Exhibit 4.1
EXECUTION COPY
ARG FUNDING CORP. II,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
----------------------------------
AMENDED AND RESTATED BASE INDENTURE
Dated as of August 30, 2002
----------------------------------
Rental Car Asset Backed Notes
(Issuable in Series)
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE..........................................1
Section 1.1. Definitions................................................................1
Section 1.2. Cross-References...........................................................1
Section 1.3. Accounting and Financial Determinations; No Duplication....................2
Section 1.4. Rules of Construction......................................................2
Section 1.5. Other Definitional Provisions..............................................2
ARTICLE 2. THE NOTES...........................................................................3
Section 2.1. Designation and Terms of Notes.............................................3
Section 2.2. Notes Issuable in Series...................................................3
Section 2.3. Series Supplement for Each Series..........................................8
Section 2.4. Execution and Authentication..............................................11
Section 2.5. Form of Notes.............................................................12
Section 2.6. Registrar and Paying Agent................................................15
Section 2.7. Paying Agent to Hold Money in Trust.......................................15
Section 2.8. Noteholder List...........................................................17
Section 2.9. Transfer and Exchange.....................................................17
Section 2.10. Legending of Notes........................................................21
Section 2.11. Replacement Notes.........................................................22
Section 2.12. Notes Owned by ARG II.....................................................23
Section 2.13. Temporary Notes...........................................................23
Section 2.14. Cancellation..............................................................24
Section 2.15. Principal and Interest....................................................24
Section 2.16. Book-Entry Notes..........................................................25
Section 2.17. Notices to Clearing Agency................................................27
Section 2.18. Definitive Notes..........................................................27
Section 2.19. Tax Treatment.............................................................29
Section 2.20. CUSIP Numbers.............................................................29
ARTICLE 3. SECURITY...........................................................................29
Section 3.1. Grant of Security Interest................................................29
Section 3.2. Certain Rights and Obligations of ARG II Unaffected.......................31
Section 3.3. Performance of Group III Leasing Company Related Documents................32
Section 3.4. Stamp, Other Similar Taxes and Filing Fees................................33
ARTICLE 4. REPORTS............................................................................33
Section 4.1. Agreement of ARG II to Provide Reports and Instructions...................33
ARTICLE 5. ALLOCATION AND APPLICATION OF GROUP III COLLECTIONS................................34
Section 5.1. Group III Collection Account..............................................34
Section 5.2. Group III Collections and Allocations.....................................35
Section 5.3. Determination of Monthly Interest.........................................36
Section 5.4. Determination of Monthly Principal........................................37
Section 5.5. Paired Series.............................................................37
ARTICLE 6. DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS...........................................37
Section 6.1. Distributions in General..................................................37
Section 6.2. Optional Repurchase of Notes..............................................39
Section 6.3. Monthly Noteholders' Statement............................................39
Section 6.4. Annual Noteholders' Tax Statement.........................................39
ARTICLE 7. REPRESENTATIONS AND WARRANTIES.....................................................40
Section 7.1. Existence and Power.......................................................40
Section 7.2. Corporate and Governmental Authorization..................................40
Section 7.3. Binding Effect............................................................40
Section 7.4. Financial Information; Financial Condition................................41
Section 7.5. Litigation................................................................41
Section 7.6. No ERISA Plan.............................................................41
Section 7.7. Tax Filings and Expenses..................................................41
Section 7.8. Disclosure................................................................42
Section 7.9. Investment Company Act; Securities Act....................................42
Section 7.10. Regulations T, U and X....................................................42
Section 7.11. No Consent................................................................42
Section 7.12. Solvency..................................................................43
Section 7.13. Ownership; Subsidiary.....................................................43
Section 7.14. Security Interests........................................................43
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Section 7.15. Group III Leasing Company Related Documents and Group-Specific Leasing
Company Related Documents.................................................45
Section 7.16. Non-Existence of Other Agreements.........................................45
Section 7.17. Other Representations.....................................................45
ARTICLE 8. COVENANTS..........................................................................46
Section 8.1. Payment of Notes..........................................................46
Section 8.2. Maintenance of Office or Agency...........................................46
Section 8.3. Information...............................................................46
Section 8.4. Payment of Obligations....................................................47
Section 8.5. Rule 144A Information Requirement.........................................47
Section 8.6. Conduct of Business and Maintenance of Existence..........................47
Section 8.7. Compliance with Laws......................................................47
Section 8.8. Inspection of Property, Books and Records.................................48
Section 8.9. Compliance with Related Documents.........................................48
Section 8.10. Notice of Defaults........................................................48
Section 8.11. Notice of Material Proceedings............................................49
Section 8.12. Further Requests..........................................................49
Section 8.13. Further Assurances........................................................49
Section 8.14. Liens.....................................................................50
Section 8.15. Other Indebtedness........................................................50
Section 8.16. Mergers...................................................................51
Section 8.17. Sales of Assets..........................................................51
Section 8.18. Acquisition of Assets.....................................................51
Section 8.19. Dividends, Officers' Compensation, etc....................................51
Section 8.20. Name; Principal Office....................................................51
Section 8.21. Organizational Documents..................................................52
Section 8.22. Investments...............................................................52
Section 8.23. No Other Agreements; Approvals under Group III Leasing Company Related
Documents and Group-Specific Leasing Company Related Documents............52
Section 8.24. Other Business............................................................53
Section 8.25. Use of Proceeds of Notes..................................................53
Section 8.26. Maintenance of Separate Existence.........................................53
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Section 8.27. No ERISA Plan.............................................................54
Section 8.28. Additional Leasing Companies..............................................54
ARTICLE 9. AMORTIZATION EVENTS AND REMEDIES...................................................59
Section 9.1. Amortization Events.......................................................59
Section 9.2. Rights of the Trustee upon Amortization Event or Certain Other Events of
Default...................................................................60
Section 9.3. Other Remedies............................................................62
Section 9.4. Waiver of Past Events.....................................................62
Section 9.5. Control by Requisite Investors or Required Noteholders....................63
Section 9.6. Limitation on Suits.......................................................63
Section 9.7. Unconditional Rights of Holders to Receive Payment; Withholding Taxes.....64
Section 9.8. Collection Suit by the Trustee............................................64
Section 9.9. The Trustee May File Proofs of Claim......................................64
Section 9.10. Priorities................................................................65
Section 9.11. Undertaking for Costs.....................................................65
Section 9.12. Rights and Remedies Cumulative............................................65
Section 9.13. Delay or Omission Not Waiver..............................................65
Section 9.14. Reassignment of Surplus...................................................66
ARTICLE 10. THE TRUSTEE........................................................................66
Section 10.1. Duties of the Trustee.....................................................66
Section 10.2. Rights of the Trustee.....................................................68
Section 10.3. Individual Rights of the Trustee..........................................69
Section 10.4. Notice of Amortization Events and Potential Amortization Events...........69
Section 10.5. Compensation..............................................................69
Section 10.6. Replacement of the Trustee................................................70
Section 10.7. Successor Trustee by Merger, etc..........................................71
Section 10.8. Eligibility Disqualification..............................................71
Section 10.9. Appointment of Co-Trustee or Separate Trustee.............................72
Section 10.10. Representations and Warranties of Trustee.................................73
Section 10.11. ARG II Indemnification of the Trustee.....................................74
Section 10.12. Trustee's Application for Instructions from ARG II........................74
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ARTICLE 11. DISCHARGE OF INDENTURE.............................................................75
Section 11.1. Termination of ARG II's Obligations.......................................75
Section 11.2. Application of Trust Money................................................76
Section 11.3. Repayment to ARG II.......................................................76
ARTICLE 12. AMENDMENTS.........................................................................77
Section 12.1. Without Consent of the Noteholders........................................77
Section 12.2. With Consent of the Noteholders...........................................78
Section 12.3. Supplements...............................................................79
Section 12.4. Revocation and Effect of Consents.........................................79
Section 12.5. Notation on or Exchange of Notes..........................................80
Section 12.6. The Trustee to Sign Amendments, etc.......................................80
ARTICLE 13. MISCELLANEOUS......................................................................80
Section 13.1. Notices...................................................................80
Section 13.2. Communication by Noteholders With Other Noteholders.......................82
Section 13.3. Certificate and Opinion as to Conditions Precedent........................82
Section 13.4. Statements Required in Certificate........................................82
Section 13.5. Rules by the Trustee......................................................82
Section 13.6. No Recourse Against Others................................................82
Section 13.7. Duplicate Originals.......................................................83
Section 13.8. Benefits of Indenture.....................................................83
Section 13.9. Payment on Business Day...................................................83
Section 13.10. Governing Law.............................................................83
Section 13.11. Successors................................................................83
Section 13.12. Severability..............................................................83
Section 13.13. Counterpart Originals.....................................................84
Section 13.14. Table of Contents, Headings, etc..........................................84
Section 13.15. Termination; Group III Collateral.........................................84
Section 13.16. No Bankruptcy Petition Against ARG II.....................................84
Section 13.17. No Recourse...............................................................85
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AMENDED AND RESTATED BASE INDENTURE, dated as of August 30,
2002, between ARG FUNDING CORP. II, a special purpose corporation established
under the laws of Delaware, as issuer ("ARG II"), and The Bank of New York, a
New York banking corporation, as trustee (in such capacity, the "TRUSTEE").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the parties hereto have entered into that certain
Base Indenture, dated as of May 6, 2002 (the "ORIGINAL BASE INDENTURE");
WHEREAS, SECTION 12.2 of the Original Base Indenture permits
ARG II and the Trustee, any applicable Enhancement Provider and the Requisite
Investors to enter into one or more indentures supplemental to the Original Base
Indenture; and
WHEREAS, the parties hereto desire to amend and restate the
Original Base Indenture; and
WHEREAS, ARG II has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of one or more
series of Rental Car Asset Backed Notes (the "NOTES"), issuable as provided in
this Indenture; and
WHEREAS, all things necessary to make this Base Indenture a
legal, valid and binding agreement of ARG II, enforceable in accordance with its
terms, have been done, and ARG II proposes to do all the things necessary to
make the Notes, when executed by ARG II and authenticated and delivered by the
Trustee hereunder and duly issued by ARG II, the legal, valid and binding
obligations of ARG II as hereinafter provided.
NOW, THEREFORE, the parties hereto agree that the Original
Base Indenture shall be and hereby is amended and restated in its entirety to
read as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
Certain capitalized terms used herein (including the preamble
and the recitals hereto) shall have the meanings assigned to such terms in the
Definitions List attached hereto as SCHEDULE I (the "DEFINITIONS LIST"), as such
Definitions List may be amended, restated, supplemented or modified from time to
time in accordance with the provisions hereof.
SECTION 1.2. CROSS-REFERENCES.
Unless otherwise specified, references in this Indenture and
in each other Related Document to any Article or Section are references to such
Article or Section of this Indenture or such other Related Document, as the case
may be, and, unless otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of such Article, Section
or definition.
SECTION 1.3. ACCOUNTING AND FINANCIAL DETERMINATIONS; NO
DUPLICATION.
Where the character or amount of any asset or liability or
item of income or expense is required to be determined, or any accounting
computation is required to be made, for the purpose of this Indenture, such
determination or calculation shall be made, to the extent applicable and except
as otherwise specified in this Indenture, in accordance with GAAP applied on a
consistent basis. When used herein, the term "financial statement" shall include
the notes and schedules thereto. All accounting determinations and computations
hereunder or under any other Related Documents shall be made without
duplication.
SECTION 1.4. RULES OF CONSTRUCTION.
In this Indenture, unless the context otherwise requires:
(i) "or" is not exclusive;
(ii) the singular includes the plural and vice versa;
(iii) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such
successors and assigns are permitted by this Indenture, and
reference to any Person in a particular capacity only refers
to such Person in such capacity;
reference to any gender includes the other gender;
reference to any Requirement of Law means such
Requirement of Law as amended, modified, codified or
reenacted, in whole or in part, and in effect from time to
time;
"including" (and with correlative meaning "include")
means including without limiting the generality of any
description preceding such term; and
with respect to the determination of any period of
time, "from" means "from and including" and "to" means "to but
excluding".
SECTION 1.5. OTHER DEFINITIONAL PROVISIONS.
(i) All terms defined in this Indenture or any Series
Supplement shall have the defined meanings when used in any
certificate or document made or delivered pursuant hereto
unless otherwise defined therein.
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(ii) The words "hereof," "herein" and "hereunder" and
words of similar import when used in this Indenture shall
refer to this Indenture as a whole and not to any particular
provision of this Indenture; and Section, subsection, Schedule
and Exhibit references contained in this Indenture are
references to Sections, subsections, Schedules and Exhibits in
or to this Indenture unless otherwise specified.
ARTICLE 2.
THE NOTES
SECTION 2.1. DESIGNATION AND TERMS OF NOTES.
Each Series of Notes shall be substantially in the form
specified in the applicable Series Supplement and shall bear, upon its face, the
designation for such Series to which it belongs so selected by ARG II. All Notes
of any Series sharing in the same Group-Specific Collateral shall, except as
specified in the related Series Supplement, be equally and ratably entitled as
provided herein to the benefits hereof without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Indenture and
the applicable Series Supplement. The aggregate principal amount of Notes which
may be authenticated and delivered under this Indenture is unlimited. Each
Series of Notes shall be issued in the minimum denominations set forth in the
related Series Supplement. The initial Series of Notes issued hereunder shall be
designated as the "Group III Notes" and shall be secured by the Group III
Collateral. For the avoidance of doubt, no Notes of any Series with respect to
ARG II have been or will be designated as "Group I Notes" or "Group II Notes".
SECTION 2.2. NOTES ISSUABLE IN SERIES.
The Notes may be issued in one or more Series. Each Series of
Notes shall be created by a Series Supplement. Notes of a new Series may from
time to time be executed by ARG II and delivered to the Trustee for
authentication and thereupon the same shall be authenticated and delivered by
the Trustee upon the receipt by a Trust Officer of the Trustee of a Company
Request at least two (2) Business Days (or such shorter time as is acceptable to
the Trustee) in advance of the related Series Closing Date and upon delivery by
ARG II to the Trustee, and receipt by a Trust Officer of the Trustee, of the
following:
(a) a Company Order authorizing and directing the
authentication and delivery of the Notes of such new Series by the
Trustee and specifying the designation of such new Series, the
aggregate principal amount of Notes of such new Series to be
authenticated and the Note Rate (or the method for allocating interest
payments or other cash flow) with respect to such new Series;
3
(b) a Series Supplement in form satisfactory to the Trustee
executed by ARG II and the Trustee and specifying the Principal Terms
of such new Series;
(c) the related Enhancement Agreement, if any, executed by
each of the parties thereto, other than the Trustee;
(d) written confirmation that the Rating Agency Confirmation
Condition with respect to each Outstanding Series of Notes shall have
been satisfied with respect to such issuance;
(e) an Officer's Certificate of ARG II dated as of the
applicable Series Closing Date to the effect that (i) unless otherwise
provided in a Series Supplement for a Segregated Series (except with
respect to an Amortization Event set forth in Section 9.1(b) of this
Indenture), no Amortization Event with respect to any Outstanding
Series of Notes, Enhancement Agreement Event of Default with respect to
any Outstanding Series of Notes, Enhancement Deficiency with respect to
any Outstanding Series of Notes, Potential Amortization Event with
respect to any Outstanding Series of Notes or Potential Enhancement
Agreement Event of Default with respect to any Outstanding Series of
Notes, is continuing or will occur as a result of the issuance of the
new Series of Notes, (ii) the issuance of the new Series of Notes will
not result in any breach of any of the terms, conditions or provisions
of or constitute a default under any indenture, mortgage, deed of trust
or other agreement or instrument to which ARG II is a party or by which
it or its property is bound or any order of any court or administrative
agency entered in any suit, action or other judicial or administrative
proceeding to which ARG II is a party or by which it or its property
may be bound or to which it or its property may be subject, (iii)
unless otherwise specified in the related Series Supplement, all
representations and warranties of ARG II set forth in the Indenture and
each Related Document with respect to each Outstanding Series of Notes
are true and correct, without giving effect to any limitations
contained therein (excluding Related Documents relating solely to a
Segregated Series) in all material respects (to the extent any such
representations and warranties do not incorporate a materiality
limitation in their terms) as of the Series Closing Date, (iv) all
instruments furnished to the Trustee conform in all material respects
to the requirements of this Base Indenture and the related Series
Supplement and constitute all the documents required to be delivered
hereunder and thereunder for the Trustee to authenticate and deliver
the new Series of Notes, (v) all conditions precedent provided in this
Base Indenture and the related Series Supplement with respect to the
authentication and delivery of the new Series of Notes have been
complied with and (vi) if such new Series of Notes is a Segregated
Series, the criteria used to select the Group-Specific Collateral will
not have a material adverse effect on the quality of any Group-Specific
Collateral securing any other outstanding Series of Notes;
(f) unless otherwise specified in the related Series
Supplement, an Opinion of Counsel, subject to the assumptions and
qualifications stated therein, and in a form reasonably acceptable to
4
the Trustee, dated the applicable Series Closing Date, substantially to
the effect that:
(i) (x) the new Series of Notes will be treated as
indebtedness for Federal income tax purposes and (y) the
issuance of such Series will not adversely affect the Federal
income tax characterization of the Outstanding Notes of any
Series;
(ii) all conditions precedent provided for in this
Base Indenture and the related Series Supplement with respect
to the authentication and delivery of the new Series of Notes
have been complied with in all material respects;
(iii) (v) ARG II is duly incorporated under the
jurisdiction of its incorporation and has, or at the time of
execution and delivery had, the power and authority to execute
and deliver the related Series Supplement, this Base Indenture
and each other Related Document to which it is a party (other
than any Series Supplement, Enhancement Agreement or other
Related Document relating solely to another Series of Notes)
and to issue the new Series of Notes; (w) each of the Leasing
Companies is duly formed in the jurisdiction of its formation
and had the limited partnership power and authority to execute
and deliver each of the Group III Leasing Company Related
Documents or Group-Specific Leasing Company Related Documents,
as applicable, to which it is a party; (x) each of the Group
III Lessees or Group-Specific Lessees, as applicable, is duly
incorporated or formed, as the case may be, in the
jurisdiction of its incorporation or formation, as the case
may be, and had the corporate, limited partnership or limited
liability company, as the case may be, power and authority to
execute and deliver each of the Group III Leasing Company
Related Documents or Group-Specific Leasing Company Related
Documents, as applicable, to which it is a party; (y) the
general partner of each Leasing Company is duly organized
under the jurisdiction of its organization and has, or at the
time of execution and delivery, had the power and authority to
execute and deliver each of the Group III Leasing Company
Related Documents or Group-Specific Leasing Company Related
Documents, as applicable, to which it is a party; and (z) ANC,
in its capacity as guarantor and servicer under each of the
Group III Leases or Group-Specific Leases, as applicable, is
duly incorporated in the jurisdiction of its incorporation and
had the power and authority to execute and deliver the Group
III Leases or Group-Specific Leases, as applicable, and each
other Group III Leasing Company Related Document or
Group-Specific Leasing Company Related Document, as
applicable, to which it is a party;
(iv) the related Series Supplement, this Base
Indenture and each of the other Related Documents to which ARG
II is a party (other than any
5
Series Supplement, Enhancement Agreement or other Related
Document relating solely to another Series of Notes) have been
duly authorized, executed and delivered by ARG II;
(v) each of the Group III Leasing Company Related
Documents or Group-Specific Leasing Company Related Documents,
as applicable, have been duly authorized, executed and
delivered by the Leasing Companies, the Group III Lessees, the
Group-Specific Lessees and ANC, as applicable;
(vi) the new Series of Notes has been duly authorized
and executed and, when authenticated and delivered in
accordance with the provisions of this Base Indenture and the
related Series Supplement, will constitute valid, binding and
enforceable obligations of ARG II entitled to the benefits of
this Base Indenture and the related Series Supplement,
subject, in the case of enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and to general
principles of equity and by an implied covenant of good faith
and fair dealing;
(vii) this Base Indenture, the related Series
Supplement and each of the other Related Documents to which
ARG II is a party (other than any Series Supplement,
Enhancement Agreement or other Related Document relating
solely to another Series of Notes) are legal, valid and
binding agreements of ARG II, enforceable in accordance with
their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors' rights generally and to general principles of
equity and by an implied covenant of good faith and fair
dealing;
(viii) the Group III Leasing Company Related
Documents or any Group-Specific Leasing Company Related
Documents, as applicable, are legal, valid and binding
agreements of the Leasing Companies, Group III Lessees,
Group-Specific Lessees and ANC, as the case may be,
enforceable in accordance with their respective terms, subject
to bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting creditors' rights generally and
to general principles of equity and by an implied covenant of
good faith and fair dealing;
(ix) none of ARG II and the Leasing Companies is, or
is controlled by, an "investment company" within the meaning
of, or is required to register as an "investment company"
under, the Investment Company Act, and neither this Base
Indenture and the related Series Supplement nor the Group III
Leasing Company Indentures or Group-Specific Leasing Company
Indentures, as applicable, are required to be registered under
the Trust Indenture Act;
6
(x) the offer and sale of the new Series of Notes is
not required to be registered under the Securities Act;
(xi) the Indenture and the related Series Supplement
are effective to create a legal, valid and enforceable
security interest in the Group-Specific Collateral securing
the new Series of Notes and that such security interest
constitutes a first, perfected security interest in such
Group-Specific Collateral;
(xii) the assets of ARG II will not be substantively
consolidated with the assets of ANC, any Group III Lessee or
any Group-Specific Lessee, as applicable, in the event of the
insolvency of ANC, such Group III Lessee or such
Group-Specific Lessee, as applicable;
(xiii) there does not exist any pending or threatened
litigation which, if adversely determined, would materially
and adversely affect the ability of ARG II to perform its
obligations under any of the Related Documents (other than any
Series Supplement, Enhancement Agreement or other Related
Document relating solely to another Series of Notes);
(xiv) there is no conflict with or violation of any
court decree, injunction, writ or order applicable to ARG II
or any breach or default of any indenture, agreement or other
instrument as a result of the issuance of such Series of Notes
by ARG II; and
(xv) such other matters as the Trustee may reasonably
require.
(g) executed counterparts of each of the Group III Leasing
Company Indentures or any Group-Specific Leasing Company Indentures, as
applicable, and the other Group III Leasing Company Related Documents
or any Group-Specific Leasing Company Related Documents, as applicable,
duly executed by the parties thereto;
(h) evidence that each of the parties to the Related Documents
(other than any Series Supplement, Enhancement Agreement or other
Related Document relating solely to another Series of Notes) has
covenanted and agreed that, prior to the date which is one year and one
day after the payment in full of the latest maturing Note, it will not
institute against, or join with any other Person in instituting,
against ARG II, any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings, or other proceedings, under any Federal or
state bankruptcy or similar law;
(i) evidence of the grant by ARG II to the Trustee of a first
priority, perfected security interest in and to the Group III
Collateral or the Group-Specific Collateral securing the new Series of
Notes;
7
(j) evidence (which, in the case of the filing of financing
statements on form UCC-1, may be telephonic, followed by prompt written
confirmation) that ARG II has delivered the Group III Leasing Company
Notes or any Group-Specific Leasing Company Notes, as applicable,
registered in the name of the Trustee, to the Trustee and has caused
all filings (including filing of financing statements on form UCC-l),
execution of control agreements, and delivery, recordings and any other
actions or filings to be accomplished as may be reasonably required by
law to establish, perfect, protect and preserve the rights, titles,
interests, remedies, powers, privileges, licenses and security interest
of the Trustee in the Group III Collateral or any Group-Specific
Collateral, as applicable, for the benefit of the Group III Secured
Parties or any party who becomes secured pursuant to a Series
Supplement related to a Segregated Series of Notes (the "Group-Specific
Secured Parties"); and
(k) such other documents, instruments, certifications,
agreements or other items as the Trustee may reasonably require.
Upon satisfaction of such conditions, the Trustee shall
authenticate and deliver, as provided above, such Series of Notes upon execution
thereof by ARG II. There is no limit to the number of issuances of new Series of
Notes under this Indenture.
SECTION 2.3. SERIES SUPPLEMENT FOR EACH SERIES.
(a) In conjunction with the issuance of a new Series, the
parties hereto shall execute a Series Supplement, which shall specify
the relevant terms with respect to such new Series of Notes, which
shall include, as applicable: (i) its name or designation, (ii) the
aggregate principal amount of Notes of such Series and a method for
determining the aggregate principal amount of Notes of any Series with
a variable principal amount, (iii) the Note Rate (or the method for
calculating such Note Rate) with respect to such Series, (iv) the
interest payment date or dates and the date or dates from which
interest shall accrue, (v) the method of allocating Group III
Collections or Group-Specific Collections, as applicable, with respect
to such Series and the method by which the principal amount of Notes of
such Series shall amortize or accrete, (vi) the names of any accounts
to be used by such Series and the terms governing the operation of any
such account, (vii) the terms of any Enhancement, (viii) the
Enhancement Provider, if any, (ix) whether the Notes may be issued in
bearer form and any limitations imposed thereon, (x) the Series
Termination Date, (xi) whether the Notes will be issued in multiple
classes and, if so, the method of allocating Group III Collections or
Group-Specific Collections, as applicable, among such classes, (xii)
whether such Series of Notes shall have the benefit of Group-Specific
Collateral and (xiii) any other relevant terms of such Series of Notes
that do not (subject to SECTION 2.3(B) and ARTICLE 12 hereof) change
the terms of any Outstanding Series of Notes or otherwise materially
conflict with the provisions of this Indenture and that do not prevent
the satisfaction of the Rating Agency Confirmation Condition with
8
respect to each Outstanding Series of Notes with respect to the
issuance of such new Series (all such terms, the "PRINCIPAL TERMS" of
such Series);
(b) (i) ARG II may establish one or more separate groups of
collateral (each such group of collateral being referred to as,
"Group-Specific Collateral") in which one or more Series of Notes shall
have an interest. Section 3.1 of this Base Indenture identified the
initial Group-Specific Collateral with respect to the Group III Notes,
as the Group III Collateral, and any subsequent Group will be
identified through the designation and related granting of such
Group-Specific Collateral through the related Series Supplements. A
Series Supplement may specify that the related Series of Notes (each, a
"SEGREGATED SERIES") will have an interest in Group-Specific
Collateral, other than the Group III Collateral identified hereunder,
that is to be solely for the benefit of the Noteholders of such
Segregated Series of Notes and any other Segregated Series of Notes
specified in such Series Supplement and subsequent Series Supplements
as sharing in that Group-Specific Collateral; PROVIDED, HOWEVER, that
no such Segregated Series of Notes will be issued unless (x) the Rating
Agency Confirmation Condition with respect to each Outstanding Series
of Notes is met with respect to the issuance of such Segregated Series
of Notes, (y) ARG II shall have delivered to the Trustee an Officer's
Certificate to the effect that the issuance of such Segregated Series
of Notes will not have a material adverse effect (excluding any impact
from the dilution of the interests or voting percentage of the existing
Noteholders as a result of such issuance) upon the Noteholders of any
Series of Notes outstanding at the time of the issuance of the
Segregated Series of Notes, and (z) the applicable Series Supplement
provides, in form satisfactory to the Trustee, for the changes and
modifications to the Indenture and the other Related Documents as are
described in CLAUSE (II) below.
(ii) In the event any Segregated Series of Notes is
issued, the related Series Supplement will provide that (A)
the Servicer, the Master Collateral Agent and the Trustee will
identify the Group-Specific Collateral, as well as any
collateral applicable only to that Series for such Segregated
Series of Notes, (B) the holders of any existing or future
Series of Notes will not be entitled to the benefit of, have
an interest in or receive any proceeds of such Group-Specific
Collateral unless so specified in the Series Supplement for
any such Series of Notes, (C) the Group-Specific Collateral
will secure only that Segregated Series of Notes and the
Noteholders with respect to any other Series of Notes will not
be entitled to the benefit of such Group-Specific Collateral,
(D) the allocations and distributions to be made under the
Indenture will be adjusted so that only the Noteholders with
respect to all Segregated Series of Notes sharing in
particular Group-Specific Collateral will be entitled to
allocations and distributions of proceeds arising solely from
such applicable Group-Specific Collateral, (E) the Trustee
will act as collateral agent under the Indenture (and in such
capacity the Trustee, together with the Master Collateral
9
Agent, shall (x) establish and maintain a collection account,
related to each pool of Group-Specific Collateral, into which
collections from such Group-Specific Collateral (the
"Group-Specific Collections") will be deposited and, after
such deposit, further allocated among the Segregated Series of
Notes sharing in such Group-Specific Collateral, as specified
in their respective Series Supplements, (y) hold its lien
encumbering each pool of Group-Specific Collateral for the
benefit of the Noteholders of each Series of Notes sharing in
such Group-Specific Collateral, as specified in the Series
Supplement with respect to each such Series of Notes and (z)
hold its lien encumbering any collateral applicable only to a
specific Segregated Series of Notes solely for the benefit of
the Noteholders of the applicable Segregated Series of Notes),
(F) the Servicer and the Master Collateral Agent each will
designate on its computer system the source of the funds for
the financing of each Vehicle and the pool of Group-Specific
Collateral each Vehicle forms a part of, (G) the Noteholders
of the Segregated Series of Notes sharing in common
Group-Specific Collateral will be the only Noteholders
entitled to direct the Trustee and the Master Collateral Agent
in writing with respect to exercising rights and remedies
under the Indenture and the Master Collateral Agency Agreement
with respect to such Group-Specific Collateral, subject to the
conditions and limitations set forth in the Series Supplements
for each such Series of Notes, this Indenture and the Master
Collateral Agency Agreement, (H) separate monthly reports and
other information will be furnished under the Indenture for
each pool of Group-Specific Collateral, which monthly reports
and other information will contain substantially the same type
of information as the monthly reports provided under the
Indenture prior to the issuance of such Segregated Series of
Notes, (I) separate segregated leases pertaining solely to
each pool of Group-Specific Collateral (the "Group-Specific
Leases") will be executed and delivered by each of Alamo,
National and CarTemps (any such party, the "Group-Specific
Lessees") to the extent applicable, and, if applicable, ANC,
(J) upon the issuance of a Segregated Series of Notes secured
by a new pool of Group-Specific Collateral, ARG II, the
Servicer and each Group-Specific Lessee, as the case may be,
will take such actions as are necessary to perfect (1) the
Master Collateral Agent's interest in the portion of such
Group-Specific Collateral that would constitute Master
Collateral and to designate the Leasing Companies as the
"Financing Source" and the Leasing Companies Trustee, on
behalf of the Noteholders of each Series of Notes sharing in
such Group-Specific Collateral, as specified in the related
Series Supplements, as the "Beneficiary" under the Master
Collateral Agency Agreement with respect to the Group-Specific
Collateral and (2) the Trustee's interest on behalf of the
Noteholders of each Series of Notes sharing in such
Group-Specific Collateral, (K) amendments will be made to this
Indenture and the other Related Documents, if necessary (or
through the applicable Series Supplement), to reflect the
10
foregoing, which amendments will, among other things, provide
for definitions of or revisions to the following terms "Group
[#] Aggregate Asset Amount", "Group [#] Collateral", "Group
[#] Leasing Company Related Documents", "Group [#] Collection
Account", "Group [#] ARG II Obligations", "Group [#] Related
Documents", "Group [#] Secured Parties", "Aggregate Invested
Amount", "Group [#] Operating Lease Asset Amount", "Collateral
Agreements", "Group [#] Lease" and "Requisite Investors" and
such other terms as may be appropriate to reflect the creation
of the Segregated Series and the identification of
Group-Specific Collateral, which revisions, as applicable,
will generally modify such term to be two (or more in the
event of multiple Segregated Series of Notes) separate defined
terms, one such defined term pertaining to all non-Segregated
Series of Notes and the other such defined term pertaining to
the Segregated Series of Notes sharing in such Group-Specific
Collateral, provided that any such amendment shall not have a
material adverse effect on the Noteholders of any Series
unless the Required Noteholders of such Series shall have
given their prior written consent thereto (and, with respect
to each Series, the Trustee may conclusively rely on an
Officer's Certificate of ARG II as sufficient evidence of such
lack of a material adverse effect), (L) for purposes of the
Segregated Series, terms that are defined both in the
applicable Series Supplement and in Schedule I to the Base
Indenture, shall for purposes of such Series Supplement and
the Base Indenture as it relates to such Segregated Series,
have the meanings assigned to them in such Series Supplement
and (M) references herein to "all" or "each" Series of Notes
or words of similar import (other than as specifically stated
herein) shall be modified to refer to all or each Series of
Notes other than any Segregated Series of Notes which may
hereafter be issued.
SECTION 2.4. EXECUTION AND AUTHENTICATION.
(a) An Authorized Officer shall sign the Notes for ARG II by
manual or facsimile signature. If an Authorized Officer whose signature
is on a Note no longer holds that office at the time the Note is
authenticated, the Note shall nevertheless be valid.
(b) At any time and from time to time after the execution and
delivery of this Indenture, ARG II may deliver Notes of any particular
Series executed by ARG II to the Trustee for authentication, together
with one or more Company Orders for the authentication and delivery of
such Notes, and the Trustee, in accordance with such Company Order and
this Indenture, shall authenticate and deliver such Notes.
(c) Unless otherwise provided in the related Series
Supplement, no Note shall be entitled to any benefit under this
Indenture or be valid for any purpose unless there appears on such Note
a certificate of authentication
11
substantially in the form provided for herein, duly executed by the
Trustee by the manual signature of a Trust Officer and the Luxembourg
agent (the "Luxembourg Agent"), if such Notes are listed on the
Luxembourg Stock Exchange. Such signatures on such certificate shall be
conclusive evidence, and the only evidence, that the Note has been duly
authenticated under this Indenture. The Trustee may appoint an
authenticating agent acceptable to ARG II to authenticate Notes. Unless
limited by the term of such appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as an Agent
to deal with ARG II or an Affiliate of ARG II. The Trustee's
certificate of authentication shall be in substantially the following
form:
This is one of the Notes of a series issued under the within
mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated:
By:
-----------------------------------
Authorized Signatory
(d) Each Note shall be dated and issued as of the date of its
authentication by the Trustee.
(e) Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by ARG
II, and ARG II shall deliver such Note to the Trustee for cancellation
as provided in SECTION 2.14 together with a written statement (which
need not comply with SECTION 13.3 and need not be accompanied by an
Opinion of Counsel) stating that such Note has never been issued and
sold by ARG II, for all purposes of this Indenture such Note shall be
deemed never to have been authenticated and delivered hereunder and
shall not be entitled to the benefits of this Indenture.
SECTION 2.5. FORM OF NOTES.
(a) NOTES ISSUED TO AFFILIATE ISSUER. Any Series of Notes
issued only to an Affiliate Issuer shall be issued in the form of one
or more Notes in fully registered form without interest coupons
substantially in the form set forth in the applicable Series Supplement
with such legends as may be applicable thereto, duly executed by ARG II
and authenticated by the Trustee as provided in SECTION 2.4. The
12
aggregate initial principal amount of a Note issued to an Affiliate
Issuer may from time to time be increased or decreased in accordance
with the applicable Series Supplement by adjustments made on the
records of the Note Register.
RESTRICTED GLOBAL NOTE. If provided for in an applicable
Series Supplement, any Series of Notes (other than any Series of Notes issued
only to an Affiliate Issuer), or any class of such Series, to be issued in the
United States will be in registered form and sold initially to "accredited
investors" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act in reliance on an exemption from the registration requirements of
the Securities Act and thereafter (i) to qualified institutional buyers within
the meaning of, and in reliance on, Rule 144A under the Securities Act ("Rule
144A"), (ii) outside the United States to a non-U.S. Person (as such term is
defined in Regulation S of the Securities Act) in a transaction in compliance
with Regulation S of the Securities Act, (iii) pursuant to an effective
registration statement under the Securities Act or (iv) in reliance on another
exemption under the Securities Act, in each case in accordance with any
applicable securities laws of any state of the United States and any other
applicable jurisdiction, and as provided in the applicable Series Supplement,
and prior to any such sale, each such purchaser shall be deemed to have
represented and agreed as follows:
(1) It is an "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
and is acquiring the Notes for its own institutional account
or for the account of an institutional accredited investor,
(2) It understands that the Notes purchased by it
will be offered, and may be transferred, only in a transaction
not involving any public offering within the meaning of the
Securities Act, and that, if in the future it decides to
resell, pledge or otherwise transfer any Notes, such Notes may
be resold, pledged or transferred only (a) to a person who the
seller reasonably believes is a qualified institutional buyer
(as defined in Rule 144A under the Securities Act) that
purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule
144A, (b) outside the United States to a non-U.S. Person (as
such term is defined in Regulation S of the Securities Act) in
a transaction in compliance with Regulation S of the
Securities Act, (c) pursuant to an effective registration
statement under the Securities Act or (d) in reliance on
another exemption under the Securities Act, in each case in
accordance with any applicable securities laws of any state of
the United States and any other applicable jurisdiction;
(3) It understands that the Notes will bear a legend
substantially as set forth in SECTION 2.10; and
13
(4) It acknowledges that the Trustee, ARG II, any
underwriter or placement agent for such Series of Notes, and
their affiliates, and others will rely upon the truth and
accuracy of the foregoing acknowledgements, representations
and agreements. If it is acquiring any Notes for the account
of one or more institutional accredited investors, it
represents that it has sole investment discretion with respect
to each such account and that it has full power to make the
foregoing acknowledgements, representations and agreements on
behalf of each such account.
In addition, such purchaser shall be responsible for providing
additional information or certification, as shall be reasonably requested by the
Trustee or ARG II, to support the truth and accuracy of the foregoing
acknowledgements, representations and agreements, it being understood that such
additional information is not intended to create additional restrictions on the
transfer of the Notes. Such Series of Notes (other than any Series of Notes only
issued to an Affiliate Issuer) shall be issued in the form of and represented by
one or more permanent global Notes in fully registered form without interest
coupons (each, a "RESTRICTED GLOBAL NOTE"), substantially in the form set forth
in the applicable Series Supplement, with such legends as may be applicable
thereto, which shall be deposited on behalf of the subscribers for the Notes
represented thereby with a custodian for DTC, and registered in the name of DTC
or a nominee of DTC, duly executed by ARG II and authenticated by the Trustee as
provided in SECTION 2.4 for credit to the accounts of the subscribers at DTC,
The aggregate initial principal amount of a Restricted Global Note may from time
to time be increased or decreased by adjustments made on the records of the
custodian for DTC, DTC or its nominee, as the case may be, as hereinafter
provided.
(b) TEMPORARY GLOBAL NOTE; PERMANENT GLOBAL NOTE. If provided
for in any applicable Series Supplement, any Series of Notes (other
than any Series of Notes issued only to an Affiliate Issuer), or any
class of such Series, offered and sold outside of the United States
will be offered and sold in reliance on Regulation S ("REGULATION S")
under the Securities Act and shall initially be issued in the form of
one or more temporary global Notes (each, a "TEMPORARY GLOBAL NOTE") in
fully registered form without interest coupons substantially in the
form set forth in the applicable Series Supplement with such legends as
may be applicable thereto, which shall be deposited on behalf of the
subscribers for the Notes represented thereby with a custodian for DTC
registered in the name of DTC or a nominee of DTC, duly executed by ARG
II and authenticated by the Trustee as provided in SECTION 2.4, for
credit to the respective accounts of Euroclear and Clearstream.
Interests in a Temporary Global Note will be exchangeable, in whole or
in part, for interests in a permanent global note (a "PERMANENT GLOBAL
NOTE") in fully registered form without interest coupons, representing
Notes of the same Series, substantially in the form set forth in the
applicable Series Supplement, in accordance with the provisions of the
Temporary Global Note and this Indenture. Beneficial interests in a
14
Temporary Global Note may only be held through Euroclear or
Clearstream. The aggregate initial principal amount of the Temporary
Global Note may from time to time be increased or decreased by
adjustments made on the records of the custodian for DTC, DTC or its
nominee, as the case may be, as hereinafter provided.
(c) VARIABLE FUNDING NOTE. Any Series of Variable Funding
Notes shall initially be sold to investors in reliance on an exemption
from the registration requirements of the Securities Act. Such Series
of Notes shall be issued in the form of one or more Variable Funding
Notes (each, a "VARIABLE FUNDING NOTE") in fully registered form
without interest coupons substantially in the form set forth in the
applicable Series Supplement with such legends as may be applicable
thereto, duly executed by ARG II and authenticated by the Trustee as
provided in SECTION 2.4. The aggregate outstanding principal amount of
a Variable Funding Note may from time to time be increased or decreased
in accordance with the applicable Series Supplement by adjustments made
on the records of the Note Register.
SECTION 2.6. REGISTRAR AND PAYING AGENT.
(a) ARG II shall (i) maintain an office or agency where Notes
may be presented for registration of transfer or for exchange
("REGISTRAR") and (ii) appoint a paying agent ("PAYING AGENT") at whose
office or agency Notes may be presented for payment. The Registrar
shall keep a register of the Notes and of their transfer and exchange
(the "NOTE REGISTER"). ARG II may appoint one or more co-registrars and
one or more additional paying agents. The term "Paying Agent" includes
any additional paying agent and the term "Registrar" includes any
co-registrars. ARG II may change any Paying Agent or Registrar without
prior notice to any Noteholder. ARG II shall notify the Trustee in
writing of the name and address of any Agent not a party to this
Indenture. The Trustee is hereby initially appointed as the Registrar,
Paying Agent and agent for service of notices and demands in connection
with the Notes.
(b) ARG II shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. Such agency agreement
shall implement the provisions of this Indenture that relate to such
Agent. ARG II shall notify the Trustee in writing of the name and
address of any such Agent. If ARG II fails to maintain a Registrar or
Paying Agent and a Trust Officer has actual knowledge of such failure,
or if ARG II fails to give the foregoing notice, the Trustee shall act
as such, and shall be entitled to appropriate compensation in
accordance with this Indenture, until ARG II shall appoint a
replacement Registrar and Paying Agent.
SECTION 2.7. PAYING AGENT TO HOLD MONEY IN TRUST.
(a) ARG II will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such
15
Paying Agent shall agree with the Trustee (and if the Trustee acts as
Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii) give the Trustee written notice of any default
by ARG II (or any other obligor under the Notes) of which it
(or, in the case of the Trustee, a Trust Officer) has actual
knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Trustee all sums held by it in trust for
the payment of Notes if at any time it ceases to meet the
standards required to be met by a Trustee hereunder at the
time of its appointment; and
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in
connection therewith.
(b) ARG II may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
by Company Order direct any Paying Agent to pay to the Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
(c) Subject to applicable laws with respect to escheat of
funds, any money held by the Trustee, any Paying Agent or any Clearing
Agency in trust for the payment of any amount due with respect to any
Note and remaining unclaimed for two years after such amount has become
due and payable shall be discharged from such trust and be paid to ARG
II on Company Request; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to ARG II for payment thereof
(but only to the extent of the amounts so paid to ARG II), and all
liability of the Trustee, such Paying Agent or such Clearing Agency
with respect to such trust money shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee, such Paying Agent or such Clearing Agency,
16
before being required to make any such repayment, may at the expense of
ARG II cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of
general circulation in New York City and, if the related Series of
Notes has been listed on the Luxembourg Stock Exchange, and if the
Luxembourg Stock Exchange so requires, in a newspaper customarily
published on each Luxembourg business day and of general circulation in
Luxembourg City, Luxembourg, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to ARG II. The Trustee may
also adopt and employ, at the expense of ARG II, any other reasonable
means of notification of such repayment. Such unclaimed amounts shall
remain uninvested and in no event shall the Trustee, the Paying Agent
or Clearing Agency be liable for any interest thereupon.
SECTION 2.8. NOTEHOLDER LIST.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Noteholders of each Series of Notes. If the Trustee is not the
Registrar, ARG II shall furnish to the Trustee at least seven Business Days
before each Distribution Date and at such other time as the Trustee may request
in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Noteholders of each Series of
Notes.
SECTION 2.9. TRANSFER AND EXCHANGE.
(a) When Notes of any particular Series are presented to the
Registrar or a co-registrar with a request to register a transfer or to
exchange them for an equal principal amount of Notes of other
authorized denominations of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transaction are met; PROVIDED, HOWEVER, that the Notes surrendered for
transfer or exchange (a) shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to ARG II and the
Registrar, duly executed by the holder thereof or its attorney, duly
authorized in writing and (b) shall be transferred or exchanged in
compliance with the following provisions:
(i) TRANSFER OF RESTRICTED GLOBAL NOTES.
(A) if such Note is being acquired for the account of
such Holder, without transfer, a certification from such
Holder to that effect (in substantially the form of EXHIBIT
A-4 hereto); or
(B) if such Note is being transferred to a qualified
institutional buyer (as defined in Rule 144A) in accordance
with Rule 144A, (i) a certification to that effect (in
substantially the form EXHIBIT A-4 hereto) and (ii) each such
17
transferee of such Note shall be deemed to have represented
and agreed as follows:
(1) It is a qualified institutional buyer as
defined in Rule 144A and is acquiring the Notes for
its own institutional account or for the account of a
qualified institutional buyer;
(2) It understands that the Notes purchased
by it will be offered, and may be transferred, only
in a transaction not involving any public offering
within the meaning of the Securities Act, and that,
if in the future it decides to resell, pledge or
otherwise transfer any Notes, such Notes may be
resold, pledged or transferred only (a) to a person
who the seller reasonably believes is a qualified
institutional buyer (as defined in Rule 144A under
the Securities Act) that purchases for its own
account or for the account of a qualified
institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance
on Rule 144A, (b) outside the United States to a
non-U.S. Person (as such term is defined in
Regulation S of the Securities Act) in a transaction
in compliance with Regulation S of the Securities
Act, (c) pursuant to an effective registration
statement under the Securities Act or (d) in reliance
on another exemption under the Securities Act, in
each case in accordance with any applicable
securities laws of any state of the United States and
any other applicable jurisdiction;
(3) It understands that the Notes will bear
a legend substantially as set forth in SECTION 2.10;
and
(4) It acknowledges that the Registrar, ARG
II, each underwriter or dealer for such Series of
Notes, and their affiliates, and others will rely
upon the truth and accuracy of the foregoing
acknowledgements, representations and agreements. If
it is acquiring any Notes for the account of one or
more qualified institutional buyers, it represents
that it has sole investment discretion with respect
to each such account and that it has full power to
make the foregoing acknowledgements, representations
and agreements on behalf of each such account.
In addition, such transferee shall be responsible for
providing additional information or certification, as shall be
reasonably requested by the Registrar, ARG II or any
underwriter or dealer for such Series of Notes, to support the
truth and accuracy of the foregoing acknowledgements,
representations and agreements, it being understood that such
additional information is not intended to create additional
restrictions on the transfer of the Notes; or
18
(C) if such Note is being transferred pursuant to an
exemption from registration in accordance with Regulation S, a
certification to that effect (in substantially the form
EXHIBIT A-4 hereto); or
(D) if such Note is being transferred in reliance on
another exemption from the registration requirements of the
Securities Act, a certification to that effect (in
substantially the form of EXHIBIT A-4 hereto) and an opinion
of counsel in form and substance acceptable to ARG II and to
the Registrar to the effect that such transfer is in
compliance with the Securities Act.
(ii) RESERVED.
(iii) RESTRICTED GLOBAL NOTE TO TEMPORARY GLOBAL NOTE
OR PERMANENT GLOBAL NOTE. If a Holder of a beneficial interest
in a Restricted Global Note deposited with DTC wishes at any
time to exchange its interest in such Restricted Global Note
for an interest in the corresponding Temporary Global Note or
Permanent Global Note, or to transfer its interest in such
Restricted Global Note to a Person who wishes to take delivery
thereof in the form of an interest in the corresponding
Temporary Global Note or Permanent Global Note, such Holder,
provided such Holder or, in the case of a transfer, the
transferee, is neither a U.S. Person nor a U.S. Resident, may,
subject to the rules and procedures of DTC, exchange or
transfer, or cause the exchange or transfer of, such interest
for an equivalent beneficial interest in the corresponding
Temporary Global Note or Permanent Global Note. Upon receipt
by the Registrar of (A) instructions given in accordance with
DTC's procedures from an Agent Member directing the Registrar
to credit or cause to be credited a beneficial interest in the
corresponding Temporary Global Note or Permanent Global Note,
in an amount equal to the beneficial interest in the
Restricted Global Note to be exchanged or transferred, but not
less than the minimum denomination applicable to such Holder's
Notes, (B) a written order given in accordance with DTC's
procedures containing information regarding the participant
account of DTC and the Euroclear or Clearstream account to be
credited with such increase, (C) a certificate in the form of
Exhibit A-1 attached hereto given by the Holder of such
beneficial interest stating that the exchange or transfer of
such interest has been made in compliance with the transfer
restrictions applicable to the Global Notes, including that
the Holder or the transferee, as applicable, is neither a U.S.
Person nor a U.S. Resident, and pursuant to and in accordance
with Regulation S and (D) a certificate in the form of Exhibit
A-2 attached hereto given by the proposed transferee that,
among other things, it is neither a U.S. Person nor a U.S.
Resident, and that it understands that no resale or other
transfer of beneficial interests in a Temporary Global Note or
Permanent Global Note to U.S. Persons or U.S. Residents shall
be permitted except in the form of a beneficial interest in a
19
Restricted Global Note and subject to the delivery of the
certifications required pursuant to this Indenture, then the
Registrar shall instruct DTC to reduce the principal amount of
the Restricted Global Note and to increase the principal
amount of the Temporary Global Note or Permanent Global Note,
as the case may be, by the aggregate principal amount of the
beneficial interest in the Restricted Global Note to be
exchanged, and to credit or cause to be credited to the
securities account of the Person specified in such
instructions a beneficial interest in the corresponding
Temporary Global Note or Permanent Global Note equal to the
reduction in the principal amount of the Restricted Global
Note.
(iv) RESERVED.
(v) TEMPORARY GLOBAL NOTE OR PERMANENT GLOBAL NOTE TO
RESTRICTED GLOBAL NOTE. If a Holder of a beneficial interest
in a Temporary Global Note or Permanent Global Note deposited
with DTC wishes at any time to exchange its interest in such
Temporary Global Note or Permanent Global Note for an interest
in the corresponding Restricted Global Note or to transfer its
interest in such Temporary Global Note or Permanent Global
Note to a Person who wishes to take delivery thereof in the
form of an interest in the corresponding Restricted Global
Note, such Holder may, subject to the rules and procedures of
Euroclear, Clearstream and/or DTC, as the case may be,
exchange or transfer, or cause the exchange or transfer of,
such interest for an equivalent beneficial interest in the
corresponding Restricted Global Note. Upon receipt by the
Registrar of (A) instructions from Euroclear, Clearstream
and/or DTC, as the case may be, directing the Registrar to
cause to be credited a beneficial interest in the
corresponding Restricted Global Note in an amount equal to the
beneficial interest in such Temporary Global Note or Permanent
Global Note, but not less than the minimum denomination
applicable to such Holder's Notes, to be exchanged or
transferred, such instructions to contain information
regarding the participant account with DTC to be credited with
such increase, (B) a certificate in the form of Exhibit A-3
attached hereto given by the Holder of such beneficial
interest and stating, among other things, that, in the case of
a transfer, the Person transferring such interest in such
Temporary Global Note or Permanent Global Note reasonably
believes that the Person acquiring such interest in a
Restricted Global Note is a Qualified Institutional Buyer, is
obtaining such beneficial interest in a transaction meeting
the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States
or any other jurisdiction, and (C) a certificate in the form
of Exhibit A-4 attached hereto given by the proposed
transferee stating that it is a Qualified Institutional Buyer,
or that, in the case of an exchange, the Holder is a Qualified
Institutional Buyer, then the Registrar will instruct DTC to
reduce, or cause to be reduced, the Temporary Global Note or
Permanent Global Note by the aggregate principal amount of the
beneficial interest in the Temporary Global Note or Permanent
20
Global Note to be transferred or exchanged and the Registrar
shall instruct DTC, concurrently with such reduction, to
credit or cause to be credited to the securities account of
the Person specified in such instructions a beneficial
interest in the corresponding Restricted Global Note equal to
the reduction in the principal amount of the Temporary Global
Note or Permanent Global Note.
(vi) RESERVED.
(vii) OTHER EXCHANGES. In the event that a Global
Note is exchanged for Definitive Notes pursuant to SECTION
2.18 hereof, such Notes may be exchanged for one another only
in accordance with such procedures as are substantially
consistent with the provisions above (including certification
requirements intended to ensure that such transfers are made
only to Holders who comply with Rule 144A or are to non-U.S.
Persons that are also not U.S. Residents, and otherwise comply
with Regulation S under the Securities Act, as the case may
be) and as may be adopted from time to time by ARG II and the
Trustee.
(b) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of ARG II, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Notes surrendered upon such registration of transfer or
exchange.
(c) Prior to due presentment for registration of transfer of
any Note, the Trustee, any Agent and ARG II may deem and treat the
Person in whose name any Note is registered (as of the day of
determination) as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for all
other purposes whatsoever, whether or not such Note is overdue, and
neither the Trustee, any Agent nor ARG II shall be affected by notice
to the contrary.
(d) Notwithstanding any other provision of this SECTION 2.9,
the typewritten Note or Notes representing Book-Entry Notes for any
Series may be transferred, in whole but not in part, only to another
nominee of the Clearing Agency for such Series, or to a successor
Clearing Agency for such Series selected or approved by ARG II or to a
nominee of such successor Clearing Agency, only if in accordance with
this SECTION 2.9.
SECTION 2.10. LEGENDING OF NOTES.
(a) Each Note shall bear a legend in substantially the form
set forth in the related Series Supplement, if any.
21
(b) Unless otherwise provided for in a related Series
Supplement, each Global Note registered in the name of DTC or its nominee shall
bear a legend substantially to the following effect:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ARG FUNDING
CORP. II OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. ("CEDE") OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON
IS MADE TO CEDE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE, HAS AN INTEREST HEREIN.
(c) Unless otherwise provided for in a Series Supplement, each
Variable Funding Note shall bear a legend in substantially the following form:
THIS VARIABLE FUNDING NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES OR "BLUE SKY" LAWS.
THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF ARG
FUNDING CORP. II (THE "ISSUER") THAT THIS NOTE IS BEING ACQUIRED FOR ITS OWN
ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION. THIS VARIABLE FUNDING NOTE IS NOT
PERMITTED TO BE TRANSFERRED, ASSIGNED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN
COMPLIANCE WITH THE TERMS OF THE INDENTURE REFERRED TO HEREIN.
SECTION 2.11. REPLACEMENT NOTES.
(a) If (i) any mutilated or defaced Note is surrendered to the
Trustee, or each of the Trustee and ARG II receives evidence to its
satisfaction of the destruction, loss or theft of any Note, and (ii)
there is delivered to the Trustee and ARG II such security or indemnity
as may be required by it to hold ARG II and the Trustee harmless and
provided that the requirements of Section 8-405 of the UCC (which
generally permit ARG II to impose reasonable requirements) are met, ARG
II shall execute and upon its request the Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of like tenor and
aggregate principal balance; PROVIDED, HOWEVER, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within seven days shall be due and payable or shall have been
called for redemption, instead of issuing a replacement Note, ARG II
may pay such destroyed, lost or stolen Note when so due or payable
without surrender thereof. If, after the delivery of such replacement
Note or payment of a destroyed, lost or stolen Note pursuant to the
proviso to the preceding sentence, a
22
bona fide purchaser of the original Note in lieu of which such
replacement Note was issued presents for payment such original Note,
ARG II and the Trustee shall be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any
Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security
or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by ARG II or the Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this
SECTION 2.11, the Registrar, the Trustee or ARG II may require the
payment by the Holder of such Note of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto
and any other reasonable expenses (including the fees and expenses of
the Trustee and its counsel) connected therewith.
(c) Every replacement Note issued pursuant to this Section
2.11(c), in replacement of any mutilated, destroyed, lost or stolen
Note shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this SECTION 2.11 are exclusive and
shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes.
SECTION 2.12. NOTES OWNED BY ARG II.
In determining whether the Noteholders of the required
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by ARG II or any Affiliate of ARG II (other than an Affiliate Issuer
as set forth in the related Series Supplement) shall be considered as though
they are not Outstanding, except that for the purpose of determining whether the
Trustee shall be fully protected in relying on any such direction, waiver or
consent, only Notes of which a Trust Officer of the Trustee has received written
notice of such ownership shall be so disregarded. Absent written notice to the
Trustee of such ownership, the Trustee shall not be deemed to have knowledge of
the identity of the individual beneficial owners of the Notes.
SECTION 2.13. TEMPORARY NOTES.
(a) Pending the preparation of Definitive Notes, ARG II may
prepare and the Trustee, upon receipt of a Company Order, shall
authenticate and deliver temporary Notes of such Series. Temporary
Notes shall be substantially in the form of Definitive Notes of like
Series but may have variations that are not inconsistent with the terms
of this Indenture as the officers executing such Notes may determine,
as evidenced by their execution of such Notes.
23
(b) If temporary Notes are issued pursuant to SECTION 2.13(A)
above, ARG II will cause Definitive Notes to be prepared without
unreasonable delay. After the preparation of Definitive Notes, the
temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of ARG II to
be maintained as provided in SECTION 8.2, without charge to the
Noteholder. Upon surrender for cancellation of any one or more
temporary Notes, ARG II shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount
of Definitive Notes of authorized denominations. Until so exchanged,
the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.
SECTION 2.14. CANCELLATION.
ARG II may at any time deliver to the Trustee for cancellation
any Notes previously authenticated and delivered hereunder which ARG II may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation, except as expressly
permitted in this Base Indenture. ARG II may not issue new Notes in lieu of or
in exchange for Notes that it has redeemed or paid or that have been delivered
to the Trustee for cancellation, except as expressly permitted in this Base
Indenture. All cancelled Notes held by the Trustee shall be disposed of in
accordance with the Trustee's standard disposition procedures unless by a
written order, signed by two Authorized Officers and received by a Trust Officer
of the Trustee in a timely fashion, ARG II shall direct that cancelled Notes be
returned to it.
SECTION 2.15. PRINCIPAL AND INTEREST.
(a) The principal of each Series of Notes shall be payable at
the times and in the amounts set forth in the related Series Supplement
and in accordance with SECTION 6.1.
(b) Each Series of Notes shall accrue interest as provided in
the related Series Supplement and such interest shall be payable at the
times and in the amounts set forth in the related Series Supplement and
in accordance with SECTION 6.1.
(c) Except as provided in the following sentence, the Person
in whose name any Note is registered at the close of business on any
Record Date with respect to a Distribution Date for such Note shall be
entitled to receive the principal and interest payable on such
Distribution Date notwithstanding the cancellation of such Note upon
any registration of transfer, exchange or substitution of such Note
subsequent to such Record Date. Any interest payable at maturity shall
be paid to the Person to whom the principal of such Note is payable.
24
(d) If ARG II defaults in the payment of interest on the Notes
of any Series, such interest, to the extent paid on any date that is
more than five (5) Business Days after the applicable due date, shall,
at the option of ARG II, cease to be payable to the Persons who were
Noteholders of such Series at the applicable Record Date and ARG II
shall pay the defaulted interest in any lawful manner, plus, to the
extent lawful, interest payable on the defaulted interest, to the
Persons who are Noteholders of such Series on a subsequent special
record date which date shall be at least five (5) Business Days prior
to the payment date, at the rate provided in this Indenture and in the
Notes of such Series. ARG II shall fix or cause to be fixed each such
special record date and payment date, and at least 15 days before the
special record date, ARG II (or the Trustee, in the name of and at the
expense of ARG II) shall mail to Noteholders of such Series a notice
that states the special record date, the related payment date and the
amount of such interest to be paid.
SECTION 2.16. BOOK-ENTRY NOTES.
(a) Unless otherwise provided in any related Series
Supplement, the Notes, upon original issuance, shall be issued in the
form of typewritten Notes representing the Book-Entry Notes, to be
delivered to the depository specified in such Series Supplement which
shall be the Clearing Agency, by or on behalf of such Series. The Notes
of each Series shall, unless otherwise provided in the related Series
Supplement, initially be registered on the Note Register in the name of
the nominee of the Clearing Agency. Unless otherwise provided in a
related Series Supplement, no Note Owner will receive a Definitive Note
representing such Note Owner's interest in the related Series of Notes,
except as provided in SECTION 2.18.
For each Series of Notes to be issued in registered form
(other than Variable Funding Notes), ARG II shall duly execute the Notes, and
the Trustee shall, in accordance with SECTION 2.4 hereof, authenticate and
deliver initially one or more Global Notes that (a) shall be registered on the
Note Register in the name of a Clearing Agency or such Clearing Agency's nominee
and (b) shall bear such legends as are required by SECTION 2.10, if any.
So long as the Clearing Agency or its nominee is the
registered owner or holder of a Global Note, the Clearing Agency or its nominee,
as the case may be, will be considered the sole owner or holder of the Notes
represented by such Global Note for purposes of this Indenture and such Notes.
Members of, or participants in, the Clearing Agency shall have no rights under
this Indenture with respect to any Global Note held on their behalf by the
Clearing Agency, and the Clearing Agency may be treated by ARG II, the Trustee,
any Agent and any agent of such entities as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent ARG II, the Trustee, any Agent and any agent of such entities from
giving effect to any written certification, proxy or other authorization
furnished by the Clearing Agency or impair, as between the Clearing Agency and
25
its agent members, the operation of customary practices governing the exercise
of the rights of a holder of any Note.
(b) Subject to SECTION 2.9(G), the provisions of the
"Operating Procedures of the Euroclear System" and the "Terms and
Conditions Governing Use of Euroclear" and the "Management Regulations"
and "Instructions to Participants" of Clearstream, respectively, shall
be applicable to the Global Note insofar as interests in a Global Note
are held by the agent members of Euroclear or Clearstream. Account
holders or participants in Euroclear and Clearstream shall have no
rights under this Indenture with respect to such Global Note and the
registered holder may be treated by ARG II, the Trustee, any Agent and
any agent of ARG II or the Trustee as the owner of such Global Note for
all purposes whatsoever.
(c) Title to the Notes shall pass only by registration in the
Note Register maintained by the Registrar pursuant to SECTION 2.6.
(d) Any typewritten Note or Notes representing Book-Entry
Notes shall provide that they represent the aggregate or a specified
amount of Outstanding Notes from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Notes represented
thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a typewritten Note or Notes representing Book-Entry
Notes to reflect the amount, or any increase or decrease in the amount,
or changes in the rights of Note Owners represented thereby, shall be
made in such manner and by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant
to SECTION 2.4(B). Subject to the provisions of SECTION 2.5, the
Trustee shall deliver and redeliver any typewritten Note or Notes
representing Book-Entry Notes in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company
Order. Any instructions by ARG II with respect to endorsement or
delivery or redelivery of a typewritten Note or Notes representing the
Book-Entry Notes shall be in writing but need not comply with SECTION
13.3 hereof and need not be accompanied by an Opinion of Counsel.
(e) Unless and until definitive, Notes in fully registered
form without interest coupons ("DEFINITIVE NOTES") have been issued to
Note Owners in accordance with SECTION 2.18:
(i) the provisions of this SECTION 2.16 shall be in
full force and effect;
(ii) the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency and the Clearing Agency
Participants for all purposes of this Indenture (including the
making of payments on the Notes and the giving of instructions
or directions hereunder) as the authorized representatives of
the Note Owners;
26
(iii) to the extent that the provisions of this
SECTION 2.16 conflict with any other provisions of this
Indenture, the provisions of this SECTION 2.16 shall control;
(iv) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of
Holders of such Series of Notes evidencing a specified
percentage of the Outstanding principal amount of such Series
of Notes, the applicable Clearing Agency shall be deemed to
represent such percentage only to the extent that it has
received instructions to such effect from Note Owners and/or
their related Clearing Agency Participants owning or
representing, respectively, such required percentage of the
beneficial interest in such Series of Notes and has delivered
such instructions to the Trustee; and
(v) the rights of such Note Owners shall be exercised
only through the applicable Clearing Agency and their related
Clearing Agency Participants and shall be limited to those
established by law and agreements between such Note Owners and
their related Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Notes are issued,
the applicable Clearing Agencies will make book-entry
transfers among their related Clearing Agency Participants and
receive and transmit payments of principal of and interest on
such Series of Notes to such Clearing Agency Participants.
SECTION 2.17. NOTICES TO CLEARING AGENCY.
Whenever notice or other communication to the Noteholders is
required under this Indenture, unless and until Definitive Notes shall have been
issued to Note Owners, the Trustee and ARG II shall give all such notices and
communications specified herein to be given to Noteholders to the applicable
Clearing Agency for distribution to the Note Owners.
SECTION 2.18. DEFINITIVE NOTES.
(a) CONDITIONS FOR ISSUANCE. Unless otherwise specified in a
related Series Supplement, interests in a Restricted Global Note or
Permanent Global Note deposited with DTC or a custodian of DTC pursuant
to SECTION 2.5 shall be transferred to the beneficial owners thereof in
the form of Definitive Notes only if such transfer complies with
SECTION 2.9 and (x) DTC notifies ARG II that it is unwilling or unable
to continue as depositary for such Restricted Global Note or Permanent
Global Note or at any time ceases to be a "clearing agency" registered
under the Exchange Act, and, in either case, a successor depositary so
registered is not appointed by ARG II within 90 days of such notice or
(y) ARG II determines that the Restricted Global Note or Permanent
Global Note with respect to the relevant Series of Notes shall be
exchangeable for Definitive Notes, in which case Definitive Notes shall
be issuable or exchangeable only in respect of
27
such Global Notes or the category of Definitive Notes represented
thereby or (z) any Note Owner or Noteholder, purchaser or transferee of
a beneficial interest in a Restricted Global Note or a Permanent Global
Note requests the same in the form of a Definitive Note and ARG II, in
its sole discretion, consents to such request (in which case a
Definitive Note shall be issuable or transferable only to such Note
Owner, Noteholder, purchaser or transferee), ARG II will deliver
Definitive Notes in exchange for the Restricted Global Notes or the
Permanent Global Notes or, in the case of an exchange or transfer
described in CLAUSE (Y) or (Z) above, in exchange for the applicable
beneficial interest in one or more Global Notes. Unless otherwise
specified in a related Series Supplement, Definitive Notes shall be
issued only in minimum denominations of U.S. $200,000 and integral
multiples of U.S. $1,000 in excess thereof, subject to compliance with
all applicable legal and regulatory requirements.
(b) ISSUANCE. If interests in any Restricted Global Note or
Permanent Global Note, as the case may be, are to be transferred to the
beneficial owners thereof in the form of Definitive Notes pursuant to
this SECTION 2.18, such Restricted Global Note or Permanent Global
Note, as the case may be, shall be surrendered by DTC or the custodian
for DTC to the office or agency of the Registrar located in the Borough
of Manhattan, the City of New York, or if the Notes are listed on the
Luxembourg Stock Exchange, to the applicable Luxembourg agent (the
"LUXEMBOURG AGENT") in Luxembourg, to be so transferred, without
charge. The Trustee shall authenticate and deliver, upon such transfer
of interests in such Restricted Global Note or Permanent Global Note,
an equal aggregate principal amount of Definitive Notes of authorized
denominations; PROVIDED, that (i) in the case of an interest in a
Restricted Global Note, no such interest will be transferred except
upon delivery of a certificate substantially in the form of EXHIBIT A-4
hereto given by the Holder of such interest and stating, among other
things, that such Holder is a Qualified Institutional Buyer and (ii) in
the case of an interest in a Permanent Global Note, no such interest
will be transferred except upon delivery of a certificate substantially
in the form of EXHIBIT A-2 attached hereto given by the Holder of such
interest that, among other things, it is neither a U.S. Person nor a
U.S. Resident. The Definitive Notes transferred pursuant to this
SECTION 2.18 shall be registered in such names as DTC shall direct in
writing. The Registrar shall have at least 30 days from the date of its
receipt of Definitive Notes and registration information to
authenticate and deliver such Definitive Notes. Any Definitive Note
delivered in exchange for an interest in a Restricted Global Note or
Permanent Global Note shall, except as otherwise provided by SECTION
2.10, bear, and be subject to, the legend regarding transfer
restrictions set forth in SECTION 2.10. ARG II will promptly make
available to the Registrar a reasonable supply of Definitive Notes. ARG
II shall bear the costs and expenses of printing or preparing any
Definitive Notes.
28
SECTION 2.19. TAX TREATMENT.
ARG II has structured this Indenture and the Notes have been
(or will be) issued with the intention that the Notes will qualify under
applicable tax law as indebtedness of ARG II and any entity acquiring any direct
or indirect interest in any Note by acceptance of its Notes (or, in the case of
a Note Owner, by virtue of such Note Owner's acquisition of a beneficial
interest therein) agrees to treat the Notes (or beneficial interests therein)
for purposes of Federal, state and local and income or franchise taxes and any
other tax imposed on or measured by income, as indebtedness of ARG II. Each
Noteholder agrees that it will cause any Note Owner acquiring an interest in a
Note through it to comply with this Indenture as to treatment as indebtedness
for such tax purposes.
SECTION 2.20. CUSIP NUMBERS.
ARG II may use "CUSIP" numbers in respect of any Series of
Notes (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption in respect of such Series of Notes as a
convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes of such Series or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes of such Series, and any such redemption shall not be affected by any
defect in or omission of such numbers. ARG II will promptly notify the Trustee
of any change in any such "CUSIP" numbers.
ARTICLE 3.
SECURITY
SECTION 3.1. GRANT OF SECURITY INTEREST.
(a) To secure the Group III ARG II Obligations, ARG II hereby
pledges, assigns, conveys, delivers, transfers and sets over to the
Trustee, for the benefit of the Group III Noteholders (the "GROUP III
SECURED PARTIES"), and hereby grants to the Trustee, for the benefit of
the Group III Secured Parties, a security interest in all of ARG II's
right, tide and interest in and to all of the following assets,
property and interests in property, whether now or hereafter existing,
acquired or created (all of such right, title and interest being
referred to as the "GROUP III COLLATERAL"):
(i) the Group III Leasing Company Notes and the Group
III Leasing Company Indentures, including, without limitation, all
monies due and to become due to ARG II from any Leasing Company under
or in connection with the Group III Leasing Company Notes or the Group
III Leasing Company Indentures, whether payable as fees, expenses,
costs, indemnities, insurance recoveries, damages for the breach of any
of the provisions of the Group III Leasing Company Indentures or
29
otherwise, all security for amounts payable thereunder and all rights,
remedies, powers, privileges and claims of ARG II against any other
party under or with respect to the Group III Leasing Company Notes or
the Group III Leasing Company Indentures (whether arising pursuant to
the terms of such Group III Leasing Company Notes or the Group III
Leasing Company Indentures or otherwise available to ARG II at law or
in equity), the right to enforce any of the Group III Leasing Company
Indentures as provided herein and to give or withhold any and all
consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to the Group III Leasing Company
Indentures or the obligations of any party thereunder;
(ii) the Group III Leasing Company Related Documents,
including, without limitation, all monies due and to become due to ARG
II thereunder or in connection therewith, whether payable as fees,
expenses, costs, indemnities, insurance recoveries, damages for the
breach of any of the Group III Leasing Company Related Documents or
otherwise, and all rights, remedies, powers, privileges and claims of
ARG II against any other party under or with respect to the Group III
Leasing Company Related Documents (whether arising pursuant to the
terms of such Group III Leasing Company Related Document or otherwise
available to ARG II at law or in equity), the right to enforce any of
the Group III Leasing Company Related Documents as provided herein and
to give or withhold any and all consents, requests, notices,
directions, approvals, extensions or waivers under or with respect to
the Group III Leasing Company Related Documents or the obligations of
any party thereunder;
(iii) all right, title and interest of ARG II in, to
and under the Group III Receivables Trust Agreement, the Group III
Beneficial Interest and the right to receive all distributions and
payments pursuant thereto and in respect thereof;
(iv) (a) the Group III Collection Account, (b) all
funds on deposit therein from time to time, (c) all certificates and
instruments, if any, representing or evidencing any or all of the Group
III Collection Account or the funds on deposit therein from time to
time, and (d) all Permitted Investments made at any time and from time
to time with the moneys in the Group III Collection Account or any
subaccount thereof (including income thereon);
(v) all additional property that may from time to
time hereafter (pursuant to the terms of any Series Supplement or
otherwise) be subjected to the grant and pledge hereof by ARG II or by
anyone on its behalf; and
(vi) all proceeds, products, rents or profits of any
and all of the foregoing.
(b) To secure the Group III ARG II Obligations, ARG II hereby
confirms the grant, pledge, hypothecation, assignment, conveyance,
30
delivery and transfer to the Group III Receivables Trustee under the
Group III Receivables Trust Agreement, in exchange for the Group III
Beneficial Interest, of all ARG II's right, title and interest in, to
the Group III Note Payment Rights.
(c) The foregoing grant is made in trust to secure the Group
III ARG II Obligations and to secure compliance with the provisions of
this Indenture and any Series Supplement, all as provided in this
Indenture. The Trustee, as Trustee on behalf of the Group III Secured
Parties, acknowledges such grant, accepts the trusts under this
Indenture in accordance with the provisions of this Indenture and
subject to SECTION 10.1 and 10.2, agrees to perform its duties required
in this Indenture so as to protect the interests of the Group III
Secured Parties. The Group III Collateral shall secure the Group III
Notes equally and ratably without prejudice, priority (except, with
respect to any Series of Group III Notes, as otherwise stated in the
applicable Series Supplement) or distinction.
(d) For all purposes hereunder and for the avoidance of doubt,
any portion of the Master Collateral and any Group-Specific Collateral in
respect of which the Trustee has been named as a Beneficiary on behalf of the
Noteholders of a Segregated Series of Notes pledged to secure the obligations to
such Noteholders of a Segregated Series of Notes, in each case, as contemplated
in SECTION 2.3(B) hereof, will be held by the Trustee solely for the benefit of
the Noteholders of such Segregated Series of Notes and no other Noteholders
shall be considered a Secured Party with respect to such Master Collateral or
Group-Specific Collateral unless specifically provided in the Series Supplement
for such Series of Notes. Similarly, no Noteholder of a Segregated Series will
be considered a Secured Party with respect to the Group III Collateral or Master
Collateral in respect of which the Trustee has been named as a Beneficiary on
behalf of the Group III Noteholders of all Series that are not Segregated
Series. For the avoidance of doubt, if it is determined that the Noteholders of
a Segregated Series of Notes have an interest in, to or under Group-Specific
Collateral other than the Group-Specific Collateral securing such Segregated
Series of Notes, then such Noteholders agree that their interest in, to or under
the other Group-Specific Collateral shall be subordinate in all respects to the
claims or rights of the Noteholders with respect to any Series of Notes entitled
to the benefit of such other Group-Specific Collateral. This Base Indenture
shall constitute a subordination agreement for purposes of Section 510(a) of the
Bankruptcy Code.
SECTION 3.2. CERTAIN RIGHTS AND OBLIGATIONS OF ARG II
UNAFFECTED.
(a) Notwithstanding the assignment and security interest so
granted to the Trustee on behalf of the Group III Secured Parties, ARG
II shall nevertheless be permitted, subject to the Trustee's right to
revoke such permission in the event of an Amortization Event and
subject to the provisions of SECTION 3.3, to give all consents,
requests, notices, directions, approvals, extensions or waivers, if
any, which are required or permitted to be given in the normal course
of business (which does not include waivers of defaults under, or
consent to amendments or modifications of, any of the Group III Leasing
Company Related Documents) to any Person by the specific terms of the
Group III Leasing Company Related Documents.
31
(b) The grant of the security interest in the Group III
Collateral to the Trustee on behalf of the Group III Secured Parties
shall not (i) relieve ARG II from the performance of any term,
covenant, condition or agreement on ARG II's part to be performed or
observed under or in connection with any of the Group III Leasing
Company Related Documents or from any liability to any Person
thereunder or (ii) impose any obligation on the Trustee or any of the
Group III Secured Parties to perform or observe any such term,
covenant, condition or agreement on ARG II's part to be so performed or
observed or impose any liability on the Trustee or any of the Group III
Secured Parties for any act or omission on the part of ARG II or from
any breach of any representation or warranty on the part of ARG II. ARG
II hereby agrees to indemnify and hold harmless the Trustee and each
Noteholder (including, in each case, their respective assigns,
directors, officers, employees and agents) from and against any and all
losses, liabilities (including liabilities for penalties), claims,
demands, actions, suits, judgments, out-of-pocket costs and expenses
arising out of or resulting from the security interest granted hereby,
whether arising by virtue of any act or omission on the part of ARG II
or otherwise, including, without limitation, the reasonable
out-of-pocket costs, expenses, and disbursements (including reasonable
attorneys' fees and expenses) incurred by the Trustee and any of the
Group III Noteholders in enforcing this Indenture or preserving any of
their respective rights to, or realizing upon, any of the Group III
Collateral; PROVIDED, HOWEVER, the foregoing indemnification shall not
extend to any action by the Trustee or a Group III Noteholder which
constitutes negligence or willful misconduct by the Trustee, such Group
III Noteholder or any other indemnified person hereunder. The
indemnification provided for in this SECTION 3.2 shall survive the
removal of, or a resignation by, such Person as Trustee as well as the
termination of this Indenture or any Series Supplement.
SECTION 3.3. PERFORMANCE OF GROUP III LEASING COMPANY RELATED
DOCUMENTS.
Upon the occurrence of a Group III Leasing Company
Amortization Event, promptly following a request from the Trustee to do so and
at ARG II's expense, ARG II agrees to take all such lawful action as permitted
under this Indenture as is reasonably necessary or as the Trustee may request to
compel or secure the performance and observance by the related Leasing Company
or any other party to any of the Group III Leasing Company Related Documents to
which such Leasing Company is a party of its obligations to ARG II, in
accordance with the applicable terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to ARG II to the
extent and in the manner as is reasonably necessary or as directed by the
Trustee, including, without limitation, the transmission of notices of default
and the institution of legal or administrative actions or proceedings to compel
or secure performance by such Leasing Company (or such other party to any such
Group III Leasing Company Related
32
Document) of their respective obligations thereunder. If (i) ARG II shall have
failed, within 30 days of receiving the direction of the Trustee, to take
commercially reasonable action to accomplish such directions of the Trustee,
(ii) ARG II refuses to take any such action or (iii) the Trustee reasonably
determines that such action must be taken immediately, the Trustee may take such
previously directed action and any related action permitted under this Indenture
which the Trustee thereafter determines is appropriate (without the need under
this provision or any other provision under the Indenture to direct ARG II to
take such action), on behalf of ARG II and the Group III Secured Parties.
SECTION 3.4. STAMP, OTHER SIMILAR TAXES AND FILING FEES.
ARG II shall indemnify and hold harmless the Trustee and each
Noteholder from any present or future claim for liability for any stamp or other
similar tax and any penalties or interest with respect thereto, that may be
assessed, levied or collected by any jurisdiction in connection with this
Indenture or any Group III Collateral. ARG II shall pay, or reimburse the
Trustee for, any and all amounts in respect of, all search, filing, recording
and registration fees, taxes, excise taxes and other similar imposts that may be
payable or reasonably determined to be payable in respect of the execution,
delivery, performance and/or enforcement of this Indenture.
ARTICLE 4.
REPORTS
SECTION 4.1. AGREEMENT OF ARG II TO PROVIDE REPORTS AND
INSTRUCTIONS.
(a) DAILY REPORTS. On each Business Day commencing on the
Initial Closing Date, ARG II shall prepare and maintain, or cause to be
prepared and maintained, at the office of ARG II a record (each, a
"DAILY Report") setting forth the aggregate of the amounts deposited in
the Group III Collection Account on the immediately preceding Business
Day.
(b) MONTHLY NOTEHOLDERS' STATEMENT. On or before each
Distribution Date, ARG II shall furnish to the Trustee and the Paying
Agent a monthly statement (a "MONTHLY NOTEHOLDERS' STATEMENT") with
respect to each Series of Group III Notes, substantially in the form
provided in the Series Supplement with respect to such Series.
(c) INSTRUCTIONS AS TO WITHDRAWALS AND PAYMENTS. ARG II will
furnish, or cause to be furnished, to the Trustee or the Paying Agent,
as applicable, written instructions to make withdrawals and payments
from the Group III Collection Account and any other accounts specified
in a Series Supplement and to make drawings under any Enhancement, as
contemplated herein and in any Series Supplement. The Trustee and the
Paying Agent shall promptly follow any such written instructions.
33
(d) Pursuant to the Group III Lease and the Master Collateral
Agency Agreement, the Servicer may act on behalf of ARG II hereunder.
The Noteholders by their acceptance of the Group III Notes consent to
such actions by the Servicer.
ARTICLE 5.
ALLOCATION AND APPLICATION OF GROUP III COLLECTIONS
SECTION 5.1. GROUP III COLLECTION ACCOUNT.
(a) ESTABLISHMENT OF GROUP III COLLECTION ACCOUNT. The Trustee
shall establish and maintain or cause to be established and maintained
in the name of the Trustee for the benefit of the Group III Secured
Parties an account (the "GROUP III COLLECTION ACCOUNT"), bearing a
designation clearly indicating that the funds deposited therein are
held for the benefit of the Group III Secured Parties. The Trustee
shall possess all right, title and interest in all moneys, instruments,
securities and other property on deposit from time to time in the Group
III Collection Account and the proceeds thereof for the benefit of the
Group III Secured Parties. The Group III Collection Account shall be
under the sole dominion and control of the Trustee for the benefit of
the Group III Secured Parties. The Group III Collection Account in the
future may be maintained with a Qualified Institution, acting as
trustee for funds deposited in the Group III Collection Account;
PROVIDED that, if at any time such Qualified Institution is no longer a
Qualified Institution or the long-term credit rating of any securities
issued by such depository institution or trust company shall be reduced
to below "AA-" by S&P or "A2" by ▇▇▇▇▇'▇ or the short-term credit
rating of any securities issued by such depository institution or trust
company shall be reduced to below "A-1+" by S&P, then the Trustee
shall, within 10 Business Days of obtaining knowledge of such
reduction, establish a new Group III Collection Account with a new
Qualified Institution acting as trustee for funds deposited in the
Group III Collection Account and transfer into the new Group III
Collection Account all cash and investments from the non-qualifying
Group III Collection Account. Initially, the Group III Collection
Account will be established with The Bank of New York. For all purposes
hereunder and for the avoidance of doubt, the Group III Collection
Account has been established solely for the benefit of the Group III
Noteholders of all Series of Notes that are not Segregated Series, and
in connection with the issuance of a Segregated Series of Notes, ARG II
will establish with the Trustee a separate and segregated trust account
with respect to collections with respect to the Group-Specific
Collateral related in such Segregated Series of Notes as contemplated
by SECTION 2.3(B) hereof.
(b) ESTABLISHMENT OF ADDITIONAL ACCOUNTS. To the extent
specified in the Series Supplement with respect to any Series of Notes,
the Trustee may establish and maintain one or more additional accounts
and/or Administrative
34
Subaccounts to facilitate the proper allocation of Group III
Collections or Group-Specific Collections in accordance with the terms
of such Series Supplement.
(c) ADMINISTRATION OF THE GROUP III COLLECTION ACCOUNT. ARG II
shall instruct the institution maintaining the Group III Collection
Account in writing to invest funds on deposit in the Group III
Collection Account (including any administrative subaccounts thereof)
at all times in Permitted Investments selected by ARG II (by standing
instructions or otherwise); PROVIDED, HOWEVER, that except as provided
in any Series Supplement, any such investment shall mature not later
than the Business Day prior to the Distribution Date following the date
on which such funds were so invested, except for any Permitted
Investment held in the Group III Collection Account (including any
administrative subaccounts thereof) which is in an investment made by
the Paying Agent institution, in which event such investment may mature
on such Distribution Date so long as such funds shall be available for
withdrawal on or prior to such Distribution Date. All such Permitted
Investments will be credited to the Group III Collection Account and
any such Permitted Investments that constitute (i) Physical Property
(and that is not either a United States Security Entitlement or a
Security Entitlement) or Uncertificated Securities (and not United
States Securities Entitlements) shall be delivered to the Trustee in
accordance with the definition of "Delivery" and shall be held by the
Trustee pending maturity or disposition and (ii) United States Security
Entitlements or Security Entitlements shall be Controlled by the
Trustee pending maturity or disposition and shall be maintained by the
Trustee pending maturity or disposition. The Trustee shall, at the
expense of ARG II, take such action as is required to maintain the
Trustee's security interest in the Permitted Investments credited to
the Group III Collection Account. In the absence of written investment
instructions hereunder, funds on deposit in the Group III Collection
Account shall remain uninvested. Neither ARG II nor the Trustee shall
dispose of (or permit the disposal of) any Permitted Investments prior
to the maturity thereof to the extent such disposal would result in a
loss in the amount expended when such Permitted Investment was
purchased.
(d) EARNINGS FROM GROUP III COLLECTION ACCOUNT. Subject to the
restrictions set forth above, ARG II shall have the authority to
instruct the Trustee (which instructions shall be in writing) with
respect to (i) the investment of funds on deposit in the Group III
Collection Account and (ii) liquidation of such investments. All
interest and earnings (net of losses and investment expenses) paid on
funds on deposit in the Group III Collection Account shall be deemed to
be available and on deposit for distribution.
SECTION 5.2. GROUP III COLLECTIONS AND ALLOCATIONS.
(a) GROUP III COLLECTIONS IN GENERAL. Until this Indenture is
terminated pursuant to SECTION 11.1, ARG II shall, and the Trustee is
authorized to, cause all Group III Collections due and to become due to
ARG II or the Trustee, as the case may be, to be paid directly into the
Group III Collection
35
Account at such times as such amounts are due. ARG II agrees that if
any such monies, instruments, cash or other proceeds shall be received
by ARG II in an account other than the Group III Collection Account or
in any other manner, such monies, instruments, cash and other proceeds
will not be commingled by ARG II with any of its other funds or
property, if any, but will be held separate and apart therefrom and
shall be held in trust by ARG II for, and immediately paid over to, but
in any event within two Business Days from receipt, the Trustee with
any necessary endorsement. All monies, instruments, cash and other
proceeds received by the Trustee pursuant to this Indenture shall be
immediately deposited in the Group III Collection Account and shall be
applied as provided in this ARTICLE 5.
(b) DISQUALIFICATION OF INSTITUTION MAINTAINING GROUP III
COLLECTION ACCOUNT. Upon and after the establishment of a new Group III
Collection Account with a Qualified Institution or qualified corporate
trust department pursuant to SECTION 5.1(A), ARG II shall deposit or
cause to be deposited all Group III Collections as set forth in SECTION
5.2(A) into the new Group III Collection Account, and in no such event
shall deposit or cause to be deposited any Group III Collections
thereafter into any account established, held or maintained with the
institution formerly maintaining the Group III Collection Account
(unless it later becomes a Qualified Institution or qualified corporate
trust department maintaining the Group III Collection Account).
(c) SHARING GROUP III COLLECTIONS. In the manner described in
the related Series Supplement, to the extent that Group III Principal
Collections that are allocated to any Series are not needed to make
payments to Group III Noteholders of such Series or required to be
deposited in a reserve account or a Distribution Account for such
Series, such Group III Principal Collections may, at the direction of
ARG II, be applied to cover principal payments due to or for the
benefit of Group III Noteholders of another Series; PROVIDED THAT the
sharing contemplated under this Section applies only within Series of
Group III Notes sharing in the same Group-Specific Collateral. Any such
reallocation will not result in a reduction in the Invested Amount of
the Series to which such Group III Principal Collections were initially
allocated.
(d) UNALLOCATED GROUP III PRINCIPAL COLLECTIONS. If, after
giving effect to SECTION 5.2(C), Group III Principal Collections
allocated to any Series are in excess of the amount required to be paid
in respect of such Series, then any such excess Group III Principal
Collections shall be allocated to ARG II or such other party as may be
entitled thereto as set forth in any Series Supplement.
SECTION 5.3. DETERMINATION OF MONTHLY INTEREST.
Monthly interest with respect to each Series of Notes shall be
determined, allocated and distributed in accordance with the procedures set
forth in the applicable Series Supplement.
36
SECTION 5.4. DETERMINATION OF MONTHLY PRINCIPAL.
Monthly principal with respect to each Series of Notes shall
be determined, allocated and distributed in accordance with the procedures set
forth in the applicable Series Supplement. However, all principal or interest
with respect to any Series of Notes shall be due and payable no later than the
Series Termination Date with respect to such Series.
SECTION 5.5. PAIRED SERIES.
To the extent provided in a Series Supplement, any Series of
Notes may be paired with one or more other Series (each, a "PAIRED SERIES").
Each Paired Series may be prefunded with an initial deposit to a pre-funding
account in an amount up to the initial principal balance of such Paired Series,
primarily from the proceeds of the sale of such Paired Series, or will have a
variable principal amount. Any such pre-funding account will be held for the
benefit of such Paired Series and not for the benefit of the Noteholders of the
Series paired therewith. As funds are accumulated in a principal funding account
or paid to Noteholders of the Series paired to the Paired Series, either (i) in
the case of a pre-funded Paired Series, an equal amount of funds on deposit in
any pre-funding account for such prefunded Paired Series will be released and
paid to ARG II or (ii) in the case of a Paired Series having a variable
principal amount, an interest in such variable Paired Series in an equal or
lesser amount may be sold by ARG II and, in either case, the invested amount of
such Paired Series will increase by up to a corresponding amount. Upon payment
in full of the Series paired to the Paired Series, the aggregate invested amount
of such related Paired Series will have been increased by an amount up to an
aggregate amount equal to the Invested Amount of such Series paid to the
Noteholders thereof. The issuance of a Paired Series may be subject to certain
conditions described in the related Series Supplement.
[THE REMAINDER OF ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN ANY SERIES
SUPPLEMENT WITH RESPECT TO ANY SERIES.]
ARTICLE 6.
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
SECTION 6.1. DISTRIBUTIONS IN GENERAL.
(a) Unless otherwise specified in the applicable Series
Supplement, on each Distribution Date with respect to each Outstanding
Series, (i) the Trustee or the Paying Agent shall deposit (in
accordance with the Monthly Noteholders' Statement delivered to the
Trustee) in the Distribution Account for each such Series the amounts
on deposit in the Group III Collection Account or Group-Specific
Collection Account, as applicable, allocable to Noteholders of such
Series as interest and, if applicable, principal, and (ii) to the
extent provided for in the applicable Series Supplement, the Trustee
shall deposit in the Distribution
37
Account for each such Series the amount of Enhancement for such Series
drawn in connection with such Distribution Date.
(b) Unless otherwise specified in the applicable Series
Supplement, on each Distribution Date, the Trustee or the Paying Agent
shall distribute to the Noteholders of each Series, to the extent
amounts are on deposit in the Distribution Account for such Series, an
amount sufficient to pay all principal and interest due on such Series
on such Distribution Date. Such distribution shall be to each
Noteholder of record of such Series on the preceding Record Date based
on such Noteholder's PRO RATA share of the aggregate principal amount
of the Notes of such Series held by such Noteholder; PROVIDED, HOWEVER,
that, the final principal payment due on a Note shall only be paid to
the holder of a Note on due presentment of such Note for cancellation
in accordance with the provisions of the Note.
(c) Unless otherwise specified in the applicable Series
Supplement, amounts distributable to a Noteholder pursuant to this
SECTION 6.1 shall be payable by check mailed first-class postage
prepaid to such Noteholder at the address for such Noteholder appearing
in the Note Register except that with respect to Notes registered in
the name of a Clearing Agency or its nominee, such amounts shall be
payable by wire transfer of immediately available funds released by the
Trustee or the Paying Agent from the Distribution Account no later than
10:00 am. (New York City time) for credit to the account designated by
such Clearing Agency or its nominee, as applicable.
(d) Unless otherwise specified in the applicable Series
Supplement (i) all distributions to Noteholders of all classes within a
Series of Notes will have the same priority and (ii) in the event that
on any date of determination the amount available to make payments to
the Noteholders of a Series is not sufficient to pay all sums required
to be paid to such Noteholders on such date, then each class of
Noteholders will receive its ratable share (based upon the aggregate
amount due to such class of Noteholders) of the aggregate amount
available to be distributed in respect of the Notes of such Series.
(e) All distributions in respect of Notes represented by a
Temporary Global Note will be made only with respect to that portion of
the Temporary Global Note in respect of which Euroclear or Clearstream
shall have delivered to the Trustee a certificate or certificates
substantially in the form of Exhibit B. The delivery to the Trustee by
Euroclear or Clearstream of the certificate or certificates referred to
above may be relied upon by ARG II and the Trustee as conclusive
evidence that the certificate or certificates referred to therein has
or have been delivered to Euroclear or Clearstream pursuant to the
terms of this Indenture and the Temporary Global Note. No payments of
interest will be made on a Temporary Global Note after a Permanent
Global Note has been issued.
38
SECTION 6.2. OPTIONAL REPURCHASE OF NOTES.
On any Distribution Date occurring on or after the date on
which the Invested Amount of any Series or class of such Series is equal to or
less than the Repurchase Amount (if any) for such Series or class set forth in
the Series Supplement related to such Series, or at such other time or in such
other manner otherwise provided for in the Series Supplement relating to such
Series, ARG II shall have the option to purchase all Outstanding Notes of such
Series, or class of such Series, at a purchase price (determined after giving
effect to any payment of principal and interest on such Distribution Date) equal
to (unless otherwise specified in the related Series Supplement) the Invested
Amount of such Series on such Distribution Date, PLUS accrued and unpaid
interest on the unpaid principal balance of the Notes of such Series (calculated
at the Note Rate of such Series) through the day immediately prior to the date
of such purchase PLUS, if provided for in the related Series Supplement, any
premium payable at such time. Unless otherwise specified in the related Series
Supplement, ARG II shall give the Trustee at least 30 days' prior written notice
of the date on which ARG II intends to exercise such option to purchase. Not
later than 12:00 noon, New York City time, on such Distribution Date or other
date, an amount of the purchase price equal to the Invested Amount of all Notes
of such Series on such Distribution Date or other date and the amount of accrued
and unpaid interest with respect to such Notes and any applicable premium will
be deposited into the Distribution Account for such Series in immediately
available funds. The funds deposited into such Distribution Account or
distributed to the Trustee or the Paying Agent will be passed through in full to
the Noteholders of such Series on such Distribution Date or other date.
SECTION 6.3. MONTHLY NOTEHOLDERS' STATEMENT.
Unless otherwise specified in the related Series Supplement,
on each Distribution Date, the Trustee or the Paying Agent shall forward to each
Noteholder of record of each Outstanding Series the Monthly Noteholders'
Statement with respect to such Series, with a copy to the Rating Agencies and
each Enhancement Provider with respect to such Series.
SECTION 6.4. ANNUAL NOTEHOLDERS' TAX STATEMENT.
Unless otherwise specified in the related Series Supplement,
on or before January 31 of each calendar year, beginning with calendar year
2003, the Trustee or the Paying Agent shall furnish to each Person who at any
time during the preceding calendar year was a Noteholder a statement prepared by
or on behalf of ARG II containing the information which is required to be
contained in the Monthly Noteholders' Statements with respect to each Series of
Notes aggregated for such calendar year or the applicable portion thereof during
which such Person was a Noteholder, together with such other customary
information (consistent with the treatment of the Notes as debt) as ARG II deems
necessary or desirable to enable the Noteholders to prepare their tax returns
(each such statement, an "ANNUAL NOTEHOLDERS' TAX STATEMENT"). Such obligations
of ARG II to prepare and the Trustee or the Paying Agent to distribute the
Annual Noteholders' Tax
39
Statement shall be deemed to have been satisfied to the extent that
substantially comparable information shall be provided by the Trustee or the
Paying Agent pursuant to any requirements of the Code as from time to time in
effect.
ARTICLE 7.
REPRESENTATIONS AND WARRANTIES
ARG II hereby represents and warrants, for the benefit of the
Trustee and the Group III Secured Parties, as follows as of the Initial Closing
Date and for the benefit of the Trustee and the applicable Group-Specific
Secured Parties, as of each Series Closing Date related to a Series of Notes
secured by the related Group-Specific Collateral:
SECTION 7.1. EXISTENCE AND POWER.
ARG II (i) is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, (ii) is
duly qualified to do business as a foreign corporation and in good standing
under the laws of each jurisdiction where the character of its property, the
nature of its business or the performance of its obligations make such
qualification necessary and (iii) has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted and for purposes of the transactions
contemplated by this Indenture and the other Related Documents.
SECTION 7.2. CORPORATE AND GOVERNMENTAL AUTHORIZATION.
The execution, delivery and performance by ARG II of this
Indenture, the related Series Supplement and the other Related Documents to
which it is a party (other than any Related Document relating solely to a
Segregated Series not sharing in the same Group-Specific Collateral) (a) are
within ARG II's corporate powers, have been duly authorized by all necessary
corporate action and (b) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the certificate of incorporation
or by-laws of ARG II or of any law or governmental regulation, rule, contract,
agreement, judgment, injunction, order, decree or other instrument binding upon
ARG II or any of its Assets or result in the creation or imposition of any Lien
on any Asset of ARG II, except for Liens created by this Indenture or the other
Related Documents. This Indenture and each of the other Related Documents to
which ARG II is a party (other than any Related Document relating solely to a
Segregated Series not sharing in the same Group-Specific Collateral) have been
executed and delivered by a duly authorized officer of ARG II.
SECTION 7.3. BINDING EFFECT.
This Indenture and each other Related Document (other than any
Related Document relating solely to a Segregated Series not sharing in the same
Group-Specific
40
Collateral) are legal, valid and binding obligations of ARG II enforceable
against ARG II in accordance with their respective terms (except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally or by general equitable principles, whether considered in a proceeding
at law or in equity and by an implied covenant of good faith and fair dealing).
SECTION 7.4. FINANCIAL INFORMATION; FINANCIAL CONDITION.
All balance sheets, all statements of operations, of
shareholders' equity and of cash flow, and other financial data (other than
projections) which have been or shall hereafter be furnished by ARG II to the
Trustee pursuant to SECTION 8.3 have been and will be prepared in accordance
with GAAP applied on a consistent basis (to the extent applicable) and do and
will present fairly the financial condition of the entities involved as of the
dates thereof and the results of their operations for the periods covered
thereby, subject, in the case of all unaudited statements, to normal year-end
adjustments and lack of footnotes and presentation items.
SECTION 7.5. LITIGATION.
There is no action, suit or proceeding pending against or, to
the knowledge of ARG II, threatened against ARG II before any court or
arbitrator or any Governmental Authority with respect to which there is a
reasonable possibility of an adverse decision that could materially adversely
affect the financial position, results of operations, business, properties,
performance or condition (financial or otherwise) of ARG II or which in any
manner draws into question the validity or enforceability of this Indenture, any
Series Supplement or any other Related Document (other than any Related Document
relating solely to a Segregated Series not sharing in the same Group-Specific
Collateral) or the ability of ARG II to perform its obligations hereunder or
thereunder.
SECTION 7.6. NO ERISA PLAN.
ARG II has not established and does not maintain or contribute
to any Pension Plan that is covered by Title IV of ERISA.
SECTION 7.7. TAX FILINGS AND EXPENSES.
ARG II has filed all federal, state and local tax returns and
all other tax returns which, to the knowledge of ARG II, are required to be
filed (whether informational returns or not), and has paid all taxes due, if
any, pursuant to said returns or pursuant to any assessment received by ARG II,
except such taxes, if any, as are being contested in good faith and for which
adequate reserves have been set aside on its books. ARG II has paid all fees and
expenses required to be paid by it in connection with the conduct of its
business, the maintenance of its existence and its qualification as a foreign
corporation authorized to do business in each State in which it is required to
41
so qualify, except where the failure to pay any such fees and expenses is not
reasonably likely to have a Material Adverse Effect.
SECTION 7.8. DISCLOSURE.
All certificates, reports, statements, documents and other
information furnished to the Trustee by or on behalf of ARG II pursuant to any
provision of this Indenture or any Related Document (other than any Related
Document relating solely to a Segregated Series not sharing in the same
Group-Specific Collateral), or in connection with or pursuant to any amendment
or modification of, or waiver under, this Indenture or any Related Document
(other than any Related Document relating solely to a Segregated Series not
sharing in the same Group-Specific Collateral), shall, at the time the same are
so furnished, be complete and correct to the extent necessary to give the
Trustee true and accurate knowledge of the subject matter thereof in all
material respects, and the furnishing of the same to the Trustee shall
constitute a representation and warranty by ARG II made on the date the same are
furnished to the Trustee to the effect specified herein.
SECTION 7.9. INVESTMENT COMPANY ACT; SECURITIES ACT.
ARG II is not, and is not controlled by, an "investment
company" within the meaning of, and is not required to register as an
"investment company" under, the Investment Company Act. It is not necessary in
connection with the issuance and sale of the Notes under the circumstances
contemplated in the related Series Supplement to register any security under the
Securities Act or to qualify any indenture under the Trust Indenture Act.
SECTION 7.10. REGULATIONS T, U AND X.
The proceeds of the Notes will not be used to purchase or
carry any "margin stock" (as defined or used in the regulations of the Board of
Governors of the Federal Reserve System, including Regulations T, U and X
thereof). ARG II is not engaged in the business of extending credit for the
purpose of purchasing or carrying any margin stock.
SECTION 7.11. NO CONSENT.
No consent, action by or in respect of, approval or other
authorization of, or registration, declaration or filing with, any Governmental
Authority or other Person is required for the valid execution and delivery of
this Indenture or any Supplement or for the performance of any of ARG II's
obligations hereunder or thereunder or under any other Related Document (other
than any Related Document relating solely to a Segregated Series not sharing in
the same Group-Specific Collateral) other than such consents, approvals,
authorizations, registrations, declarations or filings as shall have been
obtained by ARG II prior to the Initial Closing Date or as contemplated in
SECTION 7.14.
42
SECTION 7.12. SOLVENCY.
Both before and after giving effect to the transactions
contemplated by this Indenture and the other Related Documents, ARG II is
solvent within the meaning of the Bankruptcy Code and ARG II is not the subject
of any voluntary or involuntary case or proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy or insolvency law and no Event of Bankruptcy has occurred with
respect to ARG II.
SECTION 7.13. OWNERSHIP; SUBSIDIARY.
All of the issued and outstanding shares of capital stock of
ARG II is owned by ANC, all of which capital stock has been validly issued, is
fully paid and non-assessable and is owned of record by such corporation. ARG II
has no subsidiaries and owns no capital stock of, or other interest in, any
other Person.
SECTION 7.14. SECURITY INTERESTS.
(a) Each of the Group III Leasing Company Notes or
Group-Specific Leasing Company Notes, as applicable, is registered in
the name of the Trustee and has been delivered to the Trustee. All
other action necessary (including the filing of UCC-1 financing
statements) to protect and perfect the Trustee's security interest in
the Group III Collateral or Group-Specific Collateral, as applicable,
now in existence and hereafter acquired or created has been duly and
effectively taken.
(b) No security agreement, financing statement, equivalent
security or lien instrument or continuation statement listing ARG II as
debtor covering all or any part of the Group III Collateral or
Group-Specific Collateral, as applicable, is on file or of record in
any jurisdiction, except such as may have been filed, recorded or made
by ARG II in favor of the Trustee in connection with this Indenture.
(c) This Indenture constitutes a valid and continuing Lien on
the Group III Collateral or Group-Specific Collateral, as applicable,
in favor of the Trustee on behalf of the Group III Secured Parties or
Group-Specific Secured Parties, as applicable, which Lien will be prior
to all other Liens (other than Permitted Liens), and will be
enforceable as such as against creditors of and purchasers from ARG II
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally or by general equitable principles, whether considered
in a proceeding at law or in equity and by an implied covenant of good
faith and fair dealing. All action necessary to perfect such prior
security interest has been duly taken.
43
(d) Except for a change made pursuant to Section 8.20, ARG
II's principal place of business and chief executive office shall be
at, and the place where its records concerning the Group III Collateral
or Group-Specific Collateral, as applicable, are kept is at: ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇. ARG II does not transact,
and has not transacted, business under any other name.
(e) All authorizations in this Indenture for the Trustee to
endorse checks, instruments and securities and to execute financing
statements, continuation statements, security agreements and other
instruments with respect to the Group III Collateral or Group-Specific
Collateral, as applicable, are powers coupled with an interest and are
irrevocable.
(f) This Indenture creates a valid and continuing Lien (as
defined in the applicable UCC) in the General Intangibles Collateral
and the Certificated Securities Collateral in favor of the Trustee on
behalf of the Group III Secured Parties, which Lien will be prior to
all other Liens (other than Permitted Liens) and is enforceable as such
as against creditors of and purchasers from ARG II in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally or by general
equitable principles, whether considered in a proceeding at law or in
equity and by an implied covenant of good faith and fair dealing. All
action necessary to perfect such prior security interest has been duly
taken..
(g) The Certificated Securities Collateral constitutes
"certificated securities" within the meaning of the applicable UCC. The
General Intangibles Collateral constitutes "general intangibles" within
the meaning of the applicable UCC.
(h) ARG II owns and has good and marketable title to the
General Intangibles Collateral and the Certificated Securities
Collateral free and clear of any Liens (other than Permitted Liens),
claim or encumbrance of any Person.
(i) Notwithstanding CLAUSES (C) and (F) above, ARG II has
caused or will have caused, within ten days, the filing of all
appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the
security interest in the General Intangibles Collateral granted to the
Trustee in favor of the Group III Secured Parties hereunder.
(j) All original executed copies of each security certificate
that constitute or evidence the Certificated Securities Collateral have
been delivered to the Trustee in favor the Group III Secured Parties.
Each such security certificate either (i) is in bearer form, (ii) has
been indorsed, by an effective indorsement, to the Trustee in favor of
the Group III Secured Parties or in blank or (iii) has been registered
44
in the name of the Trustee in favor of the Group III Secured Parities.
None of the security certificates that constitute or evidence the
Certificated Securities Collateral have any marks or notations
indicating that they have been pledged, assigned or otherwise conveyed
to any Person other than the Trustee in favor of the Group III Secured
Parties.
(k) Other than the security interest granted to the Trustee in
favor of the Group III Secured Parties pursuant to this Agreement, ARG
II has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the General Intangibles Collateral or the
Certificated Securities Collateral. ARG II has not authorized the
filing of and is not aware of any financing statements against ARG II
that include a description of collateral covering the General
Intangibles Collateral or the Certificated Securities Collateral other
than any financing statement relating to the security interest granted
to the Trustee in favor of the Group III Secured Parties hereunder or
that has been terminated. ARG II is not aware of any judgment or tax
lien filings against Issuer.
SECTION 7.15. GROUP III LEASING COMPANY RELATED DOCUMENTS AND
GROUP-SPECIFIC LEASING COMPANY RELATED DOCUMENTS.
Each of the Group III Leasing Company Indentures or
Group-Specific Leasing Company Indentures, as applicable, Group III Leasing
Company Notes or Group-Specific Leasing Company Notes, as applicable, and Group
III Leases or Group-Specific Leases, as applicable, is in full force and effect
and there are no outstanding Group III Leasing Company Amortization Events or
Group-Specific Leasing Company Amortization Events, as applicable, or Group III
Potential Leasing Company Amortization Events or Group-Specific Potential
Leasing Company Amortization Events, as applicable, thereunder.
SECTION 7.16. NON-EXISTENCE OF OTHER AGREEMENTS.
As of the date of the issuance of the first Series of Notes,
other than as permitted by SECTION 8.23 and SECTION 8.25 hereof (i) ARG II is
not a party to any contract or agreement of any kind or nature and (ii) ARG II
is not subject to any obligations or liabilities of any kind or nature in favor
of any third party, including, without limitation, Contingent Obligations.
SECTION 7.17. OTHER REPRESENTATIONS.
All representations and warranties of ARG II made in each
Related Document (other than any Related Document relating solely to a
Segregated Series not sharing in the same Group-Specific Collateral) to which it
is a party are true and correct and are repeated herein as though fully set
forth herein (except to the extent such representations and warranties relate to
an earlier date, in which event, such representations and warranties are
repeated herein as of such earlier date).
45
ARTICLE 8.
COVENANTS
SECTION 8.1. PAYMENT OF NOTES.
ARG II shall pay the principal of (and premium, if any) and
interest on the Notes pursuant to the provisions of this Indenture and any
applicable Series Supplement. Principal and interest shall be considered paid on
the date due if the Trustee or the Paying Agent holds on that date money
designated for and sufficient to pay all principal and interest then due.
SECTION 8.2. MAINTENANCE OF OFFICE OR AGENCY.
ARG II will maintain an office or agency (which may be an
office of the Trustee, Registrar or co-registrar) where Notes may be surrendered
for registration of transfer or exchange, where notices and demands to or upon
ARG II in respect of the Notes and this Indenture may be served, and where, at
any time when ARG II is obligated to make a payment of principal and premium
upon the Notes, the Notes may be surrendered for payment. ARG II will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time ARG II shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.
ARG II may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. ARG II
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
ARG II hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of ARG II.
SECTION 8.3. INFORMATION.
ARG II will deliver or cause to be delivered to the Trustee:
(a) promptly upon receipt by ARG II, a copy of any notice,
financial information, certificates, statements, reports and other
materials delivered by any Leasing Company to ARG II pursuant to the
related Group III Leasing Company Indenture or Group-Specific Leasing
Company Indenture;
(b) from time to time such additional information regarding
the financial position, results of operations or business of any
Leasing Company, any Group III Lessee, Group-Specific Lessee or ANC as
the Trustee may reasonably
46
request to the extent that such Leasing Company, Group III Lessee,
Group-Specific Lessee or ANC, as the case may be, delivers such
information to ARG II pursuant to any Group III Leasing Company
Indenture or Group-Specific Leasing Company Indenture; and
(c) on the Distribution Date occurring in March, June,
September and December, commencing on the Distribution Date in June
2002, a certificate of an officer of ARG II that, except as provided in
any certificate delivered in accordance with SECTION 8.10, no
Amortization Event, Group III Leasing Company Amortization Event,
Group-Specific Leasing Company Amortization Event, Group III Lease
Event of Default, Group-Specific Lease Event of Default or (to the best
of such officer's knowledge) Potential Amortization Event, Group III
Potential Leasing Company Amortization Event, Group-Specific Potential
Leasing Company Amortization Event, Group III Potential Lease Event of
Default or Group-Specific Potential Lease Event of Default has occurred
or is continuing.
SECTION 8.4. PAYMENT OF OBLIGATIONS.
ARG II will pay and discharge, at or before maturity, all of
its respective material obligations and liabilities, including, without
limitation, tax liabilities and other governmental claims, except where the same
may be contested in good faith by appropriate proceedings, and will maintain, in
accordance with GAAP applied on a consistent basis, reserves as appropriate for
the accrual of any of the same.
SECTION 8.5. RULE 144A INFORMATION REQUIREMENT.
For so long as any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, ARG II covenants and agrees that it shall, during any period in
which it is not subject to Section 13 or 15(d) under the Exchange Act, make
available to any Noteholder in connection with any sale thereof and any
prospective purchaser of Notes from such Noteholder in each case upon request,
the information specified in, and meeting the requirements of, Rule 144A(d)(4)
under the Securities Act.
SECTION 8.6. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
ARG II will maintain its existence as a corporation validly
existing, and in good standing under the laws of the State of Delaware and duly
qualified as a foreign corporation licensed under the laws of each state in
which the failure to so qualify would have a material adverse effect on the
business and operations of ARG II.
SECTION 8.7. COMPLIANCE WITH LAWS.
ARG II will comply in all respects with all Requirements of
Law and all applicable laws, ordinances, rules, regulations, and requirements of
Governmental
47
Authorities (including, without limitation, ERISA and the rules and regulations
thereunder) except where such noncompliance would not materially and adversely
affect the condition, financial or otherwise, operations, performance or
properties of ARG II or its ability to carry out the transactions contemplated
in this Indenture and each other Related Document; PROVIDED, HOWEVER, such
noncompliance will not result in a Lien (other than a Permitted Lien) on any
Assets of ARG II.
SECTION 8.8. INSPECTION OF PROPERTY, BOOKS AND RECORDS.
ARG II will keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions in
relation to its Assets, business and activities in accordance with GAAP applied
on a consistent basis; and will permit the Trustee, and/or any Person designated
by the Trustee, to visit and inspect any of its properties, to examine and make
abstracts from any of its books and records and to discuss its affairs, finances
and accounts with its officers, directors, employees and independent public
accountants, all at such reasonable times upon reasonable notice and as often as
may reasonably be requested.
SECTION 8.9. COMPLIANCE WITH RELATED DOCUMENTS.
ARG II will perform and comply with each and every obligation,
covenant and agreement required to be performed or observed by it in or pursuant
to this Indenture and each other Related Document to which it is a party,
subject to the grace periods set forth therein, and will not take any action
which would permit any Leasing Company to have the right to refuse to perform
any of its obligations under the Group III Leasing Company Related Documents or
the Group-Specific Leasing Company Related Documents, as applicable, to which it
is a party or any Group III Lessee or Group-Specific Lessee, as applicable, or,
if applicable, ANC to have the right to refuse to perform any of its obligations
under the Group III Leasing Company Related Documents or Group-Specific Leasing
Company Related Documents, as applicable, to which it is a party.
SECTION 8.10. NOTICE OF DEFAULTS.
(a) Promptly (and in any event within five Business Days) upon
becoming aware of any Potential Amortization Event, Amortization Event,
Group III Leasing Company Amortization Event, Group-Specific Leasing
Company Amortization Event, Group III Potential Leasing Company
Amortization Event, Group-Specific Potential Leasing Company
Amortization Event, Group III Lease Event of Default, Group-Specific
Lease Event of Default, Group III Potential Lease Event of Default or
Group-Specific Potential Lease Event of Default, ARG II shall give the
Trustee and the Rating Agencies written notice thereof, together with a
certificate of an Authorized Officer of ARG II setting forth the
details thereof and any action with respect thereto taken or
contemplated to be taken by ARG II; and
48
(b) Promptly (and in any event within five Business Days) upon
becoming aware of any default under any Related Document, ARG II shall
give the Trustee and the Rating Agencies written notice thereof.
SECTION 8.11. NOTICE OF MATERIAL PROCEEDINGS.
Promptly upon becoming aware thereof, ARG II shall give the
Trustee and Moody's written notice of the commencement or existence of any
proceeding by or before any Governmental Authority against or affecting ARG II
which is reasonably likely to have a material adverse effect on the business,
condition (financial or otherwise), results of operations, properties or
performance of ARG II or the ability of ARG II to perform its obligations under
this Indenture or under any other Related Document to which it is a party.
SECTION 8.12. FURTHER REQUESTS.
ARG II will promptly furnish to the Trustee such other
information as, and in such form as, the Trustee may reasonably request in
connection with the transactions contemplated hereby.
SECTION 8.13. FURTHER ASSURANCES.
(a) ARG II shall do such further acts and things, and execute
and deliver to the Trustee such additional assignments, agreements,
powers and instruments, as is required or as the Trustee or the
Required Noteholders of any Outstanding Series of Notes reasonably
determines to be necessary to carry into effect the purposes of this
Indenture or the other Related Documents or to better assure and
confirm unto the Trustee or the Noteholders their rights, powers and
remedies hereunder including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code
in effect in any jurisdiction with respect to the liens and security
interests granted hereby. If any amount payable under or in connection
with any of the Group III Collateral (other than the Group III Leasing
Company Notes) or any Group-Specific Collateral (other than any
Group-Specific Leasing Company Notes) shall be or become evidenced by
any promissory note, chattel paper or other instrument, such note,
chattel paper or instrument shall be deemed to be held in trust and
immediately pledged to the Trustee hereunder, and shall, subject to the
rights of any Person in whose favor a prior Lien has been perfected, be
duly endorsed in a manner satisfactory to the Trustee and physically
delivered to the Trustee promptly. Without limiting the generality of
the foregoing provisions of this Section 8.13(a), ARG II shall take all
actions that are required to maintain the security interest of the
Trustee in the Group III Collateral or Group-Specific Collateral, as
applicable, as a perfected security interest subject to no prior Liens,
including, without limitation, filing all Uniform Commercial Code
financing statements, continuation statements and amendments thereto
necessary to achieve the foregoing. If ARG II fails to perform any of
its agreements or obligations under
49
this Section 8.13(a), the Trustee may (but shall not be required to)
itself perform such agreement or obligation, and the expenses of the
Trustee incurred in connection therewith shall be payable by ARG II
upon the Trustee's demand therefor; provided, however, prior to taking
any such action, the Trustee shall give notice of such intention to ARG
II and provide ARG II with a reasonable opportunity to take such action
itself. ARG II also hereby acknowledges that the Trustee has the right
but not the obligation to file any such financing statement or
continuation statement without the signature of ARG II to the extent
permitted by applicable law.
(b) ARG II will warrant and defend the Trustee's right, title
and interest in and to the Group III Collateral or Group-Specific
Collateral, as applicable, and the income, distributions and proceeds
thereof, for the benefit of the Trustee on behalf of the Group III
Secured Parties or Group-Specific Secured Parties, as applicable,
against the claims and demands of all Persons whomsoever.
(c) If so requested by Group III Noteholders (or Noteholders
pursuant to a Series Supplement related to a Segregated Series of
Notes) holding 10% or in excess of 10% of the aggregate Invested Amount
of any Series of Group III Notes (excluding for the purposes of making
the foregoing calculation, any Group III Notes held by ANC or any
Affiliate of ANC (other than an Affiliate Issuer)) (or any Series of
Notes issued pursuant to a Series Supplement related to a Segregated
Series of Notes (excluding for the purposes of making the foregoing
calculation, any such Notes held by ANC or any Affiliate of ANC (other
than an Affiliate Issuer), as applicable)), ARG II will provide, no
more frequently than annually and, without the request of Group III
Noteholders (or Noteholders pursuant to a Series Supplement related to
a Segregated Series of Notes), six months prior to the fifth
anniversary of the date hereof, an Opinion of Counsel to the effect
that no UCC financing or continuation statements are required to be
filed with respect to any of the Group III Collateral or Group-Specific
Collateral, as applicable, in which a security interest may be
perfected by the filing of UCC financing statements.
SECTION 8.14. LIENS.
ARG II will not create, incur, assume or permit to exist any
Lien upon any of its Assets (including the Group III Collateral and any
Group-Specific Collateral), other than (i) Liens in favor of the Trustee for the
benefit of the Group III Secured Parties or Group-Specific Secured Parties, as
applicable, and (ii) Permitted Liens.
SECTION 8.15. OTHER INDEBTEDNESS.
ARG II will not create, assume, incur, suffer to exist or
otherwise become or remain liable in respect of any Indebtedness other than (i)
Indebtedness hereunder and (ii) Indebtedness permitted under any other Related
Document.
50
SECTION 8.16. MERGERS.
ARG II will not merge or consolidate with or into any other
Person.
SECTION 8.17. SALES OF ASSETS.
ARG II will not sell, lease, transfer, liquidate or otherwise
dispose of any Assets, except as contemplated by the Related Documents and
provided that if such Assets constitute Group III Collateral or Group-Specific
Collateral the proceeds received by ARG II are paid directly to the Group III
Collection Account (or a similar collection account established by ARG II with
the Trustee as contemplated by Section 2.3(b) and 5.1 hereof in respect of a new
pool of Group-Specific Collateral) (the "Group-Specific Collection Account") or
deposited by ARG II into the Group III Collection Account or any Group-Specific
Collection Account within two Business Days after receipt thereof by ARG II.
SECTION 8.18. ACQUISITION OF ASSETS.
ARG II will not acquire, by long-term or operating lease or
otherwise, any Assets except in accordance with the terms of the Related
Documents.
SECTION 8.19. DIVIDENDS, OFFICERS' COMPENSATION, ETC.
ARG II will not (i) declare or pay any distributions on any of
its shares of capital stock or make any purchase, redemption or other
acquisition of, any of its shares of capital stock; PROVIDED, HOWEVER, that so
long as no Amortization Event or Potential Amortization Event has occurred and
is continuing or would result therefrom, ARG II may declare and pay
distributions out of earnings or capital surplus computed in accordance with
GAAP applied on a consistent basis or (ii) pay any wages or salaries or other
compensation to officers, directors, employees or others except out of earnings
or capital surplus computed in accordance with GAAP applied on a consistent
basis.
SECTION 8.20. NAME; PRINCIPAL OFFICE.
ARG II will neither (a) change its jurisdiction of
organization or location of its chief executive office or sole place of business
(within the meaning of the applicable UCC) without thirty (30) days' prior
written notice to the Trustee nor (b) change its name or corporate structure to
such an extent that any financing statement filed in connection with this
Indenture would become misleading without prior written notice to the Trustee
sufficient to allow the Trustee to make all filings (including filings of
financing statements on form UCC-1) and recordings necessary to maintain the
perfection of the interest of the Trustee in the Group III Collateral pursuant
to this Indenture. In the event that ARG II desires to so change its
jurisdiction of organization, its name or corporate structure, ARG II will make
any required filings and prior to actually changing its jurisdiction of
organization its name or corporate structure, ARG II will deliver to the Trustee
(i) an Officers' Certificate and an Opinion of Counsel
51
confirming that all required filings have been made to continue the perfected
interest of the Trustee in the Group III Collateral and any Group-Specific
Collateral in respect of the new jurisdiction of organization or new name of ARG
II and (ii) copies of all such required filings with the filing information duly
noted thereon by the office in which such filings were made.
SECTION 8.21. ORGANIZATIONAL DOCUMENTS.
ARG II will not amend any of its organizational documents,
including its certificate of incorporation or by-laws, unless, prior to such
amendment, each Rating Agency confirms that after such amendment the Rating
Agency Confirmation and Consent Condition with respect to each Outstanding
Series of Notes will be met.
SECTION 8.22. INVESTMENTS.
ARG II will not make, incur, or suffer to exist any loan,
advance, extension of credit or other investment in any Person other than
pursuant to the Subordinated Note or as permitted by the Related Documents and
with respect to Permitted Investments; PROVIDED, HOWEVER, that upon the
occurrence and during the continuance of an Amortization Event, ARG II shall not
advance any additional amounts under the Subordinated Note. In addition, without
limiting the generality of the foregoing, ARG II will not cause the Trustee to
make any Permitted Investments on ARG II's behalf that would have the effect of
causing ARG II to be an "investment company" within the meaning of the
Investment Company Act.
SECTION 8.23. NO OTHER AGREEMENTS; APPROVALS UNDER GROUP III
LEASING COMPANY RELATED DOCUMENTS AND GROUP-SPECIFIC LEASING COMPANY RELATED
DOCUMENTS.
(a) ARG II will not (i) enter into or be a party to any
agreement or instrument other than any Related Document or any
documents related to any Enhancement or documents and agreements
incidental thereto or entered into as contemplated in SECTION 8.25 or
8.28 or (ii) except as provided for in Section 8.23(B), 12.1 or 12.2,
amend, modify or waive any provision of any Related Document to which
it is a party.
(b) ARG II will not give any approval or consent or permission
provided for in any Group III Leasing Company Related Document or
Group-Specific Leasing Company Related Document without the consent of
the Requisite Investors, except as permitted in SECTION 3.2(A);
PROVIDED that, notwithstanding the foregoing, without the consent of
the Required Noteholders of each Outstanding Series of Group III Notes
(or Outstanding Series of Notes issued pursuant to a Series Supplement
related to a Segregated Series of Notes), ARG II will not consent to
(i) any amendment, modification or waiver of any provision of any Group
III Leasing Company Related Document or any Group-Specific Leasing
Company Related Document (other than any amendment permitted under
52
SECTION 12.1 of any Leasing Company Base Indenture), as applicable,
(ii) any modification of the minimum depreciation rate specified under
SECTION 24.18 of each Group III Lease or Group-Specific Lease, as
applicable, or (iii) the grant of any waivers of an Amortization Event
with respect to any Group III Leasing Company Note or any
Group-Specific Leasing Company Note, as applicable, under SECTION 9.4
of the related Leasing Company Base Indenture; provided further that,
ARG II will take such action under SECTION 9.6(A), (B), (C), or (D) of
any Group III Leasing Company Indenture or Group-Specific Leasing
Company Indenture, as applicable, at the direction of the Required
Noteholders of any Outstanding Series of Group III Notes ((or
Outstanding Series of Notes issued pursuant to a Series Supplement
related to a Segregated Series of Notes), as applicable).
SECTION 8.24. OTHER BUSINESS.
ARG II will not engage in any business or enterprise or enter
into any transaction other than the acquisition and funding of the Group III
Leasing Company Notes or any Group-Specific Leasing Company Notes, the related
exercise of its rights under the Group III Leasing Company Related Documents or
Group-Specific Leasing Company Related Documents, the making of loans to ANC
pursuant to the Subordinated Note in accordance with SECTION 8.22, the
incurrence and payment of ordinary course operating expenses, the issuing and
selling of the Group III Notes (or Notes issued pursuant to a Series Supplement
related to a Segregated Series of Notes) and other activities related to or
incidental to either of the foregoing (including transactions contemplated in
SECTION 8.23 and 8.25).
SECTION 8.25. USE OF PROCEEDS OF NOTES.
ARG II shall use the proceeds of Notes solely for one or more
of the following purposes: (a) to acquire and fund the Group III Leasing Company
Notes or Group-Specific Leasing Company Notes, as applicable, in accordance with
the Group III Leasing Company Indentures or Group-Specific Leasing Company
Indentures, as applicable; (b) to pay amortizing Group III Notes ((or amortizing
Notes issued pursuant to a Series Supplement related to a Segregated Series of
Notes), as applicable), when due or to prepay Group III Notes ((or Notes issued
pursuant to a Series Supplement related to a Segregated Series of Notes), as
applicable), in accordance with this Indenture; or (c) to make loans pursuant to
the Subordinated Note in accordance with SECTION 8.22.
SECTION 8.26. MAINTENANCE OF SEPARATE EXISTENCE.
ARG II will do all things necessary to maintain its corporate
existence separate and apart from that of ANC or any Affiliate of ANC including,
without limitation, (i) practicing and adhering to corporate formalities, such
as maintaining appropriate books and records; (ii) owning or leasing (including
through shared arrangements with Affiliates) all office furniture and equipment
necessary to operate its business; (iii) not (A) guaranteeing or otherwise
becoming liable for any obligations of
53
any of its Affiliates, (B) having obligations guaranteed by any of its
Affiliates, (C) holding itself out as responsible for debts of any of its
Affiliates or for decisions or actions with respect to the affairs of any of its
Affiliates and (D) being directly or indirectly named as a direct or contingent
beneficiary or loss payee on any insurance policy of any Affiliate; (iv) other
than as provided in the Related Documents, maintaining its deposit and other
bank accounts and all of its assets separate from those of any other Person; (v)
maintaining its financial records and books of account separate and apart from
those of any other Person; (vi) compensating all its employees, officers,
consultants and agents for services provided to it by such Persons, or
reimbursing any of its Affiliates in respect of services provided to it by
employees, officers, consultants and agents of such Affiliate, out of its own
funds; (vii) maintaining office space separate and apart from that of any of its
Affiliates (even if such office space is subleased from or is on or near
premises occupied by any of its Affiliates) and a telephone number separate and
apart from that of any of its Affiliates; (viii) accounting for and managing all
of its liabilities separately from those of any of its Affiliates; (ix)
allocating, on an arm's-length basis, all shared corporate operating services,
leases and expenses, including, without limitation, those associated with the
services of shared consultants and agents and shared computer and other office
equipment and software; (x) refraining from filing or otherwise initiating or
supporting the filing of a motion in any bankruptcy or other insolvency
proceeding involving ARG II, ANC or any Affiliate of ANC, to substantively
consolidate ARG II with ANC or such Affiliate of ANC; (xi) remaining solvent,
(xii) conducting all of its business (whether written or oral) solely in its own
name, (xiii) paying from its funds and assets all obligations and indebtedness
incurred by it; (xiv) maintaining a sufficient number of employees for its
contemplated business operations; PROVIDED that if no employees are required
than there will be no employees, and (xv) correcting any known misunderstanding
regarding its separate identity and (xvi) all other actions specified in the
Article Tenth of the Certificate of Incorporation of ARG II. ARG II acknowledges
its receipt of a copy of those certain opinion letters issued by Weil, Gotshal &
▇▇▇▇▇▇ LLP dated the date of issuance of the initial Series of Notes addressing
the issue of substantive consolidation as it may relate to ANC, the Group III
Lessees and ARG II and the characterization of the Group III Operating Leases as
"true leases". ARG II hereby agrees to maintain in place all policies and
procedures, and take and continue to take all action, described in the factual
assumptions set forth in such opinion letters and relating to ARG II. On an
annual basis, commencing May 31, 2003, ARG II will provide to the Rating
Agencies and the Trustee an Officer's Certificate certifying that it is in
compliance with its obligations under this SECTION 8.26.
SECTION 8.27. NO ERISA PLAN.
ARG II will not establish or maintain or contribute to any
Pension Plan that is covered by Title IV of ERISA.
SECTION 8.28. ADDITIONAL LEASING COMPANIES.
ARG II will not acquire an Group III Additional Leasing
Company Note issued under a Group III Additional Leasing Company Indenture, as
54
supplemented by a Group III Additional Leasing Company Series Supplement, from a
Group III Additional Leasing Company without complying with the provisions of
this SECTION 8.28. If ARG II desires to acquire an Group III Additional Leasing
Company Note issued under a Group III Additional Leasing Company Indenture, as
supplemented by a Group III Additional Leasing Company Supplement, from a Group
III Additional Leasing Company, ARG II shall deliver the following to the
Trustee:
(a) such Group III Additional Leasing Company Indenture and
Group III Additional Leasing Company Supplement, in substantially the
form of the existing Group III Leasing Company Indentures or otherwise
in form and substance satisfactory to the Required Noteholders of each
Outstanding Series of Group III Notes, duly executed by such Group III
Additional Leasing Company and the Group III Additional Leasing Company
Trustee;
(b) the original Counterpart No. 1 of the Group III Additional
Leasing Company Lease securing such Group III Additional Leasing
Company Indenture, as supplemented by such Group III Additional Leasing
Company Supplement, in substantially the form of the existing Group III
Leases or otherwise in form and substance satisfactory to the Required
Noteholders of each Outstanding Series of Group III Notes, duly
executed by such Group III Additional Leasing Company, the Group III
Additional Leasing Company Lessee and ANC, as guarantor and servicer;
(c) such Group III Additional Leasing Company Note, in
substantially the form of the existing Group III Leasing Company Notes
or otherwise in form and substance satisfactory to the Required
Noteholders of each Outstanding Series of Group III Notes, duly
executed by such Group III Additional Leasing Company and duly
authenticated by the Group III Additional Leasing Company Trustee and
registered in the name of the Trustee;
(d) a Group III Additional Leasing Company Receivables Trust
Agreement, in substantially the form of the existing Leasing Company
Receivable Trust Agreements or otherwise in form and substance
satisfactory to the Required Noteholders of each Outstanding Series of
Group III Notes, duly executed by such Group III Additional Leasing
Company and duly authenticated by the Group III Additional Leasing
Company Trustee and registered in the name of the Trustee;
(e) evidence to the effect that such Group III Additional
Leasing Company and the Group III Additional Leasing Company Lessee
shall have become parties to the Master Collateral Agency Agreement in
accordance with the Master Collateral Agency Agreement;
(f) evidence that the Master Collateral Agent shall have
received executed counterparts of the Group III Assignment Agreements
related to the assignment of rights under each Group III Manufacturer
55
Program under which Group III Program Vehicles will be purchased or
financed by such Group III Additional Leasing Company, duly executed by
the Group III Additional Leasing Company Lessee, the Group III
Additional Leasing Company, the Master Collateral Agent and each
applicable Manufacturer;
(g) evidence that the Master Collateral Agent shall have
received a copy of each Group III Manufacturer Program under which
Group III Program Vehicles are proposed to be financed or purchased by
such Group III Additional Leasing Company and an Officer's Certificate
duly executed by an officer of the Group III Additional Leasing Company
certifying that each such copy is true, correct and complete as of such
date;
(h) written confirmation that the Rating Agency Confirmation
Condition with respect to each Outstanding Series of Group III Notes
shall have been satisfied with respect to ARG II's acquisition of such
Group III Additional Leasing Company Note;
(i) an Officer's Certificate of ARG II dated as of the date of
ARG II's acquisition of such Group III Additional Leasing Company Note
to the effect that (i) no Amortization Event with respect to any
Outstanding Series of Group III Notes, Enhancement Agreement Event of
Default with respect to any Outstanding Series of Group III Notes,
Enhancement Deficiency with respect to any Outstanding Series of Group
III Notes, Potential Amortization Event with respect to any Outstanding
Series of Group III Notes or Potential Enhancement Agreement Event of
Default with respect to any Outstanding Series of Group III Notes, is
continuing or will occur as a result of its acquisition of such Group
III Additional Leasing Company Note, (ii) the acquisition of such Group
III Additional Leasing Company Note will not result in any breach of
any of the terms, conditions or provisions of or constitute a default
under any indenture, mortgage, deed of trust or other agreement or
instrument to which ARG II is a party or by which it or its property is
bound or any order of any court or administrative agency entered in any
suit, action or other judicial or administrative proceeding to which
ARG II is a party or by which it or its property may be bound or to
which it or its property may be subject and (iii) all conditions
precedent provided in this Base Indenture and any Series Supplement
with respect to any Outstanding Series of Group III Notes with respect
to acquisition of such Group III Additional Leasing Company Note have
been complied with;
(j) an Opinion of Counsel, subject to the assumptions and
qualifications stated therein, and in a form substantially acceptable
to the Trustee, dated the date of ARG II's acquisition of such Group
III Additional Leasing Company Note, substantially to the effect that:
(i) all instruments furnished to the Trustee conform
in all material respects to the requirements of this Base
Indenture and any Series Supplement with respect to any
56
Outstanding Series of Group III Notes with respect to
acquisition of such Group III Additional Leasing Company Note,
and all conditions precedent provided for in this Base
Indenture and any such Series Supplement have been complied
with in all material respects;
(ii) (x) the Group III Additional Leasing Company is
duly formed in the jurisdiction of its formation and had the
power and authority to execute and deliver each of the Group
III Additional Leasing Company Related Documents to which it
is a party; (y) the Group III Additional Leasing Company
Lessee is duly incorporated or formed, as the case may be, in
the jurisdiction of its incorporation or formation, as the
case may be, and had the corporate, limited partnership or
limited liability company, as the case may be, power and
authority to execute and deliver each of the Group III
Additional Leasing Company Related Documents to which it is a
party; and (z) ANC, in its capacity as guarantor and servicer
under the Group III Additional Leasing Company Lease, is duly
incorporated in the jurisdiction of its incorporation and had
the power and authority to execute and deliver the Group III
Additional Leasing Company Lease and each other Group III
Additional Leasing Company Related Document to which it is a
party;
(iii) each of the Group III Additional Leasing
Company Related Documents has been duly authorized, executed
and delivered by the Group III Additional Leasing Company, the
Group III Additional Leasing Company Lessee and ANC, as
applicable;
(iv) the Group III Additional Leasing Company Note
has been duly authorized and executed and, when authenticated
and delivered in accordance with the provisions of the Group
III Additional Leasing Company Indenture and the related Group
III Additional Leasing Company Supplement, will constitute
valid, binding and enforceable obligations of the Group III
Additional Leasing Company entitled to the benefits of the
Group III Additional Leasing Company Indenture and the related
Group III Additional Leasing Company Supplement, subject, in
the case of enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting
creditors' rights generally and to general principles of
equity and by an implied covenant of good faith and fair
dealing;
(v) the Group III Additional Leasing Company Related
Documents are legal, valid and binding agreements of the Group
III Additional Leasing Company, the Group III Additional
Leasing Company Lessee or ANC, as the case may be, enforceable
in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors' rights generally and to
57
general principles of equity and by an implied covenant of
good faith and fair dealing;
(vi) none of the Group III Additional Leasing
Companies is, or is controlled by, an "investment company"
within the meaning of, or is required to register as an
"investment company" under, the Investment Company Act, and
the Group III Additional Leasing Company Indenture is not
required to be registered under the Trust Indenture Act;
(vii) the Group III Additional Leasing Company
Indenture and the related Group III Additional Leasing Company
Supplement are effective to create a legal, valid and
enforceable security interest in the collateral pledged
thereunder and that such security interest constitutes a first
priority, perfected security interest in such collateral;
(viii) the assets of the Group III Additional Leasing
Company would not be substantively consolidated with the
assets of ANC or the Group III Additional Leasing Company
Lessee in the event of the insolvency of ANC or such Group III
Additional Leasing Company Lessee;
(ix) there being no pending or threatened litigation
which, if adversely determined, would materially and adversely
affect the ability of the Group III Additional Leasing Company
or the Group III Additional Leasing Company Lessee to perform
its obligations under any of the Group III Additional Leasing
Company Related Documents;
(x) the absence of any conflict with or violation of
any court decree, injunction, writ or order applicable to the
Group III Additional Leasing Company or the Group III
Additional Leasing Company Lessee or any breach or default of
any indenture, agreement or other instrument as a result of
the issuance of the Group III Additional Leasing Company Note
or the execution, delivery or performance of the Group III
Additional Leasing Company Related Documents by the Group III
Additional Leasing Company or the Group III Additional Leasing
Company Lessee;
(xi) the offer and sale of the Group III Additional
Leasing Company Note is not required to be registered under
the Securities Act; and
(xii) such other matters as the Trustee may
reasonably require.
(k) evidence (which, in the case of the filing of financing
statements on form UCC-1, may be telephonic, followed by prompt written
confirmation) that ARG II has caused all filings (including filing of
financing statements on form UCC-1) and recordings to be accomplished
as may be reasonably required by law to establish, perfect, protect and
58
preserve the rights, titles, interests, remedies, powers, privileges,
licenses and security interest of the Trustee in the Group III
Additional Leasing Company Note and the Group III Additional Leasing
Company Indenture, as supplemented by the Group III Additional Leasing
Company Supplement for the benefit of the Group III Secured Parties;
and
(l) such other documents, instruments, certifications,
agreements or other items as the Trustee may reasonably require.
Upon satisfaction of such conditions, the Group III Additional Leasing Company
Note and the Group III Additional Leasing Company Indenture, as supplemented by
the Group III Additional Leasing Company Supplement, shall be part of the Group
III Collateral.
ARTICLE 9.
AMORTIZATION EVENTS AND REMEDIES
SECTION 9.1. AMORTIZATION EVENTS.
If any one of the following events shall occur during the
Revolving Period, the Accumulation Period or the Controlled Amortization Period
with respect to any Series of Notes (each, an "AMORTIZATION EVENT"):
(a) The occurrence of an Event of Bankruptcy with respect to
ARG II, any Leasing Company or the general partner of any Leasing
Company;
(b) ARG II shall have become an "investment company" or shall
have become under the "control" of an "investment company" under the
Investment Company Act of 1940, as amended;
(c) Any of the Related Documents (other than any Related
Document relating solely to another Series of Notes not sharing in the
same Group-Specific Collateral) or any material portion thereof shall
not be in full force and effect, enforceable in accordance with its
terms (other than any Related Document that has been terminated in
accordance with its terms) or ARG II shall so assert in writing;
(d) [Reserved]; and
(e) Any other event shall occur which may be specified in any
Series Supplement as an Amortization Event";
then (i) in the case of any event described in CLAUSE (C) or (E) above (with
respect to CLAUSE (E) above, only to the extent such Amortization Event is
subject to waiver as set forth in the applicable Series Supplement), either the
Trustee, by written notice to ARG II, or the Required Noteholders of the
applicable Series of Notes, by written notice to
59
ARG II and the Trustee, may declare that an Amortization Event has occurred with
respect to such Series as of the date of the notice, or (ii) in the case of any
event described in CLAUSE (A) or (B) above, an Amortization Event with respect
to all Series of Notes then outstanding shall immediately occur without any
notice or other action on the part of the Trustee or any Noteholders or (iii) in
the case of any event described in CLAUSE (E) above (only to the extent such
Amortization Event is not subject to waiver as set forth in the applicable
Series Supplement), an Amortization Event with respect to the related Series of
Notes shall immediately occur without any notice or other action on the part of
the Trustee or any Noteholders; PROVIDED, HOWEVER, that the Trustee shall have
no liability in connection with any action or inaction taken or not taken by it
upon the occurrence of an Amortization Event unless a Trust Officer has actual
knowledge of such Amortization Event; and PROVIDED, FURTHER the provisions of
this sentence shall not insulate the Trustee from liability arising out of its
negligence or willful misconduct.
SECTION 9.2. RIGHTS OF THE TRUSTEE UPON AMORTIZATION EVENT OR
CERTAIN OTHER EVENTS OF DEFAULT.
(a) GENERAL. If and whenever an Amortization Event shall have
occurred and be continuing, the Trustee may and, at the written
direction of the Requisite Investors of the non-Segregated Series of
Notes or of any Segregated Series of Notes shall, exercise from time to
time any rights and remedies available to it with respect to the Group
III Collateral or the Group-Specific Collateral, as the case may be,
under applicable law or any applicable Related Document; PROVIDED,
HOWEVER, that if such Amortization Event is with respect to less than
all Outstanding Series of Notes or with respect to a Segregated Series
of Notes, then the Trustee's rights and remedies pursuant to the
provisions of this SECTION 9.2 shall, with respect to any
non-Segregated Series of Notes, to the extent not detrimental to the
rights of the holders of the Series of Notes with respect to which no
Amortization Event shall have occurred, or if with respect to a
Segregated Series of Notes, be limited to rights and remedies
pertaining only to those non-Segregated Series of Notes or those
Segregated Series of Notes, as the case may be, with respect to which
such Amortization Event has occurred and the Trustee shall exercise
such rights and remedies at the written direction of Noteholders
holding in excess of 50% of the aggregate Invested Amount of all such
non-Segregated Series of Notes or such Segregated Series of Notes, as
the case may be, with respect to which such Amortization Event has
occurred (excluding, in either case, any Notes held by ARG II or any
Affiliate of ARG II (other than an Affiliate Issuer)). Any amounts
obtained by the Trustee on account of or as a result of the exercise by
the Trustee of any right shall be held by the Trustee as additional
collateral for the repayment of Group III ARG II Obligations and
Group-Specific ARG II Obligations (collectively, the "ARG II
Obligations") with respect to all such non-Segregated Series of Notes
or such Segregated Series of Notes, as the case may be, due and payable
in respect of each Series and shall be applied as provided in ARTICLE 5
hereof. If so specified in the applicable Series Supplement, the
Trustee may agree to limit its exercise of rights and remedies
60
available to it as a result of the occurrence of an Amortization Event
to the extent set forth therein.
(b) GROUP III LEASING COMPANY RELATED DOCUMENTS AND
GROUP-SPECIFIC LEASING COMPANY RELATED DOCUMENTS. If an Amortization
Event shall have occurred and be continuing, the Trustee, at the
written direction of the Requisite Investors (in the case of an
Amortization Event with respect to all Series of Group III Notes ((or
Notes issued pursuant to a Series Supplement related to a Segregated
Series of Notes), as applicable) or the Required Noteholders (in the
case of an Amortization Event with respect to a particular Series of
Group III Notes ((or Notes issued pursuant to a Series Supplement
related to a Segregated Series of Notes), as applicable), shall
exercise, to the extent necessary, all rights, remedies, powers,
privileges and claims of ARG II against any party under or in
connection with the Group III Leasing Company Related Documents or
Group-Specific Leasing Company Related Documents, as applicable,
including the right or power to take any action to compel performance
or observance by any such party of its obligations to ARG II, and to
give any consent, request, notice, direction, approval, extension or
waiver in respect of the Group III Leasing Company Related Documents or
Group-Specific Leasing Company Related Documents, as applicable.
(c) ARG II LIQUIDATION EVENTS. If and whenever an ARG II
Liquidation Event with respect to any Outstanding Series of Notes shall
have occurred and be continuing, the Trustee may and, at the written
direction of the Required Noteholders of such Series shall, exercise
from time to time any rights and remedies available to it as the result
of such occurrence under the Group III Leasing Company Related
Documents or Group-Specific Leasing Company Related Documents, as
applicable. Any amounts obtained by the Trustee on account of or as a
result of the exercise by the Trustee of any such rights shall be
applied as provided in ARTICLE 5 hereof.
(d) ADDITIONAL REMEDIES. In addition to any rights and
remedies now or hereafter granted hereunder or under applicable law
with respect to the Group III Collateral and any Group-Specific
Collateral, the Trustee shall have all of the rights and remedies of a
secured party under the UCC as enacted in any applicable jurisdiction.
(e) NON-SEGREGATED SERIES. Upon the occurrence of an
Amortization Event relating to one or more, but not all, Outstanding
Series of Group III Notes (not including any Segregated Series of
Notes), the Trustee shall exercise all remedies hereunder to the extent
necessary to pay all interest and principal on the related Series of
Group III Notes up to the Invested Amount of each Series.
(f) CERTAIN OTHER NON-SEGREGATED SERIES. Certain Series of
Group III Notes (not including any Segregated Series of Notes) may
provide for allocations of Group III Collections to such Series of
Group III Notes only in respect of
61
specified items of Group III Collateral upon the occurrence of certain
Amortization Events. Upon the occurrence of such an Amortization Event
relating to such a Series of Group III Notes, the Trustee shall, to the
extent specified in the applicable Series Supplement, limit any
recourse hereunder to the related specified items of Group III
Collateral to satisfy the payment of all interest and principal on such
Series of Group III Notes up to the Invested Amount of such Series.
(g) SEGREGATED SERIES. Upon the occurrence of an Amortization
Event relating to any Outstanding Segregated Series of Notes, the
Trustee shall limit any recourse hereunder to the related
Group-Specific Collateral in satisfying the payment of interest and
principal due on such Segregated Series of Notes. For all purposes
hereunder and for the avoidance of doubt, the Group III Collection
Account has been established solely for the benefit of the Group III
Noteholders, and in connection with the issuance of a Segregated Series
of Notes, ARG II will establish with the Trustee a separate and
segregated trust account with respect to collections in respect of the
Group-Specific Collateral related in such Segregated Series of Notes as
contemplated by SECTION 2.3(B) hereof.
SECTION 9.3. OTHER REMEDIES.
Subject to the terms and conditions of this Indenture, if an
Amortization Event occurs and is continuing, the Trustee may pursue any remedy
available under applicable law or in equity to collect the payment of principal
of or interest on the Notes (or the applicable Series of Notes, in the case of
an Amortization Event that affects only one or more particular Series of Notes)
or to enforce the performance of any provision of the Notes, this Indenture or
any Series Supplement with respect to that Series of Notes. In addition, the
Trustee may, or shall at the written direction of the Requisite Investors of the
non-Segregated Series of Notes or of any Segregated Series of Notes (or the
Required Noteholders of one or more Series of Notes, in the case of an
Amortization Event that affects only such Series of Notes), direct ARG II to
exercise any rights or remedies available under any Related Document or under
applicable law or in equity with respect to that Series of Notes.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding, and
any such proceeding instituted by the Trustee shall be in its own name as
trustee. All remedies are cumulative to the extent permitted by law.
SECTION 9.4. WAIVER OF PAST EVENTS.
Unless otherwise specified in the Series Supplement for a
Series of Notes, subject to SECTION 12.2 hereof, the Supermajority Noteholders
of a Series of Notes, by written notice to the Trustee, may waive any existing
Potential Amortization Event or Amortization Event related to CLAUSE (C) or (E)
of SECTION 9.1 (with respect to CLAUSE (E), only to the extent not otherwise
specified in the related Series Supplement) which relate
62
to such Series and its consequences except a continuing Potential Amortization
Event or Amortization Event in the payment of the principal of or interest on
any Note. Upon any such waiver, such Potential Amortization Event shall cease to
exist with respect to such Series, and any Amortization Event with respect to
such Series arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Potential Amortization Event or impair any right consequent thereon. A
Potential Amortization Event or an Amortization Event related to CLAUSE (B), (C)
or (E) of SECTION 9.1 (with respect to CLAUSE (E) only to the extent only
subject to waiver by 100% of the Noteholders of the related Series as set forth
in the related Series Supplement) may be waived by one hundred (100) percent of
the Noteholders of a Series of Notes and the Enhancement Provider, if any, of
such Series. An Amortization Event related to CLAUSE (A) of SECTION 9.1 shall
not be subject to waiver.
SECTION 9.5. CONTROL BY REQUISITE INVESTORS OR REQUIRED
NOTEHOLDERS.
The Requisite Investors of the non-Segregated Series of Notes
or of any Segregated Series of Notes (or, to the extent such remedy relates only
to a particular Series of Notes, the Required Noteholders of such Series) may
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. However, subject to SECTION 10.1, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee determines
may be unduly prejudicial to the rights of other Noteholders of non-Segregated
Series of Notes, or that may involve the Trustee in personal liability.
SECTION 9.6. LIMITATION ON SUITS.
Any other provision of this Indenture to the contrary
notwithstanding, a Noteholder of any Series may pursue a remedy with respect to
this Indenture or the Notes of such Series only if:
(a) the Noteholder gives to the Trustee written notice of a
continuing Amortization Event;
(b) the Noteholders of at least 25% in principal amount of all
then Outstanding Notes of such Series make a written request to the
Trustee to pursue the remedy;
(c) such Noteholder or Noteholders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
63
(e) during such 60-day period the Required Noteholders of such
Series do not give the Trustee a direction inconsistent with the
request.
A Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over another Noteholder.
SECTION 9.7. UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE
PAYMENT; WITHHOLDING TAXES.
(a) Notwithstanding any other provision of this Indenture, the
right of any Noteholder of a Note to receive payment of principal of
and interest on the Note, on or after the respective due dates
expressed in the Note, or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and
unconditional and shall not be impaired or affected without the consent
of the Noteholder.
(b) The Paying Agent shall (or if the Trustee is not the
Paying Agent, the Trustee shall cause the Paying Agent to execute and
deliver to the Trustee an instrument in which such Paying Agent shall
agree with the Trustee that such Paying Agent shall) comply with all
requirements of the Code regarding the withholding of payments in
respect of Federal income taxes due from Noteholders and otherwise
comply with the provisions of this Indenture applicable to it.
SECTION 9.8. COLLECTION SUIT BY THE TRUSTEE.
If any Amortization Event consisting of a payment default
under a Series of Notes occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against ARG
II for the whole amount of principal and interest remaining unpaid on such
Series of Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 9.9. THE TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Noteholders allowed in any judicial proceedings relative to ARG II (or any
other obligor upon the Notes), its creditors or its property, and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claim and any custodian in any such
judicial proceeding is hereby authorized by each Noteholder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Noteholders, to pay the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under SECTION 10.5 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the
64
Trustee, its agents and counsel, and any other amounts due the Trustee under
SECTION 10.5 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, Notes and other
properties which the Noteholders of the Notes may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Noteholder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
SECTION 9.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article,
the Trustee shall pay out the money in accordance with the provisions of ARTICLE
5 of this Indenture.
SECTION 9.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of any undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Noteholder pursuant to SECTION 9.6, or a suit by Noteholders of more than
10% in principal amount of all then outstanding Notes.
SECTION 9.12. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the
Trustee or to the holders of Notes is intended to be exclusive of any other
right or remedy, and every right or remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given under
this Indenture or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy under this Indenture, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 9.13. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any holder of any
Note to exercise any right or remedy accruing upon any Amortization Event shall
impair any such right or remedy or constitute a waiver of any such Amortization
65
Event or an acquiescence therein. Every right and remedy given by this ARTICLE 9
or by law to the Trustee or to the holders of Notes may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
holders of Notes, as the case maybe.
SECTION 9.14. REASSIGNMENT OF SURPLUS.
Promptly after termination of this Indenture and the payment
in full of the Group III ARG II Obligations and Group-Specific ARG II
Obligations, any proceeds of the Group III Collateral and any Group-Specific
Collateral received or held by thc Trustee shall be turned over to ARG II and
the Group III Collateral and Group-Specific Collateral shall be reassigned to
ARG II by the Trustee without recourse to the Trustee and without any
representations, warranties or agreements of any kind.
ARTICLE 10.
THE TRUSTEE
SECTION 10.1. DUTIES OF THE TRUSTEE.
(a) If an Amortization Event has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs; PROVIDED, HOWEVER, that the Trustee shall have no liability in
connection with any action or inaction taken, or not taken, by it upon the
deemed occurrence of an Amortization Event of which a Trust Officer has not
received written notice; and PROVIDED, FURTHER that the preceding sentence shall
not have the effect of insulating the Trustee from liability arising out of the
Trustee's negligence or willful misconduct.
(b) Except during the occurrence and continuance of an
Amortization Event:
(i) The Trustee undertakes to perform only those
duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not
66
confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This clause does not limit the effect CLAUSE (B)
of this SECTION 10.1.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(iii) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to SECTION
9.3.
(iv) The Trustee shall not be charged with knowledge
of any default by any Leasing Company or other Person in the
performance of its obligations under any Collateral Agreement
or any agreement pursuant to a Series Supplement related to a
Segregated Series of Notes (the "Group-Specific Collateral
Agreement"), unless a Trust Officer of the Trustee receives
written notice of such failure from ARG II, any Leasing
Company Trustee, any Leasing Company or any Holders of Notes
evidencing not less than 10% of the aggregate principal amount
of the Notes of any Series adversely affected thereby or
otherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this
Indenture or any of the Related Documents, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
incur any liability if there is reasonable ground (as determined by the
Trustee in its sole discretion) for believing that the repayment of
such funds is not reasonably assured to it by the security afforded to
it by the terms of this Indenture. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(e) In the event that the Paying Agent or the Registrar shall
fail to perform any obligation, duty or agreement in the manner or on
the day required to be performed by the Paying Agent or the Registrar,
as the case may be, under this Indenture, the Trustee shall be
obligated as soon as practicable upon actual knowledge of a Trust
Officer thereof and receipt of appropriate records and information, if
any, to perform such obligation, duty or agreement in the manner so
required.
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(f) Subject to Section 10.3, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law or the
Related Documents. The Trustee may allow and credit to ARG II interest
agreed upon by ARG II and the Trustee from time to time as may be
permitted by law.
SECTION 10.2. RIGHTS OF THE TRUSTEE.
Except as otherwise provided by SECTION 10.1:
(a) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting based upon any document
(whether in its original or facsimile form) believed by it to be
genuine and to have been signed by or presented by the proper person.
(b) The Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through agents, custodians and
nominees and shall not be liable for any misconduct or negligence on
the part of, or for the supervision of, any such agent, custodian or
nominee so long as such agent, custodian or nominee is appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by the Indenture.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture or any Series
Supplement, or to institute, conduct or defend any litigation hereunder
or in relation hereto, at the request, order or direction of any of the
Noteholders, pursuant to the provisions of this Indenture or any Series
Supplement, unless such Noteholders shall have offered to the Trustee
security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which may be incurred therein or thereby;
nothing contained herein shall, however, relieve the Trustee of the
obligations, upon the occurrence of a default by any Leasing Company or
ARG II (which has not been cured), to exercise such of the rights and
powers vested in it by this Indenture or any Series Supplement, and to
use the same degree of care and skill in their exercise as a prudent
man would exercise or use under the circumstances in the conduct of his
own affairs.
(f) The Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate,
statement, instrument,
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opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless requested in writing so to do by the
Required Noteholders of any Series which could be adversely affected if
the Trustee does not perform such acts, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of ARG II, personally or by
agent or attorney at the sole cost of ARG II and shall incur no
liability or additional liability of any kind by reason of such inquiry
or investigation.
(g) The Trustee shall not be liable for any losses or
liquidation penalties in connection with Permitted Investments, unless
such losses or liquidation penalties were incurred through the
Trustee's own willful misconduct or negligence.
(h) The Trustee shall not be liable for the acts or omissions
of any successor to the Trustee so long as such acts or omissions were
not the result of the negligence, bad faith or willful misconduct of
the predecessor Trustee.
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 10.3. INDIVIDUAL RIGHTS OF THE TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with ARG II or an Affiliate
of ARG II with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to SECTION
10.8.
SECTION 10.4. NOTICE OF AMORTIZATION EVENTS AND POTENTIAL
AMORTIZATION EVENTS.
If an Amortization Event or a Potential Amortization Event
occurs and is continuing and if a Trust Officer of the Trustee receives written
notice or has actual knowledge thereof, the Trustee shall promptly provide the
Noteholders and each Rating Agency with notice of such Amortization Event or the
Potential Amortization Event, to the extent such Notes are represented by a
Global Note, by telephone and facsimile, and, otherwise, by first class mail.
SECTION 10.5. COMPENSATION.
(a) ARG II shall promptly pay to the Trustee from time to time
such compensation for its acceptance of this Indenture and services
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hereunder as set forth in the letter agreement dated May 6, 2002
between ARG II and the Trustee, as may be amended from time to time.
The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. ARG II shall reimburse
the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include (i) the
reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel and (ii) the reasonable expenses of the Trustee's
agents in administering the Group III Collateral and, as specified from
time to time, any Group-Specific Collateral.
(b) ARG II shall not be required to reimburse any expense or
indemnify the Trustee against any loss, liability, or expense incurred
by the Trustee through the Trustee's own willful misconduct or
negligence.
(c) When the Trustee incurs expenses or renders services after
an Amortization Event occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under
the Bankruptcy Code.
(d) The provisions of this SECTION 10.5 shall survive the
termination of this Indenture and the resignation and removal of the
Trustee.
SECTION 10.6. REPLACEMENT OF THE TRUSTEE.
(a) A resignation or removal of the Trustee and appointment of
a successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this SECTION 10.6.
(b) The Trustee may, after giving sixty (60) days prior
written notice to ARG II, each Noteholder and each Rating Agency,
resign at any time and be discharged from the trust hereby created by
so notifying ARG II; PROVIDED, HOWEVER, that no such resignation of the
Trustee shall be effective until a successor trustee has assumed the
obligations of the Trustee hereunder. The Requisite Investors may
remove the Trustee by so notifying the Trustee and ARG II. ARG II may
remove the Trustee if:
(i) the Trustee fails to comply with SECTION 10.8;
(ii) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to
the Trustee under the Bankruptcy Code;
(iii) a custodian or public officer takes charge of
the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason, ARG II shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Requisite Investors may appoint a successor Trustee to replace the successor
Trustee appointed by ARG II.
(c) If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee,
ARG II or any Secured Party may petition at the expense of ARG II any
court of competent jurisdiction for the appointment of a successor
Trustee.
(d) If the Trustee after written request by any Noteholder who
has been a Noteholder for at least six months fails to comply with
SECTION 10.8, such Noteholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(e) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring or removed Trustee and to ARG II.
Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture and any Series
Supplement. The successor Trustee shall mail a notice of its succession
to Noteholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; PROVIDED,
HOWEVER, that all sums owing to the retiring Trustee hereunder (and its
agents and counsel) have been paid. Notwithstanding replacement of the
Trustee pursuant to this SECTION 10.6, ARG II's obligations under
SECTION 10.5 hereof shall continue for the benefit of the retiring
Trustee.
SECTION 10.7. SUCCESSOR TRUSTEE BY MERGER, ETC.
Subject to SECTION 10.8, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee.
SECTION 10.8. ELIGIBILITY DISQUALIFICATION.
(a) There shall at all times be a Trustee hereunder which
shall (i) be a corporation organized and doing business under the laws
of the United States of America or of any state thereof authorized
under such laws to exercise corporate trustee power, (ii) have an
unsecured long-term debt rating of at least A2 from ▇▇▇▇▇'▇, (iii) be
subject to supervision or examination by Federal or state authority and
shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition and
(iv) if such Trustee is other than The Bank of New York as the original
Trustee hereunder, acceptable to the Requisite Investors.
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(b) At any time the Trustee shall cease to satisfy the
eligibility requirements of CLAUSES (A)(I) or (A)(II) above, the
Trustee shall resign immediately in the manner and with the effect
specified in SECTION 10.6.
SECTION 10.9. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture or
any Series Supplement, at any time, for the purpose of meeting any
legal requirements of any jurisdiction in which any part of the Group
III Collateral or Group-Specific Collateral may at the time be located,
the Trustee shall have the power and may execute and deliver all
instruments to appoint one or more persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, with the prior
written consent of the Requisite Investors, of all or any part of the
Group III Collateral or Group-Specific Collateral, as applicable, and
to vest in such Person or Persons, in such capacity and for the benefit
of the Group III Secured Parties or Group-Specific Secured Parties, as
applicable, such title to the Group III Collateral or Group-Specific
Collateral, as applicable, or any part thereof, and, subject to the
other provisions of this SECTION 10.9, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under
SECTION 10.8 and no notice to Noteholders, as applicable, of the
appointment of any co-trustee or separate trustee shall be required
under SECTION 10.6. No co-trustee shall be appointed without the
consent of ARG II unless such appointment is required as a matter of
state law or to enable the Trustee to perform its functions hereunder.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) The Notes of each Series shall be authenticated
and delivered solely by the Trustee or an authenticating agent
appointed by the Trustee;
(ii) All rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed, the Trustee shall be incompetent or unqualified to
perform, such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the
Assets or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
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(iii) No trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee
hereunder; and
(iv) The Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall
refer to this Indenture and the conditions of this Article 10. Each
separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions
of this Indenture and any Series Supplement, specifically including
every provision of this Indenture or any Series Supplement relating to
the conduct of, affecting the liability of, or affording protection to,
the Trustee. Every such instrument shall be filed with the Trustee and
a copy thereof given to ARG II.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful
act under or in respect to this Indenture or any Series Supplement on
its behalf and in its name. If any separate trustee or co-trustee shall
die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) In connection with the appointment of a co-trustee, the
Trustee may, at any time, at the Trustee's sole cost and expense,
without notice to the Noteholders, delegate its duties under this Base
Indenture and any Series Supplement to any Person who agrees to conduct
such duties in accordance with the terms hereof; PROVIDED, HOWEVER,
that no such delegation shall relieve the Trustee of its obligations
and responsibilities hereunder with respect to any such delegated
duties.
SECTION 10.10. REPRESENTATIONS AND WARRANTIES OF TRUSTEE.
The Trustee represents and warrants to ARG II and the Group
III Secured Parties and each Group-Specific Secured Party that:
(i) The Trustee is a banking corporation duly
organized, existing and in good standing under the laws of the
State of New York;
(ii) The Trustee has full power, authority and right
to execute, deliver and perform this Indenture and any Series
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Supplement issued concurrently with this Indenture and to
authenticate the Notes, and has taken all necessary action to
authorize the execution, delivery and performance by it of
this Indenture and any Series Supplement issued concurrently
with this Indenture and to authenticate the Notes;
(iii) This Indenture has been duly executed and
delivered by the Trustee; and
(iv) The Trustee meets the requirements of
eligibility as a trustee hereunder set forth in SECTION 10.8
hereof.
SECTION 10.11. ARG II INDEMNIFICATION OF THE TRUSTEE.
ARG II shall fully indemnify and hold harmless the Trustee
(and any predecessor Trustee) and its directors, officers, agents and employees
from and against any and all loss, liability, claim, expense, damage or injury
suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of the activities of the Trustee pursuant to this
Indenture or any Series Supplement, including but not limited to any judgment,
award, settlement, reasonable attorneys' fees and other costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim; PROVIDED, HOWEVER, that ARG II shall not indemnify the
Trustee or its directors, officers, employees or agents if such acts, omissions
or alleged acts or omissions constitute negligence or willful misconduct by the
Trustee. The indemnity provided herein shall survive the termination of this
Indenture and the resignation and removal of the Trustee.
SECTION 10.12. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM ARG
II.
Any application by the Trustee for written instructions from
ARG II or the Servicer may, at the option of the Trustee, set forth in writing
any action proposed to be taken or omitted by the Trustee under this Indenture
and the date on and/or after which such action shall be taken or such omission
shall be effective. Subject to SECTION 10.1, the Trustee not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such application
(which date shall not be less than five Business Days after the date any
Authorized Officer of ARG II or the Servicer actually receives such application,
unless any such officer shall have consented in writing to any earlier date)
unless prior to taking any such action (or the effective date in the case of an
omission), the Trustee shall have received written instructions in response to
such application specifying the action to be taken or omitted.
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ARTICLE 11.
DISCHARGE OF INDENTURE
SECTION 11.1. TERMINATION OF ARG II'S OBLIGATIONS.
(a) This Indenture shall cease to be of further effect (except
that ARG II's obligations under SECTION 10.5 and SECTION 10.11 and the
Trustee's and Paying Agent's obligations under SECTION 11.3 shall
survive) when all Outstanding Notes theretofore authenticated and
issued have been delivered (other than destroyed, lost or stolen Notes
which have been replaced or paid) to the Trustee for cancellation and
ARG II has paid all sums payable hereunder.
(b) In addition, except as may be provided to the contrary in
any Series Supplement, ARG II may terminate all of its obligations
under this Indenture if:
(i) ARG II irrevocably deposits in trust with the
Trustee or at the option of the Trustee, with a trustee
reasonably satisfactory to the Trustee and ARG II under the
terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, money or U.S. Government
Obligations in an amount sufficient, in the opinion of a
nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay, when due, principal and
interest on the Notes to maturity or redemption, as the case
may be, and to pay all other sums payable by it hereunder;
PROVIDED, HOWEVER, that (1) the trustee of the irrevocable
trust shall have been irrevocably instructed to pay such money
or the proceeds of such U.S. Government Obligations to the
Trustee and (2) the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such U.S.
Government Obligations to the payment of said principal and
interest with respect to the Notes;
(ii) ARG II delivers to the Trustee an Officer's
Certificate stating that all conditions precedent to
satisfaction and discharge of this Indenture have been
complied with, and an Opinion of Counsel to the same effect;
(iii) ARG II delivers to the Trustee an Officer's
Certificate stating that no Potential Amortization Event or
Amortization Event, in either case, described in SECTION
9.1(C) shall have occurred and be continuing on the date of
such deposit; and
(iv) the Rating Agency Confirmation and Consent
Condition is satisfied with respect to each Outstanding Series
of Notes.
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Then, this Indenture shall cease to be of further effect (except as provided in
this SECTION 11.1), and the Trustee, on demand of ARG II, shall execute proper
instruments acknowledging confirmation of and discharge under this Indenture.
(c) After such irrevocable deposit made pursuant to SECTION
11.1(B) and satisfaction of the other conditions set forth herein, the
Trustee promptly upon request shall acknowledge in writing the
discharge of ARG II's obligations under this Indenture except for those
surviving obligations specified above.
In order to have money available on a payment date to pay
principal or interest on the Notes, the U.S. Government Obligations shall be
payable as to principal or interest at least one Business Day before such
payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at ARG II's option.
SECTION 11.2. APPLICATION OF TRUST MONEY.
The Trustee or a trustee satisfactory to the Trustee and ARG
II shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to SECTION 11.1. The Trustee shall apply the deposited money and the
money from U.S. Government Obligations in accordance with this Indenture to the
payment of principal and interest on the Notes.
The provisions of this SECTION 11.2 shall survive the
expiration or earlier termination of this Indenture.
SECTION 11.3. REPAYMENT TO ARG II.
The Trustee and the Paying Agent shall promptly pay to ARG II
upon written request any excess money or, pursuant to SECTIONS 2.11 and 2.14,
return any Notes held by them at any time.
Subject to SECTION 2.7(C), the Trustee and the Paying Agent
shall pay to ARG II upon written request any money held by them for the payment
of principal or interest that remains unclaimed for two years after the date
upon which such payment shall have become due.
The provisions of this SECTION 11.3 shall survive the
expiration or earlier termination of this Indenture.
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ARTICLE 12.
AMENDMENTS
SECTION 12.1. WITHOUT CONSENT OF THE NOTEHOLDERS.
Without the consent of any Noteholder, ARG II, the Trustee,
and any applicable Enhancement Provider, at any time and from time to time, may
enter into one or more Supplements hereto, for any of the following purposes,
provided that the Rating Agency Confirmation Condition with respect to each
Outstanding Series of Notes is met with respect to such Supplement:
(a) to create a new Series of Notes (including, without
limitation, making such modifications to the Indenture and the other
Related Documents as may be required to issue a Segregated Series of
Notes; PROVIDED, HOWEVER, that the creation of any Segregated Series of
Notes shall not result in a material adverse effect on the Noteholders
of any Series unless the Required Noteholders of such Series shall have
given their prior written consent to the creation thereof);
(b) to add to the covenants of ARG II for the benefit of any
Group III Secured Parties or Group-Specific Secured Parties (and if
such covenants are to be for the benefit of less than all Series of
Notes, stating that such covenants are expressly being included solely
for the benefit of such Series) or to surrender any right or power
herein conferred upon ARG II (PROVIDED, HOWEVER, that ARG II will not
pursuant to this SUBSECTION 12.1(B) surrender any right or power it has
under the Group III Leasing Company Related Documents or the
Group-Specific Leasing Company Related Documents, as applicable);
(c) to mortgage, pledge, convey, assign and transfer to the
Trustee any property or assets as security for the Notes and to specify
the terms and conditions upon which such property or assets are to be
held and dealt with by the Trustee and to set forth such other
provisions in respect thereof as may be required by the Indenture or as
may, consistent with the provisions of the Indenture, be deemed
appropriate by ARG II and the Trustee, or to correct or amplify the
description of any such property or assets at any time so mortgaged,
pledged, conveyed and transferred to the Trustee;
(d) to cure any mistake, ambiguity, defect, or inconsistency
or to correct or supplement any provision contained herein or in any
Series Supplement or in any Notes issued hereunder;
(e) to provide for uncertificated Notes in addition to
certificated Notes;
(f) to add to or change any of the provisions of the Indenture
to such extent as shall be necessary to permit or facilitate the
77
issuance of Notes in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes of one or
more Series and to add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(h) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture;
PROVIDED, HOWEVER, that, as evidenced by an Opinion of
Counsel, such action shall not adversely affect in any material respect
the interests of any Noteholders. Upon the request of ARG II and upon
receipt by the Trustee of the documents described in SECTION 2.2
hereof, the Trustee shall join with ARG II in the execution of any
Series Supplement authorized or permitted by the terms of this
Indenture and shall make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not
be obligated to enter into such Series Supplement which affects its own
rights, duties or immunities under this Indenture or otherwise.
SECTION 12.2. WITH CONSENT OF THE NOTEHOLDERS.
Except as provided in SECTIONS 8.23, 9.4 and 12.1, the
provisions of this Indenture, any Series Supplement (unless otherwise provided
in such Series Supplement) and each other Related Document to which ARG II is a
party may from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to in writing by ARG II, the
Trustee, any applicable Enhancement Provider and the Required Noteholders of
each Outstanding Series of Notes and the Rating Agency Confirmation Condition is
satisfied for each Outstanding Series of Notes; PROVIDED that the Rating Agency
Confirmation Condition does not need to be satisfied for any Outstanding Series
of Notes in respect of which the consent of 100% of the Noteholders of such
Outstanding Series of Notes has been obtained; PROVIDED further, that no consent
of any Noteholders of any particular Outstanding Series of Notes shall be
required to any amendment, modification or waiver of or to this Indenture, any
Series Supplement and any Related Document if such amendment, modification or
waiver does not adversely affect in any material respect the Noteholders of such
Outstanding Series of Notes (as substantiated by an Opinion of Counsel to such
effect) and the Rating Agency Confirmation Condition is satisfied with respect
to such Series of Notes; PROVIDED further that any amendment to any
Group-Specific Related Document shall be deemed not to affect in any material
respect the Noteholders of each Outstanding Series of Notes that is not a Series
of Notes for which such Group-Specific Related Documents have been designated.
Notwithstanding the foregoing:
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(i) any modification of this SECTION 12.1, any change
in any requirement hereunder that any particular action be
taken by Noteholders holding the relevant percentage in
principal amount of the Notes or any change in the definition
of the terms "Group III Aggregate Asset Amount",
"Group-Specific Aggregate Asset Amount", "Group III Operating
Lease Asset Amount", "Invested Amount", "Invested Percentage",
"Group III Manufacturer Program", "Required Noteholders",
"Supermajority Noteholders" or "Requisite Investors" or the
applicable amount of Enhancement or any defined term used for
the purpose of any such definitions shall require the consent
of each affected Noteholder; and
(ii) any amendment, waiver or other modification that
would (a) extend the due date for, or reduce the amount of any
scheduled repayment or prepayment of principal of or interest
on any Note (or reduce the principal amount of or rate of
interest on any Note) shall require the consent of each
affected Noteholder; (b) approve the assignment or transfer by
ARG II of any of its rights or obligations hereunder or under
any other Related Document to which it is a party except
pursuant to the express terms hereof or thereof shall require
the consent of each affected Noteholder; (c) release any
obligor under any Related Document to which it is a party
except pursuant to the express terms of such Related Document
shall require the consent of each affected Noteholder; (d)
affect adversely the interests, rights or obligations of any
Noteholder individually in comparison to any other Noteholder
shall require the consent of such Noteholder; or (e) amend or
otherwise modify any Amortization Event shall require the
consent of each affected Noteholder.
No failure or delay on the part of any Noteholder or the Trustee in exercising
any power or right under this Indenture or any other Related Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right.
SECTION 12.3. SUPPLEMENTS.
Each amendment or other modification to this Indenture or the
Notes shall be set forth in a Supplement. The initial effectiveness of each
Supplement shall be subject to the satisfaction of the Rating Agency
Confirmation Condition with respect to such Supplement. In addition to the
manner provided in SECTIONS 12.1 and 12.2, each Series Supplement may be amended
as provided in such Series Supplement.
SECTION 12.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to
it by a Noteholder of a Note is a continuing consent by the Noteholder and every
subsequent Noteholder of a Note or portion of a Note that evidences the same
debt as the consenting Noteholder's Note, even if notation of the consent is not
made on any Note. However,
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any such Noteholder or subsequent Noteholder may revoke the consent as to his
Note or portion of a Note if the Trustee receives written notice of revocation
before the date the amendment or waiver becomes effective. An amendment or
waiver becomes effective in accordance with its terms and thereafter binds every
Noteholder. ARG II may fix a record date for determining which Noteholders must
consent to such amendment or waiver.
SECTION 12.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment or waiver on any Note thereafter authenticated. ARG II in exchange for
all Notes may issue and the Trustee shall authenticate new Notes that reflect
the amendment or waiver. Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment or waiver.
SECTION 12.6. THE TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any Supplement authorized pursuant to
this ARTICLE 12 if the Supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does have such an adverse
effect, the Trustee may, but need not, sign it. In signing such Supplement, the
Trustee shall be entitled to receive, if requested, an indemnity reasonably
satisfactory to it and to receive and, subject to SECTION 10.1, shall be fully
protected in relying upon, an Officer's Certificate and an Opinion of Counsel as
conclusive evidence that such Supplement is authorized or permitted by this
Indenture and that it will be valid and binding upon ARG II in accordance with
its terms.
ARTICLE 13.
MISCELLANEOUS
SECTION 13.1. NOTICES.
(a) Any notice or communication by ARG II or the Trustee to
the other shall be in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to
the other's address:
If to ARG II:
ARG Funding Corp. II
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to: (▇▇▇) ▇▇▇-▇▇▇▇
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If to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration - Asset-Backed
Securities Unit
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ARG II or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications;
PROVIDED, HOWEVER, ARG II may not at any time designate more than a total of
three (3) addresses to which notices must be sent in order to be effective.
Any notice (i) given in person shall be deemed delivered on
the date of delivery of such notice, (ii) given by first class mail shall be
deemed given five (5) days after the date that such notice is mailed, (iii)
delivered by telex or telecopier shall be deemed given on the date of delivery
of such notice, and (iv) delivered by overnight air courier shall be deemed
delivered one Business Day after the date that such notice is delivered to such
overnight courier.
Notwithstanding any provisions of this Indenture to the
contrary, the Trustee shall have no liability based upon or arising from the
failure to receive any notice required by or relating to this Indenture or the
Notes.
If ARG II mails a notice or communication to Noteholders, it
shall mail a copy to the Trustee at the same time.
(b) Where the Indenture provides for notice to Noteholders of
any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if sent in writing and mailed, first-class
postage prepaid, to each Noteholder affected by such event, at its
address as it appears in the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed (if any) for
the giving of such notice. In any case where notice to Noteholder is
given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given. Where this Indenture
provides for notice in any manner, such notice may be waived in writing
by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
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In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made that is satisfactory to
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 13.2. COMMUNICATION BY NOTEHOLDERS WITH OTHER
NOTEHOLDERS.
Noteholders may communicate with other Noteholders with
respect to their rights under this Indenture or the Notes.
SECTION 13.3. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by ARG II to the Trustee to
take any action under this Indenture, ARG II shall furnish to the Trustee an
Officer's Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in SECTION 13.4) stating
that, in the opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action have been
complied with.
SECTION 13.4. STATEMENTS REQUIRED IN CERTIFICATE.
Each certificate with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that the Person giving such certificate has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements contained in
such certificate are based;
(c) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.5. RULES BY THE TRUSTEE.
The Trustee may make reasonable rules for action by or at a
meeting of Noteholders.
SECTION 13.6. NO RECOURSE AGAINST OTHERs.
A director, Authorized Officer, employee or stockholder of ARG
II, as such, shall not have any liability for any obligations of ARG II under
the Notes or this
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Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Noteholder by accepting a Note waives and
releases all such liability.
SECTION 13.7. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture.
One signed copy is enough to prove this Indenture.
SECTION 13.8. BENEFITS OF INDENTURE.
Except as set forth in a Series Supplement, nothing in this
Indenture or in the Notes, expressed or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under the Indenture.
SECTION 13.9. PAYMENT ON BUSINESS DAY.
In any case where any payment date, redemption date or
maturity date of any Note shall not be a Business Day, then (notwithstanding any
other provision of this Indenture) payment of interest or principal (and
premium, if any), as the case may be, need not be made on such date but may be
made on the next succeeding Business Day with the same force and effect as if
made on the payment date, redemption date, or maturity date; PROVIDED, HOWEVER,
that no interest shall accrue for the period from and after such payment date,
redemption date, or maturity date, as the case may be.
SECTION 13.10. GOVERNING LAW.
The laws of the State of New York shall govern and be used to
construe this Indenture and the Notes and the rights and duties of ARG II, the
Trustee, Registrar, Paying Agent, Noteholders and Note Owners.
SECTION 13.11. SUCCESSORS.
All agreements of ARG II in this Indenture and the Notes shall
bind its successor; PROVIDED, HOWEVER, ARG II may not assign its obligations or
rights under this Indenture or any Related Document. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 13.12. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby. If any provision of this Indenture shall be, or shall be deemed to be,
illegal, invalid or unenforceable under the applicable laws and regulations of
one jurisdiction, such provision shall not thereby be rendered illegal, invalid
or unenforceable in any other jurisdiction.
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SECTION 13.13. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 13.14. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table, and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.15. TERMINATION; GROUP III COLLATERAL.
This Indenture, and any grants, pledges and assignments
hereunder, shall become effective concurrently with the issuance of the first
Series of Notes and shall terminate when (a) all Group III ARG II Obligations
and any Group-Specific ARG II Obligations shall have been fully paid and
satisfied, (b) the obligations of each Enhancement Provider under any
Enhancement and related documents have terminated, and (c) any Enhancement shall
have terminated, at which time the Trustee, at the request of ARG II and upon
receipt of an Officer's Certificate from ARG II to the effect that the
conditions in CLAUSES (A), (B) and (C) above have been complied with and upon
receipt of a certificate from the Trustee and each Enhancement Provider to the
effect that the conditions in CLAUSES (A), (B) and (C) above relating to Group
III ARG II Obligations or Group-Specific ARG II Obligations, as applicable, to
the Noteholders and each Enhancement Provider have been complied with, shall
reassign (without recourse upon, or any warranty whatsoever by, the Trustee) and
deliver all Group III Collateral and any Group-Specific Collateral and documents
then in the custody or possession of the Trustee promptly to ARG II.
ARG II and the Group III Secured Parties hereby agree that, if
any funds remain on deposit in the Group III Collection Account after the
termination of this Indenture, such amounts shall be released by the Trustee and
paid to ARG II.
ARG II and the Group-Specific Secured Parties hereby agree
that, if any funds remain on deposit in the Group-Specific Collection Account
after the termination of this Indenture, such amounts shall be released by the
Trustee and paid to ARG II.
SECTION 13.16. NO BANKRUPTCY PETITION AGAINST ARG II.
Each of the Group III Secured Parties, any Group-Specific
Secured Parties and the Trustee hereby covenants and agrees that, prior to the
date which is one year and one day after the payment in full of the latest
maturing Note, it will not institute against, encourage anyone to institute
against, or join or cooperate with any other Person in instituting against, ARG
II any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any Federal or state bankruptcy or
84
similar law; PROVIDED, HOWEVER, that nothing in this SECTION 13.16 shall
constitute a waiver of any right to indemnification, reimbursement or other
payment from ARG II pursuant to this Indenture. In the event that any such Group
III Secured Party, such Group-Specific Secured Party or the Trustee takes action
in violation of this SECTION 13.16, ARG II shall file an answer with the
bankruptcy court or otherwise properly contesting the filing of such a petition
by any such Group III Secured Party, such Group-Specific Secured Party or the
Trustee against ARG II or the commencement of such action and raising the
defense that such Group III Secured Party, such Group-Specific Secured Party or
the Trustee has agreed in writing not to take such action and should be estopped
and precluded therefrom and such other defenses, if any, as its counsel advises
that it may assert. The provisions of this SECTION 13.16 shall survive the
termination of this Indenture, and the resignation or removal of the Trustee.
Nothing contained herein shall preclude participation by any Group III Secured
Party, any Group-Specific Secured Party or the Trustee in the assertion or
defense of its claims in any such proceeding involving ARG II.
SECTION 13.17. NO RECOURSE.
The obligations of ARG II under this Indenture are solely the
obligations of ARG II. The Notes shall be non-recourse obligations of ARG II and
shall be limited in right of payment to amounts available from the Group III
Collateral or any Group-Specific Collateral as provided in this Indenture and
ARG II shall not otherwise be liable for payments on the Notes. No recourse
shall be had for the payment of any amount owing in respect of any fee hereunder
or any other obligation or claim arising out of or based upon this Indenture
against any stockholder, employee, officer, director or incorporator of ARG II.
Fees, expenses or costs payable by ARG II hereunder shall be payable by ARG II
to the extent and only to the extent that ARG II is reimbursed therefor pursuant
to the Group III Leasing Company Indentures, any Group-Specific Leasing Company
Indentures or the Related Documents, or funds are then available or thereafter
become available for such purpose pursuant to ARTICLE 5. Nothing in this SECTION
13.17 shall be construed to limit the Trustee from exercising its rights
hereunder with respect to the Group III Collateral or any Group-Specific
Collateral.
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IN WITNESS WHEREOF, the Trustee and ARG II have caused this
Base Indenture to be duly executed by their respective duly authorized officers
as of the day and year first written above.
ARG FUNDING CORP. II,
as Issuer
By:
---------------------------------------------
Name:
Title: Vice President and Assistant Secretary
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------------------
Name:
Title:
86
DEFINITIONS TO ARG II BASE INDENTURE
SCHEDULE I
TO THE
BASE INDENTURE
DEFINITIONS LIST
"ACCRUED AMOUNTS" means, with respect to any Series of Notes
(or any class of such Series of Notes), the amount, if any, specified in the
applicable Series Supplement.`
"ACCUMULATION PERIOD" means, with respect to any Series of
Notes, the period, if any, specified in the applicable Series Supplement.
"ADDITIONAL BASE RENT" is defined in SECTION 6 of Annex B to
each of the Group III Leases.
"ADMINISTRATIVE SUBACCOUNT" means an internal administrative
account established by the Trustee for record keeping purposes to facilitate the
proper allocation of Group III Collections or Group-Specific Collections within
the Group III Collection Account or Group-Specific Collection Account, as
applicable.
"AFFILIATE" means, with respect to any specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified. For purposes of this definition, "control" means the power to direct
the management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise; and "controlled" and
"controlling" have meanings correlative to the foregoing.
"AFFILIATE ISSUER" means any special purpose entity that is an
Affiliate of ANC that has entered into financing arrangements secured by one or
more Series of Notes.
"AGENT" means any Registrar or Paying Agent.
"AGENT MEMBERS" means members of, or participants in, DTC.
"AGGREGATE INVESTED AMOUNT" means the sum of the Invested
Amounts with respect to all Series of Notes then outstanding.
"ALAMO" means Alamo Rent-A-Car, Inc., a Florida corporation,
and any successor thereto.
"ALAMO LEASING" means Alamo Financing L.P., a special purpose
Delaware limited partnership, and any successor thereto.
"AMORTIZATION COMMENCEMENT DATE" means, with respect to a
Series of Notes, the date on which an Amortization Event for such Series is
deemed to have occurred pursuant to SECTION 9.1 of this Base Indenture.
"AMORTIZATION EVENT" with respect to each Series of Notes, has
the meaning specified in SECTION 9.1 of this Base Indenture.
"AMORTIZATION PERIOD" means, with respect to any Series of
Notes, the period following the Revolving Period (as defined in any related
Series Supplement) which shall be the Accumulation Period, the Controlled
Amortization Period, or the Rapid Amortization Period, each as defined in the
applicable Series Supplement.
"ANNEX" means one of the annexes to the Group III Leases.
"ANNUAL NOTEHOLDERS' TAX STATEMENT" is defined in SECTION 6.4
of this Base Indenture.
"ANC" means ANC Rental Corporation., a Delaware corporation,
and any successor thereto.
"ARG II" is defined in the preamble to this Base Indenture.
"ARG II COMMITTED PURCHASER" means a special purpose company,
that is an Affiliate of ANC, that has committed to purchase a Series of Notes
from ARG II from time to time and that finances such purchases with, among other
things, the proceeds of commercial paper notes issued by such special purpose
company.
"ARG II LIQUIDATION EVENT" means, with respect to any Series
of Notes, one of the events specified in the applicable Series Supplement.
"ARG II OBLIGATIONS" is defined in SECTION 9.2(A) of this Base
Indenture.
"ASSETS" means any interest of any kind in any assets or
property of any kind, tangible or intangible, real, personal or mixed, now owned
or hereafter acquired by ARG II.
"ASSIGNMENT AGREEMENT" means an agreement with respect to each
Manufacturer and its Group III Manufacturer Program, entered into or to be
entered into among a Leasing Company and/or one or more Group III Lessees, as
assignor, and the Master Collateral Agent, as assignee, and acknowledged by such
Manufacturer, assigning to the Master Collateral Agent certain of such Leasing
Company's and/or such Group III Lessees' rights, title and interest in such
Manufacturer's Group III Manufacturer Program as it relates to Vehicles
purchased from such Manufacturer.
"AUTHORIZED FLEET PURCHASER" means a Person authorized by a
Manufacturer to acquire Vehicles pursuant to, and to enforce such Manufacturer's
obligations under, the Group III Manufacturer Program of such Manufacturer.
2
"AUTHORIZED OFFICER" means (a) as to ARG II, any of the
President, any Vice-President, the Secretary or any Assistant Secretary or the
Treasurer or any Assistant Treasurer and those officers, employees and agents
whose signatures and incumbency shall have been certified to the Trustee in such
certificates as may be delivered by ARG II to the Trustee from time to time as
duly authorized to execute and deliver any instruments, certificates, notices
and other documents in connection herewith on behalf of ARG II and to take, from
time to time, all other actions on behalf of ARG II in connection therewith and
(b) as to any Leasing Company, any of the President, any Vice President, the
Secretary or any Assistant Secretary, the Treasurer or any Assistant Treasurer
thereof or of any general partner, managing member or manager thereof, and those
officers, employees and agents of any such general partner, managing member or
manager whose signatures and incumbency shall have been certified to ARG II in
such certificates as may be delivered by such general partner, managing member
or manager to ARG II from time to time as duly authorized to execute and deliver
the related Leasing Company Base Indentures and any instruments, certificates,
notices and other documents in connection therewith on behalf of such Leasing
Company and to take, from time to time, all other actions on behalf of such
Leasing Company in connection therewith.
"BANKRUPTCY CODE" means The Bankruptcy Reform Act of 1978, as
amended from time to time, and as codified as 11 U.S.C. Section 101 ET SEQ.
"BASE INDENTURE" means the Amended and Restated Base
Indenture, dated as of August 30, 2002, between ARG II and the Trustee, as
amended, restated, modified or supplemented from time to time, exclusive of
Series Supplements.
"BENEFICIARY" is defined in the preamble of the Master
Collateral Agency Agreement.
"BOOK-ENTRY NOTES" means beneficial interests in the Notes,
ownership and transfers of which shall be evidenced or made through book entries
by a Clearing Agency as described in SECTION 2.16 of this Base Indenture;
provided that after the occurrence of a condition whereupon book-entry
registration and transfer are no longer permitted and Definitive Notes are
issued to the Note Owners, such Definitive Notes shall replace Book-Entry Notes.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which banks are authorized or required by law to be closed in New
York City, New York or Chicago, Illinois.
"CAPITALIZED COST" means, (i) with respect to each Vehicle
(other than Refinanced Vehicles) the amount payable to the Manufacturer, dealer
or other seller selling such Group III Vehicle in order to purchase such Group
III Vehicle, as established by the invoice delivered in connection with such
Group III Vehicle, and (ii) with respect to each Vehicle that is a Refinanced
Vehicle, the initial purchase price thereof (as established by the invoice
delivered in connection with such Group III Vehicle at the time the Group III
Lessee purchased such Group III Vehicle) less all Group III Depreciation Charges
3
accrued through the Group III Vehicle Funding Date for such Group III Vehicle;
PROVIDED, HOWEVER, that with respect to any Group III Vehicle, "Capitalized
Cost" may include dealer profit to the extent consistent with reasonable
industry standards and delivery Charges but shall not include any taxes,
registration fees or titling fees with respect to such Group III Vehicle.
"CARTEMPS" means Spirit Rent-A-Car, Inc. d/b/a Alamo, an Ohio
corporation, and any successor thereto.
"CARTEMPS LEASING" means CarTemps Financing L.P., a special
purpose Delaware limited partnership, and any successor thereto.
"CARRYING CHARGES" means, as of any day, without duplication,
the aggregate of all Trustee fees and other fees and expenses and indemnity
amounts, if any, payable by ARG II under the Indenture or the other Related
Documents and all other operating expenses of ARG II (including any management
fees), in each case, which have accrued since the most recent Distribution Date
and any such amounts which had accrued as of the most recent Distribution Date
and remain unpaid.
"CERTIFICATED SECURITY" means a "certificated security" within
the meaning of the applicable UCC.
"CERTIFICATED SECURITIES COLLATERAL" means the Group III
Leasing Company Notes.
"CLEARING AGENCY" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act or any successor
provision thereto or Euroclear and Clearstream.
"CLEARING AGENCY PARTICIPANT" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, a
corporation organized under the laws of the Duchy of Luxembourg.
"CLOSING DATE" means the Initial Closing Date or any Series
Closing Date.
"CODE" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time, and any successor statute of
similar import, in each case as in effect from time to time. References to
sections of the Code also refer to any successor sections.
"COMPANY ORDER" and "COMPANY REQUEST" means a written order or
request signed in the name of ARG II by any one of its Authorized Officers and
delivered to the Trustee.
4
"CONSOLIDATED SUBSIDIARY" means, at any time, with respect to
ARG II or any Leasing Company, any Subsidiary or other entity the accounts of
which would be consolidated with those of ARG II or such Leasing Company, as the
case may be, in its consolidated financial statements as of such time.
"CONTINGENT OBLIGATION" as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that Person (a) with
respect to any indebtedness, lease, dividend, letter of credit or other
obligation of another if the primary purpose or intent thereof by the Person
incurring the Contingent Obligation is to provide assurance to the obligee of
such obligation of another that such obligation of another will be paid or
discharged, or that any agreements relating thereto will be complied with, or
that the holders of such obligation will be protected (in whole or in part)
against loss in respect thereof or (b) under any letter of credit issued for the
account of that Person or for which that Person is otherwise liable for
reimbursement thereof. Contingent Obligation shall include (a) the direct or
indirect guarantee, endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another and (b) any liability of
such Person for the obligations of another through any agreement (contingent or
otherwise) (i) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise), (ii) to maintain the solvency of any balance sheet
item, level of income or financial condition of another or (iii) to make
take-or-pay or similar payments if required regardless of non-performance by any
other party or parties to an agreement, if in the case of any agreement
described under SUBCLAUSE (I) or (II) of this sentence the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported.
"CONTRACTUAL OBLIGATION" means, with respect to any Person,
any provision of any security issued by that Person or of any indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CONTROL" means (a) with respect to a Security Entitlement,
the Trustee (i) is identified in the records of the Securities Intermediary for
such Security Entitlement as the person having such Security Entitlement against
such Security Intermediary or (ii) has obtained the agreement, in writing, of
the Securities Intermediary for such Security Entitlement that it will comply
with orders of the Trustee regarding the transfer or redemption of such Security
Entitlement without further consent of any other person; or (b) with respect to
a United States Security Entitlement, (i) the Trustee is a participant in the
book entry system maintained by the Federal Reserve Bank that is acting as a
fiscal agent for the issuer of such United States Security Entitlement and such
Federal Reserve Bank has indicated by book entry that such United States
Securities Entitlement has been credited to the Trustee's securities account in
such book entry system or (ii) (A) the Trustee (x) is identified in the records
of the Securities Intermediary for such United
5
States Security Entitlement as the person having such Security Entitlement
against such Securities Intermediary or (y) has obtained the agreement, in
writing, of the Securities Intermediary for such Security Entitlement that it
will comply with orders of the Trustee regarding the transfer or redemption of
such Security Entitlement without further consent of any other person, (B) the
Securities Intermediary for such United States Securities Entitlement is a
participant in the book entry system maintained by the Federal Reserve Bank that
is acting as fiscal agent for the issuer of such United States Securities
Entitlement and (C) such Federal Reserve Bank has indicated by book entry that
such United States Securities Entitlement has been credited to such Securities
Intermediary's securities account in such book entry system.
"CONTROLLED AMORTIZATION PERIOD" means, with respect to any
Series of Notes, the period specified, if any, in the applicable Series
Supplement.
"CONTROLLED DISTRIBUTION AMOUNT" means, with respect to any
Series of Notes, the amount (or amounts), if any, specified in the applicable
Series Supplement.
"CONTROLLED GROUP" means, with respect to any Person, such
Person, whether or not incorporated, and any corporation, trade or business that
is required to be treated, along with such Person, as a single controlled group
of corporations or a controlled group of trades or businesses as described in
Section 414(b) of the Code.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered which office at the date of the execution of the Base Indenture is
located at Bank of New York, Asset Backed Securities, ▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇, or at any other time at such
other address as the Trustee may designate from time to time by notice to the
Noteholders and ARG II.
"DAILY REPORT" is defined in SECTION 4.1(A) of this Base
Indenture.
"DEFINITIONS LIST" means this Definitions List, as amended,
restated, supplemented or modified from time to time in accordance with the
terms of the Indenture.
"DEFINITIVE NOTES" is defined in SECTION 2.16(E) of this Base
Indenture.
"DELIVERY" has the meaning assigned thereto in Section 8-301
of Revised Article 8.
"DETERMINATION DATE" means the date three Business Days prior
to each Distribution Date.
"DISTRIBUTION ACCOUNT" means, with respect to any Series of
Notes, an account established as such pursuant to the applicable Series
Supplement.
6
"DISTRIBUTION DATE" means, unless otherwise specified in any
Series Supplement for the related Series of Notes, the 20th day of each calendar
month, or, if such day is not a Business Day, the next succeeding Business Day,
commencing May 20, 2002.
"DOLLAR" and the symbol "$" mean the lawful currency of the
United States.
"DTC" means The Depository Trust Company.
"ENHANCEMENT" means, with respect to any Series of Notes, the
rights and benefits provided to the Noteholders of such Series of Notes pursuant
to any letter of credit, surety bond, cash collateral account,
overcollateralization, issuance of subordinated Notes, spread account,
guaranteed rate agreement, maturity guaranty facility, tax protection agreement,
interest rate swap or any other similar arrangement.
"ENHANCEMENT AGREEMENT" means any contract, agreement,
instrument or document governing the terms of any Enhancement or pursuant to
which any Enhancement is issued or outstanding.
"ENHANCEMENT AGREEMENT EVENT OF DEFAULT" means with respect to
any Series of Notes any event of default under any Enhancement Agreement
specified in the applicable Series Supplement, after giving effect to any
applicable cure periods.
"ENHANCEMENT AMOUNT" is defined, with respect to any Series of
Notes, in the applicable Series Supplement.
"ENHANCEMENT DEFICIENCY" is defined, with respect to any
Series of Notes, in the applicable Series Supplement.
"ENHANCEMENT PERCENTAGE" means, with respect to any Series of
Notes or class of Notes, the percentage, if any, specified in the applicable
Series Supplement.
"ENHANCEMENT PROVIDER" means the Person providing any
Enhancement as designated in the applicable Series Supplement, other than any
Noteholders the Notes of which are subordinated to any class or Series of Notes.
"ENHANCEMENT PROVIDER ACCOUNT" is defined, with respect to any
Series of Notes, in the applicable Series Supplement.
"ENHANCEMENT PROVIDER'S OFFICE" is defined, with respect to
any Series of Notes, in the applicable Series Supplement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, in each case as
in effect from time to time. References to sections of ERISA also refer to any
successor sections.
7
"EUROCLEAR" means Euroclear System.
"EVENT OF BANKRUPTCY" shall be deemed to have occurred with
respect to a Person if:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up,
or composition or readjustment of debts of such Person, the appointment
of a trustee, receiver, custodian, liquidator, assignee, sequestrator
or the like for such Person or all or any substantial part of its
assets, or any similar action with respect to such Person under any law
relating to bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, and such case or proceeding shall
continue undismissed, or unstayed and in effect, for a period of 60
consecutive days; or an order for relief in respect of such Person
shall be entered in an involuntary case under the federal bankruptcy
laws or other similar laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency, reorganization,
debt arrangement, dissolution or other similar law now or hereafter in
effect, or shall consent to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) for such Person or for any substantial part of
its property, or shall make any general assignment for the benefit of
creditors; or
(c) the board of directors or other similar governing body of
such Person (if such Person is a corporation or similar entity) shall
vote to implement any of the actions set forth in CLAUSE (B) above.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXPECTED FINAL DISTRIBUTION DATE" means, with respect to any
Series of Notes, the date, if any, stated in the applicable Series Supplement as
the date on which such Series of Notes is expected to be paid in full.
"FINANCE GUIDE" means the Black Book Official Finance/Lease
Guide.
"FINANCED VEHICLE" means a Group III Eligible Vehicle subject
to a Financing Lease.
"FINANCING LEASE" means each of the Group III Leases as
supplemented by Annex B to such Group III Lease.
"GAAP" means those principles of accounting set forth in
pronouncements of the Financial Accounting Standards Board, the American
8
Institute of Certified Public Accountants or which have other substantial
authoritative support and are applicable in the circumstances as of the date of
a report, as such principles are from time to time supplemented and amended.
"GENERAL INTANGIBLES COLLATERAL" means ARG II's right, title
and interest in and to all of the assets, property and interests in property,
whether now owned or hereafter acquired or created, together with the portion of
the Master Collateral with respect to which the Trustee in favor of the Group
III Secured Parties is named as a Beneficiary in SECTION 3.1(A)(I) (other than
the Group III Leasing Company Notes), (II) and (III) of this Base Indenture.
"GLOBAL NOTE" means a Restricted Global Note, a Temporary
Global Note or a Permanent Global Note.
"GM" means General Motors Corporation, a Delaware corporation,
or its successor.
"GOVERNMENTAL AUTHORITY" means any Federal, state, local or
foreign court or governmental department, commission, board, bureau, agency,
authority, instrumentality or regulatory body.
"GROUP III ACQUIRED VEHICLE" means a Group III Eligible
Vehicle that is acquired or owned by, and titled in the name of, a Leasing
Company and leased to a Group III Lessee under a Group III Operating Lease on or
after the Group III Lease Commencement Date.
"GROUP III ADDITIONAL LEASING COMPANY" means a special purpose
wholly-owned Subsidiary of ANC which is engaged in the business of acquiring,
financing, refinancing and leasing Group III Vehicles pursuant to a Group III
Additional Leasing Company Lease and which has issued an Group III Additional
Leasing Company Note to ARG II pursuant to a Group III Additional Leasing
Company Indenture, as supplemented by a Group III Additional Leasing Company
Supplement, that has been included in the Group III Collateral in accordance
with the requirements of SECTION 8.28 of this Base Indenture.
"GROUP III ADDITIONAL LEASING COMPANY INDENTURE" means a Base
Indenture between a Group III Additional Leasing Company and the Group III
Additional Leasing Company Trustee party thereto pursuant to which such Group
III Additional Leasing Company has issued a Group III Additional Leasing Company
Note to ARG II, which note ARG II has pledged to the Trustee on behalf of the
Group III Secured Parties in accordance with the Granting Clause of the Series
Supplement and each other Group III Series Supplement, as the same may be
amended, restated, modified or supplemented from time to time in accordance with
its terms (exclusive of any supplement thereto creating a Series of Notes that
is not a Group III Additional Leasing Company Note).
9
"GROUP III ADDITIONAL LEASING COMPANY LEASE" means a Master
Motor Vehicle Lease and Servicing Agreement (inclusive of any annexes thereto)
among a Group III Additional Leasing Company, one or more Group III Additional
Leasing Company Lessees and ANC, as servicer and guarantor, that is security for
the obligations of such Group III Additional Leasing Company under a Group III
Additional Leasing Company Note that has been issued to ARG II which note ARG II
has pledged to the Trustee on behalf of the Group III Secured Parties in
accordance with the requirements of the Granting Clause of the Series Supplement
and each other Group III Series Supplement, as the same may be amended,
restated, modified or supplemented from time to time in accordance with its
terms.
"GROUP III ADDITIONAL LEASING COMPANY LESSEE" means a
wholly-owned Subsidiary of ANC which regularly operates a United States domestic
daily car rental business and which has entered into an Group III Additional
Leasing Company Lease with a Group III Additional Leasing Company.
"GROUP III ADDITIONAL LEASING COMPANY NOTE" means a Variable
Funding Rental Car Asset Backed Note issued to ARG II pursuant to a Group III
Additional Leasing Company Indenture, as supplemented by a Group III Additional
Leasing Company Supplement, which has been pledged by ARG II to the Trustee for
the benefit of the Group III Secured Parties in accordance with the Granting
Clause of the Series Supplement and each other Group III Series Supplement, as
the same may be amended, restated, modified or supplemented from time to time in
accordance with its terms.
"GROUP III ADDITIONAL LEASING COMPANY RECEIVABLES TRUST
AGREEMENT" means a trust agreement between a Group III Additional Leasing
Company, as grantor, and the trustee party thereto, that is security for the
obligations of such Group III Additional Leasing Company under a Group III
Additional Leasing Company Note that has been issued to ARG II and pledged by
ARG II to the Trustee for the benefit of the Group III Secured Parties in
accordance with the requirements of the Granting Clause of the Series Supplement
and each other Group III Series Supplement, as the same may be amended,
restated, modified or supplemented from time to time in accordance with its
terms.
"GROUP III ADDITIONAL LEASING COMPANY RELATED DOCUMENTS"
means, with respect to any Group III Additional Leasing Company, the Group III
Additional Leasing Company Note issued by such Group III Additional Leasing
Company, the Group III Additional Leasing Company Indenture, as supplemented by
the Group III Additional Leasing Company Supplement, pursuant to which such
Group III Additional Leasing Company Note was issued and the Group III
Additional Leasing Company Receivables Trust Agreement.
"GROUP III ADDITIONAL LEASING COMPANY SUPPLEMENT" means a
Series Supplement to a Group III Additional Leasing Company Indenture pursuant
to which a Group III Additional Leasing Company Note has been issued to ARG II
and pledged by ARG II to the Trustee for the benefit of the Group III Secured
Parties in accordance with
10
the requirements of the Granting Clause of the Series Supplement and each other
Group III Series Supplement, as the same may be amended, restated, modified or
supplemented from time to time in accordance with its terms.
"GROUP III ADDITIONAL LEASING COMPANY TRUSTEE" means the party
named as the trustee in a Group III Additional Leasing Company Indenture until a
successor replaces it in accordance with the applicable provisions of such Group
III Additional Leasing Company Indenture and thereafter means the successor
serving thereunder.
"GROUP III ADDITIONAL LESSEE CLOSING DATE" means the initial
Group III Vehicle Funding Date with respect to Group III Vehicles (including
Group III Refinanced Vehicles) leased by a Group III Additional Lessee.
"GROUP III ADDITIONAL LESSEES" means those Subsidiaries of ANC
from time to time becoming lessees under a Group III Lease in accordance with
the requirements of such Group III Lease.
"GROUP III AGGREGATE ASSET AMOUNT" means, for any date of
determination, the sum, rounded to the nearest $100,000, of (i) the Group III
Net Book Value of all Group III Program Vehicles that are Group III Eligible
Vehicles leased under the Group III Leases as of such date and not turned in to
the Manufacturer thereof pursuant to its Group III Manufacturer Program, not
delivered for Group III Auction pursuant to any such Group III Manufacturer
Program or not otherwise sold or deemed to be sold under the related Group III
Leasing Company Related Documents, PLUS (ii) the Group III Net Book Value of all
Group III Non-Program Vehicles that are Group III Eligible Vehicles leased under
the Group III Leases as of such date not otherwise sold or deemed to be sold
under the related Group III Leasing Company Related Documents, PLUS (iii) all
amounts receivable by any Group III Lessee or any Leasing Company as of such
date from Manufacturers which are Group III Eligible Program Manufacturers under
Group III Manufacturer Programs with such Manufacturers (other than Group III
Excluded Payments) with respect to Group III Eligible Vehicles (other than Group
III Exchanged Vehicles) turned in to such Manufacturers pursuant to any such
Group III Manufacturer Program or delivered for Group III Auction pursuant to
any such Group III Manufacturer Program and the aggregate of all Group III
Eligible Receivables owned by a Leasing Company or a Group III Lessee financed
under the related Group III Leasing Company Indenture or Group III Lease, as
applicable, and owed by Manufacturers which are Group III Eligible Program
Manufacturers, PLUS (iv) with regard to Group III Eligible Vehicles leased under
the Group III Leases that have been delivered for Group III Auction pursuant to
a Group III Manufacturer Program with a Manufacturer which is a Group III
Eligible Program Manufacturer, all amounts receivable (other than amounts
specified in CLAUSE (III) above) from any person or entity in connection with
the Group III Auction of such Group III Eligible Vehicles as of such date, PLUS
(v) with regard to Group III Eligible Vehicles leased under the Group III Leases
that have been turned in to the Manufacturer, delivered for Group III Auction or
otherwise sold, any Group III Casualty Payments or Group III Termination
Payments with respect to such Group III Eligible Vehicles due and payable as of
such date under the Group III Leases, PLUS (vi)
11
with regard to Group III Eligible Vehicles leased under the Group III Leases
that have been turned in to the Manufacturer, delivered for Group III Auction or
otherwise sold, any accrued and unpaid Group III Monthly Base Rent under the
Group III Leases with respect to such Group III Eligible Vehicles (net of
amounts set forth in CLAUSES (III), (IV) and (V) above), PLUS (vii) cash and
Permitted Investments on deposit in the Group III Leasing Company Collection
Accounts, MINUS (viii) any Group III Ineligible Asset Amount on such date.
"GROUP III ALAMO LEASE" means the Master Motor Vehicle Lease
and Servicing Agreement, dated as of May 6, 2002 (inclusive of any annexes
thereto), among Alamo Leasing, Alamo and the Group III Additional Lessees, if
any, as the lessees thereunder, and ANC, as guarantor and servicer, as the same
may be amended, restated, modified or supplemented from time to time in
accordance with its terms.
"GROUP III ALAMO LEASING INDENTURE" means the Base Indenture,
dated as of May 6, 2002, between Alamo Leasing and the Leasing Company Trustee
party thereto, as supplemented by the Series 2002-2 Supplement, dated as of May
6, 2002, as each may be amended, restated, modified or supplemented from time to
time in accordance with its terms (exclusive of any supplement thereto creating
a Series of Notes that is not a Group III Leasing Company Note).
"GROUP III ALAMO LEASING NOTE" means the Variable Funding
Rental Car Asset Backed Note issued to ARG II pursuant to the Group III Alamo
Leasing Indenture as the same may be amended, restated, modified or supplemented
from time to time in accordance with the terms of the Group III Alamo Leasing
Indenture and any successor note thereto.
"GROUP III ALAMO RECEIVABLES TRUST AGREEMENT" means a trust
agreement, dated as of May 6, 2002, between Alamo Leasing, as grantor, and The
Bank of New York (Delaware), as the same may be amended, restated, modified or
supplemented from time to time in accordance with its terms.
"GROUP III ARG II OBLIGATIONS" means all principal and
interest, at any time and from time to time, owing by ARG II on the Group III
Notes and all costs, fees and expenses payable by, or obligations of, ARG II
under the Indenture and/or the Group III Related Documents.
"GROUP III ARG II RECEIVABLES TRUST AGREEMENT" means the trust
agreement dated as of May 6, 2002 between ARG II, as grantor, and The Bank of
New York (Delaware), as trustee.
"GROUP III AUCTION" means the set of procedures specified in a
Group III Guaranteed Depreciation Program for sale or disposition of Group III
Program Vehicles through auctions and at auction sites designated by such Group
III Vehicles' Manufacturer pursuant to such Group III Manufacturer Program.
12
"GROUP III AUTHORIZED FLEET PURCHASER" means a Person
authorized by a Manufacturer to acquire Group III Vehicles pursuant to, and to
enforce such Manufacturer's obligations under, the Group III Manufacturer
Program of such Manufacturer.
"GROUP III BENEFICIAL INTEREST" means the 100% interest owned
by ARG II in the Group III Receivables Trust.
"GROUP III CARTEMPS LEASE" means the Master Motor Vehicle
Lease and Servicing Agreement, dated as of May 6, 2002 (inclusive of any annexes
thereto), among CarTemps Leasing, CarTemps and the Group III Additional Lessees,
if any, as the lessees thereunder, and ANC as guarantor and servicer, as the
same may be amended, restated, modified or supplemented from time to time in
accordance with its terms.
"GROUP III CARTEMPS LEASING INDENTURE" means the Base
Indenture, dated as of May 6, 2002, between CarTemps Leasing and the Leasing
Company Trustee party thereto, as supplemented by the Series 2002-2 Supplement,
dated as of May 6, 2002, as each may be amended, restated, modified or
supplemented from time to time in accordance with its terms (exclusive of any
supplement thereto creating a Series of Notes that is not a Group III Leasing
Company Note).
"GROUP III CARTEMPS LEASING NOTE" means the Variable Funding
Rental Car Asset Backed Note issued to ARG II pursuant to the Group III CarTemps
Leasing Indenture as the same may be amended, restated, modified or supplemented
from time to time in accordance with the terms of the Group III CarTemps Leasing
Indenture and any successor note thereto.
"GROUP III CARTEMPS RECEIVABLES TRUST AGREEMENT" means a trust
agreement, dated as of May 6, 2002, between CarTemps Leasing, as grantor, and
The Bank of New York (Delaware), as the same may be amended, restated, modified
or supplemented from time to time in accordance with its terms.
"GROUP III CASUALTY" means, with respect to any Group III
Vehicle, that (i) such Group III Vehicle is lost, converted or stolen for a
period of at least 90 days, (ii) such Group III Vehicle is destroyed, seized or
otherwise rendered permanently unfit or unavailable for use (including vehicles
that are rejected pursuant to SECTION 2.2 of the Group III Leases) or (iii) in
the case of a Group III Program Vehicle not redesignated under SECTION 14 of the
Group III Leases, the return of such Group III Vehicle cannot be, or is not,
effected for any reason or the Manufacturer thereof did not accept such Group
III Vehicle for repurchase or Group III Auction under the terms of the
applicable Group III Manufacturer Program, in either case, for any reason other
than the Manufacturer's willful refusal or inability to comply with its
obligations under its Group III Manufacturer Program.
"GROUP III CASUALTY PAYMENT" is defined in SECTION 7 of each
of the Group III Leases.
13
"GROUP III COLLATERAL" is defined in SECTION 3.1 of this Base
Indenture.
"GROUP III COLLECTION ACCOUNT" has the meaning specified in
SECTION 5.1(A) of this Base Indenture.
"GROUP III COLLECTIONS" means all payments by, or on behalf
of, any Leasing Company under any Group III Leasing Company Note or Group III
Leasing Company Indenture and (ii) all amounts earned on Permitted Investments
of funds in the Group III Collection Account (including any subaccount thereof).
"GROUP III DEPRECIATION CHARGE" means, with respect to (a) any
Group III Program Vehicle subject to the Group III GM Repurchase Program, the
rate determined by dividing (x) 100% MINUS the repurchase price percentage
specified in respect of such Group III Vehicle pursuant to the terms of the
Group III GM Repurchase Program for the Group III Designated Period applicable
to such Group III Vehicle by (y) the number of days in such Group III Designated
Period (or, if such Group III Vehicle is held past the Group III Designated
Period set forth in the Group III Vehicle Order relating to such Group III
Vehicle, the applicable depreciation charge set forth in the Group III GM
Repurchase Program for such Group III Vehicle calculated on a daily basis), (b)
any Group III Program Vehicle subject to a Group III Manufacturer Program other
than the Group III GM Repurchase Program (but including any other Group III
Manufacturer Program provided by GM), the applicable depreciation charge set
forth in the related Group III Manufacturer Program for such Group III Vehicle
with respect to such Group III Vehicle calculated on a daily basis and (c) any
Group III Non-Program Vehicle, the scheduled daily depreciation charge for such
Group III Vehicle set forth by or on behalf of the Servicer in the Group III
Depreciation Schedule for such Group III Vehicle. If such charge is expressed as
a percentage, the daily Group III Depreciation Charge for such Group III Vehicle
shall be such percentage multiplied by the Capitalized Cost for such Group III
Vehicle calculated on a daily basis. For Group III Vehicles not held for a full
month in the month of acquisition, the Group III Depreciation Charges shall be
prorated by multiplying the applicable depreciation amount by a fraction, the
numerator of which is the number of days from the date depreciation related to
such Group III Vehicle begins to the first day of the next month and the
denominator of which is the number of days in such month. For the month in which
a Group III Program Vehicle is turned back to the applicable Manufacturer, the
Group III Depreciation Charge shall be prorated by multiplying the applicable
depreciation amount by a fraction, the numerator of which is the number of days
from the first day of such month to the Group III Turnback Date for such Group
III Vehicle and the denominator of which is the number of days in such month. In
the event a Group III Vehicle is sold (other than pursuant to the Group III
Manufacturer Program of a Manufacturer), the Group III Depreciation Charge for
the month in which such Group III Vehicle is sold shall be prorated by
multiplying the applicable depreciation amount by a fraction, the numerator of
which is the number of days from the first day of such month to the date
proceeds were received by the Trustee from the sale of such Group III Vehicle
and the denominator of which is the number of days in such month.
14
"GROUP III DEPRECIATION SCHEDULE" means the initial schedule
of estimated daily depreciation prepared by the Servicer with respect to each
type of Group III Non-Program Vehicle that is a Group III Eligible Vehicle, as
revised from time to time by the Servicer thereof in its sole discretion, taking
into consideration the Fair Market Value of such Group III Non-Program Vehicle,
subject to the terms of the applicable Group III Lease and any applicable Series
Supplement.
"GROUP III DESIGNATED PERIOD" means, with respect to any Group
III Program Vehicle subject to the Group III GM Repurchase Program, the period
designated by or on behalf of the Servicer in the applicable Group III Vehicle
Order relating to such Group III Vehicle as the period of time for which the
Servicer expects such Group III Vehicle to be subject to the applicable Group
III Lease.
"GROUP III DESIGNATED VEHICLE" means a Group III Vehicle with
respect to which the Master Collateral Agent has been notified in writing that
such Group III Vehicle has been designated to be exchanged for one or more Group
III Replacement Vehicles or released for exchange pursuant to a Group III
Exchange Agreement.
"GROUP III DISPOSITION DATE" means with respect to any Group
III Program Vehicle or Group III Non-Program Vehicle, (i) if such Group III
Vehicle was sold at Group III Auction pursuant to a Group III Guaranteed
Depreciation Program or returned to a Manufacturer for repurchase pursuant to a
Group III Repurchase Program, the Group III Turnback Date, (ii) if such Group
III Vehicle is a Group III Exchanged Vehicle, the date on which such Group III
Vehicle became a Group III Exchanged Vehicle, (iii) if such Group III Vehicle
was sold to any Person (other than to a Manufacturer pursuant to such
Manufacturer's Group III Repurchase Program or to a third party through an
auction conducted by or through or arranged by the Manufacturer pursuant to its
Group III Guaranteed Depreciation Program), the date on which the proceeds of
such sale are received by the applicable Leasing Company, the Master Collateral
Agent or the Trustee or (iv) if such Group III Vehicle becomes a Group III
Casualty or otherwise ceases to be a Group III Eligible Vehicle (except as a
result of a sale thereof), the date on which a Group III Casualty Payment is
received by the applicable Leasing Company or the Trustee.
"GROUP III DUE DATE" means, with respect to any payment due
from a Manufacturer or auction dealer in respect of a Group III Program Vehicle
turned back for repurchase pursuant to the terms of the related Group III
Manufacturer Program, the thirtieth (30th) day after the Group III Disposition
Date for such Group III Vehicle.
"GROUP III ELIGIBLE PROGRAM MANUFACTURER" means, as of any
date of determination, a Manufacturer who is a "Group III Eligible Program
Manufacturer" under the Series Supplement with respect to each Outstanding
Series of Notes as of such date
"GROUP III ELIGIBLE RECEIVABLE" means a legal, valid and
binding receivable (a) due from a Manufacturer under a Group III Manufacturer
Program (other
15
than Group III Excluded Payments) to any Leasing Company or any Group III Lessee
or a creditor of such Group III Lessee, (b) in respect of a Group III Program
Vehicle purchased by such Manufacturer or sold at auction pursuant to such
Manufacturer's Group III Manufacturer Program, and with respect to which either
(i) the Lien of the Master Collateral Agent was noted on the certificate of
title at the time of purchase or (ii) such Group III Vehicle is in a Group III
Initial Fleet of a Group III Lessee seeking to refinance such receivable, (c)
owned by the Lessor or such Group III Lessee or such creditor free and clear of
all Liens other than Permitted Liens and (d) the right to payments in respect of
which has been assigned by the payee thereof to the Master Collateral Agent and
with respect to which the applicable Leasing Company Trustee is designated as
the Beneficiary pursuant to the Master Collateral Agency Agreement; PROVIDED
that no amount receivable from a Manufacturer under a Group III Manufacturer
Program shall be a Group III Eligible Receivable at the time of being financed
or refinanced if such amount remains unpaid more than ten (10) days after the
Group III Due Date in respect of such payment.
"GROUP III ELIGIBLE VEHICLE" means, on any date of
determination, a Group III Vehicle (i) that either is a Group III Program
Vehicle or a Group III Non-Program Vehicle, in each case at the time of leasing
under the related Group III Lease, (ii) that is not older than forty-eight (48)
months from the date of the original manufacturer invoice therefor, (iii) that
is owned by the related Leasing Company or the related Group III Lessee free and
clear of all Liens other than Permitted Liens, (iv) other than to the extent
permitted under the related Group III Lease, with respect to which the Master
Collateral Agent is noted as the first lienholder on the Certificate of Title
therefor, or the Certificate of Title has been submitted to the appropriate
state authorities for such notation and (v) that is a Group III Related Vehicle
with the Leasing Company Trustee designated as the Beneficiary pursuant to the
Master Collateral Agency Agreement.
"GROUP III EXCESS DAMAGE CHARGES" means, with respect to any
Group III Program Vehicle, the amount charged to the related Leasing Company (or
any Group III Lessee) or deducted from the Group III Repurchase Price, by the
Manufacturer of such Group III Vehicle due to (i) damage over a prescribed
limit, (ii) if applicable, damage not subject to a prescribed limit and (iii)
missing equipment, in each case with respect to such Group III Vehicle at the
time that such Group III Vehicle is turned in to such Manufacturer or its agent
or designee for repurchase or auction pursuant to the applicable Group III
Manufacturer Program.
"GROUP III EXCESS MILEAGE CHARGES" means, with respect to any
Group III Program Vehicle, the amount charged to the related Leasing Company (or
any Group III Lessee) or deducted from the Group III Repurchase Price, by the
Manufacturer of such Group III Vehicle due to the fact that such Group III
Vehicle has mileage over a prescribed limit at the time that such Group III
Vehicle is turned in to such Manufacturer or its agent or designee for
repurchase or auction pursuant to the applicable Group III Manufacturer Program.
16
"GROUP III EXCHANGE AGREEMENT" means an agreement among any
Leasing Company, any Group III Lessee and a Group III Qualified Intermediary
which provides for the assignment by such Leasing Company and such Group III
Lessee, respectively, to such Group III Qualified Intermediary of (a) Group III
Exchanged Vehicles, (b) all Group III Exchanged Vehicle Repurchase Rights, (c)
all right, title and interest of such Leasing Company or such Group III Lessee,
as applicable, in, to and under any contracts for the sale of any Group III
Exchanged Vehicles and (d) all right, title and interest of such Leasing Company
or such Group III Lessee, as applicable, in, to and under any contracts for the
purchase of Group III Replacement Vehicles; PROVIDED that any such Group III
Exchange Agreement will not become effective with respect to Group III Vehicles
subject to the Group III Leases until (i) satisfaction of the Rating Agency
Confirmation and Consent Condition with respect to each Outstanding Series of
Notes with respect thereto and (ii) ARG II shall have received opinions of
counsel with respect to perfection, priority and nonconsolidation in
substantially the same form as those delivered on the Initial Closing Date.
"GROUP III EXCHANGED VEHICLE" means a Group III Designated
Vehicle that (a) (i) if subject to a Group III Manufacturer Program, has been
accepted for repurchase by the Manufacturer under the related Group III
Repurchase Program, or (ii) if not subject to a Group III Repurchase Program,
has been sold to a third party, (b) (i) with respect to which any Leasing
Company or Group III Lessee has received or concurrently receives delivery of
one or more Group III Replacement Vehicles with an aggregate Group III Net Book
Value equal to or greater than the Group III Termination Value of such Group III
Designated Vehicles or (ii) with respect to which the release of the Lien of the
Master Collateral Agent thereon would not cause a Group III Leasing Company
Amortization Event or a Group III Potential Leasing Company Amortization Event
with respect to any series of Group III Leasing Company Notes or an Amortization
Event or Potential Amortization Event with respect to any Series of Notes to
exist and (c) with respect to which the Lien of the Master Collateral Agent has
been released in accordance with the Master Collateral Agency Agreement.
"GROUP III EXCHANGED VEHICLE REPURCHASE RIGHTS" means, with
respect to each Group III Exchanged Vehicle that is a Group III Program Vehicle,
all right, title and interest of any Leasing Company or any Group III Lessee in,
to and under each Group III Manufacturer Program associated with such Group III
Exchanged Vehicle, to the extent such right, title and interest relate to such
Group III Exchanged Vehicle, including any amendments thereof and all monies due
and to become due in respect of such Group III Exchanged Vehicle under or in
connection with such Group III Manufacturer Program, whether payable as Group
III Vehicle repurchase prices, auction sales proceeds, fees, expenses, costs,
indemnities, insurance recoveries, damages for breach of the Group III
Manufacturer Program or otherwise and all rights to compel performance and
otherwise exercise remedies thereunder.
"GROUP III EXCLUDED PAYMENTS" means the following amounts
payable to any Group III Lessee or Leasing Company (whether payable under the
Group III Manufacturer Programs or otherwise): (i) all incentive payments
17
payable to such Group III Lessee or Leasing Company to purchase Group III
Vehicles (but not any amounts payable to such Group III Lessee or Leasing
Company by a Manufacturer as an incentive for selling Group III Program Vehicles
outside of the related Group III Manufacturer Program), (ii) all amounts payable
to such Group III Lessee or Leasing Company as compensation for the preparation
by such Group III Lessee or Leasing Company of newly delivered Group III
Vehicles and (iii) all amounts payable to such Group III Lessee or Leasing
Company in reimbursement for warranty work performed by such Group III Lessee or
Leasing Company on the Group III Vehicles.
"GROUP III FLEET PURCHASE TRANSACTION" means a transaction in
which, with the prior written consent of the Required Noteholders of each
Series, a Group III Lessee purchases in a single transaction a pool of Group III
Eligible Vehicles with respect to which each of the following is true: (a) the
aggregate Group III Net Book Value of the Group III Vehicles in such pool,
together with the aggregate Group III Net Book Value (as of the date of
inclusion in a Group III Initial Fleet) of all Group III Vehicles leased under
such Group III Lease during the preceding 12 calendar months which were acquired
by a Group III Lessee in a Group III Fleet Purchase Transaction, is less than an
amount equal to 15% of the aggregate purchase commitments of all ARG II
Committed Purchasers, (b) all the Group III Vehicles in such pool are titled in
the name of the same wholly owned Subsidiary of ANC, (c) all the certificates of
title for the Group III Vehicles in such pool show the same party as lienholder
and (d) the named lienholder in respect of such Group III Vehicles is rated at
least investment grade by each Rating Agency with respect to each outstanding
Series of Notes.
"GROUP III GM REPURCHASE PROGRAM" means the Group III
Manufacturer Program titled "General Motors Corporation 2002 Model Year Daily
Rental Purchase Guidelines" and any substantially similar Group III Manufacturer
Program of GM for any other model years, pursuant to which the repurchase price
for any Group III Program Vehicle subject thereto is calculated based upon a
specified percentage of the capitalized cost of such Group III Vehicle and the
month of return as set forth in such Group III Manufacturer Program.
"GROUP III GUARANTEED DEPRECIATION PROGRAM" means a guaranteed
depreciation program pursuant to which a Manufacturer has agreed with a Leasing
Company or a Group III Lessee to (a) cause Group III Vehicles manufactured by it
or one of its Affiliates that are turned back during a specified period to be
sold by an auction dealer, (b) cause the proceeds of any such sale to be paid to
such Leasing Company or Group III Lessee by such auction dealer after such sale
and (c) pay to such Leasing Company or such Group III Lessee the excess, if any,
of the guaranteed payment amount with respect to any such Group III Vehicle
calculated as of the date such Group III Vehicle was accepted by such
Manufacturer in accordance with the provisions of such guaranteed depreciation
program over the amount paid to such Leasing Company or such Group III Lessee by
an auction dealer pursuant to CLAUSE (B) above.
"GROUP III INELIGIBLE ASSET AMOUNT" means, as of any date of
determination, an amount equal to the sum (without duplication) of the following
18
amounts to the extent that such amounts are included in clauses (i) through (vi)
of the definition of "Group III Aggregate Asset Amount" for such date: (a) the
aggregate of all amounts receivable (other than Group III Excluded Payments and
amounts receivable in respect of Group III Exchanged Vehicles) as of such date
by a Leasing Company or a Group III Lessee under a Group III Manufacturer
Program with respect to Group III Eligible Vehicles turned in pursuant to such
Group III Manufacturer Program or delivered for Group III Auction pursuant to
such Group III Manufacturer Program from a Manufacturer which was a Group III
Eligible Program Manufacturer with respect to which a Group III Manufacturer
Event of Default specified in CLAUSE (I) or (II) of the definition of "Group III
Manufacturer Event of Default" has occurred, PLUS (b) the aggregate of all Group
III Eligible Receivables as of such date owned by a Leasing Company or a Group
III Lessee financed under the related Group III Leasing Company Indenture or
Group III Lease, as applicable, and owed by a Manufacturer which was a Group III
Eligible Program Manufacturer with respect to which a Group III Manufacturer
Event of Default specified in CLAUSE (I) or (II) of the definition of "Group III
Manufacturer Event of Default" has occurred, PLUS (c) the aggregate of all
amounts receivable (other than Group III Excluded Payments and amounts
receivable in respect of Group III Exchanged Vehicles) as of such date by a
Leasing Company or a Group III Lessee under a Group III Manufacturer Program
with respect to Group III Eligible Vehicles turned in pursuant to such Group III
Manufacturer Program or delivered for Group III Auction pursuant to such Group
III Manufacturer Program from a Manufacturer which is a Group III Eligible
Program Manufacturer which amounts are unpaid more than one hundred (100) days
past the applicable Group III Due Date, PLUS (d) the aggregate of all Group III
Eligible Receivables as of such date owned by a Leasing Company or a Group III
Lessee financed under the related Group III Leasing Company Indenture or Group
III Lease, as applicable, and owed by a Manufacturer which is a Group III
Eligible Program Manufacturer which amounts are unpaid more than one hundred
(100) days past the applicable Group III Due Date, PLUS (e) the aggregate of all
amounts specified in CLAUSES (IV) and (V) of the definition of "Group III
Aggregate Asset Amount" which are past due as of such date and in respect of
which any grace period provided for in the applicable Group III Lease for the
making of such payments has expired.
"GROUP III INELIGIBLE PROGRAM VEHICLE" means, as of any date
of determination, a Group III Vehicle that is subject to a Group III
Manufacturer Program offered by a Group III Manufacturer that is not a Group III
Eligible Program Manufacturer.
"GROUP III INITIAL DETERMINATION DATE" means, with respect to
any Group III Vehicle, the Determination Date with respect to the Group III
Related Month in which the Group III Vehicle Lease Commencement Date for such
Group III Vehicle occurs.
"GROUP III INITIAL FLEET" means (a) on the date any Group III
Additional Lessee is added pursuant to a Group III Lease, the Group III Eligible
Vehicles titled in the name of such Group III Additional Lessee prior to the
date such party becomes a Group III Additional Lessee which are refinanced by
the applicable Leasing Company
19
under such Group III Lease, and (b) the Group III Refinanced Vehicles included
in a Group III Fleet Purchase Transaction.
"GROUP III INTEREST COLLECTIONS" means on any date of
determination, all Group III Collections which represent interest payments on
the Group III Leasing Company Notes PLUS any amounts earned on Permitted
Investments in the Group III Collection Account which are available for
distribution on such date.
"GROUP III LEASE COMMENCEMENT DATE" is defined in each of the
Group III Leases.
"GROUP III LEASE EVENT OF DEFAULT" means a "Lease Event of
Default" as defined in any Group III Lease.
"GROUP III LEASES" means each of the Group III Alamo Lease,
the Group III CarTemps Lease, the Group III National Lease and any Group III
Additional Leasing Company Lease.
"GROUP III LEASING COMPANY AMORTIZATION EVENT" means an
"Amortization Event" as defined in any Group III Leasing Company Indenture.
"GROUP III LEASING COMPANY COLLECTION ACCOUNT" means each of
the "Group III Collection Accounts" established under the Group III Leasing
Company Indentures.
"GROUP III LEASING COMPANY INDENTURE" means each of the Group
III Alamo Leasing Indenture, the Group III CarTemps Leasing Indenture, the Group
III NFLP Leasing Indenture and any Group III Additional Leasing Company
Indenture.
"GROUP III LEASING COMPANY NOTE" means each of the Group III
Alamo Leasing Note, the Group III CarTemps Leasing Note, the Group III NFLP
Leasing Note and any Group III Additional Leasing Company Note.
"GROUP III LEASING COMPANY RECEIVABLES TRUST AGREEMENTS" means
each of the Group III Alamo Receivables Trust Agreement, the Group III CarTemps
Receivables Trust Agreement, the Group III NFLP Receivables Trust Agreement and
any Group III Additional Leasing Company Receivables Trust Agreement.
"GROUP III LEASING COMPANY RELATED DOCUMENTS" means,
collectively the Group III Leasing Company Notes, the Group III Leasing Company
Indentures, the Group III Leases, the Group III Leasing Company Receivables
Trust Agreements and the Master Collateral Agency Agreement.
"GROUP III LESSEE" means each of Alamo, CarTemps, National,
any Group III Additional Leasing Company Lessee and each Group III Additional
Lessee.
20
"GROUP III MANUFACTURER EVENT OF DEFAULT" means, with respect
to a Manufacturer, (i) the failure by such Manufacturer (or if such
Manufacturer's Group III Manufacturer Program is a Group III Guaranteed
Depreciation Program, such Manufacturer or any related Group III Auction
dealers) to pay any amount due under such Manufacturer's Group III Manufacturer
Program with respect to a Group III Program Vehicle turned in to such
Manufacturer and such failure continues for more than one hundred (100) days
following the Group III Due Date ("PAST DUE AMOUNTS") and the aggregate Past Due
Amounts owing from such Manufacturer (or if applicable, any related Group III
Auction dealer) are equal to or in excess of the lesser of (x) $25 million and
(y) then outstanding aggregate amount of repurchase obligations of such
Manufacturer under its Group III Manufacturer Program in respect of Group III
Program Vehicles, in each case net of Past Due Amounts, aggregating no more than
$50 million, (A) that are the subject of a good faith dispute as evidenced in a
writing by any of the Group III Lessees or the Leasing Companies, as applicable,
or the Manufacturer questioning the accuracy of amounts paid or payable in
respect of certain Group III Program Vehicles tendered for repurchase under a
Group III Manufacturer Program (as distinguished from any dispute relating to
the repudiation by such Manufacturer generally of its obligations under such
Group III Manufacturer Program or the assertion by such Manufacturer of the
invalidity or unenforceability as against it of such Group III Manufacturer
Program) and (B) with respect to which the applicable Group III Lessee or
Leasing Company has provided adequate reserves as reasonably determined by such
Group III Lessee or Leasing Company, (ii) the occurrence of an Event of
Bankruptcy with respect to such Manufacturer or (iii) the termination of such
Manufacturer's Group III Manufacturer Program or the failure of such
Manufacturer's Group III Repurchase Program or Group III Guaranteed Depreciation
Program to meet the requirements of a Group III Manufacturer Program.
"GROUP III MANUFACTURER PROGRAM" means, at any time, any Group
III Repurchase Program or Group III Guaranteed Depreciation Program that is in
full force and effect with a Manufacturer (i) pursuant to which the repurchase
price or guaranteed auction sale price is at least equal to (a) with respect to
the Group III GM Repurchase Program, a specified percentage of the Capitalized
Cost of each Group III Vehicle, such percentage being determined for each Group
III Vehicle based upon the model year of such Group III Vehicle and the calendar
month in which such Group III Vehicle is returned to the Manufacturer, MINUS
Group III Excess Mileage Charges, MINUS Group III Excess Damage Charges MINUS
other similar charges, or (b) with respect to any Group III Manufacturer Program
other than the Group III GM Repurchase Program (but including any other Group
III Manufacturer Program provided by GM), the Capitalized Cost of each Group III
Vehicle, MINUS all depreciation charges accrued with respect to such Group III
Vehicle under such Group III Manufacturer Program prior to the date that the
Group III Vehicle is submitted for repurchase or auction, MINUS Group III Excess
Mileage Charges, MINUS Group III Excess Damage Charges MINUS other similar
charges, (ii) that cannot be amended or terminated with respect to any Group III
Vehicle after the purchase of that Group III Vehicle, and (iii) under which the
related Leasing Company or the related Group III Lessee is a Group III
Authorized Fleet Purchaser and, in each case,
21
the assignment of the benefits of which to the Master Collateral Agent has been
acknowledged in writing by the related Manufacturer pursuant to an Assignment
Agreement and the related Leasing Company, the Master Collateral Agent and the
related Leasing Company Trustee have been provided with an officer's certificate
or opinion of counsel reasonably satisfactory to them that such Leasing Company
(and the Master Collateral Agent on behalf of such Leasing Company and such
Leasing Company Trustee) can enforce the applicable Manufacturer's obligations
thereunder with respect to Group III Program Vehicles.
"GROUP III MONTHLY BASE RENT" is defined in the Annexes to
each of the Group III Leases.
"GROUP III NATIONAL LEASE" means the Master Motor Vehicle
Lease and Servicing Agreement, dated as of May 6, 2002 (inclusive of any annexes
thereto), among NFLP, National and the Group III Additional Lessees, if any, as
the lessees thereunder, and ANC, as guarantor and servicer, as the same may be
amended, restated, modified or supplemented from time to time in accordance with
its terms.
"GROUP III NET BOOK VALUE" means, with respect to any Group
III Vehicle being leased under the Group III Leases (a) as of any date of
determination during the period from the Group III Vehicle Lease Commencement
Date for such Group III Vehicle to but excluding the Group III Initial
Determination Date for such Group III Vehicle, the Capitalized Cost of such
Group III Vehicle, (b) as of the Group III Initial Determination Date for such
Group III Vehicle, (i) the Capitalized Cost for such Group III Vehicle MINUS
(ii) the aggregate Group III Depreciation Charges accrued with respect to such
Group III Vehicle through the last day of the Group III Related Month in which
the Group III Vehicle Lease Commencement Date for such Group III Vehicle
occurred, (c) as of any Determination Date after the Group III Initial
Determination Date, (i) the Group III Net Book Value of such Group III Vehicle
as calculated on the immediately preceding Determination Date MINUS (ii) the
aggregate Group III Depreciation Charges accrued with respect to such Group III
Vehicle during the Group III Related Month (through the last day thereof) LESS
(d) if such Group III Vehicle is a Group III Non-Program Vehicle which was
leased under a Financing Lease on the last day of the Group III Related Month,
an amount equal to (i) the amount of Additional Base Rent, if any, paid (or,
prior to the applicable Distribution Date, payable) on the Distribution Date
immediately following such Group III Related Month DIVIDED by (ii) the number of
Non-Group III Program Vehicles leased under such Financing Lease on the last day
of the Group III Related Month. After the Group III Initial Determination Date,
on any day which is not a Determination Date, the Group III Net Book Value of a
Vehicle shall be the Group III Net Book Value calculated for such Group III
Vehicle on the most recent Determination Date.
"GROUP III NFLP LEASING INDENTURE" means the Base Indenture,
dated as May 6, 2002, between NFLP and the Leasing Company Trustee party
thereto, as supplemented by the Series 2002-2 Supplement, dated as of May 6,
2002, as each may be amended, restated, modified or supplemented from time to
time in accordance with its
22
terms (exclusive of any supplement thereto creating a Series of Notes that is
not a Group III Leasing Company Note).
"GROUP III NFLP LEASING NOTE" means the Variable Funding
Rental Car Asset Backed Note issued to ARG II pursuant to the Group III NFLP
Leasing Indenture as the same may be amended, restated, modified or supplemented
from time to time in accordance with the terms of the Group III NFLP Leasing
Indenture and any successor note thereto.
"GROUP III NFLP RECEIVABLES TRUST AGREEMENT" means a trust
agreement, dated as of May 6, 2002, between NFLP, as grantor, and The Bank of
New York (Delaware), as the same may be amended, restated, modified or
supplemented from time to time in accordance with its terms.
"GROUP III NON-PROGRAM VEHICLE" means a Group III Vehicle
which is not subject to a Group III Manufacturer Program at the time of its
leasing under the related Group III Lease or which is redesignated as a Group
III Non-Program Vehicle pursuant to the related Group III Lease.
"GROUP III NOTE PAYMENT RIGHTS" means all rights of ARG II
under any Group III Leasing Company Group III Note or Group III Leasing Company
Indenture to receive payments.
"GROUP III OPERATING LEASE" means each of the Group III Leases
as supplemented by Annex A to such Group III Lease.
"GROUP III POTENTIAL LEASE EVENT OF DEFAULT" means any
occurrence or event which, with the giving of notice, the passage of time, or
both, would constitute a Group III Lease Event of Default.
"GROUP III POTENTIAL LEASING COMPANY AMORTIZATION EVENT" means
any occurrence or event which, with the giving of notice, the passage of time or
both, would constitute a Group III Leasing Company Amortization Event.
"GROUP III PRINCIPAL COLLECTIONS" means any Group III
Collections other than Group III Interest Collections.
"GROUP III PROGRAM VEHICLE" means a Group III Vehicle eligible
under, and subject to, a Group III Manufacturer Program.
"GROUP III QUALIFIED INTERMEDIARY" means a party, rated not
less than "A" by Standard & Poor's and "A2" by Moody's, designated in a Group
III Exchange Agreement as an intermediary for exchanges of Group III Vehicles by
any Leasing Company or any Group III Lessee pursuant to such Group III Exchange
Agreement.
"GROUP III RECEIVABLES TRUST" means the trust created under
and pursuant to the Group III ARG II Receivables Trust Agreement.
23
"GROUP III RECEIVABLES TRUSTEE" means The Bank of New York
(Delaware), in its capacity as trustee under the Group III ARG II Receivables
Trust Agreement.
"GROUP III RELATED DOCUMENTS" means, collectively, the Group
III Leasing Company Related Documents, the Base Indenture, the Group III Notes,
any Enhancement Agreement related to the Group III Notes, any Swap Agreement
related to the Group III Notes, the Group III ARG II Receivables Trust Agreement
and any agreements relating to the issuance or the purchase of any of the Group
III Notes or the Group III Leasing Company Related Documents.
"GROUP III RELATED MONTH" means, (i) with respect to any
Payment Date, Determination Date or Distribution Date, the most recently ended
calendar month and (ii) with respect to an Interest Period, the month in which
such Interest Period commences; PROVIDED, HOWEVER, that with respect to the
above CLAUSE (I), the initial Group III Related Month shall be the period from
and including the date of issuance of the first Series of Notes to and including
the last day of the calendar month in which such issuance occurs.
"GROUP III REPLACEMENT VEHICLE" means a Group III Eligible
Vehicle (i) which is owned by any Leasing Company or any Group III Lessee, (ii)
which is in the possession of any Leasing Company or any Group III Lessee, (iii)
with respect to which the Group III Vehicle Perfection and Documentation
Requirements have been satisfied, (iv) which is subject to no Liens other than
the Lien of the Master Collateral Agent and (v) which (a) has been acquired
pursuant to a Group III Exchange Agreement as a Group III Replacement Vehicle
for a Group III Designated Vehicle or Group III Designated Vehicles, (b) (1) has
a Group III Net Book Value equal to or greater than the aggregate Group III
Termination Value of the Group III Designated Vehicle or Group III Designated
Vehicles which it replaces or (2) has a Group III Net Book Value when aggregated
with the Group III Net Book Value of one or more other Group III Replacement
Vehicles tendered in exchange for a Group III Designated Vehicle equal to or
greater than the Group III Termination Value for such Group III Designated
Vehicle and (c) has been designated on the Servicer's computer system as a Group
III Related Vehicle with respect to the Beneficiary to which the related Group
III Designated Vehicle or Group III Designated Vehicles are designated.
"GROUP III REPURCHASE PRICE" with respect to any Group III
Vehicle (i) subject to a Group III Repurchase Program means the price paid or
payable by the Manufacturer thereof to repurchase such Group III Vehicle
pursuant to its Group III Manufacturer Program and (ii) subject to a Group III
Guaranteed Depreciation Program means the amount which the Manufacturer thereof
guarantees will be paid to any of the Group III Lessees or the Leasing Companies
as the seller of such Group III Vehicle by such Manufacturer and/or the related
auction dealers upon the disposition of such Group III Vehicle pursuant to its
Group III Manufacturer Program.
"GROUP III REPURCHASE PROGRAM" means a program pursuant to
which a Manufacturer has agreed with a Group III Lessee or the related Leasing
24
Company to repurchase Group III Vehicles manufactured by such Manufacturer or
one of its Affiliates during a specified period.
"GROUP III SECURED PARTIES" is defined in SECTION 3.1(A) of
this Base Indenture.
"GROUP III TERMINATION PAYMENT" is defined in SECTION 12.3(B)
of each of the Group III Leases.
"GROUP III TERMINATION VALUE" means, with respect to any Group
III Vehicle, as of any date, an amount equal to (i) the Capitalized Cost of such
Group III Vehicle, MINUS (ii) unless otherwise deducted in the calculation of
"Capitalized Cost", all Group III Depreciation Charges for such Group III
Vehicle accrued prior to such date.
"GROUP III TURNBACK DATE" means, with respect to any Group III
Program Vehicle, the date on which such Group III Vehicle is accepted for return
by a Manufacturer or its agent pursuant to its Group III Manufacturer Program
and the Group III Depreciation Charges cease to accrue pursuant to its Group III
Manufacturer Program.
"GROUP III VEHICLE" means a passenger automobile or light
truck purchased, financed or refinanced by a Leasing Company under a Group III
Lease and pledged under the Master Collateral Agency Agreement for the benefit
of the related Leasing Company Trustee, but solely during the Group III Vehicle
Term for such Group III Vehicle.
"GROUP III VEHICLE FUNDING DATE" is defined in SECTION 3.1 of
each of the Group III Leases.
"GROUP III VEHICLE LEASE COMMENCEMENT DATE" is defined in
SECTION 3.1 of each of the Group III Leases.
"GROUP III VEHICLE ORDER" is defined in SECTION 2.1(C) of each
of the Group III Leases.
"GROUP III VEHICLE PERFECTION AND DOCUMENTATION REQUIREMENTS"
means, (i) with respect to a Group III Vehicle (other than, to the extent
permitted under a Group III Lease, Group III Vehicles in a Group III Initial
Fleet), submission within the applicable statutory period of an application for
the issuance of a certificate of title for such Group III Vehicle with the
department of registry of motor vehicles of the applicable state in which such
Group III Vehicle is to be registered, which application shall reflect the
following: any Leasing Company or any Group III Lessee, as the registered owner,
and the Master Collateral Agent as the first lienholder or (ii) in the case of
such Group III Vehicles in such Group III Initial Fleet, the assignment to the
Master Collateral Agent of the lienholder's lien with respect to such Group III
Vehicles in such Group III Initial Fleet.
25
"GROUP-SPECIFIC ARG II OBLIGATIONS" means all principal and
interest, at any time and from time to time, owing by ARG II on the Notes issued
pursuant to a Series Supplement related to each Segregated Series of Notes
sharing in the same Group-Specific Collateral and all costs, fees and expenses
payable by, or obligations of, ARG II under the Indenture and/or the
Group-Specific Related Documents allocable to such Segregated Series of Notes.
"GROUP-SPECIFIC ARG II RECEIVABLES TRUST AGREEMENT" means the
trust agreement designated as the "Group [#] ARG II Receivables Trust Agreement"
in the related Series Supplement.
"GROUP-SPECIFIC COLLATERAL AGREEMENT" is defined in SECTION
10.1(C) of this Base Indenture.
"GROUP-SPECIFIC COLLECTION ACCOUNT" is defined in SECTION 8.17
of this Base Indenture.
"GROUP-SPECIFIC COLLATERAL" is defined in SECTION 2.3(B) of
this Base Indenture.
"GROUP-SPECIFIC COLLECTIONS" is defined in SECTION 2.3(B) of
this Base Indenture.
"GROUP-SPECIFIC LEASES" is defined in SECTION 2.3(B) of this
Base Indenture.
"GROUP-SPECIFIC LEASING COMPANY INDENTURES" means any and each
Second Base Indenture between the Group-Specific Lessees and the Leasing Company
Trustee, as may be amended, restated, modified or supplemented from time to time
in accordance with its terms (exclusive of any supplement thereto creating a
Series of Notes that is not a Group-Specific Leasing Company Note).
"GROUP-SPECIFIC LEASING COMPANY NOTES" means any Variable
Funding Rental Car Asset Backed Note issued to ARG II pursuant to a
Group-Specific Leasing Indenture as the same may be amended, restated, modified
or supplemented from time to time in accordance with the terms of the
Group-Specific Leasing Company Indenture and any successor note thereto.
"GROUP-SPECIFIC LEASING COMPANY RELATED DOCUMENTS" means,
collectively the Group-Specific Leasing Company Notes, the Group-Specific
Leasing Company Indentures, the Group-Specific Leases and the Group-Specific
Leasing Company Receivables Trust Agreements.
"GROUP-SPECIFIC LEASING COMPANY RECEIVABLES TRUST AGREEMENTS"
means the trust agreements designated as the "Group [#] Leasing Company
Receivables Trust Agreements" in the related Series Supplement.
26
"GROUP-SPECIFIC LESSEES" is defined in SECTION 2.3(B) of this
Base Indenture.
"GROUP-SPECIFIC LEASE EVENT OF DEFAULT" means a "Lease Event
of Default" as defined in any Group-Specific Lease.
"GROUP-SPECIFIC LEASING COMPANY AMORTIZATION EVENTS" means an
"Amortization Event" as defined in any Group-Specific Leasing Company Indenture.
"GROUP-SPECIFIC POTENTIAL LEASE EVENT OF DEFAULT" means any
occurrence or event which, with the giving of notice, the passage of time, or
both, would constitute a Group-Specific Lease Event of Default.
"GROUP-SPECIFIC POTENTIAL LEASING COMPANY AMORTIZATION EVENTS"
means any occurrence or event which, with the giving of notice, the passage of
time or both, would constitute a Group-Specific Leasing Company Amortization
Event.
"GROUP-SPECIFIC RELATED DOCUMENTS" means, collectively, the
Group-Specific Leasing Company Related Documents, the Base Indenture, the Series
of Notes for which such Group-Specific Related Documents have been designated,
the Group-Specific ARG II Receivables Trust Agreement and any Enhancement
Agreement, Swap Agreement and any other agreements relating to the issuance or
the purchase of any of the Series of Notes for which such Group-Specific Related
Documents have been designated or the Group-Specific Leasing Company Related
Documents.
"GROUP-SPECIFIC SECURED PARTIES" is defined in SECTION 2.2(J)
of this Base Indenture.
"INDEBTEDNESS", as applied to any Person, means, without
duplication, (a) all indebtedness for borrowed money, (b) that portion of
obligations with respect to any lease of any property (whether real, personal or
mixed) that is properly classified as a liability on a balance sheet in
conformity with GAAP, (c) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(d) any obligation owed for all or any part of the deferred purchase price for
property or services, which purchase price is (i) due more than six months from
the date of the incurrence of the obligation in respect thereof or (ii)
evidenced by a note or similar written instrument, (e) all indebtedness secured
by any Lien on any property or asset owned by that Person regardless of whether
the indebtedness secured thereby shall have been assumed by that Person or is
nonrecourse to the credit of that Person, and (f) all Contingent Obligations of
such Person in respect of any of the foregoing.
"INDENTURE" means the Base Indenture, together with all Series
Supplements, as the same may be amended, restated, modified or supplemented from
time to time.
27
"INITIAL CLOSING DATE" means the date on which the Notes are
first issued and authenticated.
"INTEREST PERIOD" means, with respect to any Series of Notes,
the period specified in the applicable Series Supplement.
"INVESTED AMOUNT" means, with respect to each Series of Notes,
the amount specified in the applicable Series Supplement.
"INVESTED PERCENTAGE" means, with respect to any Series of
Notes, the percentage specified in the applicable Series Supplement.
"INVESTMENT COMPANY ACT" means the Investment Company Act of
1940, as amended.
"ISSUER'S SHARE" means, with respect to each Group III Leasing
Company Note on any date of determination, a fraction expressed as a percentage,
the numerator of which is equal to the outstanding principal amount of such
Group III Leasing Company Note and the denominator of which is equal to the
aggregate principal amount of the Group III Leasing Company Notes, each as of
such date of determination.
"LEASE GUIDE" means the National Automobile Dealers
Association, Official Used Car Guide, Central Edition.
"LEASING COMPANY" means each of Alamo Leasing, CarTemps
Leasing, NFLP and any Group III Additional Leasing Company.
"LEASING COMPANY TRUSTEE" means each of the parties named as
the trustee in the Group III Leasing Company Indentures until a successor
replaces it in accordance with the applicable provisions of such Group III
Leasing Company Indenture and thereafter means the successor serving thereunder.
"LIEN" means, when used with respect to any Person, any
interest in any real or personal property, asset or other right held, owned or
being purchased or acquired by such Person which secures payment or performance
of any obligation, and shall include any mortgage, lien, pledge, encumbrance,
charge, retained security title of a conditional vendor or lessor, or other
security interest of any kind, whether arising under a security agreement,
mortgage, lease, deed of trust, chattel mortgage, assignment, pledge, retention
or security title, financing or similar statement, or notice or arising as a
matter of law, judicial process or otherwise.
"LUXEMBOURG AGENT" is defined in SECTION 2.4(C) of this Base
Indenture.
"MANUFACTURER" means a manufacturer or distributor of
passenger automobiles and/or light trucks.
28
"MASTER COLLATERAL AGENCY AGREEMENT" means the Fifth Amended
and Restated Master Collateral Agency Agreement, dated as of June 11, 2002,
among NFLP, Alamo Leasing, CarTemps Leasing, National, Alamo and CarTemps, as
grantors, ANC, as master servicer, the various other parties from time to time
parties thereto and the Master Collateral Agent, as further amended, restated,
modified or supplemented from time to time.
"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.
"MATERIAL ADVERSE EFFECT" means (A) with respect to ARG II or
any Leasing Company, and any occurrence, event or condition with respect to any
of them:
(i) a material adverse change in the financial condition,
business, assets or operations of ARG II or such Leasing Company, as
the case may be, and its Consolidated Subsidiaries taken as a whole,
that materially adversely affects the ability of ARG II or such Leasing
Company to perform its respective obligations under any of the Related
Documents; or
a material adverse effect on the ability of ARG II, such
Leasing Company or ANC, as the case may be, to perform its material
obligations under any of the Related Documents; and
(B) with respect to any Series of Notes, an adverse effect on (a) the
enforceability of any portion of the Group III Collateral or (b) the priority or
perfection of the Trustee's Lien on a material portion of the Group III
Collateral.
"MONTHLY NOTEHOLDERS' STATEMENT" means, with respect to each
Series of Notes, a statement substantially in the form of an Exhibit to the
applicable Series Supplement.
"MONTHLY SUPPLEMENTAL PAYMENT" is defined in SECTION 6 of
Annex B to each of the Group III Leases.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service.
"NATIONAL" means National Car Rental System, Inc., a Delaware
corporation, and any successor thereto.
"NFLP" means National Car Rental Financing Limited
Partnership, a special purpose Delaware limited partnership, and any successor
thereto.
"NOTE OWNER" means, with respect to a Book-Entry Note, the
Person who is the beneficial owner of such Book-Entry Note, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
29
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
"NOTE RATE" means, with respect to any Series of Notes, the
annual rate at which interest accrues on the Notes of such Series of Notes (or
formula on the basis of which such rate shall be determined) as stated in the
applicable Series Supplement.
"NOTE REGISTER" means the register maintained pursuant to
SECTION 2.6(A) of this Base Indenture, providing for the registration of the
Notes and transfers and exchanges thereof.
"NOTEHOLDER" and "HOLDER" means the Person in whose name a
Note is registered in the Note Register.
"NOTE" is defined in the recitals to this Base Indenture.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Officer of ARG II or the applicable Leasing Company, as the case may
be.
"OPINION OF COUNSEL" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to ARG II or any Leasing Company, as the case may be. An Opinion of
Counsel may, to the extent same is based on any factual matter, rely on an
Officer's Certificate as to the truth of such factual matter.
"OUTSTANDING" is defined, with respect to any Series of Notes,
in the applicable Series Supplement.
"PAIRED SERIES" is defined in SECTION 5.5 of this Base
Indenture.
"PAYING AGENT" is defined in SECTION 2.6(A) of this Base
Indenture.
"PAYMENT DATE" means the 20th day of each month, or if such
date is not a Business Day, the next succeeding Business Day, commencing May 6,
2002.
"PENSION PLAN" means any "employee pension benefit plan", as
such term is defined in ERISA, which is subject to Title IV of ERISA and to
which any company in the Controlled Group of which such Person is a member has
liability, including any liability by reason of having been a substantial
employer within the meaning of Section 4063 of ERISA for any time within the
preceding five years or by reason of being deemed to be a contributing sponsor
under Section 4069 of ERISA.
"PERMANENT GLOBAL NOTE" is defined in SECTION 2.5(B) of this
Base Indenture.
"PERMITTED INVESTMENTS" means negotiable instruments or
securities maturing on or before the Distribution Date next occurring after the
investment therein,
30
payable in Dollars, issued by an entity organized under the laws of the United
States of America and represented by instruments in bearer or registered or in
book-entry form which evidence (i) obligations the full and timely payment of
which are to be made by or is fully guaranteed by the United States of America
other than financial contracts whose value depends on the values or indices of
asset values; (ii) demand deposits of, time deposits in, or certificates of
deposit issued by, any depositary institution or trust company incorporated
under the laws of the United States of America or any state thereof whose
short-term debt is rated "P-1" by Moody's and "A-1+" or higher by Standard &
Poor's and subject to supervision and examination by Federal or state banking or
depositary institution authorities; PROVIDED, HOWEVER, that at the earlier of
(x) the time of the investment and (y) the time of the contractual commitment to
invest therein, the certificates of deposit or short-term deposits, if any, or
long-term unsecured debt obligations (other than such obligation whose rating is
based on collateral or on the credit of a Person other than such institution or
trust company) of such depositary institution or trust company shall have a
credit rating from Standard & Poor's of "A-1+", in the case of certificates of
deposit or short-term deposits, or a rating from Standard & Poor's not lower
than "AA", in the case of long-term unsecured debt obligations; (iii) commercial
paper having, at the earlier of (x) the time of the investment and (y) the time
of the contractual commitment to invest therein, a rating from Standard & Poor's
of "A-l+"; (iv) bankers' acceptances issued by any depositary institution or
trust company described in CLAUSE (II) above; (v) investments in money market
funds rated "AAm" by Standard & Poor's or otherwise approved in writing by
Standard & Poor's; (vi) Eurodollar time deposits having a credit rating from
Standard & Poor's of "A-l+"; (vii) repurchase agreements involving any of the
Permitted Investments described in CLAUSES (I) and (VI) above and the
certificates of deposit described in CLAUSES (II) above which are entered into
with a depository institution or trust company, having a commercial paper or
short-term certificate of deposit rating of "A-l+" by Standard & Poor's and
"P-1" by Moody's or which otherwise is approved as to collateralization by the
Rating Agencies; and (viii) any other instruments or securities, if the Rating
Agencies confirm in writing that the investment in such instruments or
securities will not adversely affect any ratings with respect to any Series of
Notes.
"PERMITTED LIENS" means (i) Liens for current taxes not
delinquent or for taxes being contested in good faith and by appropriate
proceedings, and with respect to which adequate reserves have been established,
and are being maintained, in accordance with GAAP, (ii) mechanics',
materialmen's, landlords', warehousemen's and carrier's Liens, and other Liens
imposed by law, securing obligations arising in the ordinary course of business
that are not more than thirty days past due or are being contested in good faith
and by appropriate proceedings and with respect to which adequate reserves have
been established, and are being maintained, in accordance with GAAP, (iii) Liens
permitted under the Group III Leasing Company Indentures, (iv) Liens in favor of
the Leasing Company Trustees pursuant to the Group III Leasing Company
Indentures and (v) the Liens in favor of the Trustee pursuant to the Series
Supplement.
31
"PERSON" means any natural person, corporation, limited
liability company, business trust, joint venture, association, company,
partnership, joint stock company, corporation, trust, unincorporated
organization or Government Authority.
"PHYSICAL PROPERTY" means banker's acceptances, commercial
paper, negotiable certificates of deposits and other obligations that constitute
"instruments" within the meaning of Section 9-105(l)(i) of the applicable UCC
and are susceptible to physical delivery and Certificated Securities.
"POTENTIAL AMORTIZATION EVENTS" means, with respect to any
Series of Notes, any occurrence or event which, with the giving of notice, the
passage of time or both, would constitute an Amortization Event with respect to
such Series of Notes.
"POTENTIAL ENHANCEMENT AGREEMENT EVENT OF DEFAULT" means an
event which, with the giving of notice, the passage of time or both, would
constitute an Enhancement Agreement Event of Default under any Enhancement
Agreement.
"PRINCIPAL TERMS" is defined in SECTION 2.3 of this Base
Indenture.
"QUALIFIED INSTITUTION" means a depositary institution or
trust company (which may include the Trustee) organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia; PROVIDED, HOWEVER, that at all times such depositary institution or
trust company is a member of the FDIC and has (i) from Standard & Poor's a
long-term indebtedness rating not lower than AA- and a short-term indebtedness
rating of "A-1+" and from Moody's a long-term indebtedness rating not lower than
"A2" and a short-term indebtedness rating of "P-1", or (ii) such other rating
with respect to which the Rating Agency Confirmation Condition with respect to
each Outstanding Series of Notes has been satisfied.
"RAPID AMORTIZATION PERIOD" means, with respect to any Series
of Notes, the period specified, if any, in the applicable Series Supplement.
"RATING AGENCY" means, with respect to each Outstanding Series
of Notes, any rating agency or agencies then issuing a rating for (x) such
Series of Notes or any class thereof or (y) commercial paper notes issued by an
ARG II Committed Purchaser to fund the purchase of such Series of Notes, in each
case, at the request of ARG II.
"RATING AGENCY CONFIRMATION AND CONSENT CONDITION" with
respect to any Series of Notes, has the meaning set forth in the applicable
Series Supplement.
"RATING AGENCY CONFIRMATION CONDITION" with respect to any
Series of Notes, has the meaning set forth in the applicable Series Supplement.
"RECORD DATE" means, with respect to any Series of Notes and
any Distribution Date, the date specified in the applicable Series Supplement.
32
"REFINANCED VEHICLES" means Group III Eligible Vehicles (a)
owned by any Leasing Company or Lessee prior to the Group III Lease Commencement
Date under the related Group III Lease (i) which are (A) subject to the lien of
the Master Collateral Agent or (B) listed on Schedule II to any Group III
Leasing Company Indenture and a first priority lien on which has been assigned
to the Master Collateral Agent and (ii) are refinanced by such Leasing Company
under the Group III Lease to which it is a party on the Initial Closing Date,
(b) owned by any Group III Additional Lessee prior to the Group III Additional
Lessee Closing Date with respect to such Group III Additional Lessee (i) a first
priority lien in which has been assigned to the Master Collateral Agent, and
(ii) which are refinanced by such Leasing Company under the Financing Lease to
which it is a party on the Group III Additional Lessee Closing Date with respect
to such Group III Additional Lessee, (c) owned by such Leasing Company or Lessee
and (i) with respect to which the lien of the Master Collateral Agent is noted
on the certificate of title and (ii) which are refinanced by such Leasing
Company under the Group III Lease to which it is a party on any date after the
Group III Lease Commencement Date under such Group III Lease or (d) acquired by
a Lessee in a Group III Fleet Purchase Transaction (i) a first priority lien in
which has been assigned to the Master Collateral Agent and (ii) which are
refinanced by the related Leasing Company under the Financing Lease to which it
is a party.
"REGISTRAR" is defined in SECTION 2.6(A) of this Base
Indenture.
"REGULATION S" is defined in SECTION 2.5(B) of this Base
Indenture.
"RELATED DOCUMENTS" means, the Group III Related Documents and
any Group-Specific Related Documents.
"RELATED VEHICLES" is defined in SECTION 2.2 of the Master
Collateral Agency Agreement.
"REPURCHASE AMOUNT" means, with respect to any Series of
Notes, the amount specified in the applicable Series Supplement.
"REPURCHASE PERIOD" means, with respect to any Program
Vehicle, the period during which such Group III Vehicle may be turned in to the
Manufacturer thereof for repurchase or sale at auction pursuant to the
applicable Group III Manufacturer Program.
"REQUIRED ENHANCEMENT AMOUNT" is defined, with respect to any
Series of Notes, in the applicable Series Supplement.
"REQUIRED FINANCING LEASE ASSET AMOUNT" means, with respect to
any Series of Notes, the amount specified in the applicable Series Supplement.
"REQUIRED NOTEHOLDERS" with respect to each Series of Notes,
has the meaning set forth in the applicable Series Supplement.
33
"REQUIRED AGGREGATE ASSET AMOUNT" means, on any date of
determination, the sum of the Invested Amounts and Required
Overcollateralization Amounts for all Series of Notes on such date.
"REQUIRED OPERATING LEASE ASSET AMOUNT" means, with respect to
any Series of Notes, the amount specified in the applicable Series Supplement.
"REQUIRED OVERCOLLATERALIZATION AMOUNT" means, with respect to
each Series of Notes, the amount specified in the applicable Series Supplement.
"REQUIRED GROUP III SECURED PARTIES" is defined, with respect
to any Series of Notes in the applicable Series Supplement.
"REQUIREMENTS OF LAW" means, with respect to any Person or any
of its property, the certificate of incorporation or articles of association and
by-laws, certificate of limited partnership, limited partnership agreement or
other organizational or governing documents of such Person, and any law, treaty,
rule or regulation, or determination of any arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject, whether
Federal, state or local (including, without limitation, usury laws, the Federal
Truth in Lending Act and retail installment sales acts).
"REQUISITE INVESTORS" (i) means, with respect to any
non-Segregated Series of Notes, Noteholders holding in excess of 50% of the sum
of (a) the aggregate Invested Amount of all outstanding non-Segregated Series of
Notes and (b) the sum of the unutilized purchase commitments of the ARG II
Committed Purchasers (excluding, for the purposes of making the foregoing
calculation, any Notes held by any Affiliate of any Leasing Company (other than
an ARG II Committed Purchaser or other Affiliate)) PROVIDED, HOWEVER that, upon
the occurrence and during the continuance of an Amortization Event with respect
to any Series of Notes held by an ARG II Committed Purchaser, the purchase
commitment of such ARG II Committed Purchaser shall be deemed to be zero, or
(ii) with respect to any Segregated Series secured by a particular pool of
Group-Specific Collateral, means Noteholders holding in excess of 50% of the sum
of (a) the aggregate Invested Amount of all Segregated Series of Notes secured
by such pool of Group-Specific Collateral and (b) the sum of the unutilized
purchase commitments of the ARG II Committed Purchasers (excluding, for the
purposes of making the foregoing calculation, any Notes held by any Affiliate of
any Leasing Company (other than an ARG II Committed Purchaser or other
Affiliate)), PROVIDED, HOWEVER that, upon the occurrence and during the
continuance of an Amortization Event with respect to any Series of Notes held by
an ARG II Committed Purchaser, the purchase commitment of such ARG II Committed
Purchaser shall be deemed to be zero. Unless otherwise specified, any reference
to Requisite Investors shall mean the Requisite Investors with respect to the
Series of Notes secured by each pool of Group-Specific Collateral.
34
"RESTRICTED GLOBAL NOTE" is defined in SECTION 2.5(A) of this
Base Indenture.
"REVISED ARTICLE 8" means Revised Article 8 (1994 Version)
(and corresponding amendments to Article 9) as promulgated by the National
Conference of Commissioners on Uniform State Laws.
"REVOLVING PERIOD" means, with respect to any Series of Notes,
the period specified in the applicable Series Supplement.
"RULE 144A" is defined in SECTION 2.5(A) of this Base
Indenture.
"S&P" or "STANDARD & POOR'S" means Standard & Poor's Ratings
Service, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES INTERMEDIARY" means a "securities intermediary"
within the meaning of Section 8-102(a)(14) of Revised Article 8.
"SECURITY ENTITLEMENT" means a "security entitlement" within
the meaning of Section 8-102(a)(17) of Revised Article 8.
"SEGREGATED SERIES" is defined in SECTION 2.3(B) of this Base
Indenture.
"SERIES CLOSING DATE" means, with respect to any Series of
Notes, the date of issuance of such Series of Notes, as specified in the
applicable Series Supplement.
"SERIES OF NOTES" or "SERIES" means each Series of Notes
issued and authenticated pursuant to the Base Indenture and a related Series
Supplement.
"SERIES SUPPLEMENT" means a supplement to the Base Indenture
complying with the terms of SECTION 2.3 of this Base Indenture.
"SERIES TERMINATION DATE" means, with respect to any Series of
Notes, the date stated in the applicable Series Supplement as the termination
date.
"SERVICER" means ANC, in its capacity as servicer of Group III
Vehicles under the Group III Leases and as master servicer under the Master
Collateral Agency Agreement, unless the Master Collateral Agent shall have
assumed any duties and obligations of the Servicer pursuant to the applicable
provisions of the Master Collateral Agency Agreement, and thereafter "Servicer"
shall, to such extent, include the Master Collateral Agent.
"SUBORDINATED NOTE" means the subordinated note made by ANC to
ARG II which is payable by ANC upon ARG II's demand.
35
"SUBSIDIARY" means, with respect to any Person (herein
referred to as the "parent"), any corporation, partnership, association or other
business entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or more than 50% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by the parent or (b) that
is, at the time any determination is being made, otherwise controlled, by the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"SUPPLEMENT" means a supplement to the Base Indenture
complying with the terms of Article 12 of this Base Indenture.
"SUPERMAJORITY NOTEHOLDERS" with respect to each Series of
Notes, has the meaning set forth in the applicable Series Supplement.
"SWAP AGREEMENT" means one or more interest rate swap
contracts, interest rate cap agreements or similar contracts entered into by ARG
II in connection with the issuance of a Series of Notes, as specified in the
related Series Supplement, providing limited protection against interest rate
risks.
"TEMPORARY GLOBAL NOTE" is defined in SECTION 2.5(B) of this
Base Indenture.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended.
"TRUST OFFICER" means, with respect to the Trustee, any Senior
Vice President, Vice President, Assistant Vice President, Assistant Secretary or
Assistant Treasurer of the Corporate Trust Office, or any trust officer, or any
officer customarily performing functions similar to those performed by the
person who at the time shall be such officers, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with a particular
subject, or any successor thereto responsible for the administration of the Base
Indenture.
"TRUSTEE" means the party named as such in the Indenture until
a successor replaces it in accordance with the applicable provisions of the
Indenture and thereafter means the successor trustee thereunder.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the specified jurisdiction.
"UNCERTIFICATED SECURITY" means an "uncertificated security"
within the meaning of the applicable UCC.
"UNITED STATES" or "U.S." means the United States of America,
its fifty States and the District of Columbia.
36
"UNITED STATES SECURITY ENTITLEMENT" means a "Security
Entitlement" as defined in 31 ▇.▇.▇.▇▇. 357.2, 24 C.F.R.ss.1.2, 12
C.F.R.ss.912.1, 12 C.F.R.ss.1511.1, 12 C.F.R.ss.615.5450 or 3l C.F.R.ss.354.l.
"U.S. GOVERNMENT OBLIGATIONS" means direct obligations of the
United States of America, or any agency or instrumentality thereof for the
payment of which the full faith and credit of the United States of America is
pledged as to full and timely payment of such obligations.
"U.S. PERSON" means, with respect to persons who are permitted
to own beneficial interests in the Notes, a "U.S. person" within the meaning of
Regulation S under the Securities Act and, in all other cases, (i) a citizen or
resident of the United States or any state thereof, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, (iii) any estate, the income of which is
subject to United States federal income taxation regardless of its source or
(iv) any trust, if a court within the United States of America is able to
exercise primary supervision over the administration of the trust and at least
one U.S. Person has the authority to control all substantial decisions of the
trust.
"U.S. RESIDENTS" has the meaning assigned thereto in the
Investment Company Act.
"VARIABLE FUNDING NOTE" is defined in SECTION 2.5(D) of this
Base Indenture.
"VEHICLE TERM" is defined in respect of any Group III Vehicle
in the related Group III Lease.
"WRITTEN" or "IN WRITING" means any form of written
communication, including, without limitation, by means of telex, telecopier
device, telegraph or cable.
37
EXHIBIT A-1
TO ARG II BASE INDENTURE
FORM OF TRANSFER CERTIFICATE
FOR RESTRICTED GLOBAL NOTE TO TEMPORARY GLOBAL NOTE OR PERMANENT GLOBAL NOTE
(TRANSFEROR)
[Letterhead of Transferor]
Reference is hereby made to the Amended and Restated Base
Indenture, dated as of [ ], 2002 (the "BASE INDENTURE"), and the Series [ ]
Supplement thereto, dated as of [ ] (the "SERIES [ ] SUPPLEMENT" and together
with the Base Indenture, the "INDENTURE") each between ARG II and The Bank of
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Indenture. Other terms shall have the
meanings assigned to them in Regulation S under the United States Securities Act
of 1933, as amended (the "SECURITIES ACT").
This letter relates to U.S. $_________ principal amount of
Series [ ] Notes (the "Notes") of ARG II which are held in the registered name
of [insert name of transferor] (the "TRANSFEROR"). The Transferor has requested
a transfer of such Notes to [insert name of transferee].
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with Regulation S under the Securities Act, and accordingly
the Transferor does hereby certify that:
(C) the offer of the Notes was not made to a person in the
United States;
(D) [ at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any person acting on its
behalf reasonably believed that the transferee was outside the United States;]*
[(2) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the transaction was prearranged
with a buyer in the United States;]*
(E) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable; and
--------------------------------
* Insert one of these two provisions.
(F) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
This letter and the statements contained herein are made for
the benefit of ARG II and the Trustee.
[TRANSFEROR]
By:
--------------------------------
Name:
Title:
Dated: ___________, ______
2
EXHIBIT A-2
TO ARG II BASE INDENTURE
FORM OF TRANSFER CERTIFICATE FOR RESTRICTED GLOBAL NOTE TO
TEMPORARY GLOBAL NOTE OR PERMANENT GLOBAL NOTE (TRANSFEREE)
[Letterhead of Prospective Note Purchaser/Exchanger]
In connection with the undersigned's [purchase/exchange] of the Series
[ ] Notes (the "NOTES"), as set forth below its name on the signature page of
this letter, issued by ARG II described in the Amended and Restated Base
Indenture, dated as of [ ], 2002 (the "BASE INDENTURE") and the Series [ ]
Supplement thereto, dated as of [ ] (the "SERIES [ ] SUPPLEMENT" and together
with the Base Indenture, the "INDENTURE"), each between ARG II and The Bank of
New York, as trustee, the undersigned hereby represents and warrants as follows
(capitalized terms used but not defined herein are used as defined in the
Indenture):
(ii) In connection with its [purchase/exchange] of the Notes:
(A) ARG II is not acting as a fiduciary or financial or investment
adviser for it; (B) it is not relying (for purposes of making any
investment decision or otherwise) upon any advice, counsel or
representations (whether written or oral) of ARG II other than any
statements in a current offering memorandum for such Notes; and (C)
such beneficial owner has consulted its own legal, regulatory, tax,
business, investment, financial and accounting advisers to the extent
it has deemed necessary and has made its own investment decisions
(including decisions regarding the suitability of any transaction
pursuant to this Indenture) based upon its own judgment and upon any
advice from such advisers as it has deemed necessary and not upon any
view expressed by ARG II.
(iii) It understands that such Notes are being offered only in
a transaction not involving any public offering in the United States
within the meaning of the Securities Act, such Notes have not been and
will not be registered under the Securities Act, and, if in the future
such beneficial owner decides to offer, resell, pledge or otherwise
transfer such Notes, such Notes may be offered, resold, pledged or
otherwise transferred only in accordance with the provisions of the
Indenture and the legend on such Notes. Such beneficial owner
acknowledges that no representation has been made as to the
availability of any exemption under the Securities Act or any state
securities laws for resale of the Notes.
(iv) It is neither a "U.S. PERSON" as defined in Regulation S
nor a "U.S. RESIDENT" (for purposes of the Investment Company Act) and
is acquiring the Notes in reliance on the exemption from registration
provided by Regulation S.
(v) It is aware that in the case of Temporary Global Notes,
except as otherwise provided in the Indenture, such Notes will be
represented (A) initially
by one or more Temporary Global Notes and (B) thereafter by one or more
Permanent Global Notes, and that in each case beneficial interests
therein may be held only through Euroclear or Clearstream.
(vi) It understands that ARG II and the Trustee and its
counsel will rely upon the accuracy and truth of the foregoing
representations, and it hereby consents to such reliance.
(vii) It will provide notice to each Person to whom it
proposes to transfer any interest in the Notes of the transfer
restrictions and representations set forth in SECTION 2.9 of the
Indenture, including the exhibits referenced herein.
2
Name of Purchaser: Dated:
-------------------------- --------------------------
By:
------------------------------
Name:
Title:
Aggregate principal amount of:
Series [ ] Notes: $
--------------
Taxpayer identification number:
----------------
Address for notices:
Wire transfer information for payments:
Bank:
--------------------------------
Address:
Bank ABA#:
--------------------------------
Account #:
--------------------------------
Telephone:
--------------------------------
Facsimile:
--------------------------------
Attention:
--------------------------------
Registered name:
--------------------------
3
EXHIBIT A-3
TO ARG II BASE INDENTURE
FORM OF TRANSFER CERTIFICATE FOR TEMPORARY GLOBAL NOTE
OR PERMANENT GLOBAL NOTE TO RESTRICTED GLOBAL NOTE (TRANSFEROR)
[Letterhead of Transferor]
Reference is hereby made to the Amended and Restated Base
Indenture, dated as of [ ], 2002 (the "BASE INDENTURE"), and the Series [ ]
Supplement thereto, dated as of [ ] (the "SERIES [ ] SUPPLEMENT" and together
with the Base Indenture, the "INDENTURE"), each between ARG II and The Bank of
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Indenture. Other terms shall have the
meanings assigned to them in Rule 144A under the United States Securities Act of
1933, as amended (the "SECURITIES ACT").
This letter relates to U.S. $_________ principal amount of
Series [ ] Notes (the "NOTES") of ARG II which are held in the registered name
of [insert name of transferor] (the "TRANSFEROR"). The Transferor has requested
a transfer of such Notes to [insert name of transferee].
In connection with such request, and in respect of such Notes,
the Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act to a transferee that the
Transferor reasonably believes is purchasing the Notes for its own account or an
account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, and such transferee is aware that the
sale to it is being made in reliance upon Rule 144A, and any applicable
securities laws of any state of the United States or any other jurisdiction.
This letter and the statements contained herein are made for
the benefit of ARG II and the Trustee.
[TRANSFEROR]
By:
-----------------------------
Name:
Title:
Dated: ______________, _____
EXHIBIT A-4
TO ARG II BASE INDENTURE
FORM OF TRANSFER CERTIFICATE FOR TEMPORARY GLOBAL NOTE
OR PERMANENT GLOBAL NOTE TO RESTRICTED GLOBAL NOTE (TRANSFEREE)
[Letterhead of Prospective Note Purchaser/Exchanger]
In connection with the undersigned's [purchase/exchange] of Series [ ]
Notes (the "NOTES"), as set forth below its name on the signature page of this
letter, issued by ARG II, described in the Amended and Restated Base Indenture,
dated as of [ ], 2002 (the "BASE INDENTURE"), and the Series [ ] Supplement
thereto, dated as of [ ] (the "SERIES [ ] SUPPLEMENT" and together with the Base
Indenture, the "INDENTURE"), between ARG II and The Bank of New York, as
trustee, the undersigned hereby represents and warrants as follows (capitalized
terms used but not defined herein are used as defined in the Indenture):
(i) In connection with its [purchase/exchange] of the Notes:
(A) ARG II is not acting as a fiduciary or financial or investment
adviser for it; (B) it is not relying (for purposes of making any
investment decision or otherwise) upon any advice, counsel or
representations (whether written or oral) of ARG II than any statements
in a current offering memorandum for such Notes; and (C) such
beneficial owner has consulted its own legal, regulatory, tax,
business, investment, financial and accounting advisers to the extent
it has deemed necessary and has made its own investment decisions
(including decisions regarding the suitability of any transaction
pursuant to this Indenture) based upon its own judgment and upon any
advice from such advisers as it has deemed necessary and not upon any
view expressed by ARG II.
(ii) It understands that such Notes are being offered only in
a transaction not involving any public offering in the United States
within the meaning of the Securities Act, such Notes have not been and
will not be registered under the Securities Act, and, if in the future
such beneficial owner decides to offer, resell, pledge or otherwise
transfer such Notes, such Notes may be offered, resold, pledged or
otherwise transferred only in accordance with the provisions of the
Indenture and the legend on such Notes. Such beneficial owner
acknowledges that no representation has been made as to the
availability of any exemption under the Securities Act or any state
securities laws for resale of the Notes.
(iii) It (A) is a "qualified institutional buyer" as defined
in Rule 144A under the Securities Act; (B) is aware that the sale of
the Notes to it (other than the initial sale by ARG II) is being made
in reliance on the exemption from registration provided by Rule 144A
under the Securities Act and understands that the Notes offered in
reliance on Rule 144A will bear the appropriate legend (set forth in
the Indenture); (C) is acquiring its beneficial interest for its own
account or for one or more accounts, each of which is a "qualified
institutional buyer", and as to which the beneficial owner exercises
sole investment discretion, and in a principal amount of not less than
$1,000,000 for the beneficial owner and each such account; and (D) will
provide notice of these transfer restrictions to any transferee from
it. Such beneficial owner understands and agrees that any purported
transfer of an interest in the Notes to a beneficial owner that does
not comply with the requirements of this paragraph 4 shall be null and
void AB INITIO. It understands that in the event that at any time ARG
II or the Trustee determines that such beneficial owner was in breach,
at the time given, of any of the representations or agreements set
forth in this paragraph 4, ARG II and the Trustee will consider the
acquisition of the related interest in the Notes void and may require
that the related interest in the Notes be transferred to a person
designated by ARG II.
(iv) It understands that ARG II and the Trustee and its
counsel will rely upon the accuracy and truth of the foregoing
representations, and it hereby consents to such reliance.
(v) It will provide notice to each Person to whom it proposes
to transfer any interest in the Notes of the transfer restrictions and
representations set forth in SECTION 2.9 of the Indenture, including
the exhibits referenced herein.
2
Name of Purchaser: Dated:
--------------------------- ------------------------
By:
------------------------------
Name:
Title:
Aggregate principal amount of:
Series [ ] Notes: $
-------------------
Taxpayer identification number:
---------------------
Address for notices:
Wire transfer information for payments:
Bank:
----------------------------------------
Address:
Bank ABA#:
--------------------------------
Account #:
--------------------------------
Telephone:
--------------------------------
Facsimile:
--------------------------------
Attention:
------
3
EXHIBIT B
TO ARG II BASE INDENTURE
FORM OF CLEARING SYSTEM CERTIFICATE
ARG Funding Corp. II
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Asset Backed Securities
▇ ▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Reference is hereby made to the Amended and Restated Base
Indenture dated as of [ ], 2002 (the "BASE INDENTURE") between ARG II, as
Issuer, and The Bank of New York, as Trustee. Capitalized terms used but not
defined herein shall have the meanings given to them in the Base Indenture.
This is to certify that, based solely on certificates we have
received in writing, by tested telex or by electronic transmissions from
noteholders appearing in our records as persons being entitled to a portion of
the original principal amount of the Series 2002-1 Notes, Class A-_ (the
"NOTES") equal to, as of the date hereof, U.S.$_________ (our "NOTEHOLDERS"),
certificates with respect to such portion, substantially to the effect set forth
in Exhibit C to the Base Indenture.
We further certify (i) that we are not making available
herewith for exchange any portion of the Temporary Global Note excepted in such
certificates and (ii) that as of the date hereof we have not received any
notification from any of our Noteholders to the effect that the statements made
by such Group III Noteholder with respect to any portion of the part submitted
herewith for exchange are no longer true and cannot be relied upon as at the
date hereof. We understand that this certification is required in connection
with certain securities laws of the United States.
In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorized you to produce
this certification to any interested party in such proceedings.
Dated: __________, 200_(1)
Yours faithfully,
EUROCLEAR BANK S.A./N.V., as
operator of the Euroclear System
or
CLEARSTREAM BANKING,
Societe Anonyme
By:________________________
Name:
Title:
--------------------------------
(1) To be dated no earlier than the earliest of the Exchange Date or the
relevant Interest Payment or the redemption date (as the case may be).
2
EXHIBIT C
TO ARG II BASE INDENTURE
FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP
Re: ARG Funding Corp. II
Rental Car Asset Backed Notes, Series _____, Class __ (the "SECURITIES")
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"ACT"), then this is to certify that, except as set forth below, (i) in the case
of debt securities, the Securities are beneficially owned by (a) non-U.S.
persons or (b) U.S. persons who purchased the Securities in transactions which
did not require registration under the Act; or (ii) in the case of equity
securities, the Securities are owned by (x) non-U.S. persons (and such person(s)
are not acquiring the Securities for the account or benefit of U.S. person(s))
or (y) U.S. person(s) who purchased the Securities in a transaction which did
not require registration under the Act. If this certification is being delivered
in connection with the exercise of warrants pursuant to Section 230-902(m) of
Regulation S under the Act, then this is further to certify that, except as set
forth below, the Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the terms "U.S. person" has the meaning
given to it by Regulation S under the Act.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"Possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to
U.S.$_________ of such interest in the above Securities in respect of which we
are not able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any interest) cannot be made until we do so certify.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Date: ________, 20__(1)
By: _______________________
As, or as agent for, the beneficial owner(s) of the Securities
to which this certificate relates.
--------------------------------
(1) Not earlier than 15 days prior to the certification event to which the
certification relates.
2