1
Exhibit 4.2
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FORD CREDIT AUTO LEASE TRUST 1996-1
__% Class A-1 Asset Backed Senior Notes
__% Class A-2 Asset Backed Senior Notes
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INDENTURE
Dated as of November __, 1996
------------------------
THE CHASE MANHATTAN BANK
Indenture Trustee
===============================================================================
2
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
------- ---------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.10
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.(2)
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8; 6.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.12
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.14
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5; 11.5
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.11
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.6
__________________________________
1 Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
2 N.A. means Not Applicable.
3
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE II
THE SENIOR NOTES
Section 2.1 Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.2 Execution, Authentication and Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2.3 Temporary Senior Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.4 Registration; Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . 13
Section 2.5 Mutilated, Destroyed, Lost or Stolen Senior Notes . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2.6 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.7 Payment of Principal and Interest; Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.8 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.9 Release of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2.10 Book-Entry Senior Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.11 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.12 Definitive Senior Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.13 Authenticating Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE III
COVENANTS
Section 3.1 Payment of Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 3.3 Money for Payments To Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.4 Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.5 Protection of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.6 Opinions as to Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 3.7 Performance of Obligations; Administration of Specified Assets . . . . . . . . . . . . . . . . . 27
Section 3.8 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 3.9 Annual Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.10 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
i
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Section 3.11 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.12 No Other Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.13 No Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.14 Administrative Agent's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.15 Guarantees, Loans, Advances and Other Liabilities . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.16 Capital Expenditures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.17 [Reserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.18 Notice of Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.19 Further Instruments and Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 4.3 Repayment of Moneys Held by Paying
Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE V
EVENTS OF DEFAULT
Section 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee . . . . . . . . . . . . 37
Section 5.4 Remedies; Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.5 Optional Preservation of the Series 1996-1 Assets . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.6 Limitation of Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.7 Unconditional Rights of Senior Noteholders To Receive Principal and Interest . . . . . . . . . . 45
Section 5.8 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.9 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.10 Delay or Omission Not a Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 5.11 Control by Senior Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 5.12 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.13 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.14 Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.15 Action on Senior Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.16 Performance and Enforcement of Certain Obligations . . . . . . . . . . . . . . . . . . . . . . . 48
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ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.1 Duties of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 6.2 Rights of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.3 Individual Rights of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.4 Indenture Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 6.5 Notice of Defaults; Bankruptcy of RCL Trust 1996-1 or Ford Credit Leasing . . . . . . . . . . . . 53
Section 6.6 Reports by Indenture Trustee to Senior Noteholders . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.7 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 6.8 Replacement of Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.9 Successor Indenture Trustee by Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee . . . . . . . . . . . . . . . . 57
Section 6.11 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 6.12 Preferential Collection of Claims Against Lease Trustee . . . . . . . . . . . . . . . . . . . . . 59
Section 6.13 Indenture Trustee as Holder of Series 1996-1 Certificates . . . . . . . . . . . . . . . . . . . . 60
ARTICLE VII
SENIOR NOTEHOLDERS' LISTS AND REPORTS
Section 7.1 Lease Trustee To Furnish Indenture Trustee Names and Addresses of Senior Noteholders . . . . . . 60
Section 7.2 Preservation of Information; Communications to Senior Noteholders . . . . . . . . . . . . . . . . 61
Section 7.3 Reports by Lease Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.4 Reports by Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 8.2 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 8.3 Cash Collateral Account Certificate; Disbursement and Payment Instructions . . . . . . . . . . . 68
Section 8.4 Disbursement of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 8.5 General Provisions Regarding Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 8.6 Release of Indenture Trust Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
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Page
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Senior Noteholders . . . . . . . . . . . . . . . . . . 75
Section 9.2 Supplemental Indentures with Consent of Senior Noteholders . . . . . . . . . . . . . . . . . . . 77
Section 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 9.4 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 9.5 Conformity With Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 9.6 Reference in Senior Notes to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE X
REDEMPTION OF SENIOR NOTES
Section 10.1 Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.2 Form of Redemption Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 10.3 Senior Notes Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE XI
MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.2 Form of Documents Delivered to Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 11.3 Acts of Senior Noteholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.4 Notices, etc., to Indenture Trustee, Lease Trustee and Rating Agencies . . . . . . . . . . . . . 87
Section 11.5 Notices to Senior Noteholders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.6 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 11.7 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 11.8 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 11.9 Separability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 11.10 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 11.11 Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 11.12 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 11.13 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 11.14 Recording of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 11.15 Trust Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 11.16 No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 11.17 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
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Exhibits Page
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Exhibit A-1 Form of Class A-1 Senior Note
Exhibit A-2 Form of Class A-2 Senior Note
Exhibit B Form of Depository Agreement
v
8
INDENTURE dated as of November __, 1996, between PNC BANK,
DELAWARE, a Delaware banking corporation, not in its individual capacity but
solely as trustee (together with its successors under the Lease Trust
Agreement, the "Lease Trustee") of FORD CREDIT AUTO LEASE TRUST 1996-1 (the
"Lease Trust"), and THE CHASE MANHATTAN BANK, a New York corporation, not in
its individual capacity but solely as trustee hereunder (together with its
successors hereunder, the "Indenture Trustee").
PRELIMINARY STATEMENT
The Lease Trustee is duly authorized to execute and deliver
this Indenture on behalf of the Lease Trust to provide for the Senior Notes
issuable as provided in this Indenture. All covenants and agreements made by
the Lease Trust herein are for the benefit and security of the Senior
Noteholders and the Indenture Trustee. The Lease Trustee is entering into this
Indenture on behalf of the Lease Trust, and the Indenture Trustee is accepting
the trusts created hereby, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged.
All things necessary to make this Indenture a valid agreement
of the Lease Trust in accordance with the agreement's terms have been done.
GRANTING CLAUSE
The Lease Trust hereby Grants to the Indenture Trustee at the
Closing Date, as Indenture Trustee for the benefit of the Senior Noteholders,
all of the Lease Trust's right, title and interest in and to (i) the Lease
Trust Estate and (ii) all present and future claims, demands, causes and choses
in action in respect of any or all of the foregoing and all payments on or
under and all proceeds of every kind and nature whatsoever in respect of any or
all of the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every
9
kind and other forms of obligations and receivables, instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Senior Notes, equally and ratably without prejudice, priority or distinction
except as set forth herein, and to secure compliance with the provisions of
this Indenture, all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the
Senior Noteholders, acknowledges such Grant and accepts the trusts under this
Indenture in accordance with the provisions of this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions. (a) Whenever used in this
Indenture capitalized terms have the meanings assigned to them herein or, if
not defined herein, as defined in Appendix A attached hereto. To the extent
that the definitions set forth herein conflict with the definitions set forth
in Appendix A, or incorporated by reference therein, the definitions set forth
herein shall be controlling. All references to Articles, Sections, and
subsections are to Articles, Sections and subsections in this Indenture unless
otherwise specified.
"Act" has the meaning set forth in Section 11.3(a).
"Administrative Agent Default" has the meaning set forth in
Section 3.7(d).
"Authorized Officer" means, with respect to the Lease Trust,
any officer within the Corporate Trust Department (or any successor business
unit) of the Lease Trustee, including without limitation any secretary,
assistant secretary, vice president, assistant vice president, senior corporate
trust officer, corporate trust officer, assistant treasurer, senior trust
adminis-
10
tration officer, assistant treasurer, senior trust administration officer, trust
administration officer, senior trust operations officer or trust operations
officer and, so long as the Administrative Agency Agreement is in effect, any
person who is authorized to act for the Administrative Agent in matters
relating to the Lease Trust and to be acted upon by the Administrative Agent
pursuant to the Administrative Agency Agreement and who is identified on the
list of authorized persons delivered by the Administrative Agent to the
Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter); provided, however, that for
purposes of Section 3.9 such officer of the Administrative Agent must be any of
the principal executive officer, the principal financial officer or the
principal accounting officer.
"Book-Entry Senior Notes" means a beneficial interest in the
Senior Notes, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 2.10.
"Class A-1 Senior Notes" means the __% Class A-1 Asset Backed
Senior Notes, substantially in the form of Exhibit A-1.
"Class A-2 Senior Notes" means the __% Class A-2 Asset Backed
Senior Notes, substantially in the form of Exhibit A-2.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time a
Clearing Agency effects book-entry transfers and pledges of securities
deposited with the Clearing Agency.
"Collateral" has the meaning set forth in the Granting Clause
of this Indenture.
"Commission" means the Securities and Exchange Commission.
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"Corporate Trust Office" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust business
shall be administered which office at the date of the execution of this
Indenture is located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; or at
such other address as the Indenture Trustee may designate from time to time by
notice to the Senior Noteholders and the Lease Trustee, or the principal
corporate trust office of any successor Indenture Trustee (the address of which
the successor Indenture Trustee will notify the Senior Noteholders and the
Lease Trustee).
"Default" means any occurrence that is, or with notice or the
lapse of time or both would become, an Event of Default.
"Definitive Senior Notes" has the meaning set forth in Section
2.10.
"Depository Agreement" means the agreement among the Lease
Trust, the Indenture Trustee and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, substantially in the form of
Exhibit B.
"Disbursement and Payment Instructions" has the meaning set
forth in Section 8.3(b).
"Event of Default" has the meaning set forth in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Officer" means, with respect to any corporation,
the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer,
President, Executive Vice President, any Vice President, the Secretary or the
Treasurer of such corporation; and with respect to any partnership, any general
partner thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create and xxxxx x xxxx
upon and a security interest in and right of set-off against, deposit, set over
and confirm pursuant to this Indenture. A Grant of
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the Collateral or of any other agreement or instrument shall include all
rights, powers and options (but none of the obligations) of the granting party
thereunder, including the immediate and continuing right to claim for, collect,
receive and give receipt for principal and interest payments in respect of the
Collateral 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 Proceedings in the name of the granting party or
otherwise and generally to do and receive anything that the granting party is
or may be entitled to do or receive thereunder or with respect thereto.
"Indenture Trust Estate" means all money, instruments, rights
and other property that are subject or intended to be subject to the lien and
security interest of this Indenture for the benefit of the Senior Noteholders
(including, without limitation, the Collateral Granted to the Indenture
Trustee), including all proceeds.
"Independent" means, when used with respect to any specified
Person, that the Person (a) is in fact independent of the Lease Trust, any
other obligor upon the Senior Notes, the Administrative Agent and any Affiliate
of any of the foregoing Persons, (b) does not have any direct financial
interest or any material indirect financial interest in the Lease Trust, any
such other obligor, the Administrative Agent or any Affiliate of any of the
foregoing Persons and (c) is not connected with the Lease Trust, any such other
obligor, the Administrative Agent or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1, made by
an Independent appraiser or other expert appointed by an Issuer Order and
approved by the Indenture Trustee in the exercise of reasonable care, and such
opinion or certificate shall state that the signer has read the definition of
"Independent" in this Indenture and that the signer is Independent within the
meaning thereof.
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"Issuer Order" and "Issuer Request" means a written order or
request of the Lease Trust signed in the name of the Lease Trust by any one of
its Authorized Officers and delivered to the Indenture Trustee.
"Note Pool Factor" shall mean, with respect to each Class of
Senior Notes on any Payment Date, the seven digit decimal equivalent of a
fraction the numerator of which is the Outstanding Amount of such Class on the
Payment Date (after giving effect to any payment of principal on such Payment
Date) and the denominator of which is the Outstanding Amount of such Class on
the Closing Date.
"Notice of Default" has the meaning set forth in Section
5.1(iv).
"Officers' Certificate" means a certificate signed by any
Authorized Officer of the Lease Trustee, under the circumstances described in,
and otherwise complying with, the applicable requirements of Section 11.1, and
delivered to the Indenture Trustee. Unless otherwise specified, any reference
in this Indenture to an Officers' Certificate shall be to an Officer's
Certificate of any Authorized Officer of the Lease Trustee.
"Opinion of Counsel" means one or more written opinions of
counsel who may, except as otherwise expressly provided in this Indenture, be
employees of or counsel to the Lease Trustee or the Administrative Agent and
who shall be satisfactory to the Indenture Trustee, and which opinion or
opinions shall be addressed to the Indenture Trustee, shall comply with any
applicable requirements of Section 11.1, and shall be in form and substance
satisfactory to the Indenture Trustee.
"Outstanding" means, as of the date of determination, all
Senior Notes theretofore authenticated and delivered under this Indenture
except:
(i) Senior Notes theretofore cancelled by the Senior
Note Registrar or delivered to the Senior Note Registrar for
cancellation;
(ii) Senior Notes or portions thereof the payment
for which money in the necessary amount has been theretofore deposited
with the Indenture Trust-
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ee or any Paying Agent in trust for the related Senior Noteholders
(provided, however, that if such Senior Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor, satisfactory to the Indenture
Trustee); and
(iii) Senior Notes in exchange for or in lieu of
other Senior Notes which have been authenticated and delivered
pursuant to this Indenture unless proof satisfactory to the Indenture
Trustee is presented that any such Senior Notes are held by a bona
fide purchaser;
provided that in determining whether Senior Noteholders holding the requisite
Outstanding Amount of the Senior Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or under any
Basic Document, Senior Notes owned by the Lease Trust, RCL Trust 1996-1, the
Administrative Agent or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Senior Notes that a Responsible Officer knows to be so owned shall be so
disregarded. Senior Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Indenture Trustee the pledgee's right so to act with respect to such Senior
Notes and that the pledgee is not the Lease Trust, RCL Trust 1996-1, the
Administrative Agent or any Affiliate of any of the foregoing Persons.
"Paying Agent" means the Indenture Trustee or any other Person
that meets the eligibility standards for the Indenture Trustee set forth in
Section 6.11 and is authorized by the Lease Trustee to make the payments to and
distributions from the Series 1996-1 Payments Account, including payment of
principal of or interest on the Senior Notes on behalf of the Lease Trust.
"Predecessor Senior Note" means, with respect to any
particular Senior Note, every previous Senior Note evidencing all or a portion
of the same debt as that evidenced by such particular Senior Note; and, for the
purpose of this definition, any Senior Note authenticated
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and delivered under Section 2.5 in lieu of a mutilated, destroyed, lost, or
stolen Senior Note shall be deemed to evidence the same debt as the mutilated,
destroyed, lost, or stolen Senior Note.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agency Condition" means, with respect to any action,
that each Rating Agency shall have been given 10 days' prior notice thereof and
that the Rating Agencies shall have notified the Administrative Agent and the
Indenture Trustee in writing that such action will not result in a reduction or
withdrawal of the then current ratings of the Senior Notes.
"Record Date" means, with respect to a Payment Date or
Redemption Date, the close of business on the fourteenth day of the calendar
month in which such Payment Date or Redemption Date occurs (or, if Definitive
Senior Notes are issued, the last day of the preceding calendar month).
"Redemption Date" means the Payment Date specified by the
Administrative Agent or the Lease Trustee pursuant to Section 10.1.
"Redemption Price" means an amount equal to the unpaid
principal amount of the Senior Notes redeemed plus accrued and unpaid interest
thereon at the applicable Senior Note Interest Rate to but excluding the
Redemption Date.
"Registered Holder" means the Person in whose name a Senior
Note is registered on the Senior Note Register on the applicable Record Date.
"Responsible Officer" means any officer of the Indenture
Trustee, including any Vice President, Assistant Vice President, Assistant
Treasurer, Assistant Secretary or any other officer of the Indenture Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
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"Senior Note Owner" means, with respect to a Book-Entry Senior
Note, the Person who is the beneficial owner of such Book-Entry Senior Note, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a Clearing Agency
Participant or as an indirect participant, in each case in accordance with the
rules of such Clearing Agency).
"Senior Note Register" and "Senior Note Registrar" have the
respective meanings set forth in Section 2.4.
"Stamp" has the meaning set forth in Section 2.4.
"State" means any one of the 50 states of the United States of
America or the District of Columbia.
"Stated Maturity" means when used with respect to any
security, including a Senior Note, the date specified in such security as the
fixed date which the final payment of principal on such security is due and
payable or, if such date is not a Business Day, the next following Business
Day.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as amended and as in force on the date hereof, unless otherwise
specifically provided.
(b) All terms defined in this Indenture shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Indenture and in any certificate or
other document made or delivered pursuant hereto, accounting terms not defined
in this Indenture or in any such certificate or other document, and accounting
terms partly defined in this Indenture or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Indenture or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions con-
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tained in this Indenture or in any such certificate or other document shall
control.
(d) Interest on the Senior Notes shall be computed on the
basis of a 360-day year of twelve 30-day months for all purposes of this
Indenture.
Section 1.2 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Senior Notes.
"indenture security holder" means a Senior Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Lease Trust
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meaning assigned to them by such definitions.
ARTICLE II
THE SENIOR NOTES
Section 2.1 Form. The form of the Class A-1 Senior Notes and
the Class A-2 Senior Notes, together with the Indenture Trustee's certificate
of authentication, shall be in substantially the form set forth respectively as
Exhibit A-1 and Exhibit A-2, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other
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marks of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Senior
Notes, as evidenced by their execution of the Senior Notes. Any portion of the
text of any Senior Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Senior Note.
The definitive Senior Notes shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods (with
or without steel engraved borders), all as determined by the officers executing
such Senior Notes, as evidenced by their execution of such Senior Notes.
Each Senior Note shall be dated the date of its
authentication. The terms of the Class A-1 Senior Notes and the Class A-2
Senior Notes set forth respectively in Exhibit A-1 and Exhibit A-2 are part of
the terms of this Indenture.
Original Senior Note
------------------------------------------------------
Principal Interest Stated
Designation Amount Rate Maturity
----------- --------- -------- --------
Class A-1
Asset Backed
Senior Notes $_________ __% ______ __, ____
Class A-2
Asset Backed
Senior Notes $_________ __% ______ __, ____
Section 2.2 Execution, Authentication and Delivery. The
Senior Notes shall be executed by the Lease Trustee by any of its Authorized
Officers on behalf of the Lease Trust. The signature of any such Authorized
Officer on the Senior Notes may be manual or facsimile.
Senior Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the Lease Trust shall
bind the Lease Trust, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Senior Notes or did not hold such offices at the date of such Senior Notes.
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The Indenture Trustee shall upon Issuer Order authenticate and
deliver the Class A-1 Senior Notes for original issue in an aggregate principal
amount of $______ and the Class A-2 Senior Notes for original issue in an
aggregate principal amount of $______. The aggregate principal amount of Class
A-1 Senior Notes and Class A-2 Senior Notes outstanding at any time may not
exceed those respective amounts except as provided in Section 2.5.
The Senior Notes shall be issuable as registered Senior Notes
in minimum denominations of $1,000 and in integral multiples of $1,000 in
excess thereof.
No Senior Note shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Senior Note a certificate of authentication substantially in the form
provided for herein executed by the Indenture Trustee by the manual signature
of one of its authorized signatories, and such certificate upon any Senior Note
shall be conclusive evidence, and the only evidence, that such Senior Note has
been duly authenticated and delivered hereunder.
Section 2.3 Temporary Senior Notes. Pending the preparation
of Definitive Senior Notes, the Lease Trustee may execute, on behalf of the
Lease Trust, and upon receipt of an Issuer Order the Indenture Trustee shall
authenticate and deliver, temporary Senior Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, substantially of
the tenor of the definitive Senior Notes in lieu of which they are issued and
with such variations not inconsistent with the terms of this Indenture as the
officers executing the temporary Senior Notes may determine, as evidenced by
their execution of such temporary Senior Notes.
If temporary Senior Notes are issued, the Lease Trust will
cause definitive Senior Notes to be prepared without unreasonable delay. After
the preparation of definitive Senior Notes, the temporary Senior Notes shall be
exchangeable for definitive Senior Notes upon surrender of the temporary Senior
Notes at the office or agency of the Lease Trustee to be maintained as provided
in Section 3.2, without charge to the Senior Noteholder. Upon surrender for
cancellation of any one or more tempo-
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rary Senior Notes, the Lease Trustee shall execute, on behalf of the Lease
Trust, and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Senior Notes of authorized
denominations. Until so exchanged, the temporary Senior Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Senior Notes.
Section 2.4 Registration; Registration of Transfer and
Exchange. The Lease Trustee shall cause to be kept a register (the "Senior
Note Register") in which, subject to such reasonable regulations as it may
prescribe, the Lease Trustee shall provide for the registration of Senior Notes
and the registration of transfers of Senior Notes. The Indenture Trustee is
hereby appointed "Senior Note Registrar" for the purpose of registering Senior
Notes and transfers of Senior Notes as herein provided. Upon any resignation
of any Senior Note Registrar, the Lease Trustee shall promptly appoint a
successor or, if it elects not to make such an appointment, assume the duties
of Senior Note Registrar.
If a Person other than the Indenture Trustee is appointed by
the Lease Trustee as Senior Note Registrar, the Lease Trustee will give the
Indenture Trustee prompt written notice of the appointment of such Senior Note
Registrar and of the location, and any further change in such location, of the
Senior Note Register, and the Indenture Trustee shall have the right to inspect
the Senior Note Register at all reasonable times and to obtain copies thereof,
and the Indenture Trustee shall have the right to rely upon a certificate
executed on behalf of the Senior Note Registrar by an Executive Officer thereof
as to the names and addresses of the Senior Noteholders and the principal
amounts and number of such Senior Notes.
Upon surrender for registration of transfer of any Senior Note
at the office or agency of the Lease Trustee to be maintained as provided in
Section 3.2, if the requirements of Section 8-401(1) of the UCC are met the
Lease Trustee shall execute, on behalf of the Lease Trust, and the Indenture
Trustee shall authenticate and the Senior Noteholder shall obtain from the
Indenture Trustee, in the name of the designated transferee or transferees, one
or more new Senior Notes of the same
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Class in any authorized denominations, of a like aggregate principal amount.
At the option of the Senior Noteholder, Senior Notes may be
exchanged for other Senior Notes of the same Class in any authorized
denominations, of a like aggregate principal amount, upon surrender of the
Senior Notes to be exchanged at such office or agency. Whenever any Senior
Notes are so surrendered for exchange, if the requirements of Section 8-401(1)
of the UCC are met, the Lease Trustee shall execute, on behalf of the Lease
Trust, the Indenture Trustee shall authenticate and the Senior Noteholder shall
obtain from the Indenture Trustee, the Senior Notes which the Senior Noteholder
making the exchange is entitled to receive.
All Senior Notes issued upon any registration of transfer or
exchange of Senior Notes shall be the valid obligations of the Lease Trust,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Senior Notes surrendered upon such registration of transfer
or exchange.
Every Senior Note presented or surrendered for registration of
transfer or exchange shall be (i) duly endorsed by, or be accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Senior Noteholder thereof or such Senior Noteholder's
attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Senior Note
Registrar which requirements include membership or participation in Securities
Transfer Agent's Medallion Program ("Stamp") or such other "signature guarantee
program" as may be determined by the Senior Note Registrar in addition to, or
in substitution for, Stamp, all in accordance with the Exchange Act, and (ii)
accompanied by such other documents as the Indenture Trustee may require.
No service charge shall be made to a Senior Noteholder for any
registration of transfer or exchange of Senior Notes, but the Lease Trustee may
require payment 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 Senior Notes,
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other than exchanges pursuant to Sections 2.3 or 9.6 not involving any
transfer.
The preceding provisions of this Section 2.4 notwithstanding,
the Lease Trustee shall not be required to make and the Senior Note Registrar
need not register transfers or exchanges of Senior Notes selected for
redemption or of any Senior Note for a period of 15 days preceding the due date
for any payment with respect to the Senior Note.
Section 2.5 Mutilated, Destroyed, Lost or Stolen Senior
Notes. If (i) any mutilated Senior Note is surrendered to the Indenture
Trustee, or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Senior Note, and (ii) there is delivered to
the Indenture Trustee such security or indemnity as may be required by it to
hold the Lease Trust, the Lease Trustee and the Indenture Trustee harmless,
then, in the absence of notice to the Lease Trustee, the Senior Note Registrar
or the Indenture Trustee that such Senior Note has been acquired by a bona fide
purchaser, and provided that the requirements of Section 8-405 of the UCC are
met, the Lease Trustee shall execute, on behalf of the Lease Trust, and upon
Issuer Request the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Senior
Note, a replacement Senior Note of the same Class; provided, however, that if
any such destroyed, lost or stolen Senior Note, but not a mutilated Senior
Note, shall have become or within seven days shall become due and payable, or
shall have been called for redemption, instead of issuing a replacement Senior
Note, the Lease Trust may pay such destroyed, lost or stolen Senior Note when
so due or payable or upon the Redemption Date. If, after the delivery of such
replacement Senior Note or payment of a destroyed, lost or stolen Senior Note
pursuant to the proviso to the preceding sentence, a bona fide pur-
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chaser of the original Senior Note in lieu of which such replacement Senior Note
was issued presents for payment such original Senior Note, the Lease Trust and
the Indenture Trustee shall be entitled to recover such replacement Senior Note
(or such payment) from the Person to whom it was delivered or any Person taking
such replacement Senior Note from such Person to whom such replacement Senior
Note was delivered or any assignee of such Person, except a bona fide purchaser,
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Lease Trust or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Senior Note under this
Section 2.5, the Lease Trustee may require the payment by the Senior Noteholder
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Indenture Trustee) connected therewith.
Every replacement Senior Note issued pursuant to this Section
2.5 in replacement of any mutilated, destroyed, lost or stolen Senior Note
shall constitute an original additional contractual obligation of the Lease
Trust, whether or not the mutilated, destroyed, lost or stolen Senior 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
Senior Notes duly issued hereunder.
The provisions of this Section 2.5 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 Senior
Notes.
Section 2.6 Persons Deemed Owners. Prior to due presentment
for registration of transfer of any Senior Note, the Lease Trustee, the
Indenture Trustee and any agent of the Lease Trustee or the Indenture Trustee
may treat the Person in whose name any Senior Note is registered (as of the day
of determination) as the owner of such Senior Note for the purpose of receiving
payments of principal of and interest, if any, on such Senior Note and for all
other purposes whatsoever, whether or not such Senior Note be overdue, and
neither the Lease Trustee, the Indenture Trustee nor any agent of the Lease
Trustee or the Indenture Trustee shall be affected by notice to the contrary.
Section 2.7 Payment of Principal and Interest; Defaulted
Interest. (a) The Class A-1 Senior Notes and the Class A-2 Senior Notes shall
accrue interest during each Interest Accrual Period at the applicable Senior
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Note Interest Rate specified in Section 2.1. Interest on the Senior Notes
shall be due and payable on each Payment Date immediately following the related
Interest Accrual Period. Any installment of interest or principal, if any,
payable on any Senior Note which is punctually paid or duly provided for by the
Lease Trust on the applicable Payment Date shall be paid to the Person in whose
name such Senior Note (or one or more Predecessor Senior Notes) is registered
on the Record Date, by check mailed first-class, postage prepaid to such
Person's address as it appears on the Senior Note Register on such Record Date,
except that, unless Definitive Senior Notes have been issued pursuant to
Section 2.12, with respect to Senior Notes registered on the Record Date in the
name of the nominee of the Clearing Agency (initially, such nominee to be Cede
& Co.), payment will be made by wire transfer in immediately available funds to
the account designated by such nominee and except for the final installment of
principal payable with respect to such Senior Note on a Payment Date or on the
Stated Maturity of such Senior Note (and except for the Redemption Price for
any Senior Note called for redemption pursuant to Section 10.1) which shall be
payable as provided below. The funds represented by any such checks returned
undelivered shall be held in accordance with Section 3.3.
(b) The principal of the Senior Notes of each Class shall be
payable in installments in accordance with the priorities set forth in Section
8.4(b) on each Payment Date until the Outstanding Amount of each Class of
Senior Notes has been reduced to zero as provided in the forms of the Senior
Notes set forth respectively in Exhibit A-1 and Exhibit A-2. No principal
payments shall be made on the Class A-2 Senior Notes until the principal
balance of the Class A-1 Senior Notes has been reduced to zero; provided that
if an Event of Default has occurred and the entire unpaid principal amounts of
the Senior Notes has become due and payable by declaration of acceleration,
principal payments will be made on a pro rata basis to holders of the Class A-1
Senior Notes and the Class A-2 Senior Notes based on their respective
Outstanding Amounts without any distinction between Classes. All principal
payments on the Senior Notes shall be made pro rata to the Senior Noteholders
of the Class or Classes entitled thereto. The Indenture Trustee shall notify
the Person in whose name a Senior Note is registered on the Record Date
preceding the Payment Date on which the
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Lease Trustee expects that the final installment of principal of and interest
on such Senior Note will be paid. Such notice shall be mailed or transmitted
by facsimile prior to such final Payment Date and shall specify that such final
installment will be payable only upon presentation and surrender of such Senior
Note and shall specify the place where such Senior Note may be presented and
surrendered for payment of such installment. Notices in connection with
redemptions of Senior Notes shall be mailed to Senior Noteholders as provided
in Section 10.2.
(c) If the Lease Trust defaults in a payment of interest on
the Senior Notes, the Lease Trust shall pay defaulted interest (plus interest
on such defaulted interest to the extent lawful) at the applicable Senior Note
Interest Rate specified in Section 2.1 in any lawful manner starting the day
following the day on which such interest was due until such default is cured.
Section 2.8 Cancellation. All Senior Notes surrendered for
payment, registration of transfer, exchange or redemption shall, if surrendered
to any Person other than the Indenture Trustee, be delivered to the Indenture
Trustee and shall be promptly cancelled by the Indenture Trustee. The Lease
Trustee may at any time deliver to the Indenture Trustee for cancellation any
Senior Notes previously authenticated and delivered hereunder which the Lease
Trustee may have acquired in any manner whatsoever, and all Senior Notes so
delivered shall be promptly cancelled by the Indenture Trustee. No Senior
Notes shall be authenticated in lieu of or in exchange for any Senior Notes
cancelled as provided in this Section 2.8, except as expressly permitted by
this Indenture. All cancelled Senior Notes may be held or disposed of by the
Indenture Trustee in accordance with its standard retention or disposal policy
as in effect at the time unless the Lease Trustee shall direct by an Issuer
Order that they be destroyed or returned to it and so long as such Issuer Order
is timely and the Senior Notes have not been previously disposed of by the
Indenture Trustee.
Section 2.9 Release of Collateral. Subject to Section 11.1
and the terms of the Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of an Issuer Request
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accompanied by an Officers' Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Section Section 314(c) and 314(d)(l) or an
Opinion of Counsel in lieu of such Independent Certificates to the effect that
the TIA does not require any such Independent Certificates. If the Commission
shall issue an exemptive order under TIA Section 304(d) modifying the Lease
Trustee's obligations under TIA Section Section 314(c) and 314(d)(1), subject
to Section 11.1 and the terms of the Basic Documents, the Indenture Trustee
shall release property from the lien of this Indenture in accordance with the
conditions and procedures set forth in such exemptive order.
Section 2.10 Book-Entry Senior Notes. The Senior Notes, upon
original issuance, will be issued in the form of typewritten Senior Notes
representing the Book-Entry Senior Notes, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the Lease
Trust. Such Senior Notes shall initially be registered on the Senior Note
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Senior Note Owner will receive a Definitive Senior Note (as defined
below) representing such Senior Note Owner's interest in such Senior Note,
except as provided in Section 2.12. Unless and until definitive, fully
registered Senior Notes (the "Definitive Senior Notes") have been issued to
Senior Note Owners pursuant to Section 2.12:
(a) the provisions of this Section 2.10 shall be in full
force and effect;
(b) the Senior Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for all purposes of this
Indenture (including the payment of principal of and interest on the Senior
Notes and the giving of instructions or directions hereunder) as the sole
Senior Noteholder, and shall have no obligation to the Senior Note Owners;
(c) to the extent that the provisions of this Section
2.10 conflict with any other provisions of this Indenture, the provisions of
this Section 2.10 shall control;
(d) the rights of Senior Note Owners shall be exercised
only through the Clearing Agency and shall be
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limited to those established by law and agreements between such Senior Note
Owners and the Clearing Agency and/or the Clearing Agency Participants.
Pursuant to the Depository Agreement, unless and until Definitive Senior Notes
are issued pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Senior Notes to such
Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions
to be taken based upon instructions or directions of Senior Noteholders
evidencing a specified percentage of the Outstanding Amount of the Senior
Notes, the Clearing Agency shall be deemed to represent such percentage only to
the extent that it has received instructions to such effect from Senior Note
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the Senior
Notes and has delivered such instructions to the Indenture Trustee.
Section 2.11 Notices to Clearing Agency. Whenever a notice or
other communication to the Senior Noteholders is required under this Indenture,
unless and until Definitive Senior Notes shall have been issued to Senior Note
Owners pursuant to Section 2.12, the Indenture Trustee shall give all such
notices and communications specified herein to be given to Senior Noteholders
to the Clearing Agency, and shall have no obligation to the Senior Note Owners.
Section 2.12 Definitive Senior Notes. If (i) the
Administrative Agent advises the Indenture Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Senior Notes, and the Administrative Agent is unable to
locate a qualified successor, (ii) the Administrative Agent at its option
advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default, Senior Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of the Senior Notes
advise the Clearing Agency in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interests of the
Senior
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Note Owners, then the Clearing Agency shall notify all Senior Note Owners and
the Indenture Trustee of the occurrence of any such event and of the
availability of Definitive Senior Notes to Senior Note Owners requesting the
same. Upon surrender to the Indenture Trustee of the typewritten Senior Note
or Senior Notes representing the Book-Entry Senior Notes by the Clearing
Agency, accompanied by registration instructions, the Lease Trustee shall
execute, on behalf of the Lease Trust, and the Indenture Trustee shall
authenticate the Definitive Senior Notes in accordance with the instructions of
the Clearing Agency. None of the Lease Trustee, the Senior Note Registrar or
the Indenture Trustee shall 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 Senior Notes, the
Indenture Trustee shall recognize as Senior Noteholders the Persons whose names
are registered in the Senior Note Register.
Section 2.13 Authenticating Agents. Upon the request of the
Lease Trustee, the Indenture Trustee shall, and if the Indenture Trustee so
chooses the Indenture Trustee may, appoint one or more Authenticating Agents
with power to act on its behalf and subject to its direction in the
authentication of Senior Notes in connection with issuance, transfers and
exchanges under Sections 2.2, 2.4, 2.5 and 9.6, as fully to all intents and
purposes as though each such Authenticating Agent had been expressly authorized
by those Sections to authenticate such Senior Notes. For all purposes of this
Indenture, the authentication of Senior Notes by an Authenticating Agent
pursuant to this Section 2.13 shall be deemed to be the authentication of
Senior Notes "by the Indenture Trustee."
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate trust business of any Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, without the execution or filing of any
further act on the part of the parties hereto or such Authenticating Agent or
such successor corporation.
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Any Authenticating Agent may at any time resign by giving
written notice of resignation to the Indenture Trustee and the Lease Trustee.
The Indenture Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and the Lease Trustee. Upon receiving such notice of
resignation or upon such a termination, the Indenture Trustee shall promptly
appoint a successor Authenticating Agent and shall give written notice of such
appointment to the Lease Trustee.
The Indenture Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services, and
reimbursement for its reasonable expenses relating thereto and the Indenture
Trustee shall be entitled to be reimbursed for such payments, subject to
Section 6.7. The provisions of Sections 2.8 and 6.4 shall be applicable to any
Authenticating Agent.
ARTICLE III
COVENANTS
Section 3.1 Payment of Principal and Interest. The Lease
Trust will duly and punctually pay the principal of and interest on the Senior
Notes in accordance with the terms of the Senior Notes and this Indenture.
Without limiting the foregoing, the Lease Trustee, on behalf of the Lease
Trust, will cause the Indenture Trustee or the Paying Agent to distribute to
Senior Noteholders, the Lease Trust Paying Agent and the Certificate
Distribution Account all amounts on deposit in the Series 1996-1 Payments
Account payable to the Senior Noteholders, the Subordinated Noteholders and the
Lease Trust Certificateholders pursuant to Section 8.4. Amounts properly
withheld under the Code by any Person from a payment to any Senior Noteholder
of interest and/or principal shall be considered to have been paid by the Lease
Trust to such Senior Noteholder for all purposes of this Indenture.
Section 3.2 Maintenance of Office or Agency. The Senior Note
Registrar, on behalf of the Lease Trustee, will maintain at the Corporate Trust
Office or at such other location in the Borough of Manhattan, The City
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of New York, chosen by the Senior Note Registrar, acting for the Lease Trustee
an office or agency, where Senior Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Lease
Trustee in respect of the Senior Notes and this Indenture may be served. The
Lease Trustee hereby appoints the Indenture Trustee as its agent to receive all
such surrenders, notices and demands.
Section 3.3 Money for Payments To Be Held in Trust. As
provided in Sections 8.4(b) and 5.4(b), all payments of amounts due and payable
with respect to any Senior Notes that are to be made from amounts withdrawn
from the Series 1996-1 Payments Account shall be made on behalf of the Lease
Trust by the Indenture Trustee or by another Paying Agent, and no amounts so
withdrawn therefrom for payments of Senior Notes shall be paid over to the
Lease Trust except as provided in this Section 3.3.
On or before each Payment Date and Redemption Date, the Lease
Trustee shall, on behalf of the Lease Trust, deposit or cause to be deposited
in the Series 1996-1 Payments Account an aggregate sum sufficient to pay the
amounts then becoming due under the Senior Notes, such sum to be held in trust
for the benefit of the Persons entitled thereto and (unless the Paying Agent is
the Indenture Trustee) shall promptly notify the Indenture Trustee of its
action or failure so to act.
The Lease Trustee will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees to the extent
relevant), subject to the provisions of this Section 3.3, that such Paying
Agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Senior Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and pay such sums
to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any
default by the Lease Trust of which it has actu-
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al knowledge (or any other obligor upon the Senior Notes) in the making
of any payment required to be made with respect to the Senior Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee, forthwith
pay to the Indenture Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Indenture Trustee all sums held by it in trust
for the payment of Senior Notes if at any time it ceases to meet the
standards required to be met by a Paying Agent at the time of its
appointment; and
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on any Senior
Notes of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith.
The Lease Trustee may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, by Issuer Order direct any Paying Agent to pay to the Indenture
Trustee all sums held in trust by such Paying Agent, such sums to be held by
the Indenture Trustee upon the same trusts as those upon which the sums were
held by such Paying Agent; and upon such payment by any Paying Agent to the
Indenture Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Senior Note and remaining
unclaimed for two years after such amount has become due and payable shall be
discharged from such trust and be paid to the Lease Trust on Issuer Request;
and the Senior Noteholder of such Senior Note shall thereafter, as an unsecured
general creditor, look only to the Lease Trust for payment thereof (but only to
the extent of the amounts so paid to the Lease Trust by the Indenture Trustee
or the Paying Agent), and all liability of the
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Indenture Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; provided, however, that the Indenture Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Lease Trust cause to be published once, in a newspaper published in the
English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Lease Trust. The Indenture Trustee shall also
adopt and employ, at the expense of the Lease Trust, any other reasonable means
of notification of such repayment (including, but not limited to, mailing
notice of such repayment to Senior Noteholders whose Senior Notes have been
called but have not been surrendered for redemption or whose right to or
interest in moneys due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Senior Noteholder).
Section 3.4 Existence. The Lease Trust will keep in full
effect its existence, rights and franchises under the laws of its jurisdiction
of organization, and will obtain and preserve its qualification to do business
in each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of this Indenture, the Senior Notes,
the Collateral and the Indenture Trust Estate.
Section 3.5 Protection of Indenture Trust Estate. The Lease
Trustee on behalf of the Lease Trust 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 necessary or advisable to:
(i) maintain or preserve the lien and security
interest (and the priority thereof) of this Indenture or carry out
more effectively the purposes hereof;
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(ii) perfect, publish notice of or protect the
validity of any Grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Indenture
Trust Estate and the rights of the Indenture Trustee and the Senior
Noteholders in such Indenture Trust Estate against the claims of all
Persons and parties.
The Lease Trust hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required by the Indenture Trustee pursuant to this Section
3.5; provided, however, that the Indenture Trustee shall be under no obligation
to file any such financing statement, continuation statement or other
instrument required under this Section 3.5.
Section 3.6 Opinions as to Indenture Trust Estate. (a)
Promptly after the execution of this Indenture, the Lease Trustee shall furnish
to the Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording and filing of this Indenture, any indentures supplemental hereto, and
any other requisite documents, and with respect to the execution and filing of
any financing statements and continuation statements and any other action that
may be required by law, as are necessary to perfect and make effective the lien
and security interest of this Indenture and reciting the details of such
action, or stating that, in the opinion of such counsel, no such action is
necessary to make such lien and security interest effective.
(b) On or before April 30 in each calendar year, beginning in
1997, the Lease Trustee, shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Indenture, any indentures supplemental hereto and any other requisite
documents and with respect to the execution and filing of any financing
statements and continuation statements and any other action that may be
required by law as is necessary
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to maintain the lien and security interest created by this Indenture and
reciting the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental hereto
and any other requisite documents and the execution and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture until April 30 in the following calendar year.
Section 3.7 Performance of Obligations; Administration of
Specified Assets. (a) The Lease Trust will not take any action and will use
its best efforts not to permit any action to be taken by others, including but
not limited to the Administrative Agent, that would release any Person from any
of such Person's material covenants or obligations under any instrument or
agreement included in the Indenture Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in the Basic Documents.
(b) The Lease Trustee may contract with other Persons to
assist it in performing its duties under this Indenture, and any performance of
such duties by a Person identified to the Indenture Trustee in an Officers'
Certificate of the Lease Trustee shall be deemed to be action taken by the
Lease Trustee. Initially, the Lease Trustee has contracted with the
Administrative Agent and the Administrative Agent has agreed to assist the
Lease Trustee in performing its duties under this Indenture.
(c) The Lease Trust will, and shall cause the
Administrative Agent to, punctually perform and observe all of its obligations
and agreements contained in this Indenture, the other Basic Documents and in
the instruments and agreements included in the Indenture Trust Estate,
including but not limited to filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by the terms of
this Indenture and the other Basic Documents in accordance with and within the
time periods provided for herein and therein. Except as otherwise expressly
provided therein,
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the Lease Trust, as a party to the other Basic Documents and as a Holder of the
Series 1996-1 Certificates, shall not, and shall cause the Administrative Agent
not to, waive, amend, modify, supplement or terminate any Basic Document or any
provision thereof without the consent of the Indenture Trustee or the Senior
Noteholders of Senior Notes evidencing not less than a majority of the
Outstanding Amount of the Senior Notes or such greater percentage as may be
specified in the particular provision.
(d) If the Lease Trustee shall have knowledge of the
occurrence of an event of default by the Administrative Agent under the
Administrative Agency Agreement ("Administrative Agent Default"), the Lease
Trustee shall promptly notify the Indenture Trustee and the Rating Agencies
thereof, and shall specify in such notice the action, if any, the Lease Trustee
is taking in respect of such default. If an Administrative Agent Default shall
arise from the failure of the Administrative Agent to perform any of its duties
or obligations under the Administrative Agency Agreement with respect to the
Series 1996-1 Assets, the Lease Trustee shall take all reasonable steps
available to it to remedy such failure.
(e) Upon any termination of the Administrative Agent's rights
and powers pursuant to Section 7.1 or 7.3 of the Administrative Agency
Agreement or resignation of the Administrative Agent pursuant to Section 7.2 of
the Administrative Agency Agreement, the Lease Trustee shall promptly, but in
any event within two Business Days, notify the Indenture Trustee. As soon as a
substitute Administrative Agent is appointed pursuant to Section 7.1 of the
Administrative Agency Agreement or a successor Administrative Agent is
appointed pursuant to Section 7.3 of the Administrative Agency Agreement, the
Lease Trustee shall notify the Indenture Trustee of such appointment,
specifying in such notice the name and address of such substitute or successor
Administrative Agent.
Section 3.8 Negative Covenants. So long as any Senior Notes
are Outstanding, the Lease Trust shall not:
(i) other than the lease of the Series 1996-1
Certificates pursuant to the Program Operating Lease, which lease is
subject to the lien of
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this Indenture, and except as expressly permitted by this Indenture or
the other Basic Documents, sell, transfer, exchange or otherwise
dispose of any of the properties or assets of the Lease Trust,
including those included in the Indenture Trust Estate, unless
directed to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from
the principal or interest payable in respect of, the Senior Notes
(other than amounts properly withheld from such payments under the
Code or applicable State law) or assert any claim against any present
or former Senior Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Indenture Trust Estate; or
(iii) (A) permit the validity or effectiveness of
this Indenture 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, (B)
permit any lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture) to be
created on or extend to or otherwise arise upon or burden the
Indenture Trust Estate or any part thereof or any interest therein or
the proceeds thereof (other than tax liens, mechanics' liens and other
liens that arise by operation of law, in each case on any Series
1996-1 Assets and arising solely as a result of an action or omission
of the related Lessee) or (C) permit the lien of this Indenture not to
constitute a valid first priority (other than with respect to any such
tax, mechanics' or other lien) security interest in the Indenture
Trust Estate.
Section 3.9 Annual Statement as to Compliance. The Lease
Trustee will deliver to the Indenture Trustee, within 120 days after the end of
each calendar year (commencing with the year 1997), an Officers' Certificate
stating, as to the Authorized Officer signing such Officers' Certificate, that
(i) a review of the activities of the Lease Trust
during such year and of performance
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under this Indenture has been made under such Authorized Officer's
supervision; and
(ii) to the best of such Authorized Officer's
knowledge, based on such review, the Lease Trust has complied with all
conditions and covenants under this Indenture throughout such year,
or, if there has been a Default in the compliance of any such
condition or covenant, specifying each such Default known to such
Authorized Officer and the nature and status thereof.
Section 3.10 [Reserved].
Section 3.11 [Reserved].
Section 3.12 No Other Activities. The Lease Trust shall not
engage in any activities other than financing, acquiring, owning, leasing
(subject to the lien of this Indenture), pledging and managing the Series
1996-1 Certificates in the manner contemplated by this Indenture and the other
Basic Documents and activities incidental thereto.
Section 3.13 No Borrowing. Other than as contemplated by the
Basic Documents, the Lease Trust shall not issue, incur, assume, guarantee or
otherwise become liable, directly or indirectly, for any indebtedness.
Section 3.14 Administrative Agent's Obligations. The Lease
Trust shall cause the Administrative Agent to comply with the terms and
provisions of the Basic Documents to which the Administrative Agent is a party.
Section 3.15 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Basic Documents or this Indenture,
the Lease Trust shall not make any loan or advance or credit to, or guarantee
(directly or indirectly or by an instrument having the effect of assuring
another's payment or performance on any obligation or capability of so doing or
otherwise), endorse or otherwise become contingently liable, directly or
indirectly, in connection with the obligations, stocks or dividends of, or own,
purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations,
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assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
Section 3.16 Capital Expenditures. Except as contemplated by
the Basic Documents, the Lease Trust shall not make any expenditure (by
long-term or operating lease or otherwise) for capital assets (either realty or
personalty).
Section 3.17 [Reserved].
Section 3.18 Notice of Events of Default. The Lease Trustee
agrees to give the Indenture Trustee and the Rating Agencies prompt written
notice of each Event of Default hereunder on the part of the Administrative
Agent and each Lease Event of Default on the part of the RCL Trustee as lessee
under the Program Operating Lease.
Section 3.19 Further Instruments and Acts. Upon request of
the Indenture Trustee, the Lease Trustee, on behalf of the Lease Trust, will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of
this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to the Senior Notes
except as to (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Senior Notes, (iii) rights
of Senior Noteholders to receive payments of principal thereof and interest
thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8, 3.12 and 3.13, (v) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.7 and the obligations of the
Indenture Trustee under Section 4.2) and (vi) the rights of Senior Noteholders
as beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand and at the expense and on behalf of
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the Lease Trust, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(A) either
(1) all Senior Notes theretofore authenticated and
delivered (other than (i) Senior Notes that have been
mutilated, destroyed, lost or stolen and that have been
replaced or paid as provided in Section 2.5) and (ii) Senior
Notes for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Lease Trust
and thereafter repaid to the Lease Trust or discharged from
such trust, as provided in Section 3.3) have been delivered to
the Indenture Trustee for cancellation; or
(2) all Senior Notes not theretofore delivered to the
Indenture Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Indenture Trustee for the
giving of notice of redemption by the Indenture Trustee in the name,
and at the expense, of the Lease Trust,
and the Lease Trust, in the case of (i), (ii) or
(iii) above, has (x) received an Opinion of Counsel to the effect that
the release of the Collateral or the release of the Lease Trust from
the liability hereunder will not be treated as a repayment of the
Senior Notes or an exchange pursuant to Section 1001 of the Code and
(y) irrevocably deposited or caused to be irrevocably deposited with
the Indenture Trustee cash or direct obligations of or obligations
guaranteed by the United States of America (which will mature prior to
the date such amounts are payable), in trust for such purpose, in an
amount sufficient without reinvestment to pay and discharge the entire
indebtedness on such Senior Notes (including interest) not theretofore
delivered
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to the Indenture Trustee for cancellation when due to their Stated
Maturity or Redemption Date (if Senior Notes shall have been called
for redemption pursuant to Section 10.1), as the case may be, and all
fees due and payable to the Lease Trustee or the Indenture Trustee.
(B) the Lease Trust has paid or caused to be paid all
other sums payable hereunder by the Lease Trust; and
(C) the Lease Trustee has delivered to the Indenture
Trustee an Officers' Certificate, an Opinion of Counsel and (if
required by the TIA or the Indenture Trustee) an Independent
Certificate from a firm of certified public accountants, each meeting
the applicable requirements of Section 11.1 and each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Section 4.2 Application of Trust Money. All moneys deposited
with the Indenture Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Senior Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Senior Noteholders of the particular
Senior Notes for the payment or redemption of which such moneys have been
deposited with the Indenture Trustee of all sums due and to become due thereon
for principal and interest, but such moneys need not be segregated from other
funds except to the extent required herein or in the Administrative Agency
Agreement or required by law.
Section 4.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to the Senior Notes, all moneys then held by any Paying Agent other than the
Indenture Trustee under the provisions of this Indenture with respect to such
Senior Notes shall, upon demand of the Lease Trustee, be paid to the Indenture
Trustee to be held and applied according to Section 3.3 and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
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ARTICLE V
EVENTS OF DEFAULT
Section 5.1 Events of Default. "Event of Default", wherever
used herein, means any one of the following events (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):
(i) default in the payment of any interest on any
Senior Note when the same becomes due and payable on each Payment
Date, and such default shall continue for a period of five days;
(ii) default in the payment of the principal of any
Senior Note at Stated Maturity or upon the Redemption Date;
(iii) the occurrence of a Lease Event of Default;
(iv) default in the observance or performance of any
covenant or agreement of the Lease Trust made in this Indenture (other
than a covenant or agreement, a default in the observance or
performance of which is elsewhere in this Section 5.1 specifically
dealt with), or any representation or warranty of the Lease Trust made
in this Indenture or in any certificate or other writing delivered
pursuant hereto or in connection herewith proving to have been
incorrect in any material respect as of the time when the same shall
have been made, and such default shall continue or not be cured, or
the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been
eliminated or otherwise cured, for a period of 60 days or in the case
of a materially incorrect representation or warranty, 30 days, after
there shall have been given, by registered or certified mail, to the
Lease Trustee by the Indenture Trustee or to the Lease Trustee and the
Indenture Trustee by the Senior Noteholders holding not less than 25%
of the Outstanding Amount of the Senior
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Notes, a written notice specifying such default or incorrect
representation or warranty and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder;
(v) the filing of a decree or order for relief by a
court having jurisdiction in the premises in respect of the Lease
Trust or any substantial part of the Indenture Trust Estate in an
involuntary case under any applicable federal or State bankruptcy,
insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Lease Trust or for any
substantial part of the Indenture Trust Estate, or the winding-up or
liquidation of the Lease Trust's affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive
days; or
(vi) the commencement by the Lease Trust of a
voluntary case under any applicable federal or State bankruptcy,
insolvency or other similar law now or hereafter in effect, or the
consent by the Lease Trust to the entry of an order for relief in an
involuntary case under any such law, or the consent by the Lease Trust
to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar official of the
Lease Trust or for any substantial part of the Indenture Trust Estate,
or the making by the Lease Trust of any general assignment for the
benefit of creditors, or the failure by the Lease Trust generally to
pay its debts as such debts become due, or the taking of action by the
Lease Trust in furtherance of any of the foregoing.
The Lease Trustee shall deliver to the Indenture Trustee,
within five days after the occurrence thereof, written notice in the form of an
Officers' Certificate of any event which with the giving of notice and the
lapse of time would become an Event of Default under clauses (iii) and (iv)
above, its status and what action the Lease Trustee is taking or proposes to
take with respect thereto.
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Section 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default should occur and be continuing, then and in
every such case the Indenture Trustee or the Senior Noteholders of Senior Notes
evidencing not less than a majority of the Outstanding Amount of the Senior
Notes may declare all the Senior Notes to be immediately due and payable, by a
notice in writing to the Lease Trustee (and to the Indenture Trustee if given
by Senior Noteholders), and upon any such declaration the unpaid principal
amount of such Senior Notes, together with accrued and unpaid interest thereon
through the date of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of maturity
has been made and before a judgment or decree for payment of the money due has
been obtained by the Indenture Trustee as hereinafter set forth in this Article
V, the Senior Noteholders of Senior Notes evidencing not less than a majority
of the Outstanding Amount of the Senior Notes, by written notice to the Lease
Trustee and the Indenture Trustee, may rescind and annul such declaration and
its consequences if:
(i) the Lease Trust has paid or deposited with the
Indenture Trustee a sum sufficient to pay
(A) all payments of principal of and interest on
all Senior Notes and all other amounts that would then be due
hereunder or upon such Senior Notes if the Event of Default
giving rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its
agents and counsel; and
(ii) all Events of Default, other than the
nonpayment of the principal of the Senior Notes that has become due
solely by such acceleration, have been cured or waived as provided in
Section 5.12.
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No such rescission shall affect any subsequent default or
impair any right consequent thereto.
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee. (a) The Lease Trust covenants that if (i)
default is made in the payment of any interest on any Senior Note when the same
becomes due and payable, and such default continues for a period of five days,
or (ii) default is made in the payment of the principal of any Senior Note at
Stated Maturity or the Redemption Date, the Lease Trust will, upon demand of
the Indenture Trustee, pay to it, for the benefit of such Senior Noteholders,
the whole amount then due and payable on such Senior Notes for principal and
interest, with interest upon the overdue principal, and, to the extent payment
at such rate of interest shall be legally enforceable, upon overdue
installments of interest, at the applicable Senior Note Interest Rate borne by
the Senior Notes and in addition thereto such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents, attorneys and counsel.
(b) In case the Lease Trust shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as trustee
of an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Lease Trust or other obligor upon
such Senior Notes and collect in the manner provided by law out of the property
of the Lease Trust or other obligor upon such Senior Notes, wherever situated,
the moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Senior Noteholders, by such appropriate Proceedings as the Indenture Trustee
shall deem most effective to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy or legal or equitable right vested in the Indenture Trustee by this
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Indenture or by law; provided that the Series 1996-1 Certificates may be sold
only as provided in Section 5.4 or Section 7.1 of the Series 1996-1 Supplement,
or as required by Section 9.2 of the Lease Trust Agreement; and provided,
further, that in connection with any sale pursuant to such Section 9.2 of the
Lease Trust Agreement, the Series 1996-1 Assets will be distributed to the
purchaser thereof, in accordance with terms of the FCTT Agreement and such
Section 9.2.
(d) In case there shall be pending, relative to the Lease
Trust or any other obligor upon the Senior Notes or any Person having or
claiming an ownership interest in the Indenture Trust Estate, Proceedings under
Title 11 of the United States Code or any other applicable federal or State
bankruptcy, insolvency or other similar law, or in case a receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of the Lease Trust
or its property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to the Lease Trust or other obligor
upon the Senior Notes, or to the creditors or property of the Lease Trust or
such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Senior Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Indenture Trustee shall have made any demand pursuant to the provisions of this
Section 5.3, shall be entitled and empowered, by intervention in such
Proceedings or otherwise:
(i) to file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid in respect of
the Senior Notes and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances and disbursements
made, by the Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the Senior
Noteholders allowed in such Proceedings;
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(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Senior Noteholders in any
election of a trustee, a standby trustee or Person performing similar
functions in any such Proceedings;
(iii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
all amounts received with respect to the claims of the Senior
Noteholders and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee or the Senior Noteholders allowed in
any judicial proceedings relative to the Lease Trust, its creditors
and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Senior Noteholders to
make payments to the Indenture Trustee, and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such Senior
Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances and
disbursements made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of negligence or bad faith, and any other amounts
due the Indenture Trustee under Section 6.7.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Senior Noteholder any plan of reorganization, arrangement,
adjustment or composition affecting the Senior Notes or the rights of any
related Senior Noteholder or to authorize the Indenture Trustee to vote in
respect of the claim of any Senior Noteholder in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.
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(f) All rights of action and of asserting claims under this
Indenture, or under any of the Senior Notes, may be enforced by the Indenture
Trustee without the possession of any of the Senior Notes or the production
thereof in any trial or other Proceedings relative thereto, and any such action
or Proceedings instituted by the Indenture Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, advances, disbursements and compensation of the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel shall be for the ratable benefit of the Senior
Noteholde- rs in respect of which such judgment has been recovered.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Senior Noteholders, and it shall not
be necessary to make any Senior Noteholder a party to any such Proceedings.
Section 5.4 Remedies; Priorities. (a) If an Event of
Default shall have occurred and be continuing, the Indenture Trustee may do one
or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts then
payable on the Senior Notes or under this Indenture with respect
thereto, whether by declaration or otherwise, enforce any judgment
obtained, and collect from the Lease Trust and any other obligor upon
such Senior Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect to the
Indenture Trust Estate;
(iii) exercise any remedies of a secured party under
the UCC and take any other appropriate action to protect and enforce
the rights and remedies of the Indenture Trustee and the Senior
Noteholders; and
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(iv) after a declaration of acceleration of the
maturity of the Senior Notes pursuant to Section 5.2, sell the
Indenture Trust Estate or any portion thereof or rights or interest
therein, at one or more public or private sales called and conducted
in any manner permitted by law;
provided, however, that, unless directed to sell the Indenture Trust
Estate in accordance with Section 9.2 of the Lease Trust Agreement,
the Indenture Trustee may not sell or otherwise liquidate the
Indenture Trust Estate following an Event of Default, other than an
Event of Default described in Section 5.1(i) or (ii), unless (I)(A)
Senior Noteholders holding 100% of the Outstanding Amount of the
Senior Notes consent thereto, (B) the proceeds of such sale or
liquidation are sufficient to discharge in full all amounts then due
and unpaid upon the Senior Notes for principal and interest and all
amounts payable to the Subordinated Noteholders and the Lease Trust
Certificateholders or (C) the Indenture Trustee determines (but shall
have no obligation to make such determination) that the Indenture
Trust Estate will not continue to provide sufficient funds for the
payment of principal of and interest on the Senior Notes as they would
have become due if the Senior Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of Senior
Noteholders holding not less than 66-2/3% of the Outstanding Amount of
the Senior Notes and provided further that the Indenture Trustee may
not sell the Indenture Trust Estate except pursuant to Section 9.2 of
the Lease Trust Agreement unless it shall first have obtained an
Opinion of Counsel that such sale will not cause FCTT or an interest
therein or portion thereof to be classified as an association (or
publicly traded partnership) taxable as a corporation for federal
income tax purposes. In determining such sufficiency or insufficiency
with respect to clauses (B) and (C), the Indenture Trustee may, but
need not, obtain, at the expense of the Lease Trust, and rely upon an
opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and
as to the sufficiency of the Indenture Trust Estate for such purpose.
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(b) If the Indenture Trustee collects any money or property
pursuant to this Article V upon sale of the Indenture Trust Estate, it shall
pay out such money or property held as Collateral for the benefit of the Senior
Noteholders in the following order:
FIRST: to the Indenture Trustee for all amounts due under
Section 6.7;
SECOND: to the Administrative Agent for reimbursement of all
outstanding Sale Proceeds Advances and Monthly Payment Advances;
THIRD: to the Administrative Agent for due and unpaid Series
1996-1 Administrative Fees;
FOURTH: to Senior Noteholders for amounts due and unpaid on
the Senior Notes for interest, in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Senior Notes for interest;
FIFTH: to the Lease Trust Paying Agent for amounts due and
unpaid on the Subordinated Notes for interest, in respect of which or
for the benefit of which such money has been collected;
SIXTH: to the Certificate Distribution Account for amounts
due and unpaid on the Lease Trust Certificates for interest, in
respect of which or for the benefit of which such money has been
collected;
SEVENTH: to the Class A-1 Senior Noteholders and the Class
A-2 Senior Noteholders in payment of the principal amount due and
unpaid on the Senior Notes, ratably, without preference or priority of
any kind, according to the principal amount due and payable on the
Class A-1 Senior Notes and the Class A-2 Senior Notes; and
EIGHTH: to the Lease Trustee for distributions in respect of
principal to the Subordinated Noteholders and the Lease Trust
Certificateholders in accordance with the terms of the Subordinated
Notes and the Lease Trust Agreement;
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provided, however, that any money or property paid out pursuant to clause FIFTH
above which is thereafter deposited into the Cash Collateral Account by the
Lease Trust Paying Agent in accordance with Section 6.5 of the Program
Operating Lease shall be withdrawn by the Indenture Trustee and paid out in
accordance with clauses FIFTH, SIXTH, SEVENTH and EIGHTH above, in that order
of priority.
The Indenture Trustee may fix a record date and payment date
for any payment to Senior Noteholders pursuant to this Section 5.4(b). At
least 15 days before such record date, the Lease Trustee shall mail to each
Senior Noteholder and the Indenture Trustee a notice that states the record
date, the payment date and the amount to be paid.
Section 5.5 Optional Preservation of the Series 1996-1
Assets. If the Senior Notes have been declared to be due and payable under
Section 5.2 following an Event of Default and such declaration and its
consequences have not been rescinded and annulled, the Indenture Trustee may,
unless directed to sell pursuant to Section 9.2 of the Lease Trust Agreement,
but need not, elect to maintain possession of the Indenture Trust Estate. It
is the desire of the parties hereto and the Senior Noteholders that there be at
all times sufficient funds for the payment of principal of and interest on the
Senior Notes, and the Indenture Trustee shall take such desire into account
when determining whether or not to maintain possession of the Indenture Trust
Estate. In determining whether to maintain possession of the Indenture Trust
Estate, the Indenture Trustee may, but need not, obtain at the expense of the
Lease Trust and rely upon an opinion of an Independent investment banking or
accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Indenture Trust Estate for such
purpose. Notwithstanding the foregoing provisions of this Section 5.5 and
Section 5.4, the Indenture Trustee shall sell the Indenture Trust Estate if so
instructed by the Lease Trustee pursuant to Section 9.2 of the Lease Trust
Agreement, and the proceeds of such sale will be deposited in the Series 1996-1
Payments Account and distributed in accordance with Sections 2.7 and 8.4(b).
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Section 5.6 Limitation of Suits. No Senior Noteholder 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 Senior Noteholder has previously given
written notice to the Indenture Trustee of a continuing Event of
Default;
(ii) Senior Noteholders holding not less than 25% of
the Outstanding Amount of the Senior Notes have made written request
to the Indenture Trustee to institute such Proceeding in respect of
such Event of Default in its own name as Indenture Trustee hereunder;
(iii) such Senior Noteholder or Senior Noteholders
have offered to the Indenture Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in complying with such
request;
(iv) the Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to
institute such Proceedings; and
(v) no direction inconsistent with such written
request has been given to the Indenture Trustee during such 60-day
period by the Senior Noteholders holding not less than a majority of
the Outstanding Amount of the Senior Notes;
it being understood and intended that no Senior Noteholder, or group of Senior
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 Senior Noteholders or to obtain or to seek to obtain
priority or preference over any other Senior Noteholders or to enforce any
right under this Indenture, except in the manner herein provided.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Senior
Noteholders, each
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representing less than a majority of the Outstanding Amount of the Senior
Notes, the Indenture Trustee in its sole discretion may determine what action,
if any, shall be taken, notwithstanding any other provisions of this Indenture.
Section 5.7 Unconditional Rights of Senior Noteholders To
Receive Principal and Interest. Notwithstanding any other provisions in this
Indenture, any Senior Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest, if any, on
its Senior Note on or after the respective due dates thereof expressed in such
Senior Note or in this Indenture (or, in the case of redemption, on or after
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Senior Noteholder.
Section 5.8 Restoration of Rights and Remedies. If the
Indenture Trustee or any Senior 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 Indenture Trustee or to such Senior Noteholder, then and in every such case
the Lease Trust, the Indenture Trustee and the Senior Noteholders shall,
subject to any determination in such Proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Indenture Trustee and the Senior Noteholders shall continue as
though no such Proceeding had been instituted.
Section 5.9 Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Senior 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.
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Section 5.10 Delay or Omission Not a Waiver. No delay or
omission of the Indenture Trustee or any Senior Noteholder to exercise any
right or remedy accruing upon any Default or Event of Default shall impair any
such right or remedy or constitute a waiver of any such Default or Event of
Default or an acquiescence therein. Every right and remedy given by this
Article V or by law to the Indenture Trustee or to the Senior Noteholders may
be exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Senior Noteholders, as the case may be.
Section 5.11 Control by Senior Noteholders. The Senior
Noteholders holding not less than a majority of the Outstanding Amount of the
Senior Notes shall have the right to direct the time, method and place of
conducting any Proceeding for any remedy available to the Indenture Trustee
with respect to the Senior Notes or exercising any trust or power conferred on
the Indenture Trustee; provided that
(i) such direction shall not be in conflict with any
rule of law or with this Indenture;
(ii) subject to the express terms of Section 5.4,
any direction to the Indenture Trustee to sell or liquidate the
Indenture Trust Estate shall be by the Senior Noteholders holding not
less than 100% of the Outstanding Amount of the Senior Notes;
(iii) if the conditions set forth in Section 5.5
have been satisfied and the Indenture Trustee elects to retain the
Indenture Trust Estate pursuant to such Section 5.5, and except in the
case of a sale of the Indenture Trust Estate pursuant to Section 9.2
of the Lease Trust Agreement then any direction to the Indenture
Trustee by Senior Noteholders holding less than 100% of the
Outstanding Amount of the Senior Notes to sell or liquidate the
Indenture Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not inconsistent with
such direction;
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provided, however, that the Indenture Trustee need not take any action that it
determines might expose it to personal liability or might materially adversely
affect or unduly prejudice the rights of any Senior Noteholders not consenting
to such action.
Section 5.12 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Senior Notes as provided
in Section 5.2, Senior Noteholders holding not less than a majority of the
Outstanding Amount of the Senior Notes may waive any past Default or Event of
Default and its consequences except a Default (a) in payment of principal of or
interest on any of the Senior Notes or (b) in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of
each Senior Noteholder. In the case of any such waiver, the Lease Trust, the
Indenture Trustee and the Senior Noteholders shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereto.
Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
Section 5.13 Undertaking for Costs. All parties to this
Indenture agree, and each Senior Noteholder by such Senior Noteholder's
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 Indenture Trustee for any
action taken, suffered or omitted by it as Indenture 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 5.13 shall not apply to (a)
any suit instituted by the Indenture Trustee, (b) any suit instituted by any
Senior Noteholder, or group of
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Senior Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Senior Notes or (c) any suit instituted by any Senior
Noteholder for the enforcement of the payment of principal of or interest on
any Senior Note on or after the respective Stated Maturity expressed in such
Senior Note and in this Indenture (or, in the case of redemption, on or after
the Redemption Date).
Section 5.14 Waiver of Stay or Extension Laws. The Lease
Trust 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, that may affect the covenants or the performance
of this Indenture; and the Lease Trust (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 impede the execution of any power
herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 5.15 Action on Senior Notes. The Indenture Trustee's
right to seek and recover judgment on the Senior Notes or under this Indenture
shall not be affected by the seeking, obtaining or application of any other
relief under or with respect to this Indenture. Neither the lien of this
Indenture nor any rights or remedies of the Indenture Trustee or the Senior
Noteholders shall be impaired by the recovery of any judgment by the Indenture
Trustee against the Lease Trust or by the levy of any execution under such
judgment upon any portion of the Indenture Trust Estate or upon any of the
assets of the Lease Trust.
Section 5.16 Performance and Enforcement of Certain
Obligations. (a) Promptly following a request from the Indenture Trustee to
do so, the Lease Trustee, on behalf of and at the expense of the Lease Trust,
agrees to take all such lawful action as the Indenture Trustee may request to
compel or secure the performance and observance by RCL Trust 1996-1 and the
Administrative Agent, as applicable, of each of their obligations to the Lease
Trust under or in connection with the Program Operating Lease and the
Administrative Agency Agreement,
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respectively, in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Lease Trust
under or in connection with each such agreement to the extent and in the manner
directed by the Indenture Trustee, including the transmission of notices of
default on the part of RCL Trust 1996-1 or the Administrative Agent, as the
case may be, thereunder and the institution of legal or administrative actions
or proceedings to compel or secure performance by RCL Trust 1996-1 or the
Administrative Agent, as the case may be, of its obligations under the Program
Operating Lease or the Administrative Agency Agreement, as applicable.
(b) If an Event of Default has occurred and is continuing,
the Indenture Trustee may, and, at the direction (which direction shall be in
writing or by telephone (confirmed in writing promptly thereafter)) of Senior
Noteholders holding not less than a majority of the Outstanding Amount of the
Senior Notes shall, exercise all rights, remedies, powers, privileges and
claims of the Lease Trust against the RCL Trustee and the Administrative Agent
under or in connection with the Program Operating Lease and the Administrative
Agency Agreement as supplemented by the Series 1996-1 Supplement, respectively,
including the right or power to take any action to compel or secure performance
or observance by RCL Trust 1996-1 or the Administrative Agent, as the case may
be, of its obligations to the Lease Trust thereunder and to give any consent,
request, notice, direction, approval, extension or waiver under the Program
Operating Lease or the Administrative Agency Agreement, and any right of the
Lease Trust to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.1 Duties of Indenture Trustee. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise
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 such Person's own affairs.
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(b) Except during the continuance of an Event of Default:
(i) the Indenture 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 Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture 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 Indenture Trustee and
conforming to the requirements of this Indenture; provided, however,
that the Indenture Trustee shall examine any such certificates and
opinions, which by any provision hereof are specifically required to
be furnished to the Indenture Trustee, to determine whether or not
they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
(i) this paragraph does not limit the effect of
Section 6.1(b);
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section 5.11.
(d) Every provision of this Indenture that in any way relates
to the Indenture Trustee is subject to Sections 6.1(a), (b), (c) and (g).
(e) The Indenture Trustee shall not be liable for interest on
any money received by it except as the
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Indenture Trustee may agree in writing with the Lease Trustee.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms
of this Indenture or the Administrative Agency Agreement.
(g) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur 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 to believe
that repayments of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section 6.1 and to the provisions of
the TIA.
(i) The Indenture Trustee shall not be deemed to have
knowledge of any Default or other event unless a Responsible Officer has actual
knowledge thereof or has received written notice thereof in accordance with the
provisions of this Indenture.
Section 6.2 Rights of Indenture Trustee. (a) The Indenture
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, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper Person. The Indenture Trustee need not investigate any fact or
matter stated in any such document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Officers' Certificate or an Opinion of Counsel. The
Indenture Trustee shall not be liable for any action it takes or omits to take
in good faith in reliance on the Officers' Certificate or Opinion of Counsel.
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(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture
Trustee shall not be responsible for any misconduct or negligence on the part
of, or for the supervision of, the Administrative Agent, any co-trustee or
separate trustee appointed in accordance with the provisions of Section 6.10 or
any other such agent, attorney, custodian or nominee appointed with due care by
it hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Indenture Trustee's
conduct does not constitute wilful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice of such counsel or any Opinion of Counsel relating to this Indenture and
the Senior Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) The Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture or to honor
the request or direction of any of the Senior Noteholders pursuant to this
Indenture unless such Senior Noteholders shall have offered to the Indenture
Trustee reasonable security or indemnity against the reasonable costs,
expenses, disbursements, advances and liabilities which might be incurred by
it, its agents and its counsel in compliance with such request or direction.
(g) Any request or direction of the Lease Trust mentioned
herein shall be sufficiently evidenced by an Issuer Request.
Section 6.3 Individual Rights of Indenture Trustee. The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Senior Notes and may otherwise deal with the Lease Trust or its
Affiliates with the same rights it would have if it were not Indenture Trustee.
Any Paying Agent, Senior Note
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Registrar, co-registrar, co-paying agent, co-trustee or separate trustee agent
may do the same with like rights. However, the Indenture Trustee must comply
with Sections 6.11 and 6.12.
Section 6.4 Indenture Trustee's Disclaimer. The Indenture
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture or the Senior Notes, it shall not be
accountable for the Lease Trust's use of the proceeds from the Senior Notes,
and it shall not be responsible for any statement in the Indenture or in any
document issued in connection with the sale of the Senior Notes or in the
Senior Notes, all of which shall be taken as the statements of the Lease Trust,
other than the Indenture Trustee's certificate of authentication.
Section 6.5 Notice of Defaults; Bankruptcy of RCL Trust
1996-1 or Ford Credit Leasing. (a) If a Default occurs and is continuing and
if it is known to a Responsible Officer of the Indenture Trustee, the Indenture
Trustee shall notify the Rating Agencies within two Business Days and shall
mail to each Senior Noteholder notice of the Default within 90 days after it
occurs. Except in the case of a Default in payment of principal of or interest
on any Senior Note (including payments pursuant to the mandatory redemption
provisions of such Senior Note), the Indenture Trustee may withhold the notice
if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Senior
Noteholders; provided, however, that in the case of any Default of the
character specified in Section 5.1(iv), no such notice to Senior Noteholders
shall be given until at least 30 days after the occurrence thereof.
(b) If, pursuant to Section 9.2 of the Lease Trust Agreement,
the Indenture Trustee receives notice from the Lease Trustee, RCL Trust 1996-1
or Ford Credit Leasing of the occurrence of a Bankruptcy, insolvency or
termination with respect to a holder of the Lease Trust Certificates issued to
RCL Trust 1996-1 and Ford Credit Leasing on the Closing Date, the Indenture
Trustee shall give prompt written notice to the Senior Noteholders of the
occurrence of such event. Upon termination of the Trust pursuant to such
Section 9.2, the Indenture Trustee shall, if so directed by the Owner Trustee,
sell the
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assets of the Lease Trust (other than the Series 1996-1 Payments Account) in a
commercially reasonable manner and on commercially reasonable terms. In
connection with any such sale the Series 1996-1 Assets shall be distributed out
of FCTT and the purchaser shall take delivery of such Series 1996-1 Assets and,
with respect to the Series 1996-1 Leased Vehicles, shall cause the related
Certificates of Title to be reregistered in the name of or at the direction of
the purchaser. The proceeds of such sale shall be deposited in the Series
1996-1 Payments Account for distribution in accordance with the terms of this
Indenture.
Section 6.6 Reports by Indenture Trustee to Senior
Noteholders. The Indenture Trustee shall deliver, if provided to the Indenture
Trustee by the Lease Trust, to each Senior Noteholder such information as may
be required to enable such holder to prepare its federal and State income tax
returns.
Section 6.7 Compensation and Indemnity. Pursuant to Section
4.1 of the Series 1996-1 Supplement the Administrative Agent shall pay to the
Indenture Trustee from time to time reasonable compensation for its services
rendered by it hereunder and reimburse the Indenture Trustee for all reasonable
out-of-pocket expenses, advances and disbursements incurred or made by it,
including costs of collection. The Indenture Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
expenses of the Indenture Trustee to be reimbursed shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture
Trustee's agents, counsel, accountants and experts. The Lease Trust shall or
shall cause the Administrative Agent to indemnify the Indenture Trustee
individually or in its capacity as Indenture Trustee for, and to hold it
harmless against, any and all loss, liability or expense (including attorneys'
fees) incurred by it in connection with the acceptance or the administration of
this trust and the performance of its duties hereunder including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
Indenture Trustee shall notify the Lease Trustee and the Administrative Agent
promptly of any claim for which it may seek indemnity. Failure by the
Indenture Trustee to
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so notify the Lease Trustee and the Administrative Agent shall not relieve the
Lease Trust or the Administrative Agent of its obligations hereunder. The
Lease Trust shall or shall cause the Administrative Agent to defend the claim
if so requested by the Indenture Trustee and the Indenture Trustee may have
separate counsel and the Lease Trust shall or shall cause the Administrative
Agent to pay the fees and expenses of such counsel. Neither the Lease Trust
nor the Administrative Agent need reimburse any expense or indemnify against
any loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own wilful misconduct, negligence or bad faith.
The Lease Trust's payment obligations to the Indenture Trustee
pursuant to this Section 6.7 shall survive the discharge of this Indenture.
When the Indenture Trustee incurs expenses after the occurrence of a Default
set forth in Section 5.l(v) or (vi) with respect to the Lease Trust, the
expenses are intended to constitute expenses of administration under Title 11
of the United States Code or any other applicable federal or State bankruptcy,
insolvency or similar law.
Section 6.8 Replacement of Indenture Trustee. Senior
Noteholders holding not less than a majority in Outstanding Amount of the
Senior Notes may remove the Indenture Trustee without cause by so notifying the
Lease Trustee and the Indenture Trustee and following such removal may appoint
a successor Indenture Trustee. The Indenture Trustee may resign at any time by
so notifying the Lease Trustee and the Senior Noteholders. The Lease Trustee
shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) the Indenture Trustee is adjudged to be a
bankrupt or insolvent;
(iii) a receiver or other public officer takes
charge of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes
incapable of acting.
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If the Indenture Trustee resigns or is removed by Senior
Noteholders holding not less than a majority of the Outstanding Amount of the
Senior Notes or by the Lease Trustee or if a vacancy exists in the office of
Indenture Trustee for any reason (the Indenture Trustee in such event being
referred to herein as the retiring Indenture Trustee), the Lease Trustee shall
promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee and to the
Lease Trustee. Thereupon, if all sums due the retiring Indenture Trustee
pursuant to Section 6.7 have been paid in full, the resignation or removal of
the retiring Indenture Trustee shall become effective, and the successor
Indenture Trustee, without any further act, deed or conveyance, shall have all
the rights, powers and duties of the Indenture Trustee under this Indenture
subject to satisfaction of the Rating Agency Condition. The successor
Indenture Trustee shall mail a notice of its succession to Senior Noteholders,
which shall include the name of the successor Indenture Trustee and the address
of its principal corporate trust office. If all sums due the retiring
Indenture Trustee pursuant to Section 6.7 have been paid in full, the retiring
Indenture Trustee shall promptly transfer all property held by it as Indenture
Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within
60 days after the retiring Indenture Trustee resigns or is removed, the
retiring Indenture Trustee, the Lease Trust or Senior Noteholders holding not
less than a majority in Outstanding Amount of the Senior Notes may petition any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee.
If the Indenture Trustee fails to comply with Section 6.11,
any Senior Noteholder who has been a bona fide Senior Noteholder for at least
six months may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of the Indenture Trustee and
appointment of a successor Indenture Trustee pursuant to any of the provisions
of this Section 6.8
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shall not become effective until acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.8 and payment in full of all sums
due to the outgoing Indenture Trustee pursuant to Section 6.7. Notwithstanding
the replacement of the Indenture Trustee pursuant to this Section 6.8, the
Lease Trust's and the Administrative Agent's obligations under Section 6.7
shall continue for the benefit of the retiring Indenture Trustee.
Section 6.9 Successor Indenture Trustee by Merger. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee;
provided that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.11. The Indenture Trustee shall provide
the Rating Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the
trusts created by this Indenture any of the Senior Notes shall have been
authenticated but not delivered, any such successor to the Indenture Trustee
may adopt the certificate of authentication of any predecessor trustee, and
deliver such Senior Notes so authenticated; and in case at that time any of the
Senior Notes shall not have been authenticated, any successor to the Indenture
Trustee may authenticate such Senior Notes either in the name of any
predecessor hereunder or in the name of the successor to the Indenture Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Senior Notes or in this Indenture provided that the certificate
of the Indenture Trustee shall have.
Section 6.10 Appointment of Co-Indenture Trustee or Separate
Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture,
at any time, for the purpose of meeting any legal requirement of any
jurisdiction in which any of the Collateral may at the time be located, the
Indenture Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
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co-trustees, or separate trustee or separate trustees, of all or any part of
the Collateral, and to vest in such Person or Persons, in such capacity and for
the benefit of the Senior Noteholders, such title to the Collateral, or any
part hereof, and, subject to the other provisions of this Section 6.10, such
powers, duties, obligations, rights and trusts as the Indenture Trustee may
consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 6.11 and no notice to Senior Noteholders of the appointment of any
co-trustee or separate trustee shall be required under Section 6.8.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be conferred or
imposed upon and exercised or performed by the Indenture Trustee and
such separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Indenture Trustee joining in such act), except
to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Indenture Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Indenture Trust Estate or any portion thereof
in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of
the Indenture Trustee;
(ii) no separate trustee or co- trustee hereunder
shall be personally liable by reason of any act or omission of any
other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove any separate trustee or co-trustee.
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(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall refer to
this Indenture and the conditions of this Article VI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be vested
with the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
Section 6.11 Eligibility; Disqualification. The Indenture
Trustee shall at all times satisfy the requirements of TIA Section 310(a). The
Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition and it shall have a long term debt rating of investment grade or
better by the Rating Agencies. The Indenture Trustee shall comply with TIA
Section 310(b).
Section 6.12 Preferential Collection of Claims Against Lease
Trustee. The Indenture Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). An Indenture Trustee
who has resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
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Section 6.13 Indenture Trustee as Holder of Series 1996-1
Certificates. So long as any Senior Notes are Outstanding, to the extent that
the Lease Trustee has rights as a "Holder" of the Series 1996-1 Certificates or
is entitled to consent to any actions taken by RCL Trust 1996-1 or the holders
of the Lease Trust Certificates issued to RCL Trust 1996-1 and Ford Credit
Leasing on the Closing Date, the Lease Trustee may initiate such action or
grant such consent only with consent of the Indenture Trustee. To the extent
that the Indenture Trustee has rights as a "Holder" of the Series 1996-1
Certificates, or has the right to consent or withhold consent with respect to
actions taken by RCL Trust 1996-1 or the holders of the Lease Trust
Certificates issued to RCL Trust 1996-1 and Ford Credit Leasing on the Closing
Date or the Lease Trustee (acting on behalf of the Lease Trust), such rights
shall be exercised, or consent granted (or withheld) upon the written direction
of Senior Noteholders holding a majority of the Outstanding Amount of the
Senior Notes; provided that with respect to Section 7.1(b) of the
Administrative Agency Agreement and Section 4.3(f) of the FCTT Agreement, such
direction shall require the written direction of Senior Noteholders holding
100% of the Outstanding Amount of the Senior Notes.
ARTICLE VII
SENIOR NOTEHOLDERS' LISTS AND REPORTS
Section 7.1 Lease Trustee To Furnish Indenture Trustee Names
and Addresses of Senior Noteholders. The Lease Trustee will furnish or cause
to be furnished to the Indenture Trustee (i) not more than five days after each
Record Date, a list, in such form as the Indenture Trustee may reasonably
require, of the names and addresses of the Senior Noteholders as of such Record
Date, (ii) at such other times as the Indenture Trustee may request in writing,
within 30 days after receipt by the Lease Trustee of any such request, a list
of similar form and content as of a date not more than 10 days prior to the
time such list is furnished; provided, however, that so long as (i) the
Indenture Trustee is the Senior Note Registrar or (ii) the Senior Notes are
issued as Book-Entry Senior Notes no such list shall be required to be
furnished to the Indenture Trustee.
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Section 7.2 Preservation of Information; Communications to
Senior Noteholders. (a) The Indenture Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of the Senior
Noteholders contained in the most recent list furnished to the Indenture
Trustee as provided in Section 7.1 and the names and addresses of Senior
Noteholders received by the Indenture Trustee in its capacity as Senior Note
Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(b) Senior Noteholders may communicate pursuant to TIA
Section 312(b) with other Senior Noteholders with respect to their rights
under this Indenture or under the Senior Notes. Upon receipt by the Indenture
Trustee of any request by three or more Senior Noteholders or by one or more
Senior Noteholders holding not less than 25% of the Outstanding Amount of the
Senior Notes to receive a copy of the current list of Senior Noteholders
(whether or not made pursuant to TIA Section 312(b)), the Indenture Trustee
shall promptly notify the Administrative Agent by providing to the
Administrative Agent a copy of such request and a copy of the list of Senior
Noteholders produced in response thereto.
(c) The Lease Trustee, the Indenture Trustee and the Senior
Note Registrar shall have the protection of TIA Section 312(c).
Section 7.3 Reports by Lease Trustee. (a) The Lease Trustee,
on behalf of the Lease Trust, shall:
(i) file with the Indenture Trustee, within 15 days
after the Lease Trust is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Lease Trust may be required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act;
(ii) file with the Indenture Trustee and the
Commission in accordance with rules and regulations prescribed from
time to time by the Commission
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such additional information, documents and reports with respect to
compliance by the Lease Trust with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the
Indenture Trustee shall transmit by mail to all Senior Noteholders
described in TIA Section 313(c)) such summaries of any information,
documents and reports required to be filed by the Lease Trustee on
behalf of the Lease Trust pursuant to clauses (i) and (ii) of this
Section 7.3(a) as may be required by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Lease Trust otherwise determines, the fiscal
year of the Lease Trust shall end on December 31 of each year.
Section 7.4 Reports by Indenture Trustee. If required by TIA
Section 313(a), within 60 days after each May 15 beginning with May 15, 1997,
the Indenture Trustee shall mail to each Senior Noteholder as required by TIA
Section 313(c) a brief report dated as of such date that complies with TIA
Section 313(a). The Indenture Trustee also shall comply with TIA Section
313(b).
A copy of each report at the time of its mailing to Senior
Noteholders shall be filed by the Indenture Trustee with the Commission and
each stock exchange, if any, on which the Senior Notes are listed.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.1 Collection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or delivery
of, and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it as
provided in this Indenture. Except as otherwise expressly
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provided in this Indenture, if any default occurs in the making of any payment
or performance under any agreement or instrument that is part of the Indenture
Trust Estate, the Indenture Trustee may take such action as may be appropriate
to enforce such payment or performance, including the institution and
prosecution of appropriate Proceedings. Any such action shall be without
prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
Section 8.2 Accounts. (a) Pursuant to Section 5.1(c) of the
Series 1996-1 Supplement, the Administrative Agent shall establish and maintain
an Eligible Account in the name of the Indenture Trustee until the Outstanding
Amount of the Senior Notes has been reduced to zero, and thereafter in the name
of the Lease Trustee, at an Eligible Institution (which initially shall be The
Chase Manhattan Bank) which is designated as the "Series 1996-1 Payments
Account." The Series 1996-1 Payments Account shall be under the sole dominion
and control of the Indenture Trustee, until the Outstanding Amount of the
Senior Notes has been reduced to zero, and thereafter under the sole dominion
and control of the Lease Trustee; provided, that the Administrative Agent may
make deposits to or request the Indenture Trustee to make deposits to or
withdrawals from the Series 1996-1 Payments Account in accordance with Section
5.2(e) of the Series 1996-1 Supplement. All monies deposited from time to time
in the Series 1996-1 Payments Account pursuant to this Indenture and the Series
1996-1 Supplement shall be held by the Indenture Trustee as part of the
Collateral and shall be applied only upon the terms and conditions of the Basic
Documents.
Any amounts on deposit in the Series 1996-1 Payments Account
shall be invested by the Indenture Trustee until the Outstanding Amount of the
Senior Notes has been reduced to zero, and thereafter by the Lease Trustee, and
at the direction of Ford Credit and Ford Credit Leasing, in Permitted
Investments with a maturity date no later than the Business Day preceding the
next succeeding Payment Date. No such investment shall be sold prior to
maturity. All investment earnings on amounts deposited to the Series 1996-1
Payments Account, including any proceeds thereof, shall be credited to the
Administrative Agent, and losses, if any, resulting from
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Permitted Investments in the Series 1996-1 Payments Account shall be charged to
the Administrative Agent. All such investment income shall be reported for
federal income tax purposes as earned by the Administrative Agent. The
authority of the Administrative Agent to make deposits to the Series 1996-1
Payments Account is revocable at any time by the Indenture Trustee until the
Outstanding Amount of Senior Notes has been reduced to zero, and thereafter by
the Lease Trustee. If the institution at which the Series 1996-1 Payments
Account is established ceases to be an Eligible Institution, then the Series
1996-1 Payments Account shall be moved to an Eligible Institution within 10
Business Days (or such longer period not to exceed 30 calendar days as to which
each Rating Agency may consent).
(b) Pursuant to Section 5.1(a) of the Series 1996-1
Supplement, there has been established and there shall be maintained an
Eligible Account in the name of the Indenture Trustee until the Outstanding
Amount of the Senior Notes has been reduced to zero, and thereafter in the name
of the Lease Trustee, at an Eligible Institution (which initially shall be The
Chase Manhattan Bank), which is designated as the FCTT Specified Assets
Collection Account, Series 1996-1 (the "Series 1996-1 Collection Account").
The Series 1996-1 Collection Account shall be under the sole dominion and
control of the Indenture Trustee until the Outstanding Amount of the Senior
Notes has been reduced to zero, and thereafter under the sole dominion and
control of the Lease Trustee; provided, that the Administrative Agent may make
deposits to and withdrawals from or request the Indenture Trustee to make
withdrawals from the Series 1996-1 Collection Account in accordance with
Section 5.2(c) and Section 5.2(d) of the FCTT Agreement, Section 6.2(b) of the
Administrative Agency Agreement and Section 5.2(a) of the Series 1996-1
Supplement. All deposits to and withdrawals from the Series 1996-1 Collection
Account shall be made only upon the terms and conditions of the Basic
Documents.
Any amounts on deposit in the Series 1996-1 Collection Account
shall be invested by the Indenture Trustee until the Outstanding Amount of the
Senior Notes has been reduced to zero, and thereafter by the Lease Trustee, and
at the direction of Ford Credit and Ford Credit Leasing, in Permitted
Investments with a maturity
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date no later than the Business Day preceding the next succeeding Payment Date.
No such investment shall be sold prior to maturity. All investment earnings on
amounts deposited to the Series 1996-1 Collection Account, including any
proceeds thereof, shall be credited to the Series 1996-1 Collection Account,
and losses, if any, resulting from Permitted Investments in the Series 1996-1
Collection Account shall be charged to the Series 1996-1 Collection Account.
All such investment income shall be reported for federal income tax purposes as
earned (i) 99% by RCL Trust 1996-1 and (ii) 1% by Ford Credit Leasing; the 99%
accruing to RCL Trust 1996-1 shall be reported by Ford Credit and Ford Credit
Leasing in accordance with their respective Percentage Interests in RCL Trust
1996-1. The authority of the Administrative Agent to make deposits to and
withdrawals from the Series 1996-1 Collection Account is revocable at any time
by the Indenture Trustee until the Outstanding Amount of Senior Notes has been
reduced to zero, and thereafter by the Lease Trustee. If the institution at
which the Series 1996-1 Collection Account is established ceases to be an
Eligible Institution, then the Series 1996-1 Collection Account shall be moved
to an Eligible Institution within 10 Business Days (or such longer period not
to exceed 30 calendar days as to which each Rating Agency may consent).
(c) Pursuant to Section 5.1(b) of the Series 1996-1
Supplement, there has been established and there shall be maintained an account
in the name of the Indenture Trustee until the Outstanding Amount of the Senior
Notes has been reduced to zero, and thereafter in the name of the Lease
Trustee, at an Eligible Institution (which initially shall be The Chase
Manhattan Bank), which is designated as the "Series 1996-1 Payahead Account."
The Series 1996-1 Payahead Account shall be under the sole dominion and control
of the Indenture Trustee until the Outstanding Amount of the Senior Notes has
been reduced to zero, and thereafter under the sole dominion and control of the
Lease Trustee; provided, that the Administrative Agent may make deposits to and
withdrawals from or request the Indenture Trustee to make withdrawals from the
Series 1996-1 Payahead Account in accordance with Section 6.1(a) of the
Administrative Agency Agreement and Section 5.2(b) of the Series 1996-1
Supplement. All deposits to and withdrawals from the
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Series 1996-1 Payahead Account shall be made only upon the terms and conditions
of the Basic Documents.
Any amounts on deposit in the Series 1996-1 Payahead Account
shall be invested by the Indenture Trustee until the Outstanding Amount of the
Senior Notes has been reduced to zero, and thereafter by the Lease Trustee, and
at the direction of Ford Credit and Ford Credit Leasing, in Permitted
Investments which mature no later than the Business Day preceding the next
succeeding Distribution Date. No such investment shall be sold prior to
maturity. All investment earnings on amounts deposited to the Series 1996-1
Payahead Account, including any proceeds thereof, shall be credited to the RCL
Account, and losses, if any, resulting from Permitted Investments in the Series
1996-1 Payahead Account shall be charged to the RCL Account. All such
investment income shall be reported for federal income tax purposes as earned
(i) 99% by RCL Trust 1996-1 and (ii) 1% by Ford Credit Leasing; the 99%
accruing to RCL Trust 1996-1 shall be reported by Ford Credit and Ford Credit
Leasing in accordance with their respective Percentage Interests in RCL Trust
1996-1. The authority of the Administrative Agent to make deposits to and
withdrawals from the Series 1996-1 Payahead Account is revocable at any time by
the Indenture Trustee until the Outstanding Amount of the Senior Notes has been
reduced to zero, and thereafter by the Lease Trustee. If the institution at
which the Series 1996-1 Payahead Account is established is no longer an
Eligible Institution, then the Series 1996-1 Payahead Account shall be moved to
an Eligible Institution within 10 Business Days (or such longer period not to
exceed 30 calendar days as to which each Rating Agency may consent).
(d) Pursuant to Section 5.1(b) of the Lease Trust Agreement
there has been established and there shall be maintained an Eligible Account in
the name of the Indenture Trustee until the Outstanding Amount of the Senior
Notes has been reduced to zero, and thereafter in the name of the Lease
Trustee, at an Eligible Institution (which initially shall be The Chase
Manhattan Bank), which is designated as the "Certificate Distribution Account".
The Certificate Distribution Account shall be under the sole dominion and
control of the Indenture Trustee until the Outstanding Amount of the Senior
Notes has been reduced to zero, and thereafter under the sole
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dominion and control of the Lease Trustee; provided, that the Lease Trustee may
make withdrawals from the Certificate Distribution Account in accordance with
Sections 5.2(c) and 5.2(g) of the Lease Trust Agreement and the Administrative
Agent may make withdrawals from the Certificate Distribution Account in
accordance with Section 5.2(f) of the Series 1996-1 Supplement. All deposits
to and withdrawals from the Certificate Distribution Account shall be made only
upon the terms and conditions of the Basic Documents.
Any amounts on deposit in the Certificate Distribution Account
shall be invested by the Indenture Trustee until the Outstanding Amount of the
Senior Notes has been reduced to zero, and thereafter by the Lease Trustee, and
at the direction of the Administrative Agent, in Permitted Investments with a
maturity date no later than the Business Day preceding the next succeeding
Payment Date. No such investment shall be sold prior to maturity. All
investment earnings on amounts deposited to the Certificate Distribution
Account, including any proceeds thereof, shall be credited to the Cash
Collateral Account, and losses, if any, resulting from Permitted Investments in
the Certificate Distribution Account shall be charged to the Cash Collateral
Account. All such investment income shall be reported for federal income tax
purposes as earned (i) 99% by RCL Trust 1996-1 and (ii) 1% by Ford Credit
Leasing; the 99% accruing to RCL Trust 1996-1 shall be reported by Ford Credit
and Ford Credit Leasing in accordance with their respective Percentage
Interests in RCL Trust 1996-1. If the institution at which the Certificate
Distribution Account is established ceases to be an Eligible Institution, then
the Certificate Distribution Account shall be moved to an Eligible Institution
within 10 Business Days (or such longer period not to exceed 30 calendar days
as to which each Rating Agency may consent).
(e) Pursuant to Section 3.5(a) of the Program Operating
Lease, there has been established and there shall be maintained an account (the
"Cash Collateral Account") at an Eligible Institution in the name of the
Indenture Trustee until the Outstanding Amount of the Senior Notes has been
reduced to zero and thereafter in the name of the Lease Trustee. The Cash
Collateral Account has been initially established at The Chase Manhattan Bank.
The Cash Collateral Account shall be
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under the sole dominion and control of the Indenture Trustee until the
Outstanding Amount of the Senior Notes has been reduced to zero, and
thereafter, under the sole dominion and control of the Lease Trustee. Cash
Collateral Account Property shall be invested by the Indenture Trustee until
the Outstanding Amount of the Senior Notes has been reduced to zero, and
thereafter by the Lease Trustee, and at the direction of Ford Credit and Ford
Credit Leasing, in Cash Collateral Account Investments. All investment
earnings on amounts deposited to the Cash Collateral Account, including any
proceeds thereof, shall be credited to the Cash Collateral Account, and losses,
if any, resulting from Cash Collateral Account Investments in the Cash
Collateral Account shall be charged to the Cash Collateral Account. All such
investment income shall be reported for federal income tax purposes as earned
(i) 99% by RCL Trust 1996-1 and (ii) 1% by Ford Credit Leasing; the 99%
accruing to RCL Trust 1996-1 shall be reported by Ford Credit and Ford Credit
Leasing in accordance with their respective Percentage Interests in RCL Trust
1996-1. If the institution at which the Cash Collateral Account is maintained
ceases to be an Eligible Institution, then the Cash Collateral Account shall be
moved to an Eligible Institution within ten Business Days (or such longer
period not to exceed 30 calendar days as to which each Rating Agency may
consent).
Section 8.3 Cash Collateral Account Certificate; Disbursement
and Payment Instructions. (a) On the second Business Day preceding each
Payment Date, the Lease Trustee shall cause the Administrative Agent, on behalf
of the Lease Trust, to deliver to the Indenture Trustee a certificate (the
"Cash Collateral Account Certificate") setting forth the following information
with respect to such Payment Date:
(i) the Series 1996-1 Administrative Agent Fee for
the preceding Accrual Period;
(ii) the Required Interest Payment;
(iii) the Cash Collateral Amount on the Business Day
preceding such Payment Date; and
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(iv) the Cash Collateral Required Draw Amount and
the Cash Collateral Additional Draw Amount.
(b) On the second Business Day preceding each Payment Date
the Lease Trustee shall cause the Administrative Agent, on behalf of the Lease
Trust, to deliver to the Indenture Trustee a certificate (the "Disbursement and
Payment Instructions") including the following information with respect to such
Payment Date, the related Accrual Period and Series 1996-1:
(i) the amount of interest accrued during the
preceding Interest Accrual Period on the Class A-1 Senior Notes and
the Class A-2 Senior Notes, respectively, the amounts payable with
respect to such interest, and any resulting shortfall with respect to
each such Class (separately stated);
(ii) the amount of interest accrued during the
preceding Interest Accrual Period on the Subordinated Notes, the
amounts payable with respect to such interest (net of amounts paid
pursuant to Section 6.6 of the Program Operating Lease), and any
resulting shortfall (separately stated);
(iii) the amount of interest accrued during the
preceding Interest Accrual Period on the Lease Trust Certificates, the
amounts payable with respect to such interest, and any resulting
shortfall (separately stated);
(iv) the amount of principal to be paid on the Class
A-1 Senior Notes and the Class A-2 Senior Notes, respectively
(separately stated);
(v) the Series 1996-1 Administrative Fee; and
(vi) the amount, if any, to be distributed to the
Lease Trustee for payment of principal of the Subordinated Notes and
Lease Trust Certificates in accordance with the terms thereof.
(c) The Indenture Trustee shall have no duty or obligation to
verify or confirm the accuracy of any of the information or numbers set forth
in any of the certificates required to be delivered to the Indenture
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Trustee in accordance with this Section 8.3 and the Indenture Trustee shall be
fully protected in relying upon such certificates.
Section 8.4 Disbursement of Funds. (a) Pursuant to Section
5.2(e) of the Series 1996-1 Supplement, on the Business Day preceding each
Payment Date, the Administrative Agent shall withdraw an amount equal to the
Available Sale Proceeds from the Series 1996-1 Collection Account and deposit
such amount in the Series 1996-1 Payments Account. Pursuant to Sections 5.2(e)
and 5.3 of the Series 1996-1 Supplement, on the Business Day preceding each
Payment Date, the Administrative Agent shall withdraw an amount equal to the
Cash Collateral Deposit Amount from the Series 1996-1 Collection Account and
deposit such amount into the Cash Collateral Account.
On the Business Day preceding each Payment Date, the Indenture
Trustee shall, in accordance with the Cash Collateral Account Certificate
received from the Administrative Agent pursuant to Section 8.3(a), withdraw
from the Cash Collateral Account and deposit in the Series 1996-1 Payments
Account the Cash Collateral Required Draw Amount.
(b) On each Payment Date the Indenture Trustee shall, in
accordance with the Disbursement and Payment Instructions received from the
Administrative Agent pursuant to Section 8.3(b), withdraw from the Series
1996-1 Payments Account the Available Funds on deposit therein and apply such
amounts in accordance with the following priorities:
(i) to the Administrative Agent, the Series 1996-1
Administrative Fee for the preceding Accrual Period;
(ii) to the Subordinated Noteholders, pro rata
without any priority between Classes, an amount equal to the interest
accrued at the applicable Senior Note Interest Rate set forth in
Section 2.1 during the preceding Interest Accrual Period on all
Outstanding Classes of Senior Notes plus interest on any defaulted
interest at the applicable Senior Note Interest Rate; provided
however, that if there are not sufficient funds to pay the entire
amount of accrued and unpaid interest then due on the Senior
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Notes, such funds shall be applied to the payment of such interest on
each Class of Senior Notes pro rata on the basis of the total of such
interest due on the Senior Notes including any defaulted interest at
the applicable Senior Note Interest Rate;
(iii) to the Lease Trust Paying Agent, for payment to
the Subordinated Noteholders, pro rata, an amount equal to the Accrued
Subordinated Note Interest (net of amounts paid pursuant to Section
6.6 of the Program Operating Lease);
(iv) to the Certificate Distribution Account, an
amount equal to interest accrued on the Aggregate Certificate Balance
at the Certificate Interest Rate plus interest on any defaulted
interest at the Certificate Interest Rate during the preceding
Interest Accrual Period plus any Certificate Distribution Draw Amount
on such Payment Date;
(v) to the Senior Noteholders, as payments of
principal in the following order of priority:
(A) to the Class A-1 Senior Noteholders pro rata,
until the Class A-1 Senior Notes have been paid in full; and
(B) to the Class A-2 Senior Noteholders pro rata,
until the Class A-2 Senior Notes have been paid in full;
provided, however, that on any Payment Date occurring after
the maturity of the Senior Notes has been accelerated pursuant to Section 5.2,
amounts to be applied pursuant to this clause (v) shall be paid as principal to
the Class A-1 Senior Noteholders and the Class A-2 Senior Noteholders, ratably,
without preference or priority of any kind, according to the principal amount
due and payable on the Class A-1 Senior Notes and the Class A-2 Senior Notes.
Amounts remaining, if any, after the application of funds pursuant to clauses
(i) through (v) above shall be distributed to the Lease Trustee for
distribution in accordance with the terms of the Subordinated Notes and the
Lease Trust Agreement.
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(c) On each Payment Date, the Indenture Trustee shall, in
accordance with the Cash Collateral Account Certificate received from the
Administrative Agent pursuant to Section 8.3(a), withdraw the Cash Collateral
Additional Draw Amount from the Cash Collateral Account and apply such amounts
to pay each of the items specified in Section 8.4(b) without duplication of the
amounts already paid on such Payment Date, in accordance with the priorities
set forth therein.
(d) On the Business Day preceding each Semiannual Payment
Date for which the Available Funds, as set forth in the Disbursement and
Payment Instructions received from the Administrative Agent pursuant to Section
8.3(b), is less than the sum of the amounts specified in clauses (i), (ii) and
(iii) of Section 8.4(b), the Indenture Trustee shall withdraw the Certificate
Distribution Draw Amount, as set forth in the Disbursement and Payment
Instructions, from the Certificate Distribution Account, deposit such amount in
the Series 1996-1 Payments Account and apply such amount on the related
Semiannual Payment Date to pay each of the items set forth in clauses (i), (ii)
and (iii) of Section 8.4(b) without duplication of the amounts already paid on
such Semiannual Payment Date, in accordance with the priorities set forth
therein.
(e) On each Payment Date the Indenture Trustee shall send, by
first class mail, a report to each Person who was a Senior Noteholder on the
prior Record Date including the following information with respect to such
Payment Date and the related Accrual Period:
(i) the Note Pool Factor of each Class of Senior
Notes;
(ii) the amount of interest paid to each Outstanding
Class of Senior Notes;
(iii) the amount of principal paid to each
Outstanding Class of Senior Notes;
(iv) the aggregate amount of Series 1996-1
Collections deposited in the Series 1996-1 Collection Account (stating
separately the components thereof);
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(v) the Aggregate Net Sale Proceeds Advances
deposited in the Series 1996-1 Collection Account;
(vi) the Aggregate Net Monthly Payment Advances
deposited in the Series 1996-1 Collection Account;
(vii) the amount of Available Sale Proceeds (stating
separately the components thereof);
(viii) the Cash Collateral Required Draw Amount and
the Cash Collateral Additional Draw Amount;
(ix) the Available Funds;
(x) the amount distributed to the Lease Trust Paying
Agent for payment of interest (net of amounts paid pursuant to Section
6.6 of the Program Operating Lease) to the Subordinated Noteholders;
(xi) the amount deposited in the Certificate
Distribution Account for payment of interest to the Lease Trust
Certificateholders;
(xii) the Outstanding Amount of each Class of Senior
Notes and of the Subordinated Notes, the Aggregate Certificate Balance
and the Pool Balance (separately stated);
(xiii) the Cash Collateral Amount (after giving
effect to all deposits and withdrawals with respect to such Payment
Date);
(xiv) the aggregate of the Series 1996-1 Credit
Losses for each of the three preceding Collection Periods; and
(xv) the aggregate of the Series 1996-1 Residual
Losses for each of the three preceding Collection Periods.
Section 8.5 General Provisions Regarding Accounts. Subject
to Section 6.1(c), the Indenture Trustee shall not in any way be held liable by
reason of any insufficiency in the Series 1996-1 Payments Account,
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the Series 1996-1 Collection Account, the Series 1996-1 Payahead Account, the
Certificate Distribution Account or the Cash Collateral Account resulting from
any loss on any Permitted Investment or Cash Collateral Account Investment, as
applicable, included therein except for losses attributable to the Indenture
Trustee's failure to make payments on any such Permitted Investments or Cash
Collateral Account Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
Section 8.6 Release of Indenture Trust Estate. The
Indenture Trustee shall, at such time as there are no Senior Notes Outstanding
and all sums due the Indenture Trustee pursuant to Section 6.7 have been paid,
release any remaining portion of the Indenture Trust Estate that secured the
Senior Notes from the lien of this Indenture and release to the Lease Trustee
or any other Person entitled thereto any funds then on deposit in the Series
1996-1 Payments Account. The Indenture Trustee shall release property from the
lien of this Indenture pursuant to this Section 8.6 only upon receipt of an
Issuer Request accompanied by an Officers' Certificate, an Opinion of Counsel
and (if required by the TIA) Independent Certificates in accordance with TIA
Section Section 314(c) and 314(d)(1) meeting the applicable requirements of
Section 11.1.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Senior
Noteholders. (a) Without the consent of the Senior Noteholders, but with prior
notice to the Rating Agencies, the Lease Trustee, on behalf of the Lease Trust,
and the Indenture Trustee, when requested by an Issuer Request, at any time and
from time to time, may enter into one or more indentures supplemental hereto
(which shall conform to the provisions of the TIA as in force at the date of
the execution thereof), in form satisfactory to the Indenture Trustee, for any
of the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of
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this Indenture, or better to assure, convey and confirm unto the
Indenture Trustee any property subject or required to be subjected to
the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with
the applicable provisions hereof, of another Person to the Lease
Trust, and the assumption by any such successor of the covenants of
the Lease Trust herein and in the Senior Notes contained;
(iii) to add to the covenants of the Lease Trust,
for the benefit of the Senior Noteholders, or to surrender any right
or power herein conferred upon the Lease Trust;
(iv) to convey, transfer, assign, mortgage or pledge
any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement
any provision herein or in any supplemental indenture which may be
defective or inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with respect to
matters or questions arising under this Indenture or in any
supplemental indenture which shall not be inconsistent with the
provisions of this Indenture; provided that such other provisions
shall not adversely affect the interests of the Senior Noteholders; or
(vi) to evidence and provide for the acceptance of
the appointment hereunder by a successor trustee with respect to the
Senior Notes and to add to or change any of the provisions of this
Indenture as shall be necessary to facilitate the administration of
the trusts hereunder by more than one trustee, pursuant to the
requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Inden-
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ture such other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further
appropriate agreements and stipulations that may be therein contained.
(b) The Lease Trustee, on behalf of the Lease Trust, and the
Indenture Trustee, when requested by an Issuer Request, may, also without the
consent of the Senior Noteholders, 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 (other than the modifications set forth in Section 9.2
which require consent of the Holder of each Senior Note affected thereby) the
rights of the Senior Noteholders under this Indenture; provided, however, that
(i) such action shall not, as evidenced by an Opinion of Counsel, materially
adversely affect the interests of any Senior Noteholder, (ii) the Rating Agency
Condition shall have been satisfied with respect to such action and (iii) such
action shall not, as evidenced by an Opinion of Counsel, (x) affect the
treatment of the Senior Notes as debt for federal income tax purposes, (y) be
deemed to cause a taxable exchange of the Senior Notes for federal income tax
purposes or (z) cause the Issuer, RCL Trust 1996-1 or FCTT to be taxable as an
"association" or publicly traded partnership taxable as a corporation for
federal income tax purposes.
Section 9.2 Supplemental Indentures with Consent of Senior
Noteholders. The Lease Trustee, on behalf of the Lease Trust, and the
Indenture Trustee, when requested by an Issuer Request, also may, with the
consent of Senior Noteholders holding not less than a majority of the
Outstanding Amount of the Senior Notes, by Act of such Senior Noteholders
delivered to the Lease Trustee and the Indenture Trustee, 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 Senior
Noteholders under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the
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Senior Noteholder of each Outstanding Senior Note affected thereby:
(i) change the Stated Maturity of or the date of
payment of any installment of principal of or interest on any Senior
Note, or reduce the principal amount thereof, the interest rate
thereon or the Redemption Price with respect thereto, change the
provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Indenture Trust
Estate to payment of principal of or interest on the Senior Notes, or
change any place of payment where, or the coin or currency in which,
any Senior Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of the provisions of this
Indenture requiring the application of funds available therefor, as
provided in Article V, to the payment of any such amount due on the
Senior Notes on or after the respective due dates thereof (or, in the
case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount
of the Senior Notes, the consent of the Senior Noteholders of which is
required for any such supplemental indenture, or the consent of the
Senior Noteholders of which is required for any waiver of compliance
with provisions of this Indenture or Defaults or Events of Default
hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso
to the definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount
of the Senior Notes required to direct the Indenture Trustee to direct
the Lease Trustee to sell or liquidate the Indenture Trust Estate
pursuant to Section 5.4 if the proceeds of such sale would be
insufficient to pay the Outstanding Amount plus accrued but unpaid
interest on the Senior Notes;
(v) modify any provision of this Section 9.2 except
to increase any percentage specified
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herein or to provide that certain additional provisions of this
Indenture or the other Basic Documents cannot be modified or waived
without the consent of the Senior Noteholder of each Outstanding
Senior Note affected thereby;
(vi) modify any of the provisions of this Indenture
in such manner as to affect the calculation of the amount of any
payment of interest or principal due on any Senior Note on any Payment
Date (including the calculation of any of the individual components of
such calculation);
(vii) 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 Indenture Trust Estate or, except as otherwise permitted
or contemplated herein, terminate the lien of this Indenture on any
property at any time subject hereto or deprive any Senior Noteholder
of the security provided by the lien of this Indenture; or
(viii) impair the right to institute suit for the
enforcement of payment as provided in Section 5.7.
Any such supplemental indenture shall be executed only upon
delivery of an Opinion of Counsel to the same effect as in Section
9.1(b)(iii)(z) above. The Indenture Trustee may in its discretion determine
whether or not any Senior Notes would be affected by any supplemental indenture
and any such determination shall be conclusive upon all Senior Noteholders,
whether theretofore or thereafter authenticated and delivered hereunder. The
Indenture Trustee shall not be liable for any such determination made in good
faith.
It shall not be necessary for any Act of Senior Noteholders
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
Promptly after the execution by the Lease Trustee, on behalf
of the Lease Trust, and the Indenture Trustee of any supplemental indenture
pursuant to this Section 9.2, the Indenture Trustee shall mail to the
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Senior Noteholders to which such amendment or supplemental indenture relates a
notice setting forth in general terms the substance of such supplemental
indenture. Any failure of the Indenture Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 9.3 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, 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
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
liabilities or indemnities under this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Senior Notes affected thereby, and the respective
rights, limitations of rights, obligations, duties, liabilities and immunities
under this Indenture of the Indenture Trustee, the Lease Trust, the Lease
Trustee and the Senior Noteholders thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
Section 9.5 Conformity With Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the TIA as then in
effect so long as this Indenture is required to be qualified under the TIA.
Section 9.6 Reference in Senior Notes to Supplemental
Indentures. Senior Notes authenticated and
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delivered after the execution of any supplemental indenture pursuant to this
Article IX may, and if required by the Indenture Trustee shall, bear a notation
in form approved by the Indenture Trustee as to any matter provided for in such
supplemental indenture. If the Lease Trustee or the Indenture Trustee shall so
determine, new Senior Notes so modified as to conform, in the opinion of the
Indenture Trustee and the Lease Trustee, to any such supplemental indenture may
be prepared and executed by the Lease Trustee, on behalf of the Trust, and
authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Senior Notes.
ARTICLE X
REDEMPTION OF SENIOR NOTES
Section 10.1 Redemption. The Senior Notes shall be redeemed
in whole, but not in part, for a purchase price equal to the Redemption Price
on any Payment Date on which the Administrative Agent exercises its option to
purchase the Series 1996-1 Certificates pursuant to Section 7.1 of the Series
1996-1 Supplement; provided, however, that the Lease Trust has available funds
sufficient to pay the Redemption Price. The Administrative Agent or the Lease
Trustee shall furnish the Rating Agencies notice of such redemption. If the
Senior Notes are to be redeemed pursuant to this Section 10.1, the Lease
Trustee shall or shall cause the Administrative Agent to furnish notice of such
election to the Indenture Trustee not later than forty-five days (unless a
shorter notice shall be satisfactory to the Indenture Trustee) prior to the
Redemption Date. Pursuant to Section 7.1 of the Series 1996-1 Supplement, on
the Business Day preceding the Redemption Date the Administrative Agent shall
deposit the Series 1996-1 Asset Amount plus an amount equal to one month's
interest calculated at a rate equal to the weighted average Retail Operating
Lease Factor for such Series 1996-1 Assets with the Indenture Trustee in the
Series 1996-1 Collection Account whereupon all such Senior Notes shall be due
and payable on the Redemption Date upon the furnishing of a notice complying
with Section 10.2 to each Senior Noteholder.
Section 10.2 Form of Redemption Notice. Notice of redemption
under Section 10.1 shall be given by
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the Indenture Trustee by facsimile or by first-class mail, postage prepaid,
transmitted or mailed at least thirty days prior to the Redemption Date to each
Senior Noteholder, on the Record Date immediately preceding the Redemption
Date, at such Senior Noteholder's address appearing in the Senior Note
Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the place where the Senior Notes to be
redeemed are to be surrendered for payment of the Redemption Price
(which shall be the office or agency of the Lease Trustee to be
maintained as provided in Section 3.2); and
(iv) that on the Redemption Date, the Redemption
Price will become due and payable upon each such Senior Note and that
interest thereon shall cease to accrue for and after said date.
Notice of redemption of the Senior Notes shall be given by the
Indenture Trustee in the name and at the expense of the Lease Trust. Failure
to give notice of redemption, or any defect therein, to any Senior Noteholder
shall not impair or affect the validity of the redemption of any other Senior
Note.
Section 10.3 Senior Notes Payable on Redemption Date. The
Senior Notes to be redeemed shall, following notice of redemption as required
by Section 10.2, become due and payable on the Redemption Date at the
Redemption Price and (unless the Lease Trust shall default in the payment of
the Redemption Price) no interest shall accrue on the Redemption Price for any
period from and including the Redemption Date.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Compliance Certificates and Opinions, etc. (a)
Upon any application or request by
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the Lease Trustee to the Indenture Trustee to take any action under any
provision of this Indenture, the Lease Trustee shall furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with and
(iii) (if required by the TIA) an Independent Certificate from a firm of
certified public accountants meeting the applicable requirements of this
Section 11.1, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or investigation
as is necessary to enable such signatory to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
(iv) a statement as to whether, in the opinion of
each such signatory, such condition or covenant has been complied
with.
(b) (i) Prior to the deposit of any Collateral or other
property or securities with the Indenture Trustee that is to be made the basis
for the release of any property or securities subject to the lien of this
Indenture, the Lease Trustee shall, in addition to any
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obligation imposed in Section 11.1(a) or elsewhere in this Indenture, furnish
to the Indenture Trustee an Officers' Certificate certifying or stating the
opinion of each Person signing such certificate as to the fair value (within 90
days of such deposit) to the Lease Trust of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Lease Trustee is required to
furnish to the Indenture Trustee an Officers' Certificate certifying
or stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Lease Trustee shall also deliver to
the Indenture Trustee an Independent Certificate as to the same
matters, if the fair value of the property or securities to be so
deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current
calendar year of the Lease Trust, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (ii), is 10% or
more of the Outstanding Amount of the Senior Notes, but such a
certificate need not be furnished with respect to any securities so
deposited, if the fair value thereof to the Lease Trust as set forth
in the related Officers' Certificate is less than $25,000 or less than
one percent of the Outstanding Amount of the Senior Notes.
(iii) Whenever any property or securities are to be
released from the lien of this Indenture, the Lease Trustee shall also
furnish to the Indenture Trustee an Officers' Certificate certifying
or stating the opinion of each Person signing such certificate as to
the fair value (within 90 days of such release) of the property or
securities proposed to be released and stating that in the opinion of
such Person the proposed release will not impair the security under
this Indenture in contravention of the provisions hereof.
(iv) Whenever the Lease Trustee is required to
furnish to the Indenture Trustee an Officers' Certificate certifying
or stating the opinion of any signer thereof as to the matters
described in clause (iii) above, the Lease Trustee shall also furnish
to the Indenture Trustee an Inde-
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pendent Certificate as to the same matters, if the fair value of the
property or securities and of all other property, or securities
released from the lien of this Indenture since the commencement of the
then current calendar year, as set forth in the certificates required
by clause (iii) above and this clause (iv), equals 10% or more of the
Outstanding Amount of the Senior Notes, but such certificate need not
be furnished in the case of any release of property or securities if
the fair value thereof as set forth in the related Officers'
Certificate is less than $25,000 or less than one percent of the then
Outstanding Amount of the Senior Notes.
(v) Notwithstanding Section 2.9 or any other
provision of this Section 11.1, the Lease Trustee may (A) collect,
liquidate, sell or otherwise dispose of the Collateral as and to the
extent permitted or required by the Basic Documents and (B) make cash
payments out of the Series 1996-1 Payments Account as and to the
extent permitted or required by the Basic Documents.
Section 11.2 Form of Documents Delivered to Indenture
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 Authorized Officer 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 certificate of an Authorized Officer
or 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 Administrative Agent, the RCL Trustee or the Lease
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Trustee, stating that the information with respect to such factual matters is
in the possession of the Administrative Agent, the RCL Trustee or the Lease
Trustee, 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.
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.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee, it is provided that the
Lease Trustee shall deliver, on behalf of the Lease Trust, any document as a
condition of the granting of such application, or as evidence of the Lease
Trust's 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 Lease Trust to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however,
be construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
Section 11.3 Acts of Senior Noteholders. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Senior Noteholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Senior 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
Indenture Trustee, and, where it is hereby expressly required, to the Lease
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Senior
Noteholders signing such instrument or instruments.
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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 6.1) conclusive in favor of the Indenture Trustee and the Lease
Trustee, if made in the manner provided in this Section 11.3.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Senior Notes shall be proved by the
Senior Note Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the holder of any Senior Note shall bind the
holder of every Senior Note issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered
to be done by the Indenture Trustee or the Lease Trustee in reliance thereon,
whether or not notation of such action is made upon such Senior Note.
Section 11.4 Notices, etc., to Indenture Trustee, Lease
Trustee and Rating Agencies. Any request, demand, authorization, direction,
notice, consent, waiver or Act of Senior Noteholders or other documents
provided or permitted by this Indenture to be made upon, given or furnished to
or filed with:
(a) the Indenture Trustee by any Senior Noteholder, the
Administrative Agent or the Lease Trustee shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the
Indenture Trustee at its Corporate Trust Office, or
(b) the Lease Trustee by the Indenture Trustee, or by any
Senior Noteholder shall be sufficient for every purpose hereunder if in writing
and mailed, first-class, postage prepaid, to the Lease Trustee addressed to:
Ford Credit Auto Lease Trust 1996-1, in care of PNC Bank, Delaware, 000
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. XxXxxxxx,
or at any other address previously furnished in writing to the Indenture
Trustee by the Lease Trustee. The Lease Trust-
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ee shall promptly transmit any notice received by it from the Senior Noteholders
to the Indenture Trustee;
provided, however, that service of process in connection with any litigation
hereunder shall be effected in accordance with applicable law.
Notices required to be given to the Rating Agencies by the
Lease Trustee or the Indenture Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested to (i) in the
case of Xxxxx'x Investors Service, at the following address: 00 Xxxxxx Xxxxxx
, Xxx Xxxx, XX 00000, Attention: ABS Monitoring Group; with a copy to Xxxxxxxxx
Xxxxxx and (ii) in the case of Standard & Poor's Ratings Group, at the
following address: Standard & Poor's Ratings Group, 00 Xxxxxxxx (00xx Xxxxx),
Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Backed Surveillance Department; or
as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
Section 11.5 Notices to Senior Noteholders; Waiver. Where
this Indenture provides for notice to Senior Noteholders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class, postage prepaid to each Senior
Noteholder affected by such event, at his address as it appears on the Senior
Note Register, not later than the latest and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Senior Noteholders is given by mail, neither the failure to mail such notice
nor any defect in any notice so mailed to any particular Senior Noteholder
shall affect the sufficiency of such notice with respect to other Senior
Noteholders, and any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Senior Noteholders shall be filed with the
Indenture Trustee but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such a waiver.
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In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event of Senior Noteholders when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute
a Default or Event of Default.
Section 11.6 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required or deemed to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required or deemed provision shall
control.
The provisions of TIA Section Section 310 through 317 that
impose duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture) are a part of and
govern this Indenture, whether or not physically contained herein.
Section 11.7 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 11.8 Successors and Assigns. All covenants and
agreements in this Indenture and the Senior Notes by the Lease Trust shall bind
its successors and assigns, whether so expressed or not.
All agreements of the Indenture Trustee in this Indenture
shall bind its successors.
Section 11.9 Separability. In case any provision in this
Indenture or in the Senior Notes shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
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Section 11.10 Benefits of Indenture. Nothing in this
Indenture or in the Senior Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the Senior
Noteholders (and, with respect to Sections 8.3 and 8.4, the Subordinated
Noteholders and the Lease Trust Certificateholders), and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Indenture Trust Estate, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 11.11 Legal Holidays. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Senior Notes or this Indenture) 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 the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
Section 11.12 GOVERNING LAW. THIS INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 11.13 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 11.14 Recording of Indenture. If this Indenture is
subject to recording in any appropriate public recording offices, such
recording is to be effected by the Lease Trustee, on behalf of the Lease Trust,
accompanied by an Opinion of Counsel (which may be counsel to the Indenture
Trustee or any other counsel reasonably acceptable to the Indenture Trustee) to
the effect that such recording is necessary either for the protection of the
Senior Noteholders or any other Person secured hereunder or for the enforcement
of any right or remedy granted to the Indenture Trustee under this Indenture.
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Section 11.15 Trust Obligation. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Lease Trust, the
Lease Trustee, or the Indenture Trustee on the Senior Notes or under this
Indenture or any certificate or other writing delivered in connection herewith
or therewith, against (i) the Indenture Trustee or the Lease Trustee in their
individual capacities, (ii) any Subordinated Noteholder, (iii) any Lease Trust
Certificateholder or (iv) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Lease Trustee in
their individual capacities, any Subordinated Noteholder, any Lease Trust
Certifi- cateholder, the Lease Trustee or the Indenture Trustee of any
successor or assign of the Indenture Trustee or the Lease Trustee in their
individual capacities, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Lease Trustee have no such
obligations in their individual capacities) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity.
For all purposes of this Indenture, in the performance of any duties or
obligations of the Lease Trust hereunder, the Lease Trustee shall be subject
to, and entitled to the benefits of, the terms and provisions of Article VI,
VII and VIII of the Lease Trust Agreement.
Section 11.16 No Petition. The Indenture Trustee, by
entering into this Indenture, and each Senior Noteholder or Note Owner, by
accepting a Senior Note or, in the case of a Note Owner, a beneficial interest
in a Senior Note, hereby covenants and agree that for a period of one year and
one day after payment in full of the Series 1996-1 Certificates they will not
institute against FCTT, RCL Trust 1996-1, Ford Credit Leasing or the Lease
Trust, or join in any institution against FCTT, RCL Trust 1996-1 Ford Credit
Leasing or the Lease Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or State bankruptcy or similar law in connection with any
obligations relating to the Senior Notes, this Indenture or any of the other
Basic Documents; provided, however, that Senior Noteholders holding 100% of the
Outstanding Amount of the Senior Notes may at any time institute, or join in
any
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institution of, any such proceedings. Nothing in this Section 11.16 shall
preclude, or be deemed to stop, the Indenture Trustee (i) from taking any
action prior to the expiration of the aforementioned one year and one day
period in (A) any case or proceeding voluntarily filed by the Lease Trust or
(B) any involuntary insolvency proceeding filed or commenced by a Person other
than the Indenture Trustee, or (ii) from commencing against the Lease Trust or
any of its properties any legal action which is not a bankruptcy, moratorium or
liquidation.
Section 11.17 Inspection. The Lease Trust agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Lease Trust's normal business hours, to examine all the
books of account, records, reports, and other papers of the Lease Trust, to
make copies and extracts therefrom, to cause such books to be audited by
Independent certified public accountants, and to discuss the Lease Trust's
affairs, finances and accounts with the Lease Trust's officers, employees, and
Independent certified public accountants, all at such reasonable times and as
often as may be reasonably requested. The Indenture Trustee shall and shall
cause its representatives to hold in confidence all such information except to
the extent disclosure may be required by law (and all reasonable applications
for confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
[THIS SPACE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the Lease Trustee, on behalf of the Lease
Trust, and the Indenture Trustee have caused this Indenture to be duly executed
by their respective officers, thereunto duly authorized, all as of the day and
year first above written.
FORD CREDIT AUTO LEASE TRUST 1996-1
By PNC BANK, DELAWARE, not in its
individual capacity but solely as
Lease Trustee,
By:
--------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Indenture Trustee,
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
100
[Form of Class A-1 Senior Note] EXHIBIT A-1
REGISTERED
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ______
Unless this Senior Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Lease
Trustee or its agent for registration of transfer, exchange or payment, and any
Senior Note issued is registered in the name of Cede & Co. or in 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 requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
AS SET FORTH HEREIN THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
SENIOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO LEASE TRUST 1996-1
_____% CLASS A-1 ASSET BACKED SENIOR NOTE
Ford Credit Auto Lease Trust 1996-1 (the "Lease Trust"), a
trust created pursuant to a trust agreement dated as of ______ __, 1996 between
______, not in its individual capacity but solely as trustee of RCL Trust
1996-1, as Depositor and PNC Bank, Delaware, not in its individual capacity but
solely as trustee of the Lease Trust (the "Lease Trustee"), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, upon presentation
and surrender of this Senior Note the principal sum of _____ DOLLARS (U.S.
$_____) on the
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earlier of the ______ __, ____ Payment Date (the "Stated Maturity") and the
Redemption Date, if any, pursuant to Section 10.1 of the Indenture. The Lease
Trust will pay interest on this Senior Note at the rate per annum shown above
(the "Senior Note Interest Rate") on each Payment Date until the principal of
this Senior Note is paid or made available for payment, on the principal amount
of this Senior Note outstanding on the preceding Payment Date (after giving
effect to all payments of principal made on the preceding Payment Date).
Interest on this Senior Note will accrue for each Payment Date from and
including the 15th day of the Collection Period third preceding the Collection
Period in which such Payment Date occurs, through and including the 14th day of
the Collection Period in which such Payment Date occurs, or, if no interest has
yet been paid, from ______ __, ____. Interest will be computed on the basis of
a 360-day year of twelve 30-day months. Such principal of and interest on this
Senior Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Senior Note are payable
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. All payments
made by the Lease Trust with respect to this Senior Note shall be applied first
to interest due and payable on this Senior Note as provided above and then to
the unpaid principal of this Senior Note.
Reference is made to the further provisions of this Senior
Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this Senior Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Senior Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
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102
IN WITNESS WHEREOF, the Lease Trust has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer as of the date set
forth below.
Date: ____ __, ____ FORD CREDIT AUTO LEASE TRUST 1996-1,
by PNC BANK, DELAWARE, not in its individual
capacity but solely as Lease Trustee under the
Lease Trust Agreement
By:
-----------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
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103
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Senior Notes designated above and
referred to in the within-mentioned Indenture.
Date: ____ __, ____ THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Indenture Trustee
By:
--------------------------------------
Authorized Signatory
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[REVERSE OF SENIOR NOTE]
This Senior Note is one of a duly authorized issue of Senior
Notes of the Lease Trust, designated as its "__% Class A-1 Asset Backed Senior
Notes" (herein called the "Class A-1 Senior Notes") issued under an Indenture,
dated as of ______ __, 1996 (such indenture, as supplemented or amended, is
herein called the "Indenture"), between the Lease Trust and The Chase Manhattan
Bank, as trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Lease Trust, the Indenture Trustee and
the Senior Noteholders. Also issued under the Indenture are the __% Class A-2
Asset Backed Senior Notes (the "Class A-2 Senior Notes" and together with the
Class A-1 Senior Notes, collectively, the "Senior Notes"). The Senior Notes
are subject to all terms of the Indenture. All terms used in this Senior Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented
or amended.
The Senior Notes are and will be equally and ratably secured
by the Collateral as provided in the Indenture.
Under the Indenture, interest will be payable on ______ 15,
______ 15, ______ 15, and ______ 15, of each year, commencing ______ 15, 199_,
(or, if such 15th day is not a Business Day, the next Business Day (the
"Payment Date"), to the Person in whose name this Senior Note is registered at
the close of business on the 14th day of the calendar month in which such
Payment Date occurs, or if Definitive Senior Notes have been issued, to the
Person in whose name this Senior Note is registered on the last day of the
calendar month preceding such Payment Date (the "Record Date"). On each
Payment Date, there shall be distributed to such Senior Noteholder the interest
accrued at the Senior Note Interest Rate during the preceding Interest Accrual
Period on the Outstanding Amount of this Senior Note and the principal, if any,
available to be paid on such Payment Date in accordance with the terms of the
Indenture; provided,
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105
however, that no principal shall be paid on the Class A-2 Senior Notes until
the Class A-1 Senior Notes have been paid in full.
As described above, the entire unpaid principal amount of this
Senior Note shall be due and payable on the earlier of the Stated Maturity and
the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Senior
Notes shall be due and payable on the date on which an Event of Default shall
have occurred and be continuing and the Indenture Trustee or Senior Noteholders
of Senior Notes evidencing not less than a majority of the Outstanding Amount
of the Senior Notes have declared the Senior Notes to be immediately due and
payable in the manner provided in Section 5.2 of the Indenture. On and after
such date all principal payments on the Senior Notes shall be made to the
Senior Noteholders of the Class A-1 Senior Notes and the Class A-2 Senior Notes
ratably and without preference or priority of any kind until the Outstanding
Amount of the Class A-1 Senior Notes and the Class X- 0 Senior Notes each have
been reduced to zero.
Payments of interest on this Senior Note due and payable on
each Payment Date, together with the payments of principal, if any, to the
extent not in full payment of this Senior Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Senior Note
(or one or more Predecessor Senior Notes) on the Senior Note Register as of the
close of business on each Record Date, except that with respect to Senior Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Senior Note Register as of the
applicable Record Date without requiring that this Senior Note be submitted for
notation of payment. Any reduction in the principal amount of this Senior Note
(or any one or more Predecessor Senior Notes) effected by any payments made on
any Payment Date shall be binding upon all future Senior Noteholders of this
Senior Note and of any Senior Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether
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106
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Senior Note on a Payment Date, then the Indenture Trustee, in the name of
and on behalf of the Lease Trust, will notify the Person who was the Registered
Holder hereof as of the Record Date preceding such Payment Date by notice
mailed prior to such Payment Date and the amount then due and payable shall be
payable only upon presentation and surrender of this Senior Note at the
Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in The City of
New York.
The Lease Trust shall pay interest on overdue installments of
interest at the Senior Note Interest Rate to the extent lawful.
As provided in the Indenture, the Senior Notes shall be
redeemed in whole, but not in part, on any Payment Date on or after the date on
which the Pool Balance is less than ten percent of the initial Pool Balance and
on which the Administrative Agent exercises its option to purchase the Series
1996-1 Certificates. The Senior Notes to be redeemed shall, following notice
of redemption as required by Section 10.2 of the Indenture, become due and
payable on the Redemption Date at the Redemption Price and (unless the Lease
Trust shall default in the payment of the Redemption Price) no interest shall
accrue on the Redemption Price for any period from and including the Redemption
Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Senior Note may be
registered on the Senior Note Register upon surrender of this Senior Note for
registration of transfer at the office or agency designated by the Lease
Trustee pursuant to the Indenture, (i) duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Senior Noteholder of this Senior Note or his attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Senior Note Registrar
which requirements include membership or participation in Securities Transfer
Agent's Medallion Program ("Stamp") or such other "signature guarantee
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107
program" as may be determined by the Senior Note Registrar in addition to, or
in substitution for, Stamp, all in accordance with the Exchange Act, and (ii)
accompanied by such other documents as the Indenture Trustee may require, and
thereupon one or more new Senior Notes of authorized denominations and in the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of
transfer or exchange of this Senior Note, but the transferor may be required to
pay a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such registration of transfer or exchange.
Each Senior Noteholder or Senior Note Owner, by acceptance of
a Senior Note or, in the case of a Senior Note Owner, a beneficial interest in
a Senior Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Lease Trust, the Lease
Trustee or the Indenture Trustee on the Senior Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against (i)
the Indenture Trustee or the Lease Trustee in their individual capacities, (ii)
any owner of a beneficial interest in the Lease Trust or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Indenture
Trustee or the Lease Trustee in their individual capacities, any holder of a
beneficial interest in the Lease Trust, the Lease Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Lease
Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall
be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
The Senior Notes represent obligations of the Lease Trust only
and do not represent interests in, recourse to or obligations of RCL Trust
1996-1, Ford Credit or any of their respective affiliates.
Each Senior Noteholder or Senior Note Owner, by acceptance of
a Senior Note or, in the case of a Senior Note Owner, a beneficial interest in
a Senior Note covenants and agrees that by accepting the benefits of the
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Indenture that such Senior Noteholder will not at any time institute against
the Lease Trust, Ford Credit Leasing, FCTT or RCL Trust 1996-1, or join in any
institution against the Lease Trust, Ford Credit Leasing, FCTT or RCL Trust
1996-1 of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or State bankruptcy or
similar law in connection with any obligations relating to the Senior Notes,
the Indenture or the other Basic Documents; provided, however, that Senior
Noteholders holding 100% of the Outstanding Amount of the Senior Notes may
institute or join in any institution of any such proceedings.
Prior to the due presentment for registration of transfer of
this Senior Note, the Lease Trustee, the Indenture Trustee and any agent of the
Lease Trustee or the Indenture Trustee may treat the Person in whose name this
Senior Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all purposes,
whether or not this Senior Note be overdue, and neither the Lease Trustee, the
Indenture Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Lease Trust and the rights of the Senior Noteholders under
the Indenture at any time by the Lease Trust with the consent of Senior
Noteholders holding not less than a majority of the Outstanding Amount of the
Senior Notes. The Indenture also contains provisions permitting Senior
Noteholders holding specified percentages of the Outstanding Amount of the
Senior Notes, on behalf of all Senior Noteholders, to waive compliance by the
Lease Trust with certain provisions of the Indenture and certain past Defaults
under the Indenture and their consequences. Any such consent or waiver by the
Senior Noteholder of this Senior Note (or any one of more Predecessor Senior
Notes) shall be conclusive and binding upon such Senior Noteholder and upon all
future Senior Noteholders of this Senior Note and of any Senior Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Senior Note. The Indenture also permits the Indenture Trustee to amend
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or waive certain terms and conditions set forth in the Indenture without the
consent of the Senior Noteholders.
The term "Lease Trust" as used in this Senior Note includes
any successor to the Lease Trust under the Indenture.
The Senior Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
THIS SENIOR NOTE AND THE INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
No reference herein to the Indenture and no provision of this
Senior Note or of the Indenture shall alter or impair the obligation of the
Lease Trust, which is absolute and unconditional, to pay the principal of and
interest on this Senior Note at the times, place, and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither PNC Bank, Delaware in its
individual capacity, any owner of a beneficial interest in the Lease Trust, nor
any of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Senior Note or the Indenture, it being
expressly understood that said covenants, obligations and indemnifications have
been made by the Lease Trustee for the sole purpose of binding the interests of
the Lease Trustee in the assets of the Lease Trust. The Senior Noteholder of
this Senior Note by the acceptance hereof agrees that except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Senior Noteholder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and
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enforcement against, the assets of the Lease Trust for any and all liabilities,
obligations and undertakings contained in the Indenture or in this Senior Note.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
___________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Senior Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________, attorney, to transfer said Senior Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated:
------------------------- -----------------------------------
Signature Guaranteed:
-----------------------------------
__________________________________
* Note: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Senior
Note in every particular, without alteration, enlargement or any
change whatsoever.
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[Form of Class A-2 Senior Note] EXHIBIT A-2
REGISTERED
No. R
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. ______
Unless this Senior Note is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Lease Trustee or its agent for registration of transfer, exchange or
payment, and any Senior Note issued is registered in the name of Cede & Co. or
in 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 requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
AS SET FORTH HEREIN THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
SENIOR NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
FORD CREDIT AUTO LEASE TRUST 1996-1
__% CLASS A-2 ASSET BACKED SENIOR NOTE
Ford Credit Auto Lease Trust 1996-1 (the "Lease Trust"), a
trust created pursuant to a trust agreement dated as of ______ __, 1996 between
______, not in its individual capacity but solely as trustee of RCL Trust
1996-1, as Depositor and PNC Bank, Delaware, not in its individual capacity but
solely as trustee of the Lease Trust (the "Lease Trustee"), for value received,
hereby promises to pay to Cede & Co., or registered assigns, upon presentation
and surrender of this Senior Note the
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principal sum of _____________________ DOLLARS (U.S.$______) on the earlier of
the ______ __, ____ Payment Date (the "Stated Maturity") and the Redemption
Date, if any, pursuant to Section 10.1 of the Indenture. The Lease Trust will
pay interest on this Senior Note at the rate per annum shown above (the "Senior
Note Interest Rate") on each Payment Date until the principal of this Senior
Note is paid or made available for payment, on the principal amount of this
Senior Note outstanding on the preceding Payment Date (after giving effect to
all payments of principal made on the preceding Payment Date). Interest on this
Senior Note will accrue for each Payment Date from and including the 15th day
of the Collection Period third preceding the Collection Period in which such
Payment Date occurs, through and including the 14th day of the Collection
Period in which such Payment Date occurs, or, if no interest has yet been paid,
from ______ __, ____. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Such principal of and interest on this Senior Note
shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Senior Note are payable
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. All payments
made by the Lease Trust with respect to this Senior Note shall be applied first
to interest due and payable on this Senior Note as provided above and then to
the unpaid principal of this Senior Note.
Reference is made to the further provisions of this Senior
Note set forth on the reverse hereof, which shall have the same effect as
though fully set forth on the face of this Senior Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Senior Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Lease Trust has caused this instrument
to be signed, manually or in facsimile, by its Authorized Officer as of the
date set forth below.
Date: ____ __, ____ FORD CREDIT AUTO LEASE TRUST 1996-1,
by PNC BANK, DELAWARE, not in its individual
capacity but solely as Lease Trustee under the
Lease Trust Agreement,
By:
--------------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Vice President
115
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Senior Notes designated above and
referred to in the within-mentioned Indenture.
Date: ____ __, ____ THE CHASE MANHATTAN BANK, not in its individual
capacity but solely as Indenture Trustee
By:
---------------------------------------------
Authorized Signatory
116
[REVERSE OF SENIOR NOTE]
This Senior Note is one of a duly authorized issue of Senior
Notes of the Lease Trust, designated as its "__% Class A-2 Asset Backed Senior
Notes" (herein called the "Class A-2 Senior Notes") issued under an Indenture,
dated as of ______ __, 1996 (such indenture, as supplemented or amended, is
herein called the "Indenture"), between the Lease Trust and The Chase Manhattan
Bank, as trustee (the "Indenture Trustee", which term includes any successor
Indenture Trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Lease Trust, the Indenture Trustee and
the Senior Noteholders. Also issued under the Indenture are the __% Class A-1
Asset Backed Senior Notes (the "Class A-1 Senior Notes" and together with the
Class A-2 Senior Notes, collectively, the "Senior Notes"). The Senior Notes
are subject to all terms of the Indenture. All terms used in this Senior Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented
or amended.
The Senior Notes are and will be equally and ratably secured
by the Collateral as provided in the Indenture.
Under the Indenture, interest will be payable on ______ 15,
______ 15, ______ 15, and ______ 15, of each year, commencing ______ 15, 199_,
(or, if such 15th day is not a Business Day, the next Business Day (the
"Payment Date"), to the Person in whose name this Senior Note is registered at
the close of business on the 14th day of the calendar month in which such Date
occurs, or if Definitive Senior Notes have been issued, to the Person in whose
name this Senior Note is registered on the last day of the calendar month
preceding such Payment Date (the "Record Date"). On each Payment Date, there
shall be distributed to such Senior Noteholder the interest accrued at the
Senior Note Interest Rate during the preceding Interest Accrual Period on the
Outstanding Amount of this Senior Note and the principal, if any, available to
be paid on such Payment Date in accordance with the terms of the Indenture;
provided, however, that
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no principal shall be paid on the Class A-2 Senior Notes until the Class A-1
Senior Notes have been paid in full.
As described above, the entire unpaid principal amount of this
Senior Note shall be due and payable on the earlier of the Stated Maturity and
the Redemption Date, if any, pursuant to Section 10.1 of the Indenture.
Notwithstanding the foregoing, the entire unpaid principal amount of the Senior
Notes shall be due and payable on the date on which an Event of Default shall
have occurred and be continuing and the Indenture Trustee or Senior Noteholders
of Senior Notes evidencing not less than a majority of the Outstanding Amount
of the Senior Notes have declared the Senior Notes to be immediately due and
payable in the manner provided in Section 5.2 of the Indenture. On and after
such date all principal payments on the Senior Notes shall be made to the
Senior Noteholders of the Class A-1 Senior Notes and the Class A-2 Senior Notes
ratably and without preference or priority of any kind until the Outstanding
Amount of the Class A-1 Senior Notes and the Class X- 0 Senior Notes each have
been reduced to zero.
Payments of interest on this Senior Note due and payable on
each Payment Date, together with the payment of principal, if any, to the
extent not in full payment of this Senior Note, shall be made by check mailed
to the Person whose name appears as the Registered Holder of this Senior Note
(or one or more Predecessor Senior Notes) on the Senior Note Register as of the
close of business on each Record Date, except that with respect to Senior Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Senior Note Register as of the
applicable Record Date without requiring that this Senior Note be submitted for
notation of payment. Any reduction in the principal amount of this Senior Note
(or any one or more Predecessor Senior Notes) effected by any payments made on
any Payment Date shall be binding upon all future Senior Noteholders of this
Senior Note and of any Senior Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.
If funds are expected to be avail-
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able, as provided in the Indenture, for payment in full of the then remaining
unpaid principal amount of this Senior Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Lease Trust, will notify
the Person who was the Registered Holder hereof as of the Record Date preceding
such Payment Date by notice mailed prior to such Payment Date and the amount
then due and payable shall be payable only upon presentation and surrender of
this Senior Note at the Indenture Trustee's principal Corporate Trust Office or
at the office of the Inden- ture Trustee's agent appointed for such purposes
located in The City of New York.
The Lease Trust shall pay interest on overdue installments of
interest at the Senior Note Interest Rate to the extent lawful.
As provided in the Indenture, the Senior Notes shall be
redeemed in whole, but not in part, on any Payment Date on or after the date on
which the Pool Balance is less than ten percent of the initial Pool Balance and
on which the Administrative Agent exercises its option to purchase the Series
1996-1 Certificates. The Senior Notes to be redeemed shall, following notice
of redemption as required by Section 10.2 of the Indenture, become due and
payable on the Redemption Date at the Redemption Price and (unless the Lease
Trust shall default in the payment of the Redemption Price) no interest shall
accrue on the Redemption Price for any period from and including the Redemption
Date.
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Senior Note may be
registered on the Senior Note Register upon surrender of this Senior Note for
registration of transfer at the office or agency designated by the Lease
Trustee pursuant to the Indenture, (i) duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Indenture Trustee
duly executed by, the Senior Noteholder of this Senior Note or his attorney
duly authorized in writing, with such signature guaranteed by an "eligible
guarantor institution" meeting the requirements of the Senior Note Registrar
which requirements include membership or participation in Securities Transfer
Agent's Medallion Program ("Stamp") or such other "signature guarantee program"
as may be determined by the Senior Note Regis-
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119
trar in addition to, or in substitution for, Stamp, all in accordance with the
Exchange Act, and (ii) accompanied by such other documents as the Indenture
Trustee may require, and thereupon one or more new Senior Notes of authorized
denominations and in the same aggregate principal amount will be issued to the
designated transferee or transferees. No service charge will be charged for
any registration of transfer or exchange of this Senior Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such
registration of transfer or exchange.
Each Senior Noteholder or Senior Note Owner, by acceptance of
a Senior Note or, in the case of a Senior Note Owner, a beneficial interest in
a Senior Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Lease Trust, the Lease
Trustee or the Indenture Trustee on the Senior Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against (i)
the Indenture Trustee or the Lease Trustee in their individual capacities, (ii)
any owner of a beneficial interest in the Lease Trust or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Indenture
Trustee or the Lease Trustee in their individual capacities, any holder of a
beneficial interest in the Lease Trust, the Lease Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Lease
Trustee in their individual capacities, except as any such Person may have
expressly agreed and except that any such partner, owner or beneficiary shall
be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
The Senior Notes represent obligations of the Lease Trust only
and do not represent interests in, recourse to or obligations of RCL Trust
1996-1, Ford Credit or any of their respective affiliates.
Each Senior Noteholder or Senior Note Owner, by acceptance of
a Senior Note or, in the case of a Senior Note Owner, a beneficial interest in
a Senior Note covenants and agrees that by accepting the benefits of the
Indenture that such Senior Noteholder will not at any
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time institute against the Lease Trust, Ford Credit Leasing, FCTT or RCL Trust
1996-1, or join in any institution against the Lease Trust, Ford Credit Leasing
or the Depositor of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or State bankruptcy or
similar law in connection with any obligations relating to the Senior Notes,
the Indenture or the other Basic Documents; provided, however, that Senior
Noteholders holding 100% of the Outstanding Amount of the Senior Notes may
institute or join in any institution of any such proceedings.
Prior to the due presentment for registration of transfer of
this Senior Note, the Lease Trustee, the Indenture Trustee and any agent of the
Lease Trustee or the Indenture Trustee may treat the Person in whose name this
Senior Note (as of the day of determination or as of such other date as may be
specified in the Indenture) is registered as the owner hereof for all purposes,
whether or not this Senior Note be overdue, and neither the Lease Trustee, the
Indenture Trustee nor any such agent shall be affected by notice to the
contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Lease Trust and the rights of the Senior Noteholders under
the Indenture at any time by the Lease Trust with the consent of Senior
Noteholders holding not less than a majority of the Outstanding Amount of the
Senior Notes. The Indenture also contains provisions permitting Senior
Noteholders holding specified percentages of the Outstanding Amount of the
Senior Notes, on behalf of all Senior Noteholders, to waive compliance by the
Lease Trust with certain provisions of the Indenture and certain past Defaults
under the Indenture and their consequences. Any such consent or waiver by the
Senior Noteholder of this Senior Note (or any one of more Predecessor Senior
Notes) shall be conclusive and binding upon such Senior Noteholder and upon all
future Senior Noteholders of this Senior Note and of any Senior Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Senior Note. The Indenture also permits the Indenture Trustee to amend or
waive certain terms and conditions set forth in the Indenture without the
consent of the Senior Noteholders.
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The term "Lease Trust" as used in this Senior Note includes
any successor to the Lease Trust under the Indenture.
The Senior Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
THIS SENIOR NOTE AND THE INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
No reference herein to the Indenture and no provision of this
Senior Note or of the Indenture shall alter or impair the obligation of the
Lease Trust, which is absolute and unconditional, to pay the principal of and
interest on this Senior Note at the times, place, and rate, and in the coin or
currency herein prescribed.
Anything herein to the contrary notwithstanding, except as
expressly provided in the Basic Documents, neither PNC Bank, Delaware in its
individual capacity, any owner of a beneficial interest in the Lease Trust, nor
any of their respective partners, beneficiaries, agents, officers, directors,
employees or successors or assigns shall be personally liable for, nor shall
recourse be had to any of them for, the payment of principal of or interest on,
or performance of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Senior Note or the Indenture, it being
expressly understood that said covenants, obligations and indemnifications have
been made by the Lease Trustee for the sole purposes of binding the interests
of the Lease Trustee in the assets of the Lease Trust. The Senior Noteholder
of this Senior Note by the acceptance hereof agrees that except as expressly
provided in the Basic Documents, in the case of an Event of Default under the
Indenture, the Senior Noteholder shall have no claim against any of the
foregoing for any deficiency, loss or claim therefrom; provided, however, that
nothing contained herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Lease Trust for any and all liabilities, obligations
and undertakings contained in the Indenture or in this Senior Note.
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ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
___________________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _________________________________________________________________
________________________________________________________________________________
(name and address of assignee)
the within Senior Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________, attorney, to transfer said Senior Note
on the books kept for registration thereof, with full power of substitution in
the premises.
Dated:
-------------------------- -----------------------------------
Signature Guaranteed:
-----------------------------------
-------------------------------------------
__________________________________
* Note: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Senior
Note in every particular, without alteration, enlargement or any
change whatsoever.
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