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IKON RECEIVABLES LLC,
Issuer
______________,
Trustee
and
IOS CAPITAL, INC.,
Servicer
----------------------
FORM OF INDENTURE
Dated as of _________, 1999
----------------------
$_____________ in aggregate principal
amount of Notes, consisting of:
$_____________% Class [A-1] Lease-Backed Notes
$_____________% Class [A-2] Lease-Backed Notes
$_____________% Class [A-3] Lease-Backed Notes
$_____________% Class [A-4] Lease-Backed Notes
$_____________% Class [B] Lease-Backed Notes
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IKON RECEIVABLES LLC
Reconciliation and Tie between the Indenture
dated as of______, 1999 and the
Trust Indenture Act of 1939, as amended
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
ss.310 (a)(1).................. ss.7.08
(a)(2).................... 7.08
(a)(3).................... Not Applicable
(a)(4).................... Not Applicable
(b)....................... 7.08; 7.09; 6.07; 1.05; 1.06
(c)....................... Not Applicable
311 (a)....................... 7.14
(b)....................... 7.14
312 (a)....................... 2.11
(b)....................... 11.02
(c)....................... 11.02
313 (a)....................... 7.15
(b)(1).................... Not Applicable
(b)(2).................... 7.15
(c)....................... 7.15; 1.06
(d)....................... 7.15
314 (a)....................... 8.12; 8.09; 1.06
(b)....................... Not Applicable
(c)(1).................... 11.03
(c)(2).................... 11.03
(c)(3).................... 11.01
(d)....................... 11.01
(e)....................... 11.04
(f)....................... Not Applicable
315 (a)....................... 7.01(a)
(b)....................... 7.02; 1.06
(c)....................... 7.01(b)
(d)....................... 7.01(c)
(e)....................... 6.13
316 (a) (last sentence)....... 2.12
(a)(1)(A)................. 6.12
(a)(1)(b)................. 6.11
(a)(2).................... Not Applicable
317 (a)(1).................... 6.03(c)
(a)(2).................... 6.04
(b)....................... 8.03(c)
318 (a)....................... 11.01, 11.02
(c)....................... 11.01
ii
INDENTURE
This INDENTURE dated as of _________, 1999, is among IKON
RECEIVABLES LLC, a Delaware limited liability company (herein called the
"Issuer"), _______________________________________, a ___________ banking
corporation, as trustee (herein called the "Trustee"), and IOS CAPITAL, INC., as
servicer (herein called the "Servicer").
RECITALS
The Issuer has duly authorized the issuance of $__________ in
aggregate principal amount of its Lease-Backed Notes, consisting of $_________
aggregate principal amount of ___% Class [A-1] Lease-Backed Notes (the "Class
[A-1] Notes"), $__________ aggregate principal amount of ____% Class [A-2]
Lease-Backed Notes (the "Class [A-2] Notes"), $___________ aggregate principal
amount of ____% Class [A-3] Lease-Backed Notes (the "Class [A-3] Notes"),
$____________ aggregate principal amount of _____% Class [A-4] Lease-Backed
Notes (the "Class [A-4] Notes", together with the Class [A-1] Notes, Class [A-2]
Notes, and Class [A-3] Notes, the "Class [A] Notes"), $____________ aggregate
principal amount of _____% Class [B] Lease-Backed Notes (the " Class [B] Notes";
together with the Class [A] Notes, the "Notes"), of substantially the tenor
hereinafter set forth, and to provide therefor the Issuer has duly authorized
the execution and delivery of this Indenture. The Class [A] Notes and the Class
[B] Notes shall be entitled to payments of interest and principal as set forth
herein.
All things necessary to make the Notes, when executed by the Issuer
and authenticated and delivered hereunder, the valid obligations of the Issuer,
and to make this Indenture a valid agreement of the Issuer, in accordance with
its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the holders thereof, it is mutually covenanted and agreed, for the
benefit of all Noteholders, as follows:
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee on the Issuance Date, for
the benefit and security of the Noteholders, all of the Issuer's right, title
and interest in and to (a) the Leases and all Lease Payments, Casualty Payments,
Lease Repurchase Amounts, Termination Payments, Servicer Advances and other
amounts now due or becoming due with respect thereto since the Cut-Off Date
(other than any prepayments of rent required pursuant to the terms of any Lease
at or before the commencement of the Lease and any payments due before the
Cut-Off Date) and all Additional Leases and Substitute Leases and all Lease
Payments, Casualty Payments, Lease Repurchase Amounts, Termination Payments,
Servicer Advances and other amounts due or becoming due with respect thereto
since the effective date of their respective addition or substitution (other
than any prepayments of rent required by the terms of any Lease at or before the
commencement
1
of the Lease and any payments due before the effective date of such addition or
substitution), (b) all rights of the Issuer to or under any guarantees of
collateral (including all rights of the Issuer in any security deposits and the
Issuer's right to repayment by IOS Capital, Inc. ("IOS Capital") of any
Inter-Company loans pursuant to Section 15.01 of the Assignment and Servicing
Agreement) for the Lessee's obligations under any Lease, (c) all interests of
the Issuer in the Equipment [which excludes ownership interests] at any time
subject to any Lease, including any security interest of IOS Capital in the
Equipment, (d) all moneys from time to time held by the Trustee pursuant to
Section 3.01(a) hereof pending deposit in one of the accounts referred to
therein, (e) all moneys from time to time on deposit in any of the Trust
Accounts, including all investments and income from the investment of such
moneys, (f) all rights of the Issuer under the Assignment and Servicing
Agreement, and (g) all proceeds of the conversion, whether voluntary or
involuntary, of any of the foregoing into cash or other property (collectively,
the "Granted Assets"). Such Grant is made in trust to secure (i) the payment of
all amounts due on the Notes, in accordance with their terms, equally and
ratably without prejudice, priority, or distinction among any of the Notes,
respectively, by reason of differences in time of issuance or otherwise, (ii)
the payment of all other sums payable under this Indenture with respect to the
Notes and (iii) compliance with the provisions of this Indenture with respect to
the Notes.
The Trustee acknowledges such Grant, accepts the trusts hereunder in
accordance with the provisions hereof, and agrees to perform the duties herein
required to the best of its ability and to the end that the interests of the
Noteholders may be adequately and effectively protected as hereinafter provided.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. General Definitions.
Except as otherwise specified or as the context may otherwise
require, the following terms have the meanings set forth below for all purposes
of this Indenture, and the definitions of such terms are applicable to the
singular as well as to the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
Act: with respect to any Noteholder, as defined in Section 1.04.
Additional Lease: as defined in Section 14 of the Assignment and
Servicing Agreement.
Additional Principal: with respect to each Payment Date equals (a)
zero if the Class Target Investor Principal Amount for Class [B] exceeds its
Class Floor on such Payment Date and (b) in each other case the excess, if any,
of (i)(A) the Outstanding Principal Balance of the Notes plus the
Overcollateralization Balance as of the
2
immediately preceding Payment Date after giving effect to payments on such
Payment Date minus (b) the Discounted Present Value of the Performing Leases as
of the related Determination Date, over (ii) the sum of the Class [A] Principal
Payment and the Class [B] Principal Payment to be paid on such Payment Date.
Affiliate: with respect to any specified Person, any other Person
which directly or indirectly controls, or is controlled by, or is under common
control with, such specified Person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract, or otherwise.
Assignment and Servicing Agreement: the Assignment and Servicing
Agreement dated as of March __, 1999 between the Issuer and IOS Capital, as the
same may be amended or modified from time to time in accordance with the
provisions hereof and thereof.
Authorized Officer: with respect to any matter, any officer of or
other Person representing the Issuer, IOS Capital or the Servicer, as the case
may be, who is authorized to act for the Issuer, IOS Capital or the Servicer, as
the case may be.
Available Funds: with respect to any Payment Date, the amount on
deposit in the Collection Account with respect to the immediately preceding Due
Period, including, without limitation, (a) Lease Payments due during the
immediately preceding Due Period (net of any Excess Copy Charges, Maintenance
Charges and Fee Per Scan Charges), (b) recoveries from Defaulted Leases to the
extent IOS Capital has not substituted Substitute Leases for such Defaulted
Leases (except to the extent required to reimburse unreimbursed Servicer
Advances pursuant to Section 5 of the Assignment and Servicing Agreement); (c)
proceeds from repurchases by IOS Capital of Leases as a result of breaches of
representations and warranties to the extent IOS Capital has not substituted
Substitute Leases for such Leases; (d) proceeds from the investment of funds in
the Collection Account and the Reserve Account, if any; (e) Casualty Payments;
(f) Servicer Advances; (g) Termination Payments; (h) late charges on delinquent
Lease Payments not advanced by the Servicer and (i) to the extent there occurs
an Available Funds Shortfall, funds, if any, on deposit in the Reserve Account.
Available Funds Shortfall: as defined in Section 3.04(b).
Available Reserve Amount: the amount on deposit in the Reserve
Account.
Book-Entry Class [A-1] Notes: beneficial interests in the Class
[A-1] Notes, the ownership and transfers of which shall be made through book
entries by a DTC as described in Section 2.05.
Book-Entry Class [A-2] Notes: beneficial interests in the Class
[A-2] Notes, the ownership and transfers of which shall be made through book
entries by a DTC as described in Section 2.05.
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Book-Entry Class [A-3] Notes: beneficial interests in the Class
[A-3] Notes, the ownership and transfers of which shall be made through book
entries by a DTC as described in Section 2.05.
Book-Entry Class [A-4] Notes: beneficial interests in the Class
[A-4] Notes, the ownership and transfers of which shall be made through book
entries by a DTC as described in Section 2.05.
Book-Entry Class [B] Notes: beneficial interests in the Class [B]
Notes, the ownership and transfers of which shall be made through book entries
by a DTC as described in Section 2.05.
Booked Residual Value: the estimated residual value of the Equipment
recorded on the books of the Seller as of the Cut-Off Date in the case of the
initial Leases, and as of the date of substitution in the case of a Substitute
Lease.
Business Day: any day that is not a Saturday, Sunday or other day on
which commercial banking institutions in the city in which the Corporate Trust
Office and the Servicer is located are authorized or obligated by law or
executive order to remain closed.
Casualty Payment: any payment pursuant to a Lease on account of the
loss, theft, condemnation, governmental taking, destruction, or damage beyond
repair of any item of Equipment subject thereto which results, in accordance
with the terms of the Lease, in a reduction in the number or amount of any
future Lease Payments due thereunder or in the termination of the Lessee's
obligation to make future Lease Payments thereunder.
Cede & Co.: the initial registered holder of the Class [A] Notes and
the Class [B] Notes, acting as nominee of The Depository Trust Company.
Class [A] Notes: as defined in the Recitals hereto.
Class [A] Percentage: _______% (approximately).
Class [A] Principal Payment: (a) while the Class [A-1] Notes are
outstanding, (i) on all Payment Dates prior to the _____ 1999 Payment Date, the
lesser of (1) the amount necessary to reduce the Outstanding Principal Amount on
the Class [A-1] Notes to zero and (2) the difference between (a) the Discounted
Present Value of the Performing Leases as of the previous Determination Date and
(b) the Discounted Present Value of the Performing Leases as of the related
Determination Date, and (ii) on and after the ______ 1999 Payment Date, the
entire Outstanding Principal Amount on the Class [A-1] Notes, and (b) after the
Class [A-1] Notes have been paid in full, the amount necessary to reduce the
aggregate Outstanding Principal Amount on the Class [A] Notes to the Class [A]
Target Investor Principal Amount.
4
Class [A] Target Investor Principal Amount: with respect to each
Payment Date, an amount equal to the product of (a) the Class [A] Percentage and
(b) the Discounted Present Value of the Performing Leases as of the related
Determination Date.
Class [A-1] Initial Principal Amount: $_______________.
Class [A-1] Note Interest Rate: the rate at which interest accrues
on the Class [A-1] Notes, which rate shall be equal to ___% per annum.
Class [A-1] Note Owner: with respect to a Book-Entry Class [A-1]
Note, the Person who is the beneficial owner of such Book-Entry Class [A-1]
Note, as reflected on the books of the DTC, or on the books of a Person
maintaining an account with such DTC (directly or as an indirect participant, in
accordance with the rules of such DTC).
Class [A-1] Noteholder: Cede & Co. or a holder of a Definitive Class
[A-1] Note.
Class [A-1] Notes: as defined in the Recitals hereto.
Class [A-2] Initial Principal Amount: $______________.
Class [A-2] Note Interest Rate: the rate at which interest accrues
on the Class [A-2] Notes, which rate shall be equal to ________% per annum.
Class [A-2] Note Owner: with respect to a Book-Entry Class [A-2]
Note, the Person who is the beneficial owner of such Book-Entry Class [A-2]
Note, as reflected on the books of the DTC, or on the books of a Person
maintaining an account with such DTC (directly or as an indirect participant, in
accordance with the rules of such DTC).
Class [A-2] Noteholder: Cede & Co. or a holder of a Definitive Class
[A-2] Note.
Class [A-2] Notes: as defined in the Recitals hereto.
Class [A-3] Initial Principal Amount: $____________.
Class [A-3] Note Interest Rate: the rate at which interest accrues
on the Class [A-3] Notes, which rate shall be equal to _____% per annum.
Class [A-3] Note Owner: with respect to a Book-Entry Class [A-3]
Note, the Person who is the beneficial owner of such Book-Entry Class [A-3]
Note, as reflected on the books of the DTC, or on the books of a Person
maintaining an account with such DTC (directly or as an indirect participant, in
accordance with the rules of such DTC).
Class [A-3] Noteholder: Cede & Co. or a holder of a Definitive Class
[A-3] Note.
Class [A-3] Notes: as defined in the Recitals hereto.
5
Class [A-4] Initial Principal Amount: $___________.
Class [A-4] Note Interest Rate: the rate at which interest accrues
on the Class [A-4] Notes, which rate shall be equal to _____% per annum.
Class [A-4] Note Owner: with respect to a Book-Entry Class [A-4]
Note, the Person who is the beneficial owner of such Book-Entry Class [A-4]
Note, as reflected on the books of the DTC, or on the books of a Person
maintaining an account with such DTC (directly or as an indirect participant, in
accordance with the rules of such DTC).
Class [A-4] Noteholder: Cede & Co. or a holder of a Definitive Class
[A-4] Note.
Class [A-4] Notes: as defined in the Recitals hereto.
Class [B] Initial Principal Amount: $___________.
Class [B] Floor: with respect to each Payment Date, an amount equal
to the total of (a) ______% of the initial Discounted Present Value of the
Leases as of the Cut-Off Date, plus (b) the Cumulative Loss Amount with respect
to such Payment Date, minus (c) the Overcollateralization Balance as of the
immediately preceding Payment Date after giving effect to all principal payments
made on that day, minus (d) the amount on deposit in the Reserve Account after
giving effect to withdrawals to be made on such Payment Date.
Class [B] Note Interest Rate: the rate at which interest accrues on
the Class [B] Notes, which rate shall be ______% per annum.
Class [B] Note Owner: with respect to a Book-Entry Class [B] Note,
the Person who is the beneficial owner of such Book-Entry Class [B] Note, as
reflected on the books of the DTC, or on the books of a Person maintaining an
account with such DTC (directly or as an indirect participant, in accordance
with the rules of such DTC).
Class [B] Noteholder: Cede & Co. or a holder of a Definitive Class
[B] Note.
Class [B] Notes: as defined in the Recitals hereto.
Class [B] Percentage: _______% (approximately).
Class [B] Principal Payment: (a) while the Class [A-1] Notes are
outstanding, zero and (b) after the Outstanding Principal Amount on the Class
[A-1] Notes has been reduced to zero, the amount necessary to reduce the
Outstanding Principal Amount of the Class [B] Notes to the greater of the Class
[B] Target Investor Principal Amount and the Class [B] Floor.
6
Class [B] Target Investor Principal Amount: with respect to each
Payment Date, an amount equal to the product of (a) the Class [B] Percentage and
(b) the Discounted Present Value of the Performing Leases as of the related
Determination Date.
Class Target Investor Principal Amounts: means the Class [A] Target
Investor Principal Amount or the Class [B] Target Investor Principal Amounts.
Clearing Agency Participant: 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.
Collection Account: the account or accounts by that name established
and maintained by the Trustee pursuant to Section 3.01.
Commission: the Securities and Exchange Commission.
Corporate Trust Office: the principal corporate trust office of the
Trustee located at ______________________________, or at such other address as
the Trustee may designate from time to time by notice to the Noteholders, the
Issuer and IOS Capital.
Cumulative Loss Amount: with respect to each Payment Date, an amount
equal to the excess, if any, of (a) the total of (i) the Outstanding Principal
Amount of the Notes as of the immediately preceding Payment Date after giving
effect to all principal payments made on that day, plus (ii) the
Overcollateralization Balance as of the immediately preceding Payment Date,
minus (iii) the lesser of (A) the Discounted Present Value of the Performing
Leases as of the Determination Date relating to the immediately preceding
Payment Date minus the Discounted Present Value of the Performing Leases as of
the related Determination Date and (b) Available Funds for such Payment Date
remaining after the payment of amounts owing the Servicer and in respect of
interest on the Notes on such Payment Date over (b) the Discounted Present Value
of Performing Leases as of the related Determination Date.
Cut-Off Date: the close of business on _______, 1999.
Default: any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
Defaulted Lease: as of any Determination Date, any Lease with
respect to which at any time following the Cut-Off Date or related Transfer
Date, as the case may be, either (a) a Lease Payment, or any portion thereof,
was 123 or more days overdue as of the last day of the Due Period with respect
to such Determination Date, unless on or before such Determination Date such
Lease Payment (or portion thereof) has been paid or (b) the Servicer has
accelerated the remaining payments or has determined such Lease to be
uncollectible in accordance with the Servicer's customary practices prior to the
last day of the Due Period with respect to such Determination Date.
7
Definitive Note: a definitive, fully registered Note issued pursuant
to Section 2.07.
Delinquent Lease: as of any Determination Date, any Lease (other
than a Lease which became a Defaulted Lease prior to such Determination Date)
with respect to which the Lessee has not paid all Lease Payments then due.
Depository Agreement: the letter of representations, between the
Issuer and the Depository Trust Company, as Clearing Agency.
Determination Date: with respect to any Payment Date, the fifth
business Day immediately preceding such Payment Date.
Discount Rate: with respect to any Determination Date, ______%,
which equals the sum of (a) the weighted-average interest rate of the Class
[A-1] Notes, the Class [A-2] Notes, the Class [A-3] Notes, the Class [A-4] Notes
and the Class [B] Notes on the Issuance Date weighted by (i) the Class [A-1]
Initial Principal Amount, the Class [A-2] Initial Principal Amount, the Class
[A-3] Initial Principal Amount, the Class [A-4] Initial Principal Amount and the
Class [B] Initial Principal Amount, as applicable, and (ii) the expected
weighted average life (under a zero prepayment and no loss scenario) of each
Class of Notes and (b) the Servicing Fee rate of 0.75% per annum.
Discounted Present Value of the Leases: with respect to any Lease as
of the Cut-Off Date or any date thereafter, an amount equal to the net present
value of all Lease Payments (not including delinquent amounts, Excess Copy
Charges, Maintenance Charges and Fee Per Scan Charges) to become due thereunder
following the Cut-Off Date or during the Due Period preceding the following
Payment Date, as the case may be (determined by discounting on a monthly basis
(assuming a calendar year consisting of twelve 30-day months)), at a rate equal
to the Discount Rate, each such Lease Payment from the Payment Date following
the date such Lease Payment was due). In determining the Discounted Present
Value of the Leases on any Determination Date or with respect to a Payment Date,
the future remaining Lease Payments will be calculated after giving effect to
any payments received prior to such date of calculation to the extent such
payments relate to Lease Payments due and payable by the Lessees with respect to
the related Due Period and any prior Due Period.
Discounted Present Value of the Delinquent Leases: with respect to
any Payment Date or Determination Date, the Discounted Present Value of the
Leases that are not Defaulted Leases as to which a Lease Payment, or any portion
thereof, was 63 or more days overdue as of the last day of the Due Period
immediately preceding such Payment Date.
Discounted Present Value of the Performing Leases: the Discounted
Present Value of the Leases, reduced by the present value of all future
remaining scheduled payments on the Defaulted Leases (not including delinquent
amounts, Excess Copy Charges, Maintenance Charges or Fee Per Scan Charges)
discounted at the Discount Rate. In determining the Discounted Present Value of
the Performing Leases
8
on any Determination Date or with respect to a Payment Date, the future
remaining Lease Payments will be calculated after giving effect to any payments
received prior to such date of calculation to the extent such payments relate to
Lease Payments due and payable by the Lessees with respect to the related Due
Period and any prior Due Period.
DTC: an organization registered as a "DTC" pursuant to Section 17A
of the Securities Exchange Act of 1934, as amended.
Due Period: with respect to any Payment Date and the Determination
Date with respect thereto, the period beginning on the first day and ending on
the last day of the calendar month prior to the month in which such Payment Date
and such Determination Date occurs.
Eligible Account: either (a) an account maintained with a depository
institution or trust company acceptable to each of the Rating Agencies or (b) a
trust account or similar account maintained in the corporate trust department
with a federal or state chartered depository institution, which may be an
account maintained with the Trustee.
Eligible Investments: any one or more of the following obligations
or securities:
(a) direct non-callable obligations of, and non-callable obligations
fully guaranteed by, the United States of America, or any agency or
instrumentality of the United States of America the obligations of which
are backed by the full faith and credit of the United States of America;
(b) demand and time deposits in, certificates of deposits of, and
bankers' acceptances issued by, any depository institution or company
(including the Trustee acting in its commercial capacity) incorporated
under the laws of the United States of America or any state thereof,
having a combined capital and surplus of at least $100,000,000, and
subject to supervision and examination by federal and/or state banking
authorities, so long as at the time of such investment or contractual
commitment providing for such investment the commercial paper or other
short-term debt obligations of such depository institution or company (or,
in the case of a depository institution that is the principal subsidiary
of a holding company, the commercial paper or other short-term debt
obligations of such holding company) have the highest short-term credit
ratings available from Moody's and S&P;
(c) repurchase obligations with respect to and collateralized by (i)
any security described in clause (a) above or (ii) any other security
issued or guaranteed by an agency or instrumentality of the United States
of America, in each case entered into with a depository institution or
company (acting as principal) of the type described in clause (b) above;
provided that the Trustee has taken delivery of such security;
9
(d) commercial paper (including both non-interest bearing discount
obligations and interest-bearing obligations) payable on demand or on a
specified date not more than one year after the date of issuance thereof
having the highest short-term credit ratings from Moody's and S&P at the
time of such investment;
(e) money market funds that redeem their shares on demand, invest
only in other Eligible Investments, and are rated [___] by Moody's and
[___] by S&P;
(f) demand notes payable on demand issued by an institution rated
[___] by Moody's and [___] by S&P at the time of such investment;
(g) funding agreements or guaranteed investment contracts provided
by issuers rated [___] by Moody's and [___] by S&P which provide, by their
terms, for receipt by the trustee on or prior to the next Payment Date of
a predetermined fixed dollar amount which cannot vary or change; and
(h) such other investments as may be approved by Moody's and S&P.
Equipment: each item of personal property, together with any
replacement parts, additions, and repairs thereto, any replacements thereof, and
any accessories incorporated therein and/or affixed thereto, subject to a Lease
or, following expiration or termination of the Lease to which the same was
previously subject, remaining subject to the lien of this Indenture in
accordance with the provisions hereof.
Event of Default: as defined in Section 6.01.
Exchange Act: the Securities Exchange Act of 1934, as amended.
Excess Copy Charge: with respect to any Lease, means the amount
owing by such Lessee under such Lease reflecting usage of the related Equipment
in excess of a specified copy amount per month.
Fee Per Scan Charge: with respect to any Lease, means the amount
owing by such Lessee under such Lease reflecting usage of the related Equipment
in excess of a specified scan amount per month.
Financing Statement: as defined in Section 14 of the Assignment and
Servicing Agreement.
Governmental Authority: Any court or federal or state regulatory
body, administrative agency or other tribunal or other governmental
instrumentality.
Grant: grant, bargain, sell, convey, assign, transfer, mortgage,
pledge, create and grant a security interest in and right of set-off against,
deposit, set over and confirm. The Grant of the Trust Estate effected by this
Indenture shall include all rights, powers, and options (but none of the
obligations) of the Issuer with respect thereto, including, without limitation,
the immediate and continuing right to claim for, collect,
10
receive, and give receipts for Lease Payments in respect of the Leases and all
other moneys payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights and
options, to bring judicial proceedings in the name of the Issuer or otherwise,
and generally to do and receive anything that the Issuer is or may be entitled
to do or receive thereunder or with respect thereto.
Granted Assets: as defined in the Granting Clause.
Holder: a holder of a Note.
Indenture: this instrument as originally executed and as from time
to time supplemented or amended pursuant to the applicable provisions hereof.
Initial ADRB: the Initial Aggregate Discounted Residual Balance of
the Leases is equal to $_____________. Initial ADRB means the sum of the
discounted present value of 145% of the Booked Residual Values of all Leases, as
of the Cut-Off Date, discounted monthly at one twelfth the Residual Discount
Rate.
Initial Booked Residual Value: $___________.
Initial Payment Date: ______, 1999.
Inter-Company Loans: as defined in Section 13.01 of the Assignment
and Servicing Agreement.
Interest Payments: as defined in Section 2.01(c).
IOS Capital: As defined in the Granting Clause.
Issuance Date: __________, 1999.
Issuer: the Person named as the "Issuer" in the first paragraph of
this instrument.
Lease: at any time, each separate lease agreement and each lease
schedule or supplement (and each master lease agreement insofar as the same
relates to any such schedule or supplement) described in Schedule 1 hereto, as
the same may be amended or modified from time to time in accordance with the
provisions hereof and thereof unless and until released from the lien of this
Indenture.
Lease Delinquency Payment: any payment made with respect to a Lease
in an amount equal to all or part of any specific Lease Payment due with respect
to such Lease (a) by the Servicer pursuant to Section 4.01 of the Assignment and
Servicing Agreement, (b) by a transfer from the Reserve Account pursuant to
Section 3.05, or (c) by the Issuer in its sole discretion.
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Lease Payment: each periodic installment of rent payable by a Lessee
under a Lease. Casualty Payments, Termination Payments, prepayments of rent
required pursuant to the terms of a Lease, at or before the commencement of the
Lease, payments becoming due on or before the Cut-Off Date and supplemental or
additional payments required by the terms of a Lease with respect to taxes,
insurance, maintenance (including, without limitation, any Maintenance Charges),
or other specific charges shall not be Lease Payments hereunder. For purposes of
calculating the Discounted Present Value of the Leases and the Discounted
Present Value of the Performing Leases, the amount of any Excess Copy Charges
and Fee Per Scan Charges that may be payable under such Lease shall not be
included in such calculation.
Lease Repurchase Amount: at any date of determination with respect
to any Lease, means an amount equal to the sum of (a) the sum of (i) the
Discounted Present Value of the Lease as of the due period relating to such date
of determination (plus any amounts previously due and unpaid) and (ii) the
product of (x) the amount described in the foregoing clause (i) and (y)
one-twelfth of the Discount Rate and (b) the product of (i) the Initial ADRB and
(ii) the ratio, as of the Cut-Off Date, that the Booked Residual Value of the
Lease bears to the aggregate Booked Residual Value of all Leases.
Lessee: with respect to any Lease, the lessee thereunder.
Lien: as defined in Section 12 of the Assignment and Servicing
Agreement.
Liquidity Reserve Account: the account by that name established and
maintained by the Trustee pursuant to Section 3.01.
Maintenance Charges: with respect to any Lease, the amount owing by
the Lessee under the terms of the related Lease in respect of maintenance
services being provided in connection therewith.
Maturity: with respect to any installment of principal of or
interest on any Note, the date on which such installment is due and payable as
therein or herein provided, whether at the Stated Maturity, by declaration of
acceleration, or otherwise.
Moody's: Xxxxx'x Investors Service, Inc. and any successors thereto.
Nominal Buy-Out Lease: as defined in Section 12 of the Assignment
and Servicing Agreement.
Noteholder: at any time, any Person in whose name a Note is
registered in the Note Register.
Note Interest Rate: the Class [A-1] Note Interest Rate, the Class
[A-2] Note Interest Rate, the Class [A-3] Note Interest Rate, the Class [A-4]
Interest Rate or the Class [B] Note Interest Rate, as the case may be.
Note Owner: the owner of a Note issued hereunder.
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Note Register: as defined in Section 2.03.
Notes: any notes authorized by, and authenticated and delivered
under, this Indenture.
Officers' Certificate: a certificate delivered to the Trustee and
signed by the Chairman, the President, or a Vice President of the Issuer, and by
another Vice President, the Treasurer, and Assistant Treasurer, the Secretary,
or an Assistant Secretary of the Issuer who is not the same Person as the other
officer signing such certificate.
Opinion of Counsel: a written opinion, which shall be satisfactory
in form and substance to the Trustee, of counsel who may, except as otherwise
expressly provided in this Indenture, be inside or outside counsel for the
Issuer and who shall be satisfactory to the Trustee.
Other Lease Payments: all payments on or in respect of leases which
are not Lease Payments, Lease Delinquency Payments, Casualty Payments,
Termination Payments or Similar Transaction Payments.
Outstanding: with respect to the Notes, as of any date of
determination, all Notes theretofore authenticated and delivered under this
Indenture except:
(a) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes or portions thereof for whose payment money in the
necessary amount has been theretofore irrevocably deposited with the
Trustee in trust for the holders of such Notes; and
(c) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Trustee is presented that any such Notes are held by a
Person in whose hands the Note is a valid obligation;
provided, however, that in determining whether the holders of the requisite
percentage of the Outstanding Principal Amount of the Notes have given any
request, demand, authorization, direction, notice, consent, or waiver hereunder,
Notes owned by the Issuer or any Affiliate of the Issuer shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, or waiver, only Notes that a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded.
Outstanding Class A Principal Amount: The aggregate principal amount
of the Class [A] Notes Outstanding at any time.
Outstanding Class [A-1] Principal Amount: the aggregate principal
amount of the Class [A-1] Notes Outstanding at any time.
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Outstanding Class [A-2] Principal Amount: the aggregate principal
amount of the Class [A-2] Notes Outstanding at any time.
Outstanding Class [A-3] Principal Amount: the aggregate principal
amount of the Class [A-3] Notes Outstanding at any time.
Outstanding Class [A-4] Principal Amount: the aggregate principal
amount of the Class [A-4] Notes Outstanding at any time.
Outstanding Class [B] Principal Amount: the aggregate principal
amount of the Class [B] Notes Outstanding at any time.
Outstanding Principal Amount: the aggregate unpaid principal amount
of the Notes Outstanding at any time.
Overcollateralization Balance: with respect to each Payment Date is
an amount equal to the excess, if any, of (a) the Discounted Present Value of
Performing Leases as of the related Determination Date over (b) the Outstanding
Principal Amount of the Notes as of such Payment Date after giving effect to all
principal payments made on that day.
Paying Agent: each agent of the Issuer appointed for the purpose of
making payments on the Notes, including the Trustee.
Payment Date: the 15th day of each month (or the next Business Day
thereafter if such day is not a Business Day), commencing on the Initial Payment
Date, and ending on the latest Stated Maturity.
Person: any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
Predecessor Notes: with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.04 in lieu of a lost, destroyed or
stolen Note (or a mutilated Note surrendered to the Trustee) shall be deemed to
evidence the same debt as the lost, destroyed or stolen Note (or a mutilated
Note surrendered to the Trustee).
Principal Payments: as defined in Section 2.01(b).
Rating Agency: S&P and Moody's.
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Record Date: with respect to any Payment Date, the last day of the
calendar month immediately preceding such Payment Date. The Record Date will be
the Issuance Date with respect to the first Payment Date.
Required Deposit Date: as defined in Section 3.03(a).
Required Liquidity Reserve: during the first ____ months from the
Cut-Off Date, $_________ and thereafter, $________.
Required Payment: as defined in Section 3.04(b).
Required Reserve Amount: shall equal the lesser of (a) $__________
and (b) the Outstanding Principal Amount of the Notes.
Reserve Account: the account or accounts by that name established
and maintained by the Trustee pursuant to Section 3.01.
Responsible Officer: with respect to the Trustee, any person
regularly engaged in the administration or supervision of corporate trust
accounts (including, in the case of the original Trustee hereunder, any officer
in its Corporate Trust Administration) and also, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
S&P: Standard & Poor's Ratings Services, a division of the
XxXxxx-Xxxx Companies Inc. and any successor thereto.
Securities Act: the Securities Act of 1933, as amended.
Servicer: IOS Capital and any successor Servicer appointed pursuant
to the terms hereof and of the Assignment and Servicing Agreement and, to the
extent that it at any time is performing the functions of the Servicer, the
Trustee, subject to the terms of Section 5.01 hereof.
Servicer Advance: as defined in Section 5.01(a) of the Assignment
and Servicing Agreement.
Servicer Event of Default: as defined in Section 10.01 of the
Assignment and Servicing Agreement.
Servicer Order: a written order or request delivered to the Trustee
and signed in the name of the Servicer by an Authorized Officer.
Servicing Fee: with respect to any Payment Date, the Servicing Fee
payable pursuant to the Assignment and Servicing Agreement.
Servicing Report: as defined in Section 5.01(b) of the Assignment
and Servicing Agreement.
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Similar Transaction Agreement: an indenture between the Trustee and
a wholly-owned special purpose subsidiary of IOS Capital other than the Issuer,
substantially similar to this Indenture, pursuant to which notes, substantially
similar to the Notes, have been issued.
Similar Transaction Amount: for each Required Deposit Date, the
amount of all Similar Transaction Payments received by the Servicer and
deposited in the Collection Account pursuant to Section 3.02(a) and reported by
the Servicer for such Required Deposit Date pursuant to Section 5.01(a) of the
Assignment and Servicing Agreement.
Similar Transaction Payments: all payments on or in respect of
leases subject to the lien of any Similar Transaction Agreement.
Stated Maturity: The stated maturity date with respect to the Class
[A-1] Notes is the Payment Date in __________ (the "Class [A-1] Stated Maturity
Date"), the stated maturity date with respect to the Class [A-2] Notes is the
Payment Date in ____________ (the "Class [A-2] Stated Maturity Date"), the
stated maturity date with respect to the Class [A-3] Notes is the Payment Date
in ___________ (the "Class [A-3] Stated Maturity Date"), the stated maturity
date with respect to Class the [A-4] Notes is the Payment Date in _________ (the
"Class [A-4] Stated Maturity Date"), the stated maturity date with respect to
the Class [B] Notes is the Payment Date in ___________ (the " Class [B] Stated
Maturity Date"; together with the Class [A-1] Stated Maturity Date, the Class
[A-2] Stated Maturity Date, the Class [A-3] Stated Maturity Date and the Class
[A-4] Stated Maturity Date and the Class [B] Stated Maturity Date, the "Stated
Maturity Dates").
Substitute Lease: as defined in Section 12 of the Assignment and
Servicing Agreement.
Terminated Lease: a lease that is terminated prior to its original
stated maturity (but not on account of casualty or a Lease default).
Termination Payment: a payment payable by a Lessee under a Lease
upon the early termination of such Lease (but not on account of a casualty or a
Lease default) which may be agreed upon by the Servicer, acting in the name of
the Issuer, and the Lessee in accordance with the provisions of Section 4.02 of
the Assignment and Servicing Agreement.
Transaction Payment Amount: for each Required Deposit Date, the
amount of all Lease Payments, Lease Delinquency Payments, Defaulted Lease
Payments, Casualty Payments, Termination Payments and other payments on or in
respect of a Lease received by the Servicer and deposited in the Collection
Account pursuant to Section 3.02(a) and reported by the Servicer for such
Required Deposit Date in accordance with Section 6.01(c) of the Assignment and
Servicing Agreement.
Trust Accounts: the Collection Account, the Reserve Account and the
Liquidity Reserve Account.
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Trustee: the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Person shall have become the Trustee pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Person; provided, that the provisions of Section 7.07 and
Section 8.11, as applicable to any Person at any time serving as Trustee
hereunder, shall survive the termination of such Person's status as Trustee
hereunder and the succession of any other Person to such status.
Trust Estate: all money, instruments and other property subject to
or intended to be subject to the lien of this Indenture including all proceeds
thereof.
Trust Indenture Act: the Trust Indenture Act of 1939 as in effect on
the date on which this Indenture is qualified under the Trust Indenture Act,
except as provided in Section 9.06 hereof.
Trust Order or Trust Request: a written order or request delivered
to the Trustee and signed in the name of the Issuer by an Authorized Officer.
Underwriting Agreement: the Underwriting Agreement, among the
Issuer, IOS Capital and Xxxxxx Brothers.
Uniform Commercial Code: with respect to a particular jurisdiction,
the Uniform Commercial Code, as in effect from time to time in such
jurisdiction, or any successor statute thereto.
Warranty Lease: a Lease subject to repurchase by the Seller as a
result of a breach of a representation or warranty in accordance with the
provisions of Section 4 of the Assignment and Servicing Agreement.
SECTION 1.02. Compliance Certificates and Opinions.
Upon any written application or request (or oral application with
prompt written or telecopied confirmation) by the Issuer to the Trustee to take
any action under any provision of this Indenture, other than any request that
(a) the Trustee authenticate the Notes specified in such request, (b) the
Trustee invest moneys in any of the Trust Accounts pursuant to the written
directions specified in such request, or (c) the Trustee pay moneys due and
payable to the Issuer hereunder to the Issuer's assignee specified in such
request, the Trustee shall require the Issuer to furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and that the request otherwise is in accordance with the terms of the Indenture,
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such requested action as to which other evidence of satisfaction of the
conditions precedent thereto is specifically required by any provision of this
Indenture, no additional certificate or opinion need be furnished.
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SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer delivered to
the Trustee may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Officer's Certificate or
opinion and any Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Issuer as to such factual matters unless such officer
or counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous. Any Opinion of Counsel may be based on the written opinion of other
counsel, in which event such Opinion of Counsel shall be accompanied by a copy
of such other counsel's opinion and shall include a statement to the effect that
such counsel believes that such counsel and the Trustee may reasonably rely upon
the opinion of such other counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Wherever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of compliance with any term hereof, it is intended that the truth and
accuracy, at the time of the granting of such application or at the effective
date of such certificate or report (as the case may be), of the facts and
opinions stated in such document shall in such case be conditions precedent to
the right of the Issuer to have such application granted or to the sufficiency
of such certificate or report. The foregoing shall not, however, be construed to
affect the Trustee's right to rely upon the truth and accuracy of any statement
or opinion contained in any such document as provided in Section 7.01(a)(ii).
Whenever in this Indenture it is provided that the absence of the
occurrence and continuation of a Default or Event of Default or Servicer Event
of Default is a condition precedent to the taking of any action by the Trustee
at the request or direction of the Issuer, then, notwithstanding that the
satisfaction of such condition is a condition precedent to the Issuer's right to
make such request or direction, the Trustee shall be protected in acting in
accordance with such request or direction if it does not have knowledge of the
occurrence and continuation of such Default or Event of Default
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or Servicer Event of Default. For all purposes of this Indenture, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default nor
shall the Trustee have any duty to monitor or investigate to determine whether a
default has occurred (other than an Event of Default of the kind described in
Section 6.01(a)) or Servicer Event of Default unless a Responsible Officer of
the Trustee shall have actual knowledge thereof or shall have been notified in
writing thereof by the Issuer, the Servicer, or any Noteholder.
SECTION 1.04. Acts of Noteholders, etc.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 7.01) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Section 1.04.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the holder of any Note shall bind every future holder of
the same Note and the holder of every Note issued upon the registration of
transfer thereof or in exchange therefore or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
(d) by accepting the Notes issued pursuant to this Indenture, each
Noteholder irrevocably appoints the Trustee hereunder as the special
attorney-in-fact for such Noteholder vested with full power on behalf of such
Noteholder to effect and enforce the rights of such Noteholder and the revisions
pursuant hereto for the benefit of such Noteholder; provided that nothing
contained in this Section 1.04(d) shall be deemed to confer upon the Trustee any
duty or power to vote on behalf of the Noteholders with respect to any matter on
which the Noteholders have a right to vote pursuant to the terms of this
Indenture.
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SECTION 1.05. Notices, etc., to Trustee, Servicer, Issuer and Rating
Agencies.
Any request, demand, authorization, direction, notice, consent,
waiver, Act of Noteholders, or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, the Trustee,
the Issuer or the Servicer shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid or certified mail return receipt requested, or sent
by private courier or confirmed telecopy. Unless otherwise specifically provided
herein, no such request, demand, authorization, direction, notice, consent,
waiver, Act of Noteholders or other document shall be effective until received
and any provision hereof requiring the making, giving, furnishing, or filing of
the same on any date shall be interpreted as requiring the same to be sent or
delivered in such fashion that it will be received on such date. Any such
request, demand, authorization, direction, notice, consent, waiver, Act of
Noteholders, or other document shall be sent or delivered to the following
addresses:
(a) if to the Trustee, at________, Attention_________ (Number for
telecopy:_________), or at any other address previously furnished in writing to
the Issuer and the Servicer by the Trustee; or
(b) if to the Issuer, at IKON Receivables, LLC, 000 Xxxxxxxxxx Xxxx,
Xxxxx 00, Xxxxxxxxxx, XX 00000, Attention: ________ (Number for telecopy: (610)
408-7022), or at any other address previously furnished in writing to the
Trustee and the Issuer by the Servicer; or
(c) if to the Servicer, at IOS Capital, Inc., 0000 Xxxx Xxxx, X.X.
Xxx 0000, Xxxxx, Xxxxxxx, 00000, Attention: _________(Number for telecopy: (912)
471-2375), or at any other address previously furnished in writing to the
Trustee and the Issuer by the Servicer.
(d) if to the Rating Agencies: to Standard and Poor's, 00 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured Finance Ratings, and to Xxxxx'x
Investors Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
ABS Monitoring Department.
SECTION 1.06. Notice to Noteholders; Waiver.
(a) Where this Indenture provides for notice to Noteholders of any
event, or the mailing of any report to Noteholders, such notice or report shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid or certified mail return receipt
requested, or sent by private courier or confirmed telecopy to each Noteholder
affected by such event or to whom such report is required to be mailed, at its
address as it appears in the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice or
the mailing of such report. In any case where a notice or report to Noteholders
is mailed, neither the failure to mail such notice or report, nor any defect in
any notice or
20
report so mailed, to any particular Noteholder shall affect the sufficiency of
such notice or report with respect to other Noteholders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
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.
(b) In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to mail or send notice to
Noteholders, in accordance with Section 1.06(a), of any event or any report to
Noteholders when such notice or report is required to be delivered pursuant to
any provision of this Indenture, then such notification or delivery as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
SECTION 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer or the
Trustee shall bind its respective successors and permitted assigns, whether so
expressed or not.
SECTION 1.09. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE IS SUBJECT TO
THE TRUST INDENTURE ACT OF 1939 AND SHALL BE GOVERNED THEREBY AND CONSTRUED IN
ACCORDANCE THEREWITH.
SECTION 1.10. Legal Holidays.
In any case where any Payment Date or the Stated Maturity or any
other date on which principal of or interest on any Note is proposed to be paid
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Notes) such payment 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 such Payment Date, Stated Maturity, or other date on which principal of
or interest on any Note is proposed to be paid, provided that no interest shall
accrue for the period from and after such Payment Date, Stated Maturity, or any
other date on which principal of or interest on any Note is proposed to be paid,
as the case may be, until such next succeeding Business Day.
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SECTION 1.11. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 1.12. Inspection.
The Issuer agrees that, on reasonable prior notice, it will permit
the representatives of the Trustee or any Noteholder holding Notes, or a
beneficial interest therein, evidencing at least 25% of the Outstanding
Principal Amount of the Notes, during the Issuer's normal business hours, to
examine all of the books of account, records, reports and other papers of the
Issuer, to make copies thereof and extracts therefrom, to cause such books to be
audited by independent accountants selected by the Issuer and reasonably
acceptable to the Trustee or such Noteholder, as the case may be, and to discuss
its affairs, finances and accounts with its officers, employees and independent
accountants (and by this provision the Issuer hereby authorizes its accountants
to discuss with such representatives such affairs, finances and accounts), all
at such reasonable times and as often as may be reasonably requested for the
purpose of reviewing or evaluating the financial condition or affairs of the
Issuer or the performance of and compliance with the covenants and undertakings
of the Issuer in this Indenture, the Assignment and Servicing Agreement or any
of the other documents referred to herein or therein. Any expense incident to
the exercise by the Trustee at any time or any Noteholder during the continuance
of any Default or Event of Default, of any right under this Section 1.12 shall
be borne by the Issuer.
SECTION 1.13. Survival of Representations and Warranties.
The representations, warranties and certifications of the Issuer
made in this Indenture or in any certificate or other writing delivered by the
Issuer pursuant hereto shall survive the authentication and delivery of the
Notes hereunder.
ARTICLE II
THE NOTES
SECTION 2.01. General Provisions.
(a) The Notes shall consist of $__________ principal amount of Class
[A-1] Notes, $___________ principal amount of Class [A-2] Notes, $___________
principal amount of Class [A-3] Notes, $___________ principal amount of Class
[A-4] Notes and $___________ principal amount of Class [B] Notes and the forms
thereof and of the Trustee's certificate of authentication shall be in
substantially the forms set forth in Exhibit A hereto, with such appropriate
insertions, omissions, substitutions, and other variations as are required or
permitted by this Indenture.
The aggregate principal amount of Notes which may be authenticated
and delivered under this Indenture is limited to $___________ of Notes, except
for Notes
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authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.03, 2.04, or 9.05. The
Notes shall be issuable only in registered form and only in minimum
denominations of at least $1,000,000 with respect to the Class [A] Notes and the
Class [B] Notes; provided that the foregoing shall not restrict or prevent the
transfer in accordance with Section 2.03 of any Note having a remaining
Outstanding Principal Amount of other than an integral multiple of $1,000,000,
or the issuance of a single Note of each Class, with a denomination less than
$1,000,000.
(b) For each Payment Date, payments of principal (the "Principal
Payments") on the Notes will be made in accordance with Sections 3.03(b),
3.04(b) or 6.06, as applicable. Except as otherwise provided in Section 6.02, no
part of the principal of any Note shall be paid prior to the Payment Date on
which such principal is due in accordance with the preceding provisions of this
Section 2.01(b), except that the Issuer may redeem the Notes in their entirety
(including any unpaid interest due), without premium, as of any Payment Date on
which the Discounted Present Value of the Performing Leases is less than or
equal to five percent (5%) of the aggregate Discounted Present Value of the
Leases as of the Cut-Off Date (after giving effect to all Principal Payments on
such Payment Date). The Issuer will give notice of any such redemption to each
Noteholder and the Trustee at least 30 days before the Payment Date fixed for
such prepayment by certified mail return receipt requested, hand delivery or
overnight courier. Notice of such prepayment having been so given, the remaining
unpaid principal as of the Payment Date fixed for prepayment together with all
interest accrued and unpaid to such Payment Date, shall become due and payable
on such Payment Date.
(c) For each Payment Date, the interest due and payable (the
"Interest Payments") with respect to the Class [A-1] Notes, Class [A-2] Notes,
Class [A-3] Notes, Class [A-4] Notes and the Class [B] Notes will be the
interest that has accrued on the respective Notes since the last Payment Date
or, in the case of the first Payment Date, since the Issuance Date for the Class
[A-1] Notes and_____, 1999 for all other Notes, at the Class [A-1] Interest
Rate, Class [A-2] Interest Rate, Class [A-3] Interest Rate, Class [A-4] Interest
Rate and Class [B] Interest Rate respectively, applied to the then Outstanding
Principal Amounts of the Class [A-1] Notes, Class [A-2] Notes, Class [A-3]
Notes, Class [A-4] Notes and Class [B] Notes, respectively, on the preceding
Payment Date. With respect to the Class [A-1] Notes, the interest will be
calculated on the basis of a year of 360 days and the actual number of days in
the related interest accrual period. With respect to all other Notes, the
interest will be calculated on the basis of a year of 360 days comprised of
twelve 30-day months. Interest Payments will be made in accordance with Sections
3.03(b), 3.04(b) and 6.06, as applicable.
(d) All payments made with respect to any Note shall be made in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts and shall be applied first
to the interest then due and payable on such Notes, then to the principal
thereof, and finally to premium, if any.
(e) All Class [A-1] Notes issued under this Indenture shall be in
all respects equally and ratably entitled to the benefits hereof without
preference, priority or
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distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class [A-1] Notes shall be made pro
rata among all Outstanding Class [A-1] Notes, without preference or priority of
any kind.
(f) All Class [A-2] Notes issued under this Indenture shall be in
all respects equally and ratably entitled 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. Payments of principal and interest on the Class [A-2] Notes
shall be made pro rata among all Outstanding Class [A-2] Notes, without
preference or priority of any kind.
(g) All Class [A-3] Notes issued under this Indenture shall be in
all respects equally and ratably entitled 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. Payments of principal and interest on the Class [A-3] Notes
shall be made pro rata among all Outstanding Class [A-3] Notes, without
preference or priority of any kind.
(h) All Class [A-4] Notes issued under this Indenture shall be in
all respects equally and ratably entitled 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. Payments of principal and interest on the Class [A-4] Notes
shall be made pro rata among all Outstanding Class [A-4] Notes, without
preference or priority of any kind.
(i) The Class [B] Notes shall be subordinated to the Class [A] Notes
to the extent set forth herein. All Class [B] Notes issued under this Indenture
shall be in all respects equally and ratably entitled 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. Payments of principal and interest on the Class
[B] Notes shall be made pro rata among all Outstanding Class [B] Notes, without
preference or priority of any kind.
SECTION 2.02. Execution, Authentication, Delivery, and Dating.
(a) The Notes shall be manually executed by the Issuer.
(b) Any Note bearing the signature of an individual who was at the
time of execution thereof a proper officer of the Issuer shall bind the Issuer,
notwithstanding that such individual ceases to hold such office prior to the
authentication and delivery of such Note or did not hold such office at the date
of such Note.
(c) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein,
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and
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the only evidence, that such Note has been duly authenticated and delivered
hereunder. Each Note shall be dated the date of its authentication.
(d) The Notes may from time to time be executed by the Issuer and
delivered to the Trustee for authentication together with a Trust Request to the
Trustee directing the authentication and delivery of such Notes and thereupon
the same shall be authenticated and delivered by the Trustee in accordance with
such Trust Request.
SECTION 2.03. Transfer and Exchange.
(a) The Issuer shall cause to be kept at the Corporate Trust Office
a register (the "Note Register") in which, subject to such reasonable
regulations as the Trustee may prescribe, the Issuer shall provide for the
registration of Notes and of transfers of Notes. The Trustee is hereby appointed
"Note Registrar" for the purpose of registering Notes and transfers of Notes as
herein provided.
The Trustee shall not register the transfer of any Note (other than
the transfer of a Note to the nominee of the Clearing Agency) unless the
transferee has executed and delivered to the Trustee a certification to the
effect that either (i) the transferee is not (A) an employee benefit plan (as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) that is subject to the provisions of Title I of ERISA or
(b) a plan (as defined in Section 4975(e)(1) of the Internal Revenue Code of
1986, as amended (the "Code")) that is subject to Section 4975 of the Code (each
of the foregoing, a "Benefit Plan"), and is not acting on behalf of or investing
the assets of a benefit Plan, or (ii) with respect to any transfer of Class [A]
or Class [B] Note, the transferee's acquisition and continued holding of the
Note will be covered by a U.S. Department of Labor Prohibited Transaction Class
Exemption. Each transferee of a Book-entry Note shall be deemed to make one of
the foregoing representations.
(b) Subject to Section 2.03(a), upon surrender for registration of
transfer of any Note at the office of the Issuer designated pursuant to Section
8.02 for such purpose, the Issuer shall execute and the Trustee upon request
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denominations and of a like
aggregate original principal amount. The Trustee shall make a notation on any
such new Note of the amount of principal, if any, that has been paid on such
Note.
(c) All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
(d) Every Note presented or surrendered for registration of transfer
or for exchange shall (if so required by the Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Trustee duly executed, by the holder thereof
or his attorney duly authorized in writing.
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(e) No service charge shall be made for any registration of transfer
or exchange of Notes, but the Issuer or the Trustee may require payment by the
transferor of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or exchange
of Notes, other than exchanges pursuant to Section 9.05 not involving any
transfer.
SECTION 2.04. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If any mutilated Note is surrendered to the Trustee, the Issuer
shall execute and the Trustee shall authenticate and deliver in exchange
therefore a replacement Note of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
(b) If there shall be delivered to the Issuer and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of actual notice
to the Issuer or the Trustee that such Note has been acquired by a bona fide
purchaser, the Issuer shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a
replacement Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
(c) In case the final installment of principal on any such
mutilated, destroyed, lost or stolen Note has become or will at the next Payment
Date become due and payable, the Issuer in its discretion may, instead of
issuing a replacement Note, pay such Note.
(d) Upon the issuance of any replacement Note under this Section,
the Issuer or the Trustee may require the payment by the Noteholder of a sum
sufficient to cover any tax or other governmental charge that may be imposed as
a result of the issuance of such replacement Note.
(e) Every replacement Note issued pursuant to this Section 2.04 in
lieu of any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Notes duly issued hereunder.
(f) The provisions of this Section 2.04 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 2.05. Book-Entry Registration of Class A Notes and Class [B]
Notes.
Each of the Class [A-1] Notes, Class [A-2] Notes, Class [A-3] Notes,
Class [A-4] Notes and the Class [B] Notes, upon original issuance, shall be
issued in the form attached as Exhibit A and delivered to The Depository Trust
Company, the initial
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Clearing Agency, by, or on behalf of, the Issuer. Each of the Class [A-1] Notes,
Class [A-2] Notes, Class [A-3] Notes, Class [A-4] Notes and Class [B] Notes, on
the Note Register in the name of Cede & Co., the nominee of The Depository Trust
Company, as the initial Clearing Agency, and no Class [A-1] Note Owner, Class
[A-2] Note Owner, Class [A-3] Note Owner, Class [A-4] Note Owner or Class [B]
Note Owner will receive a definitive note representing such Note Owner's
interest, except as provided in Section 2.07. Unless and until Definitive Class
[A-1] Notes, Definitive Class [A-2] Notes, Definitive Class [A-3] Notes,
Definitive Class [A-4] Notes and/or Definitive Class [B] Notes, ("Definitive
Notes") have been issued to the applicable Note Owners pursuant to Section 2.07:
(a) the provisions of this Section 2.05 shall be in full force and
effect with respect to the Class [A-1] Notes, Class [A-2] Notes, Class [A-3]
Notes, Class [A-4] Notes or the Class [B] Notes, as the case may be;
(b) the Issuer, the Servicer and the Trustee may deal with the
Clearing Agency and the Clearing Agency Participants for all purposes with
respect to the Class [A-1] Notes, Class [A-2] Notes, Class [A-3] Notes, Class
[A-4] Notes or Class [B] Notes, as the case may be (including the making of
distributions on the Class [A-1] Notes, Class [A-2] Notes, Class [A-3] Notes,
Class [A-4] Notes and Class [B] Notes, as the case may be), as the authorized
representatives of the respective Note Owners;
(c) to the extent that the provisions of this Section 2.05 conflict
with any other provisions of this Indenture, the provisions of this Section 2.05
shall control; and
(d) the rights of the respective Note Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements between such respective Note
Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Depository Agreement, unless and until Definitive Notes, are issued
pursuant to Section 2.07, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the related Class [A-1] Notes, Class
[A-2] Notes, Class [A-3] Notes, Class [A-4] Notes and Class [B] Notes, as the
case may be, to such Clearing Agency Participants.
For purposes of any provision of this Indenture requiring or
permitting actions with the consent of, or at the direction of, holders of Class
[A-1] Notes, Class [A-2] Notes, Class [A-3] Notes, Class [A-4] Notes or Class
[B] Notes, as the case may be, evidencing a specified percentage of the
Outstanding Principal Amount of the Class [A-1] Notes, Class [A-2] Notes, Class
[A-3] Notes, Class [A-4] Notes or the Class [B] Notes, respectively, such
direction or consent may be given by Note Owners (acting through the Clearing
Agency and the Clearing Agency Participants) owning Class [A-1] Notes, Class
[A-2] Notes, Class [A-3] Notes, Class [A-4] Notes or Class [B] Notes evidencing
the requisite percentage of the Outstanding Principal Amount of such Notes,
respectively.
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SECTION 2.06. Notice to Clearing Agency Noteholders.
Whenever notice or other communication to the Class [A-1]
Noteholders, Class [A-2] Noteholders, Class [A-3] Noteholders, Class [A-4]
Noteholders or Class [B] Noteholders is required under this Agreement, unless
and until Definitive Notes shall have been issued to the related Note Owners
pursuant to Section 2.07, the Trustee shall give all such notices and
communications specified herein to be given to such Noteholders to the
applicable Clearing Agency which shall give such notices and communications to
the related Class [A-1] Note Owners, Class [A-2] Note Owners, Class [A-3] Note
Owners, Class [A-4] Note Owners or Class [B] Note Owners in accordance with its
applicable rules, regulations and procedures.
SECTION 2.07. Definitive Class A Notes and Class [B] Notes.
(a) If (a) (i) the Servicer advises the Issuer in writing that DTC
is no longer willing or able to properly discharge its responsibilities under
the Depository Agreement with respect to the Class [A-1] Notes, Class [A-2]
Notes, Class [A-3] Notes, Class [A-4] Notes and the Class [B] Notes and (ii) the
Issuer is unable to locate a qualified successor, (b) the Servicer, at its
option, advises the Issuer in writing that it elects to terminate the book-entry
system with respect to the Class [A-1] Notes, Class [A-2] Notes, Class [A-3]
Notes, Class [A-4] Notes and the Class [B] Notes through DTC or (c) after the
occurrence of an "Event of Default" under this Indenture or a default by the
Servicer under the related Transaction Documents, Class [A-1] Note Owners, Class
[A-2] Note Owners, Class [A-3] Note Owners, Class [A-4] Note Owners and Class
[B] Note Owners with respect to the Class [A-1] Notes, Class [A-2] Notes, Class
[A-3] Notes, Class [A-4] Notes and Class [B] Notes evidencing not less than 50%
of the aggregate unpaid Outstanding Principal Amount of the Class [A-1] Notes,
Class [A-2] Notes, Class [A-3] Notes, Class [A-4] Notes and Class [B] Notes,
respectively, advise the Issuer through DTC in writing that the continuation of
a book-entry system with respect to the Class [A-1] Notes, Class [A-2] Notes,
Class [A-3] Notes, Class [A-4] Notes or Class [B] Notes, respectively, is no
longer in the best interests of the Class [A-1] Note Owners, Class [A-2] Note
Owners, Class [A-3] Note Owners, Class [A-4] Note Owners or Class [b] Note
Owners, as the case may be, the Issuer shall notify all Class [A-1] Note Owners,
Class [A-2] Note Owners, Class [A-3] Note Owners, Class [A-4] Note Owners and
Class [B] Note Owners with respect to the Class [A-1] Notes, Class [A-2] Notes,
Class [A-3] Notes, Class [A-4] Notes and Class [B] Notes, respectively, through
the DTC, of the occurrence of any such event and of the availability of
Definitive Notes, to Class [A-1] Note Owners, Class [A-2] Note Owners, Class
[A-3] Note Owners, Class [A-4] Note Owners and Class [B] Note Owners,
respectively, requesting the same. Upon surrender by DTC of the Class [A-1]
Notes, Class [A-2] Notes, Class [A-3] Notes, Class [A-4] Notes or Class [B]
Notes, as the case may be, accompanied by registration instructions from the DTC
for registration, the Issuer shall reissue such Notes as Definitive Notes to the
such Noteholders. The Issuer shall not be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Notes, as the
case may be, all references herein to obligations imposed upon or to be
performed by the DTC shall be deemed to be imposed upon and performed by the
Issuer, to the extent applicable with respect to such
28
Definitive Notes, and the Issuer shall recognize the holders of the relevant
Definitive Notes as Noteholders hereunder.
(b) Definitive Notes will not be eligible for clearing or settlement
through DTC, Euroclear or Cedel.
SECTION 2.08. Payment of Interest and Principal; Rights Preserved.
(a) Any installment of interest or principal, payable on any Note
that is punctually paid or duly provided for by the Issuer on the applicable
Payment Date shall be paid to the Person in whose name such Note was registered
at the close of business on the Record Date for such Payment Date by wire
transfer of federal funds to the account and number specified in the Note
Register on such Record Date for such Person or, if no such account or number is
so specified, then by check mailed to such Person's address as it appears in the
Note Register on such Record Date.
(b) All reductions in the principal amount of a Note effected by
payments of installments of principal made on any Payment Date shall be binding
upon all holders of such Note and of any Note issued upon the registration of
transfer thereof or in exchange therefore or in lieu thereof, whether or not
such payment is noted on such Note. All payments on the Notes shall be paid
without any requirement of presentment but each holder of any Note shall be
deemed to agree, by its acceptance of the same, to surrender such Note at the
Corporate Trust Office against payment of the final installment of principal of
such Note.
SECTION 2.09. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Issuer, the Trustee, and any agent of the Issuer or the Trustee may treat the
registered Noteholder as the 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 be overdue, and neither the Issuer, the
Trustee, nor any agent of the Issuer or the Trustee shall be affected by notice
to the contrary.
SECTION 2.10. Cancellation.
All Notes surrendered for registration of transfer or exchange or
following final payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Issuer may at any time deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. No Notes shall be authenticated in lieu of or in
exchange for any Notes cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Notes held by the Trustee
may be disposed of in the normal course of its business or as directed by a
Trust Order.
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SECTION 2.11. Noteholder Lists.
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 and shall otherwise comply with Section 312(a) of the Trust
Indenture Act. In the event the Trustee no longer serves as the Note Registrar,
the Issuer (or any other obligor upon the Notes) shall furnish to the Trustee at
least five business Days before each interest payment date (and in all events in
intervals of not more than 6 months) and at such other times 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, and the Issuer
shall otherwise comply with Section 312(a) of the Trust Indenture Act.
SECTION 2.12. Treasury Securities.
In determining whether the Noteholders of the required Outstanding
Principal Amount of the Notes have concurred in any direction, waiver or
consent, Notes owned by the Issuer, any other obligor upon the Notes or an
Affiliate of the Issuer shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which a Responsible
Officer knows are so owned shall be so disregarded.
ARTICLE III
ACCOUNTS; INVESTMENT OF MONEYS; COLLECTION
AND APPLICATION OF MONEYS; REPORTS
SECTION 3.01. Trust Accounts; Investments by Trustee.
(a) On or before the Issuance Date, the Trustee shall establish in
the name of the Trustee for the benefit of the Noteholders and the Trust to the
extent of their interests therein as provided in this Indenture and in the
Assignment and Servicing Agreement, the following accounts, which accounts shall
be Eligible Accounts maintained at the Corporate Trust Office:
(i) Collection Account;
(ii) Reserve Account;
(iii) Liquidity Reserve Account
Subject to the further provisions of this Section 3.01(a), the Trustee shall,
upon receipt or upon transfer from another account, as the case may be, deposit
into such accounts all amounts received by it which are required to be deposited
therein in accordance with the provisions of this Indenture. All such amounts
and all investments made with such amounts, including all income and other gain
from such investments, shall be held by the Trustee in such accounts as part of
the Trust Estate as herein provided, subject to
30
withdrawal by the Trustee in accordance with, and for the purposes specified in
the provisions of, this Indenture.
(b) The Trustee shall hold in trust but shall not be required to
deposit in any account specified in Section 3.01(a) any payment received by it
until such time as the Trustee shall have identified to its reasonable
satisfaction the nature of such payment and, on the basis thereof, the proper
account or accounts into which such payment is to be deposited. In determining
into which of the accounts, if any, referred to above any amount received by the
Trustee is to be deposited, the Trustee may conclusively rely (in the absence of
bad faith on the part of the Trustee) on the advice of the Servicer. Unless the
Trustee is advised differently in writing by the Lessee making the payment or by
the Servicer in writing (with the Servicer's instruction controlling), the
Trustee shall assume that any amount remitted to it by such Lessee is to be
deposited into the Collection Account pursuant to Section 3.03. The Trustee may
establish from time to time such deadline or deadlines as it shall determine are
reasonable or necessary in the administration of the Trust Estate after which
all amounts received or collected by the Trustee on any day shall not be deemed
to have been received or collected until the next succeeding Business Day.
(c) Neither the Servicer, Trustee nor the institution then acting as
Trustee shall have any right of set-off with respect to the Collection Account,
the Reserve Account or the Liquidity Reserve Account, or any investment therein.
(d) So long as no Event of Default shall have occurred and be
continuing, all or a portion of the amounts in the Trust Accounts, shall be
invested and reinvested by the Trustee pursuant to a Trust Order or Servicer
Order in one or more Eligible Investments. Subject to the restrictions on the
maturity of investments set forth in Section 3.01(f), each such Trust Order or
Servicer Order may authorize the Trustee to make the specific Eligible
Investments set forth therein, to make Eligible Investments from time to time
consistent with the general instructions set forth therein, or to make specific
Eligible Investments pursuant to instructions received in writing or by
telegraph or facsimile transmission from the employees or agents of the Issuer
or the Servicer, as the case may be, identified therein, in each case in such
amounts as such Trust Order or Servicer Order shall specify. The Issuer agrees
to report as income for financial reporting and tax purposes (to the extent
reportable) all investment earnings on amounts in the Collection Account, the
Reserve Account, or the Liquidity Reserve Account. Each of the Issuer and the
Servicer agrees to give appropriate and timely investment directions to the
Trustee so that there will not be more than two Business Days in any one
calendar year at the end of which funds in the Trust Accounts are not invested,
directly or indirectly, pursuant to a Trust Order or a Servicer Order in
Eligible Investments that mature on or after the opening of business on the next
Business Day.
(e) In the event that either (i) the Issuer or the Servicer, as the
case may be, shall have failed to give investment directions to the Trustee by
9:30 A.M., New York City time on any Business Day on which there may be
uninvested cash or (ii) an Event of Default shall be continuing, the Trustee
shall promptly invest and reinvest the funds then in the Collection Account, the
Reserve Account, or the Liquidity Reserve
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Account, as the case may be, to the fullest extent practicable in one or more
Eligible Investments. All investments made by the Trustee shall mature no later
than the maturity date therefore permitted by Section 3.01(f) unless the Trustee
shall have received written confirmation from each Rating Agency, that the
liquidation of such Eligible Investments prior to their respective maturity
dates, will not result in the reduction or withdrawal of such Rating Agency's
then-current rating of the Notes.
(f) Unless payable on demand, no investment of any amount held in
the Trust Accounts shall mature later than the Business Day immediately
preceding the Payment Date which is scheduled to occur immediately following the
date of investment. All income or other gains (net of losses) from the
investment of moneys deposited in the Trust Accounts shall be deposited by the
Trustee in such account immediately upon receipt.
(g) Any investment of any funds in the Trust Accounts and any sale
of any investment held in such accounts, shall be made under the following terms
and conditions:
(i) each such investment shall be made in the name of the Trustee or in
the name of a nominee of the Trustee, in each case in such manner as shall be
necessary to maintain the identity of such investments as assets of the Trust
Estate;
(ii) any certificate or other instrument evidencing such investment shall
be delivered directly to the Trustee or its agent and the Trustee shall have
sole possession of such instrument, and all income on such investment; and
(iii) the proceeds of any sale of an investment shall be remitted by the
purchaser thereof directly to the Trustee for deposit in the account in which
such investment was held.
(h) If any amounts are needed for disbursement from the Trust
Accounts and sufficient uninvested funds are not collected and available therein
to make such disbursement, in the absence of a Trust Order or Servicer Order for
the liquidation of investments held therein in an amount sufficient to provide
the required funds, the Trustee shall select and cause to be sold or otherwise
converted to cash a sufficient amount of the investments in such accounts.
(i) The Trustee shall not in any way be held liable by reason of any
insufficiency in the Trust Accounts resulting from losses on investments made in
accordance with the provisions of this Section 3.01 (but the institution serving
as Trustee shall at all times remain liable for its own debt obligations, if
any, constituting part of such investments). The Trustee shall not be liable for
any investment made by it in accordance with this Section 3.01 on the grounds
that it could have made a more favorable investment or a more favorable
selection for sale of an investment.
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SECTION 3.02. Collection of Moneys.
(a) On or before the Issuance Date, the Servicer shall designate an
address for the receipt directly from Lessees of all Lease Payments, Casualty
Payments and Termination Payments on or in respect of each Lease (which payments
may be aggregated by the Lessee paying the same with Similar Transaction
Payments and Other Lease Payments and which designated address may be the same
designated address to which such Similar Transaction Payments and Other Lease
Payments may be sent). The Servicer shall, within two Business Days of receipt
of any payment at such designated address, deposit such payment in the
Collection Account. All Lease Payments, Casualty Payments, Termination Payments
and other payments relating to a Lease received at such designated address and
so deposited shall constitute part of the Trust Estate. Any Similar Transaction
Payments and Other Lease Payments from time to time received at such designated
address or otherwise received by the Servicer or deposited in the Collection
Account shall not constitute part of the Trust Estate.
(b) The Trustee shall from time to time, in accordance with
instructions of the Servicer and the provisions of the Similar Transaction
Agreements, withdraw from the Collection Account any amounts in the Collection
Account which the Servicer advises the Trustee are (i) Similar Transaction
Payments and apply such payments in accordance with the Similar Transaction
Agreements and (ii) Other Lease Payments. Prior to such payment, the Trustee
shall have rights to and an interest in such amounts to the extent (but only to
the extent) it is determined that such amounts actually constitute Transaction
Payment Amounts.
(c) If at any time the Issuer shall receive any payment on or in
respect of any Lease, it shall hold such Payment in trust for the benefit of the
Trustee and the holders of the Notes, shall segregate such payment from the
other property of the Issuer, and shall, promptly (but in no event later than
the next following Business Day) upon receipt, deliver such payment in the form
received to the Trustee.
SECTION 3.03. Collection Account; Payments.
(a) The Servicer shall within two Business Days of receipt (a
"Required Deposit Date") deposit the following funds, as received, into the
Collection Account:
(i) Lease Payments (net of any Excess Copy Charges, Maintenance Charges
and Fee Per Scan Charges);
(ii) recoveries from Defaulted Leases to the extent the Originator has not
substituted Substitute Leases for such Defaulted Leases (except to the extent
required to reimburse unreimbursed Servicer Advances);
(iii) late charges received on delinquent Lease payments not advanced by
the Servicer;
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(iv) proceeds from repurchases by the Seller of Leases as a result of
breaches of representations and warranties by the Seller to the extent
Originator has not substituted Substitute Leases for such Leases;
(v) proceeds from investment of funds in the Collection Account and the
Reserve Account;
(vi) Casualty Payments;
(vii) Servicer Advances;
(viii) Termination Payments to the extent the Issuer does not reinvest
such Termination Payments in Additional Leases; and
(ix) payments from the Seller to effect a redemption of the Notes pursuant
to Section 2.01(b).
(b) Unless the Notes have been declared due and payable pursuant to
Section 6.02 or a Restricting Event has occurred and moneys collected by the
Trustee are being applied in accordance with Section 6.06, Available Funds on
deposit in the Collection Account and the amounts, if any, deposited into the
Collection Account from the Reserve Account in accordance with the provisions of
Section 3.05 shall be withdrawn by the Servicer on or before each Payment Date
from the Collection Account, in the amounts required, for application in the
following order of priority, to make the following required payments:
(i) to pay the Servicing Fee;
(ii) to reimburse unreimbursed Servicer Advances in respect of a prior
Payment Date;
(iii) concurrently and pro rata: (a) to make Interest Payments on the
Class [A-1] Notes; (b) to make Interest Payments on the Class [A-2] Notes; (c)
to make Interest payments on the Class [A-3] Notes; (d) to make Interest
payments on the Class [A-4] Notes;
(iv) to make Interest Payments on the Class [B] Notes;
(v) to make the Class [A] Principal Payment (i) to the Class [A-1]
Noteholders only, until the Outstanding Principal Amount on the Class [A-1]
Notes is reduced to zero, then (ii) to the Class [A-2] Noteholders only, until
the Outstanding Principal Amount on the Class [A-2] Notes is reduced to zero,
then (iii) to the Class [A-3] Noteholders only, until the Outstanding Principal
Amount on the Class [A-3] Notes is reduced to zero and finally, (iv) to the
Class [A-4] Noteholders until the Outstanding Principal Amount on the Class
[A-4] Notes is reduced to zero;
(vi) to pay the Class [B] Principal Payment to the Class [B] Noteholders;
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(vii) to pay the Additional Principal, if any, as an additional reduction
of principal, to the Class [A] Noteholders then receiving the Class [A]
Principal Payment until the Outstanding Principal Amount as provided in clause
(viii) above on all of the Class [A] Notes has been reduced to zero, thereafter
to the Class [B] Noteholders as an additional reduction of principal until the
Outstanding Class [B] Principal Amount has been reduced to zero;
(viii) to make a deposit to the Reserve Account in an amount equal to the
excess of the Required Reserve Amount over the Available Reserve Amount; and
(ix) to the Issuer, the balance, if any.
(c) Notwithstanding the foregoing, the Trustee shall retain in the
Collection Account an amount equal to all Lease Payments received that were due
since the prior Due Period, and all Casualty Payments and Termination Payments
received by the Trustee after the Determination Date for such Payment Date and
shall not distribute any such amounts on such Payment Date. If at any time any
amount or portion thereof previously distributed pursuant to this Section
3.03(c) shall have been recovered, or shall be subject to recovery, in any
proceeding with respect to the Issuer or otherwise, then for purposes of
determining future distributions pursuant to this Section 3.03(c) such amount or
portion thereof shall be deemed to have not been previously so distributed.
SECTION 3.04. The Reserve Account.
(a) On the Issuance Date, the Issuer has made an initial deposit of
$____________ into the Reserve Account. On each Payment Date, the Trustee shall
transfer to the Reserve Account from the Collection Account such amounts as
shall be required by Section 3.05(b).
(b) If by 12:00 noon, New York City time, one Business Day preceding
any Payment Date, the amount of collected funds on deposit in the Collection
Account available for distribution under Section 3.03(b) is insufficient to
permit on such Payment Date all distributions required by Section 3.03(b)(i)
through 3.03(b)(xii) (such payments, the "Required Payments" and such shortfall,
an "Available Funds Shortfall"), then, to the extent of the Available Reserve
Amount on deposit in the Reserve Account, the Trustee shall transfer, not later
than the end of such Business Day, from the Reserve Account to the Collection
Account such amount to the extent available as shall be necessary to make on
such Payment Date all Required Payments.
(c) In the event that after giving effect to all the disbursements
required to be made on any Payment Date, the Available Reserve Amount exceeds
the Required Reserve Amount, the Trustee shall transfer, not later than the end
of business on such Payment Date, an amount equal to such excess to the Issuer.
(d) Upon termination of this Indenture, any balance remaining in the
Reserve Account, after all obligations to the Noteholders hereunder have been
fully satisfied, shall be paid to reimburse the Trustee for any amounts owing to
it arising from the performance of its obligations under this Indenture and,
then, to the Issuer.
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SECTION 3.05. Reports by Trustee; Notices of Certain Payments.
(a) The Trustee shall within two Business Days after the request of
the Issuer, the Servicer or any Noteholder, deliver to the requesting person a
written report setting forth the amounts on deposit in the Collection Account
and the Reserve Account and identifying the investments included therein.
(b) Within five Business Days following each Payment Date or as
promptly as possible thereafter but in no event later than two Business Days
following the receipt of the Monthly Report from the Servicer pursuant to
Section 5.01 of the Assignment and Servicing Agreement, the Trustee shall mail
to the Issuer, IOS Capital, each Rating Agency and the Servicer and make
available to each Noteholder the following information:
(i) the principal amount of all Outstanding Class [A-1] Notes, Class [A-2]
Notes, Class [A-3] Notes, Class [A-4] Notes and Class [B] Notes, respectively.
(ii) the amount of Interest Payments and payments in reduction of
principal paid on such Payment Date with respect to all Class [A-1] Notes, Class
[A-2] Notes, Class [A-3] Notes, Class [A-4] Notes and Class [B] Notes,
respectively, and with respect to the Notes held by each Noteholder;
(iii) the amount of the Servicing Fee and unreimbursed Servicer Advances
paid on such Payment Date pursuant to Section 3.03(b)(i) and Section
3.03(b)(ii); and
(iv) the amount on deposit in the Collection Account and the Reserve
Account, in each case after giving effect to all of the withdrawals and
applications or transfers required on or before such Payment Date pursuant to
Sections 3.02, 3.03 and 3.05.;
(c) With each report of the Trustee furnished pursuant to this
Section 3.07 following any Payment Date, the Trustee shall enclose a copy of the
relevant Servicing Report and the report required to be furnished to the Trustee
by the Servicer following such Payment Date pursuant to Section 6.01 of the
Assignment and Servicing Agreement or, if such reports have not been received, a
statement to such effect.
(d) Upon request of a Noteholder, the Trustee will provide
information as to the Outstanding Principal Amount of each Class of Notes.
SECTION 3.06. Trustee May Rely on Certain Information from IOS
Capital and Servicer.
Pursuant to Sections 4.01, 4.05, 5.01 and 6.02 of the Assignment and
Servicing Agreement and Section 3.02 through 3.07 hereof, the Servicer is
required to furnish to the Trustee from time to time certain information and
make various calculations which are relevant to the performance of the Trustee's
duties in this Article Three and in Article Four of this Indenture. The Trustee
shall be entitled to rely in good faith on such information or calculations in
the performance of its duties hereunder (i)
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unless and until a Responsible Officer of the Trustee has actual knowledge, or
is advised by any Noteholder (either in writing or orally with prompt written or
telecopied confirmation), that such information or calculations is or are
incorrect, or (ii) unless there is a manifest error in any such information.
ARTICLE IV
RELEASE OF LEASES AND EQUIPMENT
SECTION 4.01. Release of Equipment.
Subject to the satisfaction of the provisions of Section 4.02, the
Trustee shall release Equipment from the Lien of the Indenture upon the
occurrence of any of the following events: (a) the sale of such Equipment
pursuant to Section 4.03(b) of the Assignment and Servicing Agreement (unless
retained by the Issuer for re-leasing), (b) the expiration of the related Lease
upon the payment of the final Lease Payment due and payable under such Lease (c)
the repurchase of the related Lease in accordance with the provisions of Section
5 of the Assignment and Servicing Agreement, (d) the addition of an Additional
Lease to the extent new Equipment is provided in replacement of such Equipment
in accordance with the provisions of Section 11 of the Assignment and Servicing
Agreement and (e) upon the substitution of a Substitute Lease related to such
Equipment in accordance with the provisions of Section 11 of the Assignment and
Servicing Agreement. The proceeds of any such sale, repurchase or releasing
shall be deposited in the Collection Account for disposition under this
Indenture.
SECTION 4.02. Release of Leases Upon Final Lease Payment.
In the event that the Trustee shall have received notice (either in
writing or orally with prompt written or telecopied confirmation) from the
Servicer that the Trustee has received from amounts paid by the Lessee, the
Lease Repurchase Amount, or from the proceeds of the Equipment subject to any
Lease (i) the final Lease Payment due and payable under such Lease, (ii) a
Termination Payment in respect of such Lease, (iii) a Lease Repurchase Amount in
respect of such Lease, (iv) a Casualty Payment under such Lease (and, following
such final Lease Payment, Casualty Payment, Lease Repurchase Amount or
Termination Payment, no further payments on or in respect of such Lease are or
will be due and payable), or (iv) the full amount of any recoveries with respect
to such Defaulted Lease, such Lease shall be released from the lien of this
Indenture.
SECTION 4.03. Execution of Documents.
The Trustee shall promptly execute and deliver such documents,
including without limitation partial releases and termination statements (which
shall be furnished to the Trustee by the Issuer), and take such other actions as
the Issuer, by Trust Request, may reasonably request (including the return of
any Lease which has been released) to fully effectuate the release from this
Indenture of any Lease and interests in the related Equipment required to be so
released pursuant to Sections 4.01 or 4.02.
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ARTICLE V
SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER
SECTION 5.01. Servicer Events of Default.
If a Servicer Event of Default shall have occurred and be
continuing, the Trustee shall, upon the written request of the holders of
66-2/3% of the then Outstanding Principal Amount of the Notes, give notice in
writing to the Servicer of the termination of all of the rights and obligations
of the Servicer under the Assignment and Servicing Agreement (but none of IOS
Capital's obligations pursuant to Section 4 of the Assignment and Servicing
Agreement, which shall survive such termination). On and after the giving of
such written notice, all rights and obligations of the Servicer under the
Assignment and Servicing Agreement, including, without limitation, the
Servicer's right thereunder to receive the Servicing Fee, but none of the
Servicer obligations pursuant to Section 4 thereof, shall pass to, be vested in,
and be assumed by the Trustee, and the Trustee shall be authorized to, and
shall, execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
termination and of such passing, vesting, and assumption; provided that in
performing the duties of the Servicer under the Assignment and Servicing
Agreement the Trustee shall at all times be deemed to be acting as the Trustee
hereunder and shall be entitled to the full benefit of all the protections,
benefits, immunities and indemnities provided in this Indenture for or with
respect to the Trustee, including without limitation those set forth in Article
Seven hereof.
SECTION 5.02. Substitute Servicer.
Notwithstanding the provisions of Section 5.01, the Trustee may, if
it shall be unwilling to continue to act as the successor to the Servicer in
accordance with Section 5.01, or shall, if it is unable to continue to so act or
is so instructed in writing by the holders of 66-2/3% of the then Outstanding
Principal Amount of the Notes, appoint a successor to the Servicer in accordance
with the provisions of Section 8.03 of the Assignment and Servicing Agreement.
ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(a) a default for five days or more in the payment of any interest
on the any Note;
(b) a default in making of Principal Payments at the Stated Maturity
of the relevant Notes or when such become due and payable;
(c) a default in the observance or performance in any material
respect of any covenant or agreement regarding the contemplated transaction made
in the Transaction Documents, or any representation or warranty made by the
Issuer in the Transaction Documents or in any certificate delivered pursuant
thereto or in connection therewith having been incorrect as of the time made,
and the continuation of any such default or the failure to cure such breach of a
representation or warranty for a period of 30 days after notice thereof is given
to the Issuer by the Trustee or the Issuer and the Trustee by the holders of at
least 25% in principal amount of the Notes then outstanding;
(d) the entry by a court having jurisdiction in the premises of (i)
a decree or order for relief in respect of the Issuer in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or (ii) a decree or order adjudging the
Issuer a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment, or composition of or in respect
of the Issuer under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator, or other
similar official of the Issuer or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(e) the commencement by the Issuer of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization, or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Issuer in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization, or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator, or similar official of the Issuer or of any substantial part of
its property, or the making by it of an assignment for the benefit of creditors,
or the Issuer's failure to pay its debts generally as they become due, or the
taking of corporate action by the Issuer in furtherance of any such action.
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SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default occurs, the unpaid principal amount of
the Notes shall automatically become due and payable at par together with all
accrued and unpaid interest thereon, without presentment, demand, protest or
notice of any kind, all of which are hereby waived by the Issuer.
(b) At any time after such an Event of Default has occurred and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the holders of Notes
evidencing 66-2/3% of the then Outstanding Principal Amount of the Notes by
written notice to the Issuer and the Trustee, may rescind and annul such
declaration and its consequences if the Issuer has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all Principal Payments on any Class [A] Notes and
Class [B] Notes which have become due otherwise than by such
declaration of acceleration and interest thereon from the date
when the same first became due until the date of payment or
deposit at the appropriate Note Interest Rate,
(B) all Interest Payments due with respect to any Class
[A] Notes and Class [B] Notes and, to the extent that payment
of such interest is lawful, interest upon overdue interest
from the date when the same first became due until the date of
payment or deposit at a rate per annum equal to the
appropriate Note Interest Rates, and
(C) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements, and
advances of the Trustee, its agents and counsel;
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 6.03. Remedies.
(a) If an Event of Default occurs and is continuing of which a
Responsible Officer has actual knowledge, the Trustee shall immediately give
notice to each Noteholder as set forth in Section 7.02.
(b) Following any acceleration of the Notes, the Trustee shall have
all of the rights, powers and remedies with respect to the Trust Estate as are
available to secured parties under the Uniform Commercial Code or other
applicable law. Such rights, powers and remedies may be exercised by the Trustee
in its own name as trustee of an express trust.
(c) If an Event of Default specified in Section 6.01(a) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee
40
of an express trust against the Issuer for the whole amount of principal and
interest remaining unpaid.
(d) In exercising its rights and obligations under this Section
6.03, the Trustee may sell the Trust Estate (other than the Liquidity Reserve
Account); provided that if the Event of Default involves other than non-payment
of principal or interest on the Notes, then such sale must be for an amount
greater than or equal to amounts due under clauses first through fourth in
Section 6.06 unless directed otherwise by the holders of 66-2/3% of the then
Outstanding Principal Amount of the Notes. Neither the Trustee nor any
Noteholder shall have any rights against the Issuer other than to enforce the
Lien against the Leases and the Equipment and to sell the Trust Estate.
SECTION 6.04. Trustee Shall File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition,
or other judicial proceeding relative to the Issuer, IOS Capital, the Servicer
or any other obligor upon the Notes or the other obligations secured hereby or
relating to the property of the Issuer, IOS Capital, the Servicer or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Issuer, IOS Capital or the Servicer for the payment of overdue
principal or interest or any such other obligation) shall by intervention in
such proceeding or otherwise,
(i) file and prove a claim for the whole amount of principal and interest
owing and unpaid in respect of the Notes and any other obligation secured hereby
and to file such 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 of the Noteholders allowed in such judicial proceeding, and
(ii) collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator, or
other similar official 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 to the Trustee any amount due 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 7.07.
(b) 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
41
of any holder thereof or to authorize the Trustee to vote in respect of the
claim of any Noteholder in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the holders of the Notes in respect of which such judgment has been recovered.
SECTION 6.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
following an Event of Default or Restricting Event, and any moneys that may then
be held or thereafter received by the Trustee (other than the Liquidity Reserve
Account) shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of the entire amount due on account
of principal or interest, upon presentation of the Notes and surrender thereof:
first to the payment of all costs and expenses of collection
incurred by the Trustee and the Noteholders (including the reasonable fees
and expenses of any counsel to the Trustee and the Noteholders);
second if the person then acting as Servicer under the Assignment
and Servicing Agreement is not IOS Capital or an Affiliate of IOS Capital,
to the payment of all Servicer's Fees then due to such person;
third first, pro-rata to the payment of all accrued and unpaid
interest on the Outstanding Class [A-1] Principal Amount, Outstanding
Class [A-2] Principal Amount, Outstanding Class [A-3] Principal Amount and
Outstanding Class [A-4] Principal Amount, respectively, to the date of
payment thereof, including (to the extent permitted by applicable law)
interest on any overdue installment of interest and principal from the
maturity of such installment to the date of payment thereof at the rate
per annum equal to the Class [A-1] Note Interest Rate, Class [A-2] Note
Interest Rate and Class [A-3] Note Interest Rate and Class [A-4] Note
Interest Rate, respectively, second, to the payment of all accrued and
unpaid interest on the Outstanding Class [B] Principal Amount to the date
of payment thereof, including (to the extent permitted by applicable law)
interest on any overdue installment of interest and principal from the
maturity of such installment to the date of payment thereof at the rate
per annum equal to the Class [B] Note Interest Rate, third, to the payment
of the Outstanding Class [A-1] Principal Amount, fourth, to the payment of
the Outstanding Class [A-2] Principal Amount,
42
Outstanding Class [A-3] Principal Amount and Outstanding Class [A-4]
Principal Amount pro-rata, fifth, to the payment of the Outstanding Class
[B] Principal; provided, that the Noteholders may allocate such payments
for interest, principal and premium at their own discretion, except that
no such allocation shall affect the allocation of such amounts or future
payments received by any other Noteholder;
fourth to the payment of amounts then due the Trustee hereunder;
fifth if the person then acting as Servicer is IOS Capital or an
Affiliate of IOS Capital, to the payment of all Servicer's Fees then due
to such Person; and
sixth to the payment of the remainder, if any, to the Issuer or any
other Person legally entitled thereto.
On the Payment Date following an Event of Default, amounts in the
Liquidity Reserve Account shall be used to make any amounts not paid under
item fourth above and thereafter in the priority first through seventh
above.
SECTION 6.07. Limitation on Suits.
None of the Noteholders shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(i) such Noteholder has previously given written notice to the
Trustee of a continuing Event of Default;
(ii) the holders of not less than 66-2/3% of the then Outstanding
Principal Amount of the Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(iii) such Noteholder or Noteholders have offered to the Trustee
adequate indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(v) so long as any of the Notes remain Outstanding, no direction
inconsistent with such written request has been given to the Trustee during such
30-day period by the holders of 66-2/3% of the then Outstanding Principal Amount
of the Notes;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb, or prejudice the rights of any other
Noteholders, or to obtain or to seek to obtain priority or preference over any
other Noteholders or to enforce any right under this
43
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all the Noteholders. It is further understood and intended that so
long as any portion of the Notes remains Outstanding, IOS Capital shall not have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture (other than for the enforcement of Sections 3.03(b), 3.04(b),
3.05, 3.06, 4.01 and 4.02 hereof) or for the appointment of a receiver or
trustee (including, without limitation, a proceeding under the Bankruptcy Code),
or for any other remedy hereunder. Nothing in this Section 6.07 shall be
construed as limiting the rights of otherwise qualified Noteholders to petition
a court for the removal of a Trustee pursuant to Section 7.09(h) hereof.
SECTION 6.08. Unconditional Right of Noteholders to Receive
Principal and Interest.
Notwithstanding any other provision in this Indenture, other than
the provisions hereof limiting the right to recover amounts due on the Notes to
recoveries from the property of the Trust Estate, the holder of any Note shall
have the absolute and unconditional right to receive payment of the principal of
and interest on such Note on the Maturities for such payments, including the
Stated Maturity, and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Noteholder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Noteholder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Noteholder, then and in every such case, subject to any
determination in such proceeding, the Issuer, the Trustee and the Noteholders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Noteholders
continue as though no such proceeding had been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost, or stolen Notes in Section 2.04 (f), no
right or remedy herein conferred upon or reserved to the Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.11. 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 Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the
44
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Noteholders, as the case may be.
SECTION 6.12. Control by Noteholders.
Except as may otherwise be provided in this Indenture, until such
time as the conditions specified in Sections 10.01(i) and (ii) have been
satisfied in full, the holders of 66-2/3% of the then Outstanding Principal
Amount of the Notes shall have the right to 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. Notwithstanding the foregoing,
(i) no such direction shall be in conflict with any rule of law or with
this Indenture;
(ii) the Trustee shall not be required to follow any such direction which
the Trustee reasonably believes might result in any personal liability on the
part of the Trustee for which the Trustee is not adequately indemnified; and
(iii) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with any such direction; provided that the Trustee
shall give notice of any such action to each Noteholder.
SECTION 6.13. Undertaking for Costs.
All parties to this Indenture agree (and each holder of any Note by
its acceptance thereof shall be deemed to have agreed) that any court may in its
discretion require, 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,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than 10% of the then Outstanding Principal Amount
of the Notes, or to any suit instituted by any Noteholder for the enforcement of
the payment of the principal of or interest on any Note on or after the
Maturities for such payments, including the Stated Maturity as applicable.
SECTION 6.14. Waiver of Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or
45
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 6.15. Sale of Trust Estate.
(a) The power to effect any sale of any portion of the Trust Estate
described pursuant to Section 6.03 shall not be exhausted by any one or more
sales as to any portion of the Trust Estate remaining unsold, but shall continue
unimpaired until the entire Trust Estate shall have been sold or all amounts
payable on the Notes shall have been paid. The Trustee may from time to time,
upon directions in accordance with Section 6.12, postpone any public sale by
public announcement made at the time and place of such sale. For any public sale
of the Trust Estate, the Trustee shall have provided each Noteholder with notice
of such sale at least two weeks in advance of such sale which notice shall
specify the date, time and location of such sale.
(b) To the extent permitted by applicable law, the Trustee shall not
in any private sale sell to a third party the Trust Estate, or any portion
thereof unless,
(i) until such time as the conditions specified in Sections 10.01(a)(i)
and (ii) have been satisfied in full, the holders of 66-2/3% of the then
Outstanding Principal Amount of each Class of the Notes voting separately
consent to or direct the Trustee in writing to make such sale; or
(ii) the proceeds of such sale would be not less than the sum of all
amounts due to the Trustee hereunder and the entire unpaid principal amount of
the Notes and interest due or to become due thereon in accordance with Section
6.06 on the Payment Date next succeeding the date of such sale.
The foregoing provisions shall not preclude or limit the ability of the Trustee
to purchase all or any portion of the Trust Estate at a private sale.
(c) In connection with a sale of all or any portion of the Trust
Estate:
(i) any one or more Noteholders may bid for and purchase the property
offered for sale, and upon compliance with the terms of sale may hold, retain,
and possess and dispose of such property, without further accountability, and
any Noteholder may, in paying the purchase money therefore, deliver in lieu of
cash any Outstanding Notes or claims for interest thereon for credit in the
amount that shall, upon distribution of the net proceeds of such sale, be
payable thereon, and the Notes, in case the amounts so payable thereon shall be
less than the amount due thereon, shall be returned to the Noteholders after
being appropriately stamped to show such partial payment;
(ii) the Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of the Trust Estate in
connection with a sale thereof;
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(iii) the Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer to transfer and convey its interest in any
portion of the Trust Estate in connection with a sale thereof, and to take all
action necessary to effect such sale; and
(iv) no purchaser or transferee at such a sale shall be bound to ascertain
the Trustee's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any moneys.
(d) The method, manner, time, place and terms of any sale of all or
any portion of the Trust Estate shall be commercially reasonable.
(e) The provisions of this Section 6.16 shall not be construed to
restrict the ability of the Trustee to exercise any rights and powers against
the Issuer or the Trust Estate that are vested in the Trustee by this Indenture,
including, without limitation, the power of the Trustee to proceed against the
collateral subject to the lien of this Indenture and to institute judicial
proceedings for the collection of any deficiency remaining thereafter.
ARTICLE VII
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default known to
the Trustee,
(i) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, 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; but 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 be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing to
the actual knowledge of a Responsible Officer of the Trustee, 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 person would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
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(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved, subject to
Section 7.03(f) hereof, that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Noteholders in accordance with Section 6.12 relating to the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;
and
(iv) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02. Notice of Defaults or Events of Default.
Within two Business Days after a Responsible Officer obtaining
knowledge of the occurrence of any Default or Event of Default hereunder, the
Trustee shall transmit, by certified mail return receipt requested, hand
delivery or overnight courier, to all Noteholders, as their names and addresses
appear in the Note Register, and the Rating Agencies notice of such Default or
Event of Default hereunder known to the Trustee, unless such Default or Event of
Default shall have been cured or waived.
SECTION 7.03. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, note, debenture,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by a Trust Request or Trust Order and any action of the
Issuer may be sufficiently evidenced by a Trust Order;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or
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omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel as to legal matters and the
written advice of any such counsel selected by the Trustee with due care shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Noteholders pursuant to this Indenture, unless such Noteholders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, note,
debenture, other evidence of indebtedness, or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuer,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application by
the Issuer of the proceeds of the Notes.
SECTION 7.05. May Hold Notes.
The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Notes and may otherwise deal with the Issuer with the same
rights it would have if it were not Trustee.
SECTION 7.06. Money Held in Trust.
Money and investments held by the Trustee shall be held in trust in
one or more trust accounts hereunder, but need not be segregated from other
funds except to the extent required by law.
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SECTION 7.07. Compensation, Reimbursement, etc.
The Issuer agrees:
(a) to pay to the Trustee from time to time, solely from and only to
the extent that amounts are available, such compensation for all services
rendered by it hereunder as the Issuer and the Trustee may agree in writing
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request, solely from and only to the extent that amounts are
available to the Issuer under Section 3.03(b) or Section 3.04(b) or payable to
the Trustee under clause first of Section 6.06 or clause first of Section 6.13),
for all reasonable expenses, disbursements, and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement, or advance as may be
attributable to its negligence or bad faith.
SECTION 7.08. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall (a) be a
corporation organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers; (b) have a combined capital and surplus
of at least $100,000,000; (c) be subject to supervision or examination by
federal or state authority; and (d) at the time of appointment, shall have
long-term debt obligations (or, if the Trustee does not have outstanding
long-term debt obligations and is a subsidiary of a holding company, which
holding company shall have long-term obligations) having a credit rating of at
least [___] from S&P and [___] from Xxxxx'x.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
This Indenture shall always have a Trustee who satisfies the
requirements of Section 310(a)(1) of the Trust Indenture Act. The Trustee is
subject to the provisions of Section 310(b) of the Trust Indenture Act regarding
disqualification of a trustee upon acquiring any conflicting interest.
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SECTION 7.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer and by mailing notice of resignation by first-class mail,
postage prepaid, to Noteholders at their addresses appearing on the Note
Register.
(c) The Trustee may be removed at any time by written notice of the
holders of Notes evidencing more than 66% of the voting rights thereof,
delivered to the Trustee and the Issuer.
(d) If the Trustee shall resign, be removed, or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer, with the consent of the holders of 66-2/3% of the Outstanding Principal
Amount of the Notes, by an act of the Issuer, shall promptly appoint a successor
Trustee.
(e) If no successor Trustee shall have been so appointed by the
Issuer or the Noteholders as hereinbefore provided and accepted appointment in
the manner hereinafter provided within 30 days after any such resignation or
removal, existence of incapability, or occurrence of such vacancy, the Trustee
or any Noteholder may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
Noteholders, as their names and addresses appear in the Note Register and each
Rating Agency. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
(g) The Issuer may remove the Trustee if the Trustee fails to comply
with Section 7.08 of this Indenture.
(h) If the Trustee after written request by any Noteholder who has
been a Noteholder for at least six months fails to comply with Section 310(b) of
the Trust Indenture Act, such Noteholder may petition any court of competent
jurisdiction, for the removal of the Trustee and the appointment of a successor
Trustee.
(i) The Issuer may and shall at the direction of the Noteholders
evidencing more than 25% of the aggregate outstanding note principal balances of
all classes of notes (the "Percentage Interests"), remove the Trustee if the
Trustee ceases to be eligible to continue as such under this Indenture and fails
to resign after written request therefor.
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SECTION 7.10. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the Issuer
or the successor Trustee, such retiring Trustee shall, upon payment of its
charges and expenses, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Issuer shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
(b) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any Person
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Notes shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion,
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Notes so authenticated with the same effect as if such successor
Trustee had itself authenticated such Notes. The Trustee shall provide prompt
written notice to each Rating Agency of any event referenced in this Section
7.11.
SECTION 7.12. Co-Trustees and Separate Trustees.
(a) At any time or times, if the Issuer, the Trustee or any
Noteholder determines that it is necessary for the purpose of meeting the legal
requirements of any jurisdiction in which any of the Trust Estate may at the
time be located, the Issuer and the Trustee shall have power to appoint, and,
upon the written request of the Trustee or the holders of a majority of the then
Outstanding Principal Amount of the Notes, the Issuer shall for such purpose
join with the Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint one or more Persons
approved by the Trustee either to act as co-trustee, jointly with the Trustee,
of all or any part of such Trust Estate, or to act as separate trustee of any
such property, in either case
52
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions of
this Section. If the Issuer does not join in such appointment within 15 days
after the receipt by it of a request so to do, or in case an Event of Default
has occurred and is continuing, the Trustee, or the holders of a majority of the
then Outstanding Principal Amount of the Notes, alone shall have power to make
such appointment.
(b) Should any written instrument from the Issuer be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Issuer.
(i) Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms:
(ii) The Notes shall be authenticated and delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised, solely by
the Trustee.
(iii) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Trustee or
by the Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that, under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee.
(iv) The Trustee at any time, by an instrument in writing executed by it,
with the concurrence of the Issuer evidenced by a Trust Order, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case an Event of Default has occurred and is continuing, the
Trustee shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Issuer. Upon the
written request of the Trustee, the Issuer shall join with the Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to effectuate such resignation or removal. A successor to any
co-trustee or separate trustee so resigned or removed may be appointed in the
manner provided in this Section.
(v) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Trustee or any other such trustee
hereunder and the Trustee shall not be personally liable by reason of any act or
omission of any co-trustee or other such separate trustee hereunder selected by
the Trustee with due care or appointed in accordance with directions to the
Trustee pursuant to Section 6.12.
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(vi) Any Act of Noteholders delivered to the Trustee shall be deemed
to have been delivered to each such co-trustee and separate trustee.
SECTION 7.13. Acceptance by Trustee.
The Trustee hereby acknowledges the conveyance of the Granted Assets
and the receipt of the Leases and the other Granted Assets granted by the Issuer
hereunder and declares that the Trustee, through a custodian, will hold such
Leases and other Granted Assets conveyed by the Issuer in trust, for the use and
benefit of all Noteholders subject to the terms and provisions hereof.
SECTION 7.14. Preferential Collection of Claims Against the Issuer.
The Trustee is subject to Trust Indenture Act Section 311(a),
excluding any creditor relationship listed in Trust Indenture Act Section
311(b). A Trustee who has resigned or been removed shall be subject to Trust
Indenture Act Section 311(a) to the extent indicated therein.
SECTION 7.15. Reports by Trustee to Noteholders.
To the extent required by the Trust Indenture Act, within 60 days
after each May 15, following the date of this Indenture, the Trustee shall mail
to Noteholders a brief report dated as of such reporting date that complies with
Trust Indenture Act Section 313(a), if such a report is required pursuant to
Trust Indenture Act Section 313(a). The Trustee also shall comply with Trust
Indenture Act Section 313(b). The Trustee shall also transmit by mail all
reports as required by Trust Indenture Act Section 313(c).
A copy of each such report required under Trust Indenture Act
Section 313 shall, at the time of such transmission to Noteholders be filed with
the Commission and with each stock exchange or other market system on which the
Notes are listed. The Issuer or any other obligor upon the Notes shall notify
the Trustee if the Notes become listed on any stock exchange or market trading
system.
SECTION 7.16. No Proceedings.
The Trustee hereby agrees that it will not, with respect to its fees
and expenses, directly or indirectly institute, or cause to be instituted,
against the Issuer any proceeding of the type referred to in Section 6.01(b) or
(c) so long as there shall not have elapsed one year plus one day since the
latest maturing Notes have been paid in full in cash.
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ARTICLE VIII
COVENANTS
SECTION 8.01. Payment of Principal and Interest.
The Issuer will duly and punctually pay the principal of and
interest on the Notes in accordance with the terms of the Notes and this
Indenture.
SECTION 8.02. Maintenance of Office or Agency; Chief Executive
Office.
(a) The Issuer will maintain at the Corporate Trust Office an office
or agency where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuer in respect of the
Notes and this Indenture may be served. The Issuer hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and demands.
(b) The chief executive office of the Issuer, and the office at
which the Issuer maintains its records with respect to the Leases, the interests
in the Equipment, and the transactions contemplated hereby, is currently located
in Wilmington, Delaware; and records with respect to certain of the Leases are
maintained in Mt. Laurel, New Jersey. The Issuer will not change the location of
such offices without giving the Trustee at least 30 days prior written notice
thereof.
SECTION 8.03. Money for Payments to Noteholders to be Held in Trust.
(a) All payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection Account
pursuant to Section 3.03(b) or Section 6.06 shall be made on behalf of the
Issuer by the Trustee, and no amounts so withdrawn from the Collection Account
for payments of Notes shall be paid over to the Issuer under any circumstances
except as provided in this Section 8.03 or in Section 3.03(b), Section 3.04(b)
or Section 6.06.
(b) In making payments hereunder, the Trustee will:
(i) allocate all sums received for payment to the Noteholders on each
Payment Date among such Noteholders pursuant to Section 3.03(b), Section
3.04(b), or Section 6.06, as applicable, in accordance with the information
known to the Trustee;
(ii) 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; and
(iii) comply with all requirements of the Internal Revenue Code of 1986,
as amended (or any successor statutes), and all regulations thereunder, with
respect to the
55
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.
Whenever the Issuer shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on any Notes, deposit
with a Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Noteholders
entitled to such principal or interest, and (unless such Paying Agent is the
Trustee) the Issuer will promptly notify the Trustee of its action or failure so
to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on 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
(2) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Securities) in the making of any payment of
principal or interest.
(c) Except as required by applicable law, any money held by the
Trustee in trust for the payment of any amount due with respect to any Note and
remaining unclaimed for three years after such amount has become due and payable
to the Noteholder shall be discharged from such trust and, subject to applicable
escheat laws, paid to the Issuer upon request; and such Noteholder shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Trustee with respect to such trust money shall
thereupon cease.
SECTION 8.04. Corporate Existence; Merger; Consolidation, etc.
(a) The Issuer will keep in full effect its existence and rights as
a limited liability company under the laws of the State of Delaware.
(b) The Issuer shall at all times observe and comply in all material
respects with (i) all laws applicable to it, (ii) all requisite and appropriate
organizational and other formalities in the management of its business and
affairs and the conduct of the transactions contemplated hereby and by the
Underwriting Agreement and the Assignment and Servicing Agreement.
(c) The Issuer shall not (i) consolidate or merge with or into any
other Person or convey or transfer its properties and assets substantially as an
entirety to any other Person or (ii) commingle its assets with those of any
other Person.
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SECTION 8.05. Protection of Trust Estate; Further Assurances.
The Issuer will from time to time execute and deliver all such
supplements and amendments hereto and all such Financing Statements,
continuation statements, instruments of further assurance, and other
instruments, and will take such other action as may be necessary or advisable
to:
(i) Grant more effectively all or any portion of the Trust Estate;
(ii) maintain or preserve the Lien of this Indenture or carry out more
effectively the purposes hereof;
(iii) publish notice of, or protect the validity of, any Grant made or to
be made by this Indenture and perfect the security interest contemplated hereby
in favor of the Trustee in each of the Leases, in the Equipment and all other
property included in the Trust Estate; provided, that the Issuer shall not be
required to file Financing Statements to perfect any security interest in the
Equipment;
(iv) enforce or cause the Servicer to enforce any of the Leases; or
(v) preserve and defend title to the Leases (including the right to
receive all payments due or to become due thereunder), the interests in the
Equipment, or other property included in the Trust Estate and preserve and
defend the rights of the Trustee and the Noteholders in such Leases (including
the right to receive all payments due or to become due thereunder), interests in
the Equipment and other property against the claims of all Persons and parties.
The Issuer, upon the Issuer's failure to do so, hereby designates the Trustee
its agent and attorney-in-fact to execute any Financing Statement or
continuation statement required pursuant to this Section 8.05; provided,
however, that such designation shall not be deemed to create a duty in the
Trustee to monitor the compliance of the Issuer with the foregoing covenants;
and provided, further, that the duty of the Trustee to execute any instrument
required pursuant to this Section 8.05 shall arise only if a Responsible Officer
of the Trustee has actual knowledge of any failure of the Issuer to comply with
the provisions of this Section 8.05.
SECTION 8.06. [Reserved].
SECTION 8.07. Performance of Obligations; Assignment and Servicing
Agreement.
(a) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Notes, the
Underwriting Agreement and the Placement Agent Agreement.
(b) The Issuer will not take any action or permit any action to be
taken by others which would release any Person from any of such Person's
covenants or obligations under any Lease or any other instrument included in the
Trust Estate, or
57
which would result in the amendment, hypothecation, subordination, termination,
or discharge of, or impair the validity or effectiveness of, any Lease or such
other instrument, except as expressly provided in this Indenture or the
Assignment and Servicing Agreement.
(c) If any Authorized Officer shall have knowledge of the occurrence
of a default under the Assignment and Servicing Agreement, the Issuer shall
promptly notify the Trustee and the Noteholders thereof, and shall specify in
such notice the action, if any, the Issuer is taking in respect of such default.
Unless consented to by the holders of 66 2/3% of the then Outstanding Principal
Amount of the Notes, the Issuer may not waive any default under or amend the
Assignment and Servicing Agreement.
SECTION 8.08. Negative Covenants.
The Issuer will not:
(a) sell, transfer, exchange or otherwise dispose of any portion of
the Trust Estate except as expressly permitted by this Indenture;
(b) claim any credit on, or make any deduction from, the principal
of, or interest on, any of the Notes by reason of the payment of any taxes
levied or assessed upon any portion of the Trust Estate;
(c) engage in any business or activity other than in connection
with, or relating to the ownership of, the Leases and the interests in the
Equipment, the issuance of the Notes, and the specific transactions contemplated
hereby;
(d) become liable for, issue, incur, assume, or allow to remain
outstanding any indebtedness, or guaranty any indebtedness of any Person, other
than the Notes, except as contemplated by this Indenture, the registration
statement filed with respect to the Class [A] Notes and Class [B] Notes and the
Assignment and Servicing Agreement;
(e) seek dissolution or liquidation in whole or in part or
reorganization of its business or affairs;
(f) (i) permit the validity or effectiveness of this Indenture or
any Grant hereby to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations under this Indenture,
except as may be expressly permitted hereby, (ii) permit any lien, charge,
security interest, mortgage or other encumbrance to be created on or to extend
to or otherwise arise upon or burden the Trust Estate or any part thereof or any
interest therein or the proceeds thereof other than the lien of this Indenture,
or (iii) subject to Section 3.01(c) of the Assignment and Servicing Agreement,
permit the lien of this Indenture not to constitute a valid first priority
security interest in the Trust Estate; or
58
(g) make any loan or advance to any Affiliate of the Issuer or to
any other Person; provided that the Issuer may from time to time make
Inter-Company Loans on the terms and conditions set forth in Section 13 of the
Assignment and Servicing Agreement.
SECTION 8.09. Information as to Issuer.
The Issuer shall deliver to the Trustee and, the Trustee shall
deliver to each Rating Agency and to each holder of outstanding Notes (and, upon
the request of any Noteholder, to any prospective transferee of any Notes):
(a) Notice of Event of Default - immediately upon becoming aware of
the existence of any condition or event which constitutes a Default or an Event
of Default, a written notice describing its nature and period of existence and
what action the Issuer is taking or proposes to take with respect thereto; and
(b) Report on Proceedings - promptly upon the Issuer's becoming
aware of (i) any proposed or pending investigation of it by any governmental
authority or agency, or (ii) any pending or proposed court or administrative
proceeding which involves or may involve the possibility of materially and
adversely affecting the properties, business, prospects, profits or condition
(financial or otherwise) of the Issuer, a written notice specifying the nature
of such investigation or proceeding and what action the Issuer is taking or
proposes to take with respect thereto and evaluating its merits.
SECTION 8.10. Taxes.
The Issuer shall pay all taxes when due and payable or levied
against its assets, properties or income, including any property that is part of
the Trust Estate.
SECTION 8.11. Indemnification.
The Issuer agrees to indemnify and hold harmless the Trustee and
each Noteholder (each an "Indemnified Party") against any and all liabilities,
losses, damages, penalties, costs and expenses (including costs of defense and
legal fees and expenses) which may be incurred or suffered by such Indemnified
Party without negligence or willful misconduct on its part as a result of
claims, actions, suits or judgments asserted or imposed against it and arising
out of the transactions contemplated hereby or by the Assignment and Servicing
Agreement, including without limitation, any claims resulting from any use,
operation, maintenance, repair, storage or transportation of any item of
Equipment, whether or not in the Issuer's possession or under its control, and
any tort claims and any fines or penalties arising from any violation of the
laws or regulations of the United States or any state or local government or
governmental authority; provided that, all amounts payable pursuant to this
Section 8.11 shall be fully subordinated to amounts payable under the Notes,
shall be without recourse to the Issuer except to the extent that all amounts
otherwise due and payable under the terms of this Indenture have been fully paid
and shall not, to the extent that such amounts are unpaid, constitute a claim
against the Issuer except to the extent that all amounts otherwise due and
payable under the terms of this Indenture have been fully paid.
59
SECTION 8.12. Commission Reports; Reports to Trustee; Reports to
Noteholders.
To the extent it has not satisfied the following requirements by
reporting under Section 8.09 hereof, the Issuer shall:
(a) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports which the Issuer may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act (or copies of such portions thereof as may be prescribed by rules
and regulations of the Commission); or, if the Issuer is not required to file
with the Commission information, documents or reports pursuant to either Section
13 or Section 15(d) of the Exchange Act, then the Issuer will file with the
Trustee and with the Commission, in accordance with rules and regulations
prescribed by the Commission, such of the supplementary and periodic
information, documents and reports required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed by the Commission, such additional information,
documents and reports with respect to compliance by the Issuer with the
conditions and covenants provided for in this Indenture as may be required by
such rules and regulations; and
(c) furnish to the Trustee for distribution to the Noteholders, as
the names and addresses of such Noteholders appear in the Note Register, in the
manner and to the extent provided in Section 7.15 hereof, such summaries of any
information, documents and reports required to be filed with the Trustee
pursuant to the provisions of Subsections (a) and (b) of this Section 8.12 as
may be required to be provided to such Noteholders by the rules and regulations
of the Commission under the provisions of the Trust Indenture Act.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of any Noteholders, the Issuer, by a Trust
Order, and the Trustee, at any time and from time to time, may enter into one or
more indentures supplemental hereto, in form satisfactory to the Trustee, for
any of the following purposes:
(i) to add to the covenants of the Issuer for the benefit of the
Noteholders, or to surrender any right or power herein conferred upon the
Issuer;
60
(ii) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein; or
(iii) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or to better assure, convey and confirm
unto the Trustee any property subject or required to be subjected to the lien of
this Indenture; provided such action pursuant to this Section 9.01(a) shall not
adversely affect the interests of the Noteholders in any respect or in the
reduction or withdrawal of the then current ratings of the outstanding Notes.
(b) The Trustee shall promptly deliver to each Noteholder and each
Rating Agency a copy of any supplemental indenture entered into pursuant to
Section 9.01(a).
SECTION 9.02. Supplemental Indentures with Consent of Noteholders.
(a) With the consent of the holders of not less than 66-2/3% of the
then Outstanding Principal Amount of the Notes and by Act of said Noteholders
delivered to the Issuer and the Trustee, the Issuer, by a Trust Order, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Noteholders under this Indenture; provided, that no supplemental indenture
shall be entered into if it would result in the reduction or withdrawal of the
then current ratings of the then current ratings of the outstanding Notes and no
supplemental indenture shall, without the consent of the holder of each
Outstanding Note affected thereby:
(i) change the Stated Maturity of any Note or the Principal Payments or
Interest Payments due or to become due on any Payment Date with respect to any
Note, or change the priority of payment thereof as set forth herein, or reduce
the principal amount thereof or the Note Interest Rate thereon, or change the
place of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Maturity thereof;
(ii) reduce the percentage of the Outstanding Principal Amount of the
Notes the consent of whose Noteholders is required for any such supplemental
indenture, for any waiver of compliance with provisions of this Indenture or
Events of Default and their consequences, or for any Act of Noteholders;
(iii) modify any of the provisions of this Section except to increase any
percentage or fraction set forth therein or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the holder of each Outstanding Note affected thereby;
(iv) modify or alter the provisions of the proviso to the definition of
the term "Outstanding"; or
61
(v) permit the creation of any lien ranking prior to or on a parity with
the lien of this Indenture with respect to any part of the Trust Estate or,
except as provided in Sections 4.01 or 4.02, terminate the lien of this
Indenture on any property at any time subject hereto or deprive any Noteholder
of the security afforded by the lien of this Indenture.
(b) The Trustee shall promptly deliver to each Noteholder and each
Rating Agency a copy of any supplemental indenture entered into pursuant to
Section 9.02(a).
SECTION 9.03. Execution of Supplemental Indentures.
In executing any supplemental indenture (a) pursuant to Article 9.01
of this Indenture or (b) pursuant to Section 9.02 of this Indenture without the
consent of each holder of the Notes to the execution of the same, the Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be, fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any supplemental
indenture which affects the Trustee's own rights, duties, projections, or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes, and every
Noteholder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Issuer, to any such supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 9.06. Compliance with Trust Indenture Act.
Every amendment, supplement or waiver to this Indenture or the Notes
shall comply with the Trust Indenture Act as then in effect.
62
ARTICLE X
SATISFACTION AND DISCHARGE
SECTION 10.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(i) 100 days shall have elapsed since either
(A) all Notes theretofore authenticated and delivered (other
than (1) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.04 and (2) Notes
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from such trust, as provided in Section
8.03(c)) have been delivered to the Trustee for cancellation; or
(b) the final installments of principal on all such Notes not
theretofore delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated
Maturity, as applicable, within one year,
and the Issuer has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such
Notes not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of
Notes which have become due and payable) or to the Stated Maturity
thereof;
(ii) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer for the benefit of the Noteholders; and
(iii) the Issuer has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
At such time, the Trustee shall deliver to the Issuer or, upon Trust Order, its
assignee, all cash, securities and other property held by it as part of the
Trust Estate other than funds deposited with the Trustee pursuant to Section
10.01(i)(b), for the payment and discharge of the Notes.
63
(b) Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee under Sections 7.07 and
8.11, and, if money shall have been deposited with the Trustee pursuant to
Section 10.01(i)(b), the obligations of the Trustee under Section 10.02 and
Section 8.03(c) shall survive.
(c) The Trustee shall provide prompt written notice to each Rating
Agency of any satisfaction and discharge of this Indenture pursuant to this
Article 10.
SECTION 10.02. Application of Trust Money.
Subject to the provisions of Section 8.03(c), all money deposited
with the Trustee pursuant to Sections 10.01 and 8.03 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment to the Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by operation of Trust Indenture Act Section 318(a), the
duties imposed by Section 318(a) shall control.
SECTION 11.02. Communication by Noteholders with Other Noteholders.
Noteholders may communicate, pursuant to Trust Indenture Act Section
312(b), with other Noteholders with respect to their rights under this Indenture
or the Notes. The Issuer, the Trustee, the Note Registrar and all other parties
shall have the protection of Trust Indenture Act Section 312(c).
SECTION 11.03. Location of Leases.
The Servicer shall maintain the Leases at its office in _______ or
at such other offices of the Servicer as shall from time to time be identified
by prior written notice to the Trustee. Subject to the foregoing, the Servicer
may temporarily move individual Leases or any portion thereof without notice as
necessary to conduct collection and other servicing activities.
64
SECTION 11.04. Officers' Certificate and Opinion of Counsel as to
Conditions Precedent.
Upon any request or application by the Issuer (or any other obligor
upon the Notes) to the Trustee to take any action under this Indenture, the
Issuer (or such other Obligor) shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the statements set
forth in Section 11.04) 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; and
(b) an Opinion of Counsel (which shall include the statements set
forth in Section 11.04) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or opinion
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 or opinions contained in such
certificate or opinion 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 11.06. Nonpetition.
The Trustee shall not petition or otherwise invoke the process of
any Governmental Authority for the purpose of commencing or sustaining a case
against the Issuer under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Trust or any substantial part of
its respective property, or ordering the winding up or liquidation of the
affairs of the Trust.
65
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and witnessed, all as of the day and year first above written.
IKON RECEIVABLES LLC,
as Issuer
By:_______________________________________
Name:
Title:
__________________________________________,
as Trustee
By:_______________________________________
Name:
Title:
IOS CAPITAL, INC., as Servicer
By:_______________________________________
Name:
Title:
66
CLASS [A-1] NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IKON RECEIVABLES LLC
____% CLASS [A-1] Lease-Backed NOTE, SERIES 1999-1
CUSIP NO. _______________
No. R-1 $____________
IKON Receivables LLC, a limited liability company duly organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _______________________________________________
($_____________), payable in monthly installments beginning on________, 1999, in
accordance with the Indenture. Interest will accrue on the unpaid principal
hereof from the date of issuance, at the rate of _____% per annum, until the
full amount of principal hereof is otherwise paid or made available for payment
and shall be computed on the basis of a year of 360 days and the actual number
of days in the period since the last Payment Date or with respect to the ____
1999 Payment Date, since _____, 1999.
Principal and interest on this Class [A-1] Note shall be paid on the
15th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing ______15, 1999, either by check to the
registered address of the Holder of this Class [A-1] Note as of the relevant
Record Date or by wire transfer to an account at a bank in the United States as
the Holder shall specify, as provided more fully in the Indenture; provided,
that the final payment of principal and interest in respect of the Notes shall
be payable to the Holder of this Note only upon presentation and
surrender of this Note at the Corporate Trust Office of the Trustee or at the
principal office of any Paying Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class [A-1] Notes is the Payment Date in
__________, on which date the Outstanding Principal Amount of the Class [A-1]
Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Class
[A-1] Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
This Class [A-1] Note is one of a duly authorized issue of Class [A]
Notes of the Issuer designated as its "___% Class [A-1] Lease-Backed Notes,
Series 1999-1" (herein called the "Class [A-1] Notes") limited in aggregate
principal amount of $____________, issued under the Indenture, dated as of
________, 1999 (herein called the "Indenture"), among the Issuer, IOS Capital
Inc. as Servicer, and ________as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Issuer, the Trustee and the Holders and of the terms upon which the Class
[A-1] Notes are authenticated and delivered. Unless otherwise defined herein,
all capitalized terms used herein shall have the meanings set forth in the
Indenture.
This Class [A-1] Note will be secured by the pledge to the Trustee
of the Trust Estate.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class [A-1] Notes (but not less than all the
Class [A-1] Notes) may be declared due and payable in the manner and with the
effect provided in the Indenture. Notice of such declaration will be given by
mail to Holders, as their names and addresses appear in the Note Register, as
provided in the Indenture. Upon payment of such principal amount together with
all accrued interest, the obligations of the Issuer with respect to the payment
of principal and interest on this Class [A-1] Note shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66 2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class [A-1] Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class [A-1] Note and of any
A-1-2
Class [A-1] Note issued upon the registration of transfer hereof or in exchange
here for or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Class [A-1] Note or any Class [A-1] Note.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class [A-1] Note is registrable in the
Note Register, upon surrender of this Class [A-1] Note for registration of
transfer at the office or agency of the Trustee in the City of_____, ______, and
at any other office or agency maintained by the Issuer for that purpose, duly
endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class [A-1]
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class [A-1] Notes are issuable only in registered form without
coupons in minimum denominations of $1,000,000. As provided in the Indenture and
subject to certain limitations therein set forth, Class [A-1] Notes are
exchangeable for a like aggregate principal amount of Class [A-1] Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class [A-1] Note is registered as the
owner hereof for all purposes, whether or not this Class [A-1] Note may be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture and this Class [A-1] Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the State
of New York.
A-1-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: _____, 1999
IKON RECEIVABLES LLC
By: _______________
By:_________________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class [A-1] Notes referred to in the within
mentioned Indenture.
___________________, as Trustee
By:_________________________________
Authorized Officer
A-1-4
ASSIGNMENT FORM
If you the holder want to assign this Class [A-1] Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class [A-1] Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class [A-1] Note on
the books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed: _________________________
_________________________
(sign exactly as the
name appears on the
other side of this
Class [A-1] Note)
Signature Guarantee ____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class [A-1] Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class [A-1] Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
[A-1] Note.
A-1-5
CLASS [A-2] NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IKON RECEIVABLES LLC
____% CLASS [A-2]Lease-Backed NOTE, SERIES 1999-1
CUSIP NO. _______________
No. R-1 $____________
IKON Receivables LLC, a limited liability company duly organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _______________________________________________
($_____________), payable in monthly installments beginning on________, 1999, in
accordance with the Indenture. Interest will accrue on the unpaid principal
hereof from the date of issuance, at the rate of _____% per annum, until the
full amount of principal hereof is otherwise paid or made available for payment
and shall be computed on the basis of a year of 360 days and the actual number
of days in the period since the last Payment Date or with respect to the ____
1999 Payment Date, since _____, 1999.
Principal and interest on this Class [A-2] Note shall be paid on the
15th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing ______15, 1999, either by check to the
registered address of the Holder of this Class Note as of the relevant Record
Date or by wire transfer to an account at a bank in the United States as the
Holder shall specify, as provided more fully in the Indenture; provided, that
the final payment of principal and interest in respect of the Notes shall be
payable to the Holder of this Note only upon presentation and surrender of this
Note at the Corporate Trust Office of the Trustee or at the principal office of
any Paying Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class [A-2] Notes is the Payment Date in
__________, on which date the Outstanding Principal Amount of the Class [A-2]
Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Class
[A-2] Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
This Class [A-2] Note is one of a duly authorized issue of Class [A]
Notes of the Issuer designated as its "___% Class [A-2] Lease-Backed Notes,
Series 1999-1" (herein called the "Class [A-2] Notes") limited in aggregate
principal amount of $____________, issued under the Indenture, dated as of
________, 1999 (herein called the "Indenture"), among the Issuer, IOS Capital
Inc. as Servicer, and ________as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Issuer, the Trustee and the Holders and of the terms upon which the Class
[A-2] Notes are authenticated and delivered. Unless otherwise defined herein,
all capitalized terms used herein shall have the meanings set forth in the
Indenture.
This Class [A-2] Note will be secured by the pledge to the Trustee
of the Trust Estate.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class [A-2] Notes (but not less than all the
Class [A-2] Notes) may be declared due and payable in the manner and with the
effect provided in the Indenture. Notice of such declaration will be given by
mail to Holders, as their names and addresses appear in the Note Register, as
provided in the Indenture. Upon payment of such principal amount together with
all accrued interest, the obligations of the Issuer with respect to the payment
of principal and interest on this Class [A-2] Note shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66 2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class [A-2] Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class [A-2] Note and of any Class [A-2] Note issued upon the registration of
transfer hereof or in exchange here for or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Class [A-2] Note or any
Class [A-2] Note.
A-2-2
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class [A-2] Note is registrable in the
Note Register, upon surrender of this Class [A-2] Note for registration of
transfer at the office or agency of the Trustee in the City of_____, ___, and at
any other office or agency maintained by the Issuer for that purpose, duly
endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class [A-2]
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class [A-2] Notes are issuable only in registered form without
coupons in minimum denominations of $1,000,000. As provided in the Indenture and
subject to certain limitations therein set forth, Class [A-2] Notes are
exchangeable for a like aggregate principal amount of Class [A-2] Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class [A-2] Note is registered as the
owner hereof for all purposes, whether or not this Class [A-2] Note may be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture and this Class [A-2] Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the State
of New York.
A-2-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: _____, 1999
IKON RECEIVABLES LLC
By: _______________
By:_________________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class [A-2] Notes referred to in the within
mentioned Indenture.
___________________, as Trustee
By:_________________________________
Authorized Officer
A-2-4
ASSIGNMENT FORM
If you the holder want to assign this Class [A-2] Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class [A-2] Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class [A-2] Note on
the books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed: _________________________
_________________________
(sign exactly as the
name appears on the
other side of this
Class [A-2] Note)
Signature Guarantee ___________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class [A-2] Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class [A-2] Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
[A-2] Note.
A-2-5
CLASS [A-3] NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IKON RECEIVABLES LLC
____% CLASS [A-3] Lease-Backed NOTE, SERIES 1999-1
CUSIP NO. _______________
No. R-1 $____________
IKON Receivables LLC, a limited liability company duly organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _______________________________________________
($_____________), payable in monthly installments beginning on________, 1999, in
accordance with the Indenture. Interest will accrue on the unpaid principal
hereof from the date of issuance, at the rate of _____% per annum, until the
full amount of principal hereof is otherwise paid or made available for payment
and shall be computed on the basis of a year of 360 days and the actual number
of days in the period since the last Payment Date or with respect to the ____
1999 Payment Date, since _____, 1999.
Principal and interest on this Class [A-3] Note shall be paid on the
15th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing ______15, 1999, either by check to the
registered address of the Holder of this Class Note as of the relevant Record
Date or by wire transfer to an account at a bank in the United States as the
Holder shall specify, as provided more fully in the Indenture; provided, that
the final payment of principal and interest in respect of the Notes shall be
payable to the Holder of this Note only upon presentation and surrender of this
Note at the Corporate Trust Office of the Trustee or at the principal office of
any Paying Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class [A-3] Notes is the Payment Date in
__________, on which date the Outstanding Principal Amount of the Class [A-3]
Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Class
[A-3] Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
This Class [A-3] Note is one of a duly authorized issue of Class [A]
Notes of the Issuer designated as its "___% Class [A-3] Lease-Backed Notes,
Series 1999-1" (herein called the "Class [A-3] Notes") limited in aggregate
principal amount of $____________, issued under the Indenture, dated as of
________, 1999 (herein called the "Indenture"), among the Issuer, IOS Capital
Inc. as Servicer, and ________as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Issuer, the Trustee and the Holders and of the terms upon which the Class
[A-3] Notes are authenticated and delivered. Unless otherwise defined herein,
all capitalized terms used herein shall have the meanings set forth in the
Indenture.
This Class [A-3] Note will be secured by the pledge to the Trustee
of the Trust Estate.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class [A-3] Notes (but not less than all the
Class [A-3] Notes) may be declared due and payable in the manner and with the
effect provided in the Indenture. Notice of such declaration will be given by
mail to Holders, as their names and addresses appear in the Note Register, as
provided in the Indenture. Upon payment of such principal amount together with
all accrued interest, the obligations of the Issuer with respect to the payment
of principal and interest on this Class [A-3] Note shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66 2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class [A-3] Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class [A-3] Note and of any Class [A-3] Note issued upon the registration of
transfer hereof or in exchange here for or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Class [A-3] Note or any
Class [A-3] Note.
A-3-2
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class [A-3] Note is registrable in the
Note Register, upon surrender of this Class [A-3] Note for registration of
transfer at the office or agency of the Trustee in the City of_____, ___, and at
any other office or agency maintained by the Issuer for that purpose, duly
endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class [A-3]
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class [A-3] Notes are issuable only in registered form without
coupons in minimum denominations of $1,000,000. As provided in the Indenture and
subject to certain limitations therein set forth, Class [A-3] Notes are
exchangeable for a like aggregate principal amount of Class [A-3] Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class [A-3] Note is registered as the
owner hereof for all purposes, whether or not this Class [A-3] Note may be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture and this Class [A-3] Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the State
of New York.
A-3-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: _____, 1999
IKON RECEIVABLES LLC
By: _______________
By:_________________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class [A-3] Notes referred to in the within
mentioned Indenture.
___________________, as Trustee
By:_________________________________
Authorized Officer
A-3-4
ASSIGNMENT FORM
If you the holder want to assign this Class [A-3] Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class [A-3] Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class [A-3] Note on
the books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed: _________________________
_________________________
(sign exactly as the
name appears on the
other side of this
Class [A-3] Note)
Signature Guarantee ____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class [A-3] Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class [A-3] Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
[A-3] Note.
A-3-5
CLASS [A-4] NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IKON RECEIVABLES LLC
____% CLASS [A-4] Lease-Backed NOTE, SERIES 1999-1
CUSIP NO. _______________
No. R-1 $____________
IKON Receivables LLC, a limited liability company duly organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _______________________________________________
($_____________), payable in monthly installments beginning on________, 1999, in
accordance with the Indenture. Interest will accrue on the unpaid principal
hereof from the date of issuance, at the rate of _____% per annum, until the
full amount of principal hereof is otherwise paid or made available for payment
and shall be computed on the basis of a year of 360 days and the actual number
of days in the period since the last Payment Date or with respect to the ____
1999 Payment Date, since _____, 1999.
Principal and interest on this Class [A-4] Note shall be paid on the
15th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing ______15, 1999, either by check to the
registered address of the Holder of this Class Note as of the relevant Record
Date or by wire transfer to an account at a bank in the United States as the
Holder shall specify, as provided more fully in the Indenture; provided, that
the final payment of principal and interest in respect of the Notes shall be
payable to the Holder of this Note only upon presentation and
surrender of this Note at the Corporate Trust Office of the Trustee or at the
principal office of any Paying Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class [A-4] Notes is the Payment Date in
__________, on which date the Outstanding Principal Amount of the Class [A-4]
Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Class
[A-4] Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
This Class [A-4] Note is one of a duly authorized issue of Class [A]
Notes of the Issuer designated as its "___% Class [A-4] Lease-Backed Notes,
Series 1999-1" (herein called the "Class [A-4] Notes") limited in aggregate
principal amount of $____________, issued under the Indenture, dated as of
________, 1999 (herein called the "Indenture"), among the Issuer, IOS Capital
Inc. as Servicer, and ________as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Issuer, the Trustee and the Holders and of the terms upon which the Class
[A-4] Notes are authenticated and delivered. Unless otherwise defined herein,
all capitalized terms used herein shall have the meanings set forth in the
Indenture.
This Class [A-4] Note will be secured by the pledge to the Trustee
of the Trust Estate.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class [A-4] Notes (but not less than all the
Class [A-4] Notes) may be declared due and payable in the manner and with the
effect provided in the Indenture. Notice of such declaration will be given by
mail to Holders, as their names and addresses appear in the Note Register, as
provided in the Indenture. Upon payment of such principal amount together with
all accrued interest, the obligations of the Issuer with respect to the payment
of principal and interest on this Class [A-4] Note shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66 2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class [A-4] Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class [A-4] Note and of any
A-4-2
Class [A-4] Note issued upon the registration of transfer hereof or in exchange
here for or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Class [A-4] Note or any Class [A-4] Note.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class [A-4] Note is registrable in the
Note Register, upon surrender of this Class [A-4] Note for registration of
transfer at the office or agency of the Trustee in the City of_____, ___, and at
any other office or agency maintained by the Issuer for that purpose, duly
endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class [A-4]
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class [A-4] Notes are issuable only in registered form without
coupons in minimum denominations of $1,000,000. As provided in the Indenture and
subject to certain limitations therein set forth, Class [A-4] Notes are
exchangeable for a like aggregate principal amount of Class [A-4] Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class [A-4] Note is registered as the
owner hereof for all purposes, whether or not this Class [A-4] Note may be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture and this Class [A-4] Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the State
of New York.
A-4-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: _____, 1999
IKON RECEIVABLES LLC
By: _______________
By:_________________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class [A-4] Notes referred to in the within
mentioned Indenture.
___________________, as Trustee
By:_________________________________
Authorized Officer
A-4-4
ASSIGNMENT FORM
If you the holder want to assign this Class [A-4] Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class [A-4] Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class [A-4] Note on
the books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed:_________________________
_________________________
(sign exactly as the
name appears on the
other side of this
Class [A-4] Note)
Signature Guarantee ___________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class [A-4] Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class [A-4] Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
[A-4] Note.
A-4-5
CLASS [B] NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
IKON RECEIVABLES LLC
____% CLASS [B] Lease-Backed NOTE, SERIES 1999-1
CUSIP NO. _______________
No. R-1 $____________
IKON Receivables LLC, a limited liability company duly organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _______________________________________________
($_____________), payable in monthly installments beginning on________, 1999, in
accordance with the Indenture. Interest will accrue on the unpaid principal
hereof from the date of issuance, at the rate of _____% per annum, until the
full amount of principal hereof is otherwise paid or made available for payment
and shall be computed on the basis of a year of 360 days and the actual number
of days in the period since the last Payment Date or with respect to the ____
1999 Payment Date, since _____, 1999.
Principal and interest on this Class [B] Note shall be paid on the
15th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing ______15, 1999, either by check to the
registered address of the Holder of this Class Note as of the relevant Record
Date or by wire transfer to an account at a bank in the United States as the
Holder shall specify, as provided more fully in the Indenture; provided, that
the final payment of principal and interest in respect of the Notes shall be
payable to the Holder of this Note only upon presentation and surrender of this
Note at the Corporate Trust Office of the Trustee or at the principal office of
any Paying Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class [B] Notes is the Payment Date in
__________, on which date the Outstanding Principal Amount of the Class [B]
Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Class
[B] Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class [B] Note is one of a duly authorized issue of Class [A]
Notes of the Issuer designated as its "___% Class [B] Lease-Backed Notes, Series
1999-1" (herein called the " Class [B] Notes") limited in aggregate principal
amount of $____________, issued under the Indenture, dated as of ________, 1999
(herein called the "Indenture"), among the Issuer, IOS Capital Inc. as Servicer,
and ________as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee and the Holders and of the terms upon which the Class [B] Notes are
authenticated and delivered. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings set forth in the Indenture.
This Class [B] Note will be secured by the pledge to the Trustee of
the Trust Estate.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class [B] Notes (but not less than all the
Class [B] Notes) may be declared due and payable in the manner and with the
effect provided in the Indenture. Notice of such declaration will be given by
mail to Holders, as their names and addresses appear in the Note Register, as
provided in the Indenture. Upon payment of such principal amount together with
all accrued interest, the obligations of the Issuer with respect to the payment
of principal and interest on this Class [B] Note shall terminate.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66 2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class [B] Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class [B] Note and of any Class [B] Note issued upon the registration of
transfer hereof or in exchange here for or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Class [B] Note or any Class
[B] Note.
B-2
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class [B] Note is registrable in the
Note Register, upon surrender of this Class [B] Note for registration of
transfer at the office or agency of the Trustee in the City of_____, ___, and at
any other office or agency maintained by the Issuer for that purpose, duly
endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class [B]
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class [B] Notes are issuable only in registered form without
coupons in minimum denominations of $1,000,000. As provided in the Indenture and
subject to certain limitations therein set forth, Class [B] Notes are
exchangeable for a like aggregate principal amount of Class [B] Notes of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Class [B] Note is registered as the
owner hereof for all purposes, whether or not this Class [B] Note may be
overdue, and neither the Issuer, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Indenture and this Class [B] Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the State
of New York.
B-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: _____, 1999
IKON RECEIVABLES LLC
By: _______________
By:_________________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class [B] Notes referred to in the within
mentioned Indenture.
___________________, as Trustee
By:_________________________________
Authorized Officer
B-4
ASSIGNMENT FORM
If you the holder want to assign this Class [B] Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class [B] Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class [B] Note on
the books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed: _________________________
_________________________
(sign exactly as the
name appears on the
other side of this
Class [B] Note)
Signature Guarantee ___________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class [B] Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class [B] Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
[B] Note.
B-5
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION.....................................................2
SECTION 1.01. General Definitions.........................................2
SECTION 1.02. Compliance Certificates and Opinions.......................17
SECTION 1.03. Form of Documents Delivered to Trustee.....................18
SECTION 1.04. Acts of Noteholders, etc...................................19
SECTION 1.05. Notices, etc., to Trustee, Servicer, Issuer and Rating
Agencies................................................20
SECTION 1.06. Notice to Noteholders; Waiver..............................20
SECTION 1.07. Effect of Headings and Table of Contents...................21
SECTION 1.08. Successors and Assigns.....................................21
SECTION 1.09. GOVERNING LAW..............................................21
SECTION 1.10. Legal Holidays.............................................21
SECTION 1.11. Execution in Counterparts..................................22
SECTION 1.12. Inspection.................................................22
SECTION 1.13. Survival of Representations and Warranties.................22
ARTICLE II THE NOTES..........................................................22
SECTION 2.01. General Provisions.........................................22
SECTION 2.02. Execution, Authentication, Delivery, and Dating............24
SECTION 2.03. Transfer and Exchange......................................25
SECTION 2.04. Mutilated, Destroyed, Lost and Stolen Notes................26
SECTION 2.05 Book-Entry Registration of Class [A] Notes and Class [B]
Notes...................................................26
SECTION 2.06. Notice to DTC..............................................28
SECTION 2.07. Definitive Class [A] Notes and Class [B] Notes............28
SECTION 2.08. Payment of Interest and Principal; Rights Preserved........29
SECTION 2.09. Persons Deemed Owners......................................29
SECTION 2.10. Cancellation...............................................29
SECTION 2.11. Noteholder Lists...........................................30
SECTION 2.12. Treasury Securities........................................30
ARTICLE III ACCOUNTS; INVESTMENT OF MONEYS; COLLECTION AND
APPLICATION OF MONEYS; REPORTS.................................30
SECTION 3.01. Trust Accounts; Investments by Trustee.....................30
SECTION 3.02. Collection of Moneys.......................................33
SECTION 3.03. Collection Account; Payments...............................33
SECTION 3.04. The Reserve Account........................................35
SECTION 3.05. Reports by Trustee; Notices of Certain Payments............36
SECTION 3.06. Trustee May Rely on Certain Information from IOS Capital
and Servicer............................................36
i
ARTICLE IV RELEASE OF LEASES AND EQUIPMENT....................................37
SECTION 4.01. Release of Equipment.......................................37
SECTION 4.02. Release of Leases Upon Final Lease Payment.................37
SECTION 4.03. Execution of Documents.....................................37
ARTICLE V SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER.....................38
SECTION 5.01. Servicer Events of Default.................................38
SECTION 5.02. Substitute Servicer........................................38
ARTICLE VI EVENTS OF DEFAULT; REMEDIES........................................38
SECTION 6.01. Events of Default..........................................38
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.........40
SECTION 6.03. Remedies...................................................40
SECTION 6.04. Trustee Shall File Proofs of Claim.........................41
SECTION 6.05. Trustee May Enforce Claims Without Possession of Notes.....42
SECTION 6.06. Application of Money Collected.............................42
SECTION 6.07. Limitation on Suits........................................43
SECTION 6.08. Unconditional Right of Noteholders to Receive Principal
and Interest............................................44
SECTION 6.09. Restoration of Rights and Remedies.........................44
SECTION 6.10. Rights and Remedies Cumulative.............................44
SECTION 6.11. Delay or Omission Not Waiver...............................44
SECTION 6.12. Control by Noteholders.....................................45
SECTION 6.13. Undertaking for Costs......................................45
SECTION 6.14. Waiver of Stay or Extension Laws...........................45
SECTION 6.15. Sale of Trust Estate.......................................46
ARTICLE VII THE TRUSTEE.......................................................47
SECTION 7.01. Certain Duties and Responsibilities........................47
SECTION 7.02. Notice of Defaults or Events of Default....................48
SECTION 7.03. Certain Rights of Trustee..................................48
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes..........49
SECTION 7.05. May Hold Notes.............................................49
SECTION 7.06. Money Held in Trust........................................49
SECTION 7.07. Compensation, Reimbursement, etc...........................50
SECTION 7.08. Corporate Trustee Required; Eligibility....................50
SECTION 7.09. Resignation and Removal; Appointment of Successor..........51
SECTION 7.10. Acceptance of Appointment by Successor.....................52
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business................................................52
SECTION 7.12. Co-trustees and Separate Trustees..........................52
SECTION 7.13. Acceptance by Trustee......................................54
SECTION 7.14. Preferential Collection of Claims Against the Issuer.......54
SECTION 7.15. Reports by Trustee to Noteholders..........................54
SECTION 7.16. No Proceedings.............................................54
ARTICLE VIII COVENANTS........................................................55
ii
SECTION 8.01. Payment of Principal and Interest..........................55
SECTION 8.02. Maintenance of Office or Agency; Chief Executive Office....55
SECTION 8.03. Money for Payments to Noteholders to be Held in Trust......55
SECTION 8.04. Corporate Existence; Merger; Consolidation, etc............56
SECTION 8.05. Protection of Trust Estate; Further Assurances.............57
SECTION 8.06. [Reserved].................................................57
SECTION 8.07. Performance of Obligations; Assignment and Servicing
Agreement...............................................57
SECTION 8.08. Negative Covenants.........................................58
SECTION 8.09. Information as to Issuer...................................59
SECTION 8.10. Taxes......................................................59
SECTION 8.11. Indemnification............................................59
SECTION 8.12. Commission Reports; Reports to Trustee; Reports to
Noteholders.............................................60
ARTICLE IX SUPPLEMENTAL INDENTURES............................................60
SECTION 9.01. Supplemental Indentures Without Consent of Noteholders.....60
SECTION 9.02. Supplemental Indentures with Consent of Noteholders........61
SECTION 9.03. Execution of Supplemental Indentures.......................62
SECTION 9.04. Effect of Supplemental Indentures..........................62
SECTION 9.05. Reference in Notes to Supplemental Indentures..............62
SECTION 9.06. Compliance with Trust Indenture Act........................62
ARTICLE X SATISFACTION AND DISCHARGE..........................................63
SECTION 10.01. Satisfaction and Discharge of Indenture...................63
SECTION 10.02. Application of Trust Money................................64
ARTICLE XI MISCELLANEOUS......................................................64
SECTION 11.01. Trust Indenture Act Controls..............................64
SECTION 11.02. Communication by Noteholders with Other Noteholders.......64
SECTION 11.03. Officers' Certificate and Opinion of Counsel as to
Conditions Precedent...................................64
SECTION 11.04. Statements Required in Certificate or Opinion.............65
SECTION 11.05. Nonpetition...............................................65
SCHEDULES
SCHEDULE 1 Leases
EXHIBITS
EXHIBIT A Forms of Notes and Form of Trustee's Certificate of
Authentication
EXHIBIT B Form of Investor Letter
iii
