exchangor that is related to this Agreement that may affect the Exchangor’s
ability to perform under this Agreement or that may adversely affect the QI,
nor has there been any failure by the Exchangor to comply with, nor has there
been any violation of, or default with respect to, any order, writ, injunction,
judgment or decree of any court or federal, state or local department,
official, commission, authority, board, bureau, agency or other instrumentality
issued or pending against the Exchangor that is related to this Agreement.


 


(v)           Legal or Tax Advice.
The Exchangor acknowledges that neither the QI nor any employee, officer,
director, agent, principal or affiliate of the QI has given any legal or tax
advice nor made representations regarding the legal or tax consequences of the
applicable LKE Program. The Exchangor further acknowledges that it has been
advised to seek independent legal and tax advice regarding its LKE Program,
regarding whether any Relinquished Property and Replacement Property are
like-kind under Sections 1.1031(a)-2 and 1.1031(k)-1 of the Treasury
Regulations and to have this Agreement reviewed and approved by independent
counsel.


 


(vi)          Not a Disqualified
Person. The Exchangor hereby represents and warrants to the QI that, to the
best of the Exchangor’s knowledge, as of the date hereof, the QI is not a
Disqualified Person. The Exchangor shall not knowingly cause the QI to become a
Disqualified Person during the period commencing on the date hereof through and
including the date of transfer of any Replacement Property to the Exchangor as
part of the LKE Program.


 


(vii)         No Consents. No
consent of, 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 in connection with a valid execution and delivery of this
Agreement by the Exchangor or for the performance of any of the Exchangor’s
obligations hereunder, other than such consents, approvals, authorizations,
registrations, declarations or filings as shall have been obtained by the
Exchangor on or prior to the date hereof.


 


Section 6.3.            Survival
of Representations and Warranties. All representations and warranties made
herein by the parties shall survive the execution, delivery, performance and
termination of this Agreement.


 


Section 6.4.            Maintenance
of Separate Existence. The QI covenants and agrees that it shall do all
things necessary to continue to be readily distinguishable from JPMPH and its
affiliates and maintain its corporate existence separate and apart from that of
JPMPH and its affiliates including, without limitation, (i) practicing and adhering
to organizational formalities, such as maintaining appropriate books and
records; (ii) observing all organizational formalities in connection with all
dealings between itself and JPMPH, and the affiliates or any unaffiliated
entity with respect to JPMPH; (iii) observing all procedures required by its
certificate of incorporation, its by-laws and the


 


25

















 


laws of the
State of Delaware; (iv) acting solely in its name and through its duly
authorized officers or agents in the conduct of its businesses; (v) managing
its business and affairs by or under the direction of its board of directors;
(vi) ensuring that its board of directors duly authorizes all of its actions;
(vii) maintaining at least two directors who are independent directors; (viii)
owning or leasing (including through shared arrangements with affiliates) all
office furniture and equipment necessary to operate its business; (ix) not (A)
having or incurring any indebtedness to JPMPH or its affiliates; (B)
guaranteeing or otherwise becoming liable for any obligations of JPMPH or its
affiliates; (C) having obligations guaranteed by JPMPH or its affiliates; (D)
holding itself out as responsible for debts of JPMPH or its affiliates or for
decisions or actions with respect to the affairs of JPMPH or its affiliates;
(E) operating or purporting to operate as an integrated, single economic unit
with respect to JPMPH, its affiliates or any unaffiliated entity thereof; (F)
seeking to obtain credit or incur any obligation to any third party based upon
the assets of JPMPH, its affiliates or any unaffiliated entity thereof; (G)
induce any such third party to reasonably rely on the creditworthiness of
JPMPH, its affiliates or any unaffiliated entity thereof; and (H) being
directly or indirectly named as a direct or contingent beneficiary or loss
payee on any insurance policy of JPMPH, its affiliates or any unaffiliated
entity thereof; (x) maintaining its deposit and other bank accounts and all of
its assets separate from those of any other Person; (xi) maintaining its
financial records separate and apart from those of any other Person; (xii) not
suggesting in any way, within its financial statements, that its assets are
available to pay the claims of creditors or JPMPH, its affiliates or any
unaffiliated entity thereof; (xiii) compensating all its employees, officers,
consultants and agents for services provided to it by such Persons out of its
own funds; (xiv) maintaining office space separate and apart from that of JPMPH
and its affiliates and a telephone number separate and apart from that of JPMPH
and its affiliates; (xv) conducting all oral and written communications,
including, without limitation, letters, invoices, purchase orders, contracts,
statements, and applications solely in its own name; (xvi) having separate
stationery from JPMPH, its affiliates or any unaffiliated entity thereof;
(xvii) accounting for and managing all of its liabilities separately from those
of JPMPH and its affiliates; (xviii) allocating, on an arm’s-length basis, all
shared corporate operating services, leases and expenses, including, without
limitation, those associated with the services of shared consultants and agents
and shared computer and other office equipment and software; and otherwise
maintaining an arm’s-length relationship with each of JPMPH, its affiliates and
any unaffiliated entity thereof; (xix) refraining from filing or otherwise
initiating or supporting the filing of a motion in any bankruptcy or other
insolvency proceeding involving JPMPH to substantively consolidate JPMPH with
an affiliate or unaffiliated entity thereof; (xx) remaining solvent and
assuring adequate capitalization for the business in which it is engaged and
(xxi) conducting all of its business (whether written or oral) solely in its
own name so as not to mislead others as to the identity of JPMPH or its
affiliates.


 


In addition,
the certificate of incorporation of the QI shall provide that (a) the QI shall
have at all times at least two directors who are independent directors (the “Independent
Directors”), each of whom is not and never was (i) a stockholder, member,
partner, director, officer, employee, affiliate, associate, creditor or
independent contractor


 


26

















 


of any of
JPMorgan Chase Bank, N.A., Alamo LP or Vanguard or any of their respective
affiliates or associates (excluding, however, any service provided by a person
engaged as an “independent” manager or director, as the case may be) or (ii)
any person owning directly or beneficially any outstanding shares of common
stock of any of JPMorgan Chase Bank, N.A., Alamo LP or Vanguard or any of their
respective affiliates, or a stockholder, director, officer, employee,
affiliate, associate, creditor or independent contractor of such beneficial
owner or any of such beneficial owner’s affiliates or associates, or (iii) a
member of the immediate family of any person described above and (b) the QI may
not without such Independent Directors’ consent (1) institute proceedings to be
adjudicated bankrupt or insolvent, (2) consent to the institution of bankruptcy
or insolvency proceedings against it, (3) file a petition seeking, or consent
to, reorganization or relief under any applicable federal or state law relating
to bankruptcy, (4) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the QI or a
substantial part of its property, (5) make any assignment for the benefit of
creditors, (6) admit in writing its inability to pay its debts generally as
they become due or (7) take any corporate action in furtherance of any such
action.


 


Section 6.5.            Mergers.
The QI will not merge or consolidate with or into any other Person unless the
QI complies with Section 8.4.


 


Section 6.6.            Organizational
Documents. The QI will not amend any of its organizational documents,
including its certificate of incorporation and by-laws, unless prior to such
amendment, the Rating Agency Confirmation Condition will be met.


 


Section 6.7.            No
Other Agreements. The QI will not enter into or be a party to any agreement
or instrument other than this Agreement, the Escrow Agreement, any Manufacturer
Receivables Transfer Agreement, any Master Exchange Financing Agreement and any
documents and agreements incidental thereto or entered into as contemplated
herein.


 


Section 6.8.            Other
Business. The QI will not engage in any business or enterprise or enter
into any transaction other than the making of exchanges pursuant to this
Agreement, the related exercise of its rights as qualified intermediary
hereunder, the incurrence and payment of ordinary course operating expenses,
any transaction contemplated by a Manufacturer Receivables Transfer Agreement
or a Master Exchange Financing Agreement and other activities related to or
incidental to either of the foregoing.


 


ARTICLE VII

TERM AND COMPENSATION


 


Section 7.1.            Term.
The term of this Agreement shall begin on the date first written above and
shall continue for thirty-six (36) months from the date hereof. This Agreement
shall be automatically renewed for successive thirty-six (36) month terms,
unless the QI notifies the Exchangor in writing at least one-hundred-twenty
(120) days prior to the end of a term of its desire to terminate this Agreement.
In addition, the


 


27

















 


Exchangor may
terminate this Agreement at any time, by providing not less than sixty (60)
days’ prior written notice to the QI. The date which is (x) the end of a
thirty-six (36) month term (as may be renewed) or (y) sixty (60) days after the
Exchangor’s notice as provided herein shall be called the “Termination Date”.
Upon any such termination, (i) this Agreement shall remain in effect with
respect to Relinquished Property Proceeds relating to a sale to a Buyer prior
to the Termination Date and for which no Disbursement Occurrence has taken
place, (ii) any indemnities and obligations owing to the QI under this
Agreement as of the Termination Date shall survive until satisfied or otherwise
terminated, (iii) termination of this Agreement shall not affect any rights or
obligations of the parties hereto under a Master Exchange that has not yet been
completed as of the Termination Date, and (iv) in the event that any party
hereto terminates this Agreement, such party shall not do so in a manner that
causes a pending Master Exchange not to qualify under Section 1031 of the Code
or in a manner that would violate Sections 1.1031(k)-1(g)(4)(ii) or (g)(6) of
the Treasury Regulations or Revenue Procedure 2003-39. Subject to the
restrictions above, upon the Termination Date, the QI shall, at such time, and
in satisfaction of the QI’s remaining obligations under this Agreement, pay, or
cause to be paid, all funds in any Account to the Exchangor or the Exchangor’s
designee. Alamo LP will provide notice of the Termination Date to the Rating
Agencies.


 


Section 7.2.            Compensation.
The Exchangor agrees to pay the QI in a timely manner as set forth in Exhibit
A hereto. If this Agreement is terminated for any reason, the QI will
continue to be compensated with respect to all Master Exchanges being made by
the QI until all such Master Exchanges are completed.


 


ARTICLE VIII

MISCELLANEOUS


 


Section 8.1.            Pending
Litigation. If any party hereto receives any written notice that there is,
or may be, a pending or threatened litigation against such party in any manner
relating to this Agreement, the LKE Program, such party’s ability to perform
under this Agreement or that may adversely affect any other party hereto, then
the party receiving said notice shall immediately notify the other parties
hereto pursuant to Section 8.2 hereof and shall notify the Trustee at
the address set forth in the Base Indenture and the Master Collateral Agent at
the address set forth in the Master Collateral Agency Agreement; provided
that Alamo LP upon obtaining knowledge, or receipt of notice, of any such
pending or threatened litigation shall also notify each Enhancement Provider.


 


Section 8.2.            Notices.
All notices, requests, demands, waivers, consents, approvals or other
communications required or permitted hereunder will be in writing, will be
deemed given when actually received and will be given by personal delivery, by
facsimile transmission with receipt acknowledged, by means of electronic mail,
by same day or overnight courier services or by registered or certified mail,
postage prepaid, return receipt requested, to the following addresses:


 


28

















 


If to the QI:


 


Jason M.
Orben, President

Car for a Car, Corp.

c/o J.P. Morgan Property Exchange Inc.

1001 Hingham Street, Suite 300

Rockland, MA 02370

Fax:  781-982-9558

E-Mail:  CARFORACAR_VEHICLE@JPMORGAN.COM


 


If to Alamo LP:


 


Orlando
Figueroa, President

c/o Lord Securities Corporation

48 Wall Street

New York, NY 10005

Fax:  212-346-9019

E-Mail:  of@lordspv.com


 


with a copy to
the Vanguard at:


 


Vanguard Car
Rental USA Inc.

6929 North Lakewood Avenue

Suite 100

Tulsa, OK  74117

Attn:  Gerard Kennell


 


If to Vanguard:


 


6929 North
Lakewood Avenue

Suite 100

Tulsa, OK  74117

Attn:  Gerard Kennell


 


Notice of any
change in any such address, facsimile number or e-mail address will also be
given in the manner set forth above. Whenever the giving of notice is required,
the party entitled to receive such notice may waive the giving of such notice.


 


Section 8.3.            Amendments.
This Agreement may be amended and supplemented only by a written instrument
duly executed by all the parties hereto and upon satisfaction of the Rating
Agency Confirmation Condition.


 


Section 8.4.            Successors
and Assigns; No Third-Party Beneficiaries. This Agreement shall be binding
upon and inure to the benefit of each party and its successors in interest and
permitted assigns. Except as expressly otherwise allowed herein, no party may
assign or otherwise transfer any of its rights or delegate any of its duties or


 


29

















 


obligations
under this Agreement without the prior written consent of each other party,
which consent shall not be unreasonably withheld; provided, however,
that no assignment by the QI shall be effective without satisfaction of the
Rating Agency Confirmation Condition; provided  further, however,
that (1) the Exchangor may pledge all of its right, title and interest in this
Agreement to secure advances made for the purchase of vehicles and (2) the
Exchangor may assign (subject to the Rating Agency Confirmation Condition in
the case of the QI) this Agreement, without such written consent, to a
successor or surviving entity resulting from a merger or acquisition involving
substantially all of a party’s stock or assets; provided  further
that any assignment by the QI or any transfer of any interest in this Agreement
by the QI, whether by merger or acquisition or otherwise, shall only be
effective if the successor or surviving entity (x) is a bankruptcy-remote,
special purpose entity organized under the laws of any state of the United
States and is not an affiliate of Alamo LP and (y) expressly agrees in writing
to abide by the terms of this Agreement and the Escrow Agreement. To secure
Alamo LP’s obligations under the Base Indenture, as supplemented by the LKE
Supplements thereto, Alamo LP has pledged, assigned, conveyed, delivered,
transferred and set over to the Master Collateral Agent a security interest in
all of its right, title and interest in, to and under this Agreement, including
any amendments hereto, all monies due and to become due to Alamo LP hereunder,
whether such amounts are payable to Alamo LP from the applicable Joint
Collection Account by the QI or payable as damages for breach of this Agreement
or otherwise, and all other property paid or payable by the QI to Alamo LP
hereunder and all rights to compel performance and otherwise exercise remedies
hereunder and the QI hereby consents to such assignment. Except as provided in
this paragraph, nothing contained in this Agreement is intended, or will be
construed, to confer upon or give to any Person, other than the parties hereto
and their respective successors and permitted assigns, any rights or remedies
under or by reason of this Agreement.


 


Notwithstanding
the foregoing, the QI shall be permitted, as set forth in Section 2.12
and Section 2.13, to sell and/or pledge Master Exchanged Vehicle
Repurchase Rights subject only to the requirements set forth in such sections.


 


Section 8.5.            Scope
of Master Exchange Agreement and the QI. Each of the parties hereto
acknowledges and agrees that the LKE Program is being implemented, and that the
QI is being engaged, for the sole purpose of facilitating the like-kind
exchanges of Alamo LP’s Vehicles pursuant to Section 1031 of the Internal
Revenue Code of 1986, as amended. The QI is acting solely in its capacity as “qualified
intermediary” on behalf of Alamo LP and each of its rights under this Agreement
or any other Related Document is derivative from Alamo LP such that the QI’s
rights, claims or interest in any Vehicle proceeds (including, without
limitation, any receivables due from a Manufacturer with respect to any
Vehicle) and all funds maintained pursuant to this Agreement, the Escrow
Agreement or pursuant to the LKE Program are limited to either (i) acquiring
Replacement Property, solely in its capacity as “qualified intermediary, on
behalf of Alamo LP, with such proceeds and/or funds, (ii) disbursing to, or on
behalf of, Alamo LP, such proceeds and/or funds, in each case as set forth
herein or (iii) with respect to


 


30

















 


proceeds from
Master Exchanged Vehicle Repurchase Rights, repay any advances made under the
related Master Exchange Financing Agreement. Except as expressly set forth
herein, the provisions of this Agreement are not intended to affect the
relative rights of any of the parties to any of the Related Documents
including, without limitation, any of such rights in, to and under the Vehicles
(as defined in the Base Indenture and in the ARG Base Indenture), Eligible
Receivables (as defined in the Base Indenture and in the ARG Base Indenture),
any proceeds therefrom or the collateral value (as determined under the
applicable Related Documents) of the collateral supporting the outstanding
loans or securities issued under the Related Documents. Without limiting the
generality of the foregoing and merely by way of illustration, the parties
hereto agree that, given the nature of this Agreement and the QI (as described
above) and the pledge of Alamo LP’s right, title and interest in, to and under
this Agreement and the Escrow Agreement, it is consistent with this Agreement
and the LKE Program, when construing and interpreting provisions and defined
terms in any of the Related Documents that refer to funds which are receivable
by, due to or paid to a party other than the QI (a “Third Party”), but which
pursuant to the terms of this Agreement and the LKE Program are receivable by,
due to or paid to the QI, solely in its capacity as “qualified intermediary” on
behalf of Alamo LP and subject to the limitations set forth in Section
4.1(e), to interpret such references in such provisions and defined terms
as if such references expressly address and provide for the implementation of
the LKE Program and the role of the QI. Likewise, the parties hereto agree
that, given the nature of this Agreement and the QI (as described above) and
the pledge of Alamo LP’s right, title and interest in, to and under this
Agreement and the Escrow Agreement, it is consistent with this Agreement and
the LKE Program, when construing and interpreting provisions or defined terms
in any of the Related Documents that refer to the assignment or pledge of
certain rights and/or assets to Third Parties, but which pursuant to the terms
of this Agreement and the LKE Program are assigned to the QI, solely in its
capacity as “qualified intermediary” on behalf of Alamo LP and subject to the
limitations set forth in Section 4.1(e), to interpret such references in
such provisions and defined terms as if such references expressly address and
provide for the implementation of the LKE Program and the role of the QI.


 


Section 8.6.            Governing
Law, Venue, Jury Trial Waiver, and Attorneys’ Fees.


 


(a)           GOVERNING LAW AND VENUE. THIS
AGREEMENT AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY TO THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. VENUE SHALL BE IN
ANY STATE OR FEDERAL COURT WITHIN THE STATE OF NEW YORK.


 


(b)           JURY TRIAL WAIVER. THE EXCHANGOR AND
THE QI HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE THEIR RIGHT TO TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING


 


31

















 


FROM
THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY COUNTERCLAIM THERETO.


 


Section 8.7.            Indebtedness.
The QI shall not assume any secured loan or other obligation on any Replacement
Property or to execute any promissory note or other evidence of indebtedness in
connection with the acquisition of any Replacement Property, including any of
the foregoing that would impose any personal liability upon the QI for
repayment of such obligation. The QI shall not execute any agreement nor
participate in any transaction which, in the reasonable opinion of the QI or
its counsel, would require the QI to engage in any unlawful or fraudulent
action.


 


Section 8.8.            Strict
Performance. The failure of any party to insist upon strict performance of
any of the terms or conditions of this Agreement will not constitute a waiver
of any of its rights hereunder, provided that any provision may be
waived by the party intended to benefit therefrom by a written instrument
signed by such party.


 


Section 8.9.            Severability;
Interpretation. If any provision of this Agreement is held illegal, invalid
or unenforceable in a jurisdiction, this Agreement will, in such circumstances,
be deemed modified in such jurisdiction to the extent necessary to render
enforceable the provisions hereof, and such illegality, invalidity or
unenforceability will not affect any other provision of this Agreement in any other
jurisdiction. It is the intent of the parties hereto that this Agreement comply
with the requirements for like-kind exchanges pursuant to Section 1031 of the
Code and the regulations thereunder and for a like-kind exchange program
pursuant to Revenue Procedure 2003-39. To the greatest extent possible, the
provisions of this Agreement shall be interpreted in a manner consistent with
such intent.


 


Section 8.10.          Dates,
Descriptions, Values, and Matching. The Exchangor shall be ultimately and
solely responsible for the accuracy of any transfer dates, the Relinquished
Property and the Replacement Property descriptions, the Relinquished Property
and the Replacement Property values and/or the Relinquished Property and the
Replacement Property matching with respect to each Master Exchange performed
pursuant to its LKE Program.


 


Section 8.11.          Counterparts.
This Agreement may be executed in any number of counterparts and any party
hereto may execute any such counterpart, each of which when executed and
delivered will be deemed to be an original and all of which counterparts when
taken together will constitute but one and the same instrument. The execution
of this Agreement by any party hereto will not become effective until
counterparts hereof have been executed and delivered by each other party hereto.
It will not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any other counterparts.


 


Section 8.12.          Entire
Agreement. This Agreement, as supplemented by the Escrow Agreement,
constitutes the entire understanding and agreement among the parties


 


32

















 


with respect
to the subject matter contained herein and supersedes and merges any prior
understandings and agreements (whether written or oral) respecting such subject
matter.


 


Section 8.13.          Electronic
Signature. In the satisfaction of their respective obligations and the
exercise of their respective rights under this Agreement and any related
documents and/or agreements, to include bills of sale, each party hereto is,
and hereby agrees to be, bound (as though duly authorized, notarized, and
sealed original signatures were affixed to a document) by any evidence of
consent, approval, authorization and/or agreement such party transmits or
causes to be transmitted by electronic means, including but not limited
to:  downloading and/or transmitting of
information via e-mail; facsimile; and the internet or similar electronic
transmission. Though in no way a pre-requisite to being so bound and obligated,
the parties hereto further agree, upon the request of any other party, to use
their respective best efforts to confirm any such electronic transmission
(other than with respect to routine consents, approvals or authorizations) by
thereafter delivering or making available to the other parties, an original
paper counterpart with an ink signature.


 


Section 8.14.          Acknowledgment
of Independent Relationship. The Exchangor and the QI mutually acknowledge
and agree that, pursuant to this Agreement, the QI will solely acquire Rights
in contracts to both the Relinquished Property and the Replacement Property in
accordance with the provisions of Section 1031 of the Code and the Treasury
Regulations thereunder and that legal title to the Relinquished Property will
be directly transferred to one or more Buyers and legal title to the
Replacement Property will be directly transferred to the Exchangor. The QI and
the Exchangor desire to maintain an independent relationship, therefore, the QI
and the Exchangor hereby acknowledge that in engaging in the activities
contemplated by this Agreement, the QI is acting as a Qualified Intermediary. In
no event shall the QI or any of the QI’s directors, officers, employees, agents
or shareholders be deemed to be acting as an agent of the Exchangor (except as
expressly provided in this Agreement and the Treasury Regulations), nor shall
the QI have any fiduciary relationship to the Exchangor.


 


Section 8.15.          Headings.
The headings in this Agreement are for convenience of reference only and do not
affect its interpretation.


 


Section 8.16.          Force
Majeure. No party to this Agreement is liable to any other party for losses
due to, or if it is unable to perform its obligations under the terms of this
Agreement if such inability to perform is caused by, circumstances reasonably
beyond a party’s control, such as natural disasters, fire, floods, third party
strikes, failure of public utilities or telecommunications infrastructure or
any other causes reasonably beyond its control.


 


Section 8.17.          Consequential
Damages. Notwithstanding anything to the contrary in this Agreement, in no
event shall the QI or any director, officer, employee, member, shareholder or
agent of the QI be liable for, and the Exchangor releases the QI and each director,
officer, employee, member, shareholder or agent of the QI from, any and all
liability for special, indirect, incidental or consequential damages of any
kind whatsoever


 


33

















 


(including but
not limited to lost profits) even if the QI or any director, officer, employee,
member, shareholder or agent of the QI is advised of such loss or damage and
regardless of the form of action. The aforesaid is not intended to and shall in
no way diminish or bar the Exchangor’s (and any of its affiliates that may be a
party to the Indemnity Agreement) obligation to indemnify the QI and other
Indemnified Parties for third party claims for such damages.


 


Section 8.18.          Investment
Losses. In no event shall the QI be liable for, and the Exchangor hereby
releases the QI from, any and all liability from any damages resulting from,
any loss of principal, interest or other earnings which may be incurred as a
result of the investment of any funds or in redeeming any investment held by the
QI in any Account pursuant to the terms of this Agreement or the Escrow
Agreement.


 


Section 8.19.          Treasury
Regulations Disclosure Requirements. The Exchangor represents that it does
not intend to treat any transaction contemplated by this Agreement as a
reportable transaction within the meaning of Section 1.6011-4 of the Treasury
Regulations, and without limiting the foregoing, will fully comply with the
filing and reporting requirements applicable to like-kind exchanges, including
any requirement in any applicable regulations or forms. In the event that the
Exchangor determines to take any action inconsistent with such intention, the
Exchangor will promptly notify the QI, and the Exchangor acknowledges that in
this event any other party to this Agreement may treat the transaction as
subject to Section 301.6112-1 of the Treasury Regulations, and maintain the
investor list and other records required by such Treasury Regulation.


 


Section 8.20.          No
Petitions. (a)  Each of Alamo LP and Vanguard hereby covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all of the Notes, it will not institute against, or join any
other Person in instituting against, the QI, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States. In the
event that Alamo LP or Vanguard takes action in violation of this Section
8.20(a), the QI agrees, for the benefit of the secured parties under the
Base Indenture, as supplemented by the LKE Supplements thereto, that it shall
file an answer with the bankruptcy court or otherwise properly contest the
filing of such a petition by Alamo LP or Vanguard, as applicable, against the
QI or the commencement of such action and raise the defense that Alamo LP or
Vanguard, as applicable, 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.


 


(b)           Each
of the QI and Vanguard hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of all of the Notes, it
will not institute against, or join any other Person in instituting against,
Alamo LP, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the
United States or any state of the United States. In the event that the QI or
Vanguard takes action in violation of this Section 8.20(b), Alamo LP
agrees, for the benefit of the secured parties under the Base Indenture, as
supplemented by the LKE Supplements thereto, that it shall file an answer with
the


 


34

















 


bankruptcy
court or otherwise properly contest the filing of such a petition by the QI or
Vanguard, as applicable, against Alamo LP or the commencement of such action
and raise the defense that the QI or Vanguard, as applicable, 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.


 


(c)           The
provisions of this Section 8.20 shall survive the termination of this
Agreement.


 


Section 8.21.          No
Recourse. The obligations of Alamo LP under this Agreement are solely the
obligations of Alamo LP. No recourse shall be had for the payment of any amount
owing in respect of any fee hereunder or any other obligation or claim arising
out of or based upon this Agreement against any manager, partner, employee,
officer or director of Alamo LP. Fees, expenses, costs and indemnities payable
by Alamo LP hereunder shall be payable by Alamo LP to the extent and only to
the extent that Alamo LP is reimbursed therefor. No amounts owing hereunder by
Alamo LP shall constitute a “claim” for purposes of the Bankruptcy Code.


 


Section 8.22.          Master
Exchange Agreement Constitutes a Collateral Agreement. This Agreement is
entered into in connection with the issuance and purchase of the Notes and
relates to the Leases and the Vehicles. This Agreement shall constitute a
Collateral Agreement under the Base Indenture, including without limitation,
for the purposes of Sections 8.24 and 12.2 thereof.


 


Section 8.23.          Master
Servicer to Act. The Master Servicer may act on behalf of the Exchangor
hereunder.


 


Section 8.24.          Ownership
of the QI. If at any time, there has occurred a QI Parent Downgrade Event
with respect to the Intermediary, JPMPH may, and upon request by either the
Exchangor or Vanguard shall, transfer its ownership interest of all of the
issued and outstanding shares of the QI to another Person; provided that
the Rating Agency Confirmation Condition is satisfied with respect to such
Person. In connection with such transfer of the QI’s issued and outstanding
shares, each of JPMPH and the QI shall fully cooperate with Vanguard and the
Exchangor in any way reasonably requested by the Exchangor or Vanguard in order
to assist the Exchangor and Vanguard in effecting a transfer of the QI’s issued
and outstanding shares to such Person, and shall do such further acts and
things, and execute and deliver such additional assignments, agreements, powers
and instruments, as is required or as the Exchangor or Vanguard reasonably
determine to be necessary to effect such transfer.


 


[signature page follows]


 


35

















 


IN
WITNESS WHEREOF, the parties have duly executed and
delivered this Agreement as of the day and year first above written.


 


	
   

  	
  CAR FOR A
  CAR, CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  William P. Lopriore, Jr.

  	
   

  
	
   

  	
   

  	
    Name:

  	
  William P.
  Lopriore, Jr.

  
	
   

  	
   

  	
    Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  
	
   

  	
  ALAMO
  FINANCING L.P.

  
	
   

  	
   

  
	
   

  	
  By: ALAMO
  FINANCING L.L.C., as its

  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Jill A. Gordon

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Jill A.
  Gordon

  
	
   

  	
   

  	
    Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
  VANGUARD CAR
  RENTAL USA INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Gerard J. Kennell

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Gerard J.
  Kennell

  
	
   

  	
   

  	
    Title:

  	
  Senior Vice
  President & Treasurer

  
	
   

  	
   

  
	
   

  	
  Accepted and
  Agreed for purposes of Section

  8.24 hereof:

  
	
   

  	
   

  
	
   

  	
  J.P. MORGAN
  PROPERTY HOLDINGS LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  William P. Lopriore, Jr.

  	
   

  
	
   

  	
   

  	
    Name:

  	
  William P.
  Lopriore, Jr.

  
	
   

  	
   

  	
    Title:

  	
  Senior Vice
  President

  
					



 


[Master Exchange Agreement]