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EXHIBIT 4.1
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INDENTURE
by and between
FIRST SIERRA EQUIPMENT CONTRACT TRUST 1999-2, A COMMON LAW TRUST
ACTING THROUGH ITS TRUSTEE, FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE
as Issuer,
FIRST SIERRA FINANCIAL, INC.
as Servicer and Originator
and
BANKERS TRUST COMPANY
as the Indenture Trustee
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Dated as of September 1, 1999
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First Sierra Equipment Contract Trust 1999-2
Equipment Contract-Backed Notes
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS............................................................................................1
Section 1.01 Definitions............................................................................1
Section 1.02 Incorporation by Reference of the Trust Indenture Act..................................1
Section 1.03 General Interpretive Principles........................................................1
Section 1.04 Conflict with TIA......................................................................2
ARTICLE II. PLEDGE OF PLEDGED PROPERTY; ORIGINAL ISSUANCE OF NOTES AND RESIDUAL CLASS.............................2
Section 2.01 Pledge of Pledged Property.............................................................2
Section 2.02 Indenture Trustee to Act as Custodian..................................................3
Section 2.03 Conditions to Closing..................................................................3
Section 2.04 Acceptance by Indenture Trustee........................................................4
Section 2.05 Liabilities of the Trust and Parties to this Indenture; Limitations Thereon............5
Section 2.06 Intended Tax Characterization..........................................................5
Section 2.07 Treasury Securities....................................................................6
ARTICLE III. ACCOUNTS; ALLOCATION AND APPLICATION OF THE TRUST FUND..............................................6
Section 3.01 Collection Account.....................................................................6
Section 3.02 Reserved...............................................................................7
Section 3.03 Investment of Monies Held in the Accounts; Subaccounts.................................7
Section 3.04 Reserve Account........................................................................7
Section 3.05 Disbursements From Collection Account..................................................8
Section 3.06 Statements to Noteholders.............................................................11
Section 3.07 Compliance With Withholding Requirements..............................................13
ARTICLE IV. REMOVAL OF NON-CONFORMING PLEDGED PROPERTY; SUBSTITUTION OF CONTRACTS................................14
Section 4.01 Removal of Non-Conforming Pledged Property............................................14
Section 4.02 Substitution of Contracts.............................................................14
Section 4.03 Release of Pledged Property...........................................................15
ARTICLE V. THE NOTES.............................................................................................16
Section 5.01 The Notes.............................................................................16
Section 5.02 Initial Issuance of Notes.............................................................18
Section 5.03 Registration of Transfer and Exchange of Notes........................................19
Section 5.04 Mutilated, Destroyed, Lost or Stolen Notes............................................20
Section 5.05 Persons Deemed Owners.................................................................20
Section 5.06 Access to List of Noteholders' Names and Addresses....................................20
Section 5.07 Acts of Noteholders...................................................................21
Section 5.08 No Proceedings........................................................................21
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ARTICLE VI. THE TRUST............................................................................................21
Section 6.01 Liability of the Trust................................................................21
Section 6.02 Limitation on Liability of the Trust..................................................21
Section 6.03 Indemnity for Liability Claims........................................................22
Section 6.04 Liabilities...........................................................................22
Section 6.05 [Reserved.]...........................................................................22
Section 6.06 Annual Statement as to Compliance.....................................................22
Section 6.07 Payment of Principal and Interest.....................................................23
Section 6.08 Maintenance of Office or Agency.......................................................23
Section 6.09 Money for Payments to be Held in Trust................................................23
Section 6.10 Existence.............................................................................24
Section 6.11 Protection of Pledged Property........................................................24
Section 6.12 Performance of Obligations; Servicing of Receivables..................................25
Section 6.13 Negative Covenants....................................................................26
Section 6.14 Trust May Consolidate, Etc. Only on Certain Terms.....................................26
Section 6.15 Successor or Transferee...............................................................28
Section 6.16 No Other Business.....................................................................28
Section 6.17 No Borrowing..........................................................................28
Section 6.18 Guarantees, Loans, Advances and Other Liabilities.....................................28
Section 6.19 Capital Expenditures..................................................................28
Section 6.20 Compliance with Laws..................................................................29
Section 6.21 Further Instruments and Acts..........................................................29
ARTICLE VII. THE INDENTURE TRUSTEE...............................................................................29
Section 7.01 Duties of Indenture Trustee...........................................................29
Section 7.02 Eligible Investments..................................................................30
Section 7.03 Indenture Trustee's Assignment of Contracts...........................................31
Section 7.04 Certain Matters Affecting the Indenture Trustee.......................................31
Section 7.05 Indenture Trustee Not Liable for Notes or Contracts...................................32
Section 7.06 Indenture Trustee May Own Notes.......................................................33
Section 7.07 Indenture Trustee's Fees and Expenses.................................................33
Section 7.08 Eligibility Requirements for Indenture Trustee........................................34
Section 7.09 Preferential Collection of Claims Against Issuer......................................34
Section 7.10 Resignation or Removal of Indenture Trustee...........................................35
Section 7.11 Successor Indenture Trustee...........................................................35
Section 7.12 Merger or Consolidation of Indenture Trustee..........................................36
Section 7.13 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.....................36
Section 7.14 Indenture Trustee May Enforce Claims Without Possession of Note.......................37
Section 7.15 Suits for Enforcement.................................................................38
Section 7.16 Undertaking for Costs.................................................................38
Section 7.17 Representations and Warranties of Indenture Trustee...................................38
Section 7.18 Tax Returns...........................................................................39
ARTICLE VIII. EVENTS OF DEFAULT; REMEDIES........................................................................39
Section 8.01 Events of Default.....................................................................39
Section 8.02 Acceleration of Maturity, Rescission and Annulment....................................40
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Section 8.03 Remedies..............................................................................41
Section 8.04 Notice of Event of Default............................................................41
Section 8.05 Exercise of Power by Indenture Trustee................................................41
Section 8.06 Indenture Trustee May File Proofs of Claim............................................41
Section 8.07 Allocation of Money Collected.........................................................42
Section 8.08 Waiver of Events of Default...........................................................43
Section 8.09 Limitation On Suits...................................................................43
Section 8.10 Unconditional Right of Noteholders to Receive Principal and Interest..................44
Section 8.11 Restoration of Rights and Remedies....................................................44
Section 8.12 Rights and Remedies Cumulative........................................................44
Section 8.13 Delay or Omission Not Waiver..........................................................45
Section 8.14 Control by Controlling Parties........................................................45
Section 8.15 Sale of Pledged Property..............................................................45
Section 8.16 Action on Notes.......................................................................45
ARTICLE IX. TERMINATION..........................................................................................46
Section 9.01 Termination of Obligations and Responsibilities.......................................46
Section 9.02 Optional Redemption of Notes; Final Disposition of Funds..............................46
ARTICLE X. NOTEHOLDERS' LISTS AND REPORTS........................................................................47
Section 10.01 Note Registrar To Furnish To Indenture Trustee Names and Addresses of Noteholders.....47
Section 10.02 Preservation of Information; Communications to Noteholders............................47
Section 10.03 Reports by the Trust..................................................................48
Section 10.04 Reports by Indenture Trustee..........................................................48
Section 10.05 Compliance Certificates and Opinions, etc.............................................48
ARTICLE XI. MISCELLANEOUS PROVISIONS.............................................................................49
Section 11.01 Amendment.............................................................................49
Section 11.02 Conformity With Trust Indenture Act...................................................50
Section 11.03 Limitation on Rights of Noteholders...................................................50
Section 11.04 Counterparts..........................................................................50
Section 11.05 Governing Law.........................................................................50
Section 11.06 Notices...............................................................................51
Section 11.07 Severability of Provisions............................................................51
Section 11.08 Conflict with Trust Indenture Act.....................................................51
Section 11.09 Reserved..............................................................................52
Section 11.10 Assignment............................................................................52
Section 11.11 Binding Effect........................................................................52
Section 11.12 Survival of Agreement.................................................................52
Section 11.13 Captions..............................................................................52
Section 11.14 Exhibits..............................................................................52
Section 11.15 Calculations..........................................................................52
Section 11.16 No Proceedings........................................................................52
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Exhibits
Exhibit A - Form of Trustee's Receipt
Exhibit B - Form of Wiring Instructions
Exhibit C - Form of Class A Notes
Exhibit D - Form of Subordinate Notes
Exhibit E - Form of Transferee Certification (Non-144A)
Exhibit F - Form of Transferee Certification (144A QIB)
Exhibit G - Form of Transferee Certification (Investment Company)
Exhibit H - Form of Instrument of Transfer
Annex A - Defined Terms
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FIRST SIERRA EQUIPMENT CONTRACT TRUST 1999-2
Reconciliation and Tie between the Indenture
dated as of September 1, 1999 and the
Trust Indenture Act of 1939, as amended
Trust Indenture Act Section Indenture Section
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Section 310(a)(1) Section 7.08
(a)(2) 7.08
(a)(3) 7.13
(a)(4) Not Applicable
(b) 7.08; 7.10
(c) Not Applicable
311(a) 7.09
(b) 7.09
312(a) 10.02
(b) 10.02
(c) 10.02
313(a) 10.04
(b)(1) 10.02; 10.04; 4.01; 4.02; 4.03
(b)(2) 10.04
(c) 10.04
(d) 10.04
314(a) 10.03; 3.05; 6.06
(b) Not Applicable
(c)(1) 10.05
(c)(2) 10.05
(c)(3) Not Applicable
(d) Not Applicable
(e) 10.05
(f) Not Applicable
315(a) 7.01; 7.05
(b) 8.04
(c) 8.05
(d) 7.01
(e) 7.01
316(a) (last sentence) 2.07
(a)(1)(A) 7.17
(a)(1)(B) 8.06
317(a)(1) 8.03
(a)(2) 8.04
(b) 6.09
318(a) 11.09
(c) 11.09
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This INDENTURE, dated as of September 1, 1999, is made by and
between First Sierra Equipment Contract Trust 1999-2, a common law trust acting
through its trustee, First Union Trust Company, National Association, not in its
individual capacity but solely as Owner Trustee (the "Issuer" or the "Trust"),
First Sierra Financial, Inc., as servicer (in such capacity, the "Servicer"), as
originator (in such capacity, the "Originator") and, in its individual capacity
(in such capacity "First Sierra") and Bankers Trust Company, a New York banking
corporation, not in its individual capacity but solely as the indenture trustee
(the "Indenture Trustee").
WITNESSETH:
In consideration of the mutual agreements herein contained,
and of other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions. Capitalized terms used and not
defined herein shall have the meanings specified in Annex A hereto.
Section 1.02 Incorporation by Reference of the 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:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"Indenture Trustee" or "institutional trustee" means the
Indenture Trustee.
"obligor" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by
the TIA, or defined by Commission rule have the meaning assigned to them by such
definitions.
Section 1.03 General Interpretive Principles. For purposes of
this Indenture except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Indenture have the meanings
assigned to them in this Indenture and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender;
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(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "Paragraphs" and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Indenture;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
Section 1.04 Conflict with TIA. If any provision hereof
limits, qualifies or conflicts with a provision of the TIA that is required
under the TIA to be part of and govern this Indenture, the latter provision
shall control and all provisions required by the TIA are hereby incorporated by
reference. If any provision of this Indenture modifies or excludes any provision
of the TIA that may be so modified or excluded, the latter provisions shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
ARTICLE II.
PLEDGE OF PLEDGED PROPERTY;
ORIGINAL ISSUANCE OF NOTES AND RESIDUAL CLASS
Section 2.01 Pledge of Pledged Property. The Trust,
simultaneously with the execution and delivery of this Indenture, does hereby
pledge, deposit, transfer, assign, and otherwise grant to the Indenture Trustee,
without recourse (except as otherwise expressly set forth herein), to be held in
trust for the benefit of the Noteholders, as provided in this Indenture, all the
right, title, and interest of the Owner Trustee on behalf of the Trust in and to
(a)(i) any Equipment that is owned by the Owner Trustee on behalf of the Trust
and any and all income and proceeds from such Equipment, but subject to the
rights of the Obligor to quiet enjoyment of such Equipment under the related
Contract and (ii) any security interest of the Owner Trustee on behalf of the
Trust in any of the Equipment that is not owned by the Owner Trustee on behalf
of the Trust, (b) the Contracts, including, without limitation, all Scheduled
Payments, Final Scheduled Payments, Defaulted Contract Recoveries and any other
payments due or made with respect to the Contracts after the related Cut-Off
Date, (c) any guarantees of an Obligor's obligations under a Contract, (d) all
other documents in the Contract Files relating to the Contracts, including,
without limitation, any UCC financing statements related to the Contracts or the
Equipment, (e) any Insurance Policies and Insurance Proceeds with respect to the
Contracts, (f) all of the Trust's right, title and interest in and to, and
rights under the Receivables Transfer Agreement and the Servicing Agreement,
each as executed and delivered in accordance therewith, (g) all amounts on
deposit in the Collection Account, the Reserve Account and the
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Lockbox Account, held by the Indenture Trustee, (h) all of the Trust's right,
title and interest in and to, and rights and claims under, all Source Agreements
and Source Agreement Rights to the extent they relate to any Contract and any
Equipment covered by the Contracts, and (i) any and all income and proceeds of
any of the foregoing (all of the foregoing, collectively, constituting the
"Pledged Property"); provided, however, that the pledge, transfer and assignment
effected by this Section 2.01 shall not include the Initial Unpaid Amounts
relating thereto.
This Indenture is a security agreement within the meaning of
Article 8 and Article 9 of the Uniform Commercial Code as in effect in the
States of Delaware, New York and Texas. The pledge provided for in this Section
2.01 is intended by the Trust to be a grant by the Trust to the Indenture
Trustee on behalf of the Noteholders, of a valid first priority perfected
security interest in all of the Owner Trustee's right, title and interest (on
behalf of the Trust) in and to the Pledged Property whether now or hereafter
owned and wherever located.
Section 2.02 Indenture Trustee to Act as Custodian. The
executed original counterpart of each Contract, together with the other
documents or instruments, if any, which constitute a part of a Contract File
shall be held by the Indenture Trustee for the benefit of the Noteholders.
Section 2.03 Conditions to Closing. As conditions to the
execution, authentication and delivery of the Notes by the Indenture Trustee and
the sale of the Notes by the Trust (by issuance thereof by the Trust upon the
Trust's instructions) on the Closing Date, (i) the Trust shall have received by
wire transfer the net proceeds of sale of the Class A Notes, the Class B Notes,
the Class C Notes, the Class D Notes and the Class E Notes in authorized
denominations equal in the aggregate to the Initial Class A Note Principal
Balance, the Initial Class B Note Principal Balance, the Initial Class C Note
Principal Balance, the Initial D Principal Balance and the Initial Class E Note
Principal Balance, and (ii) the Indenture Trustee shall have received the
following on or before the Closing Date:
(a) The List of Initial Contracts, certified by the President,
any Senior Vice President, any Vice President or any Assistant Vice President of
the Servicer;
(b) Copies of resolutions of the Depositor approving the
execution, delivery and performance of the Transaction Documents to which it is
a party and the transactions contemplated hereby and thereby, certified by a
Secretary or an Assistant Secretary of the Depositor;
(c) A copy of an officially certified document, dated not more
than 30 days prior to the Closing Date, evidencing the due organization and good
standing of the Depositor in the State of Delaware;
(d) A copy of the Trust Certificate;
(e) Delivery of the executed Financing Statements with respect
to the Initial Contracts, in accordance with the Filing Requirements, prepared
for filing;
(f) A certificate listing the Servicing Officers as of the
Closing Date;
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(g) Executed copies of the Transaction Documents;;
(h) Copies of resolutions of the Board of Directors of First
Sierra approving the execution, delivery and performance of this Indenture and
the other Transaction Documents to which it is a party and the transactions
contemplated hereby and thereby, certified by a Secretary or an Assistant
Secretary of First Sierra;
(i) A copy of an officially certified document, dated not more
than 30 days prior to the Closing Date, evidencing the due organization and good
standing of First Sierra in the States of Delaware and Texas;
(j) A custody receipt, substantially in the form of Exhibit A
hereto, pursuant to which the Indenture Trustee certifies that it has received a
contract file with respect to each Initial Contract on the List of Initial
Contracts;
(k) All Necessary Consents;
(l) A letter from Xxxxx'x that it has assigned a rating of (i)
"P-1" to the Class A-1 Notes, (ii) "Aaa" to the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and (iii) "A2" to the Class B Notes;
(m) A letter from S&P that it has assigned a rating of (i)
"A-1+" to the Class A-1 Notes, (ii) "AAA" to the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes and (iii) "A" to the Class B Notes;
(n) A letter from DCR that it has assigned a rating of (i)
"D-1+" to the Class A-1 Notes, (ii) AAA to the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes, (iii) "A" to the Class B Notes, (iv) "BBB" to the
Class C Notes, (v) "BB" to the Class D Notes; and (vi) "B" to the Class E Notes;
(o) A letter from Fitch that it has assigned a rating of (i)
F1+ to the Class A-1 Notes, (ii) "AAA" to the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes, (iii) "A" to the Class B Notes, (iv) "BBB" to the
Class C Notes, (v) "BB" to the Class D Notes, and (vi) "B" to the Class E Notes;
and
(p) Opinions of counsel to First Sierra and the Depositor, in
form and substance acceptable to the Indenture Trustee, covering such matters as
the Indenture Trustee may reasonably request including, without limitation,
opinions concerning nonconsolidation, true sale, security interest, federal tax
and general corporate matters.
Section 2.04 Acceptance by Indenture Trustee. The Indenture
Trustee acknowledges its acceptance, simultaneously with the execution and
delivery of this Indenture, of all right, title and interest in and to the
Pledged Property on behalf of the Noteholders and declares that the Indenture
Trustee holds and will hold such right, title and interest for the benefit of
all present and future Noteholders for the use and purpose and subject to the
terms and provisions of this Indenture. The Trust hereby (a) appoints the
Indenture Trustee as the Trust's attorney-in-fact with all power independently
to enforce all of the Trust's rights against the Originator hereunder, under the
Receivables Transfer Agreement and under the Servicing
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Agreement and (b) directs the Indenture Trustee to enforce such rights. The
Indenture Trustee hereby accepts such appointment and agrees to enforce such
rights.
Section 2.05 Liabilities of the Trust and Parties to this
Indenture; Limitations Thereon. (a) The obligations evidenced by the Notes
provide recourse only to the Pledged Property and provide no recourse against
First Sierra, the Depositor, the Servicer, the Indenture Trustee, the Owner
Trustee or any other Person, except as set forth in paragraph (b) below.
(b) Neither First Sierra, the Trust, the Depositor, the
Servicer nor any other Person shall be liable to the Indenture Trustee or the
Noteholders except as provided in Article VI hereof and Sections 5.01, 5.03, and
5.07 of the Servicing Agreement and Section 4.01(g) of the Receivables Transfer
Agreement. Without limiting the generality of the foregoing, if any Obligor
fails to pay any Scheduled Payment, Final Scheduled Payment or other amounts due
under a Contract, then neither the Indenture Trustee nor the Noteholders will
have any recourse against First Sierra or the Servicer for such Scheduled
Payment, Final Scheduled Payment, other amounts due under the Contract or any
losses, damages, claims, liabilities or expenses incurred by the Indenture
Trustee or any Noteholder as a direct or indirect result thereof, except as may
be provided for in Article VI hereof and Sections 5.01, and 5.07 of the
Servicing Agreement and Section 4.01(g) of the Receivables Transfer Agreement.
(c) The Indenture Trustee agrees that in the event of a
default by an Obligor under the terms of a Contract, which default is not cured
within any applicable cure period set forth in such Contract, the Indenture
Trustee and the Noteholders shall be expressly limited to the sources of payment
specified herein. In addition, the Indenture Trustee shall have the right to
exercise the rights of the Originator under the Contracts, the Insurance
Policies and any document in any Contract File in the name of the Indenture
Trustee and the Noteholders, either directly or through the Servicer as agent,
and the Indenture Trustee is hereby directed by the Trust to exercise such
rights; provided, however, that the Indenture Trustee shall not be required to
take any action pursuant to this Section 2.05(c) except upon written
instructions from the Servicer. A carbon, photographic or other reproduction of
this Indenture or any financing statement is sufficient as a financing statement
in any State.
(d) The pledge of the Pledged Property by the Trust pursuant
to this Indenture does not constitute and is not intended to result in an
assumption by the Indenture Trustee, the Trust or any Noteholder of any
obligation (except for the obligation not to disturb an Obligor's right of quiet
enjoyment) of the Originator or the Servicer to any Obligor or other Person in
connection with the Equipment, the Contracts, the Insurance Policies or any
document in the Contract Files.
Section 2.06 Intended Tax Characterization. The parties hereto
agree that it is their mutual intent that, for all applicable tax purposes, the
Class A Notes and the Subordinate Notes will constitute indebtedness and that
for all applicable tax purposes, accordingly, the Trust will be treated as sole
and exclusive owner of the Pledged Property. Further, each party hereto and each
Noteholder (by receiving and holding a Note), hereby covenants to every other
party hereto and to every other Noteholder to treat the Class A Notes and the
Subordinate Notes as indebtedness for all applicable tax purposes in all tax
filings, reports and returns and otherwise, and further covenants that neither
it nor any of its Affiliates will take, or participate in the taking
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of or permit to be taken, any action that is inconsistent with the treatment of
the Class A Notes or of the Subordinate Notes as indebtedness for tax purposes.
All successors and assigns of the parties hereto shall be bound by the
provisions hereof.
Section 2.07 Treasury Securities. In determining whether the
Noteholders of the required outstanding principal balance of the Notes have
concurred in any direction, waiver or consent, Notes owned by First Sierra, any
other obligor upon the Notes or any Affiliate of First Sierra shall be
considered as though not outstanding, except that for the purposes of
determining whether the Indenture Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which a Responsible Officer
actually knows are so owned shall be so disregarded.
ARTICLE III.
ACCOUNTS; ALLOCATION AND APPLICATION OF
THE TRUST FUND
Section 3.01 Collection Account. (a) The Servicer shall
establish and maintain with the Indenture Trustee an Eligible Bank Account (the
"Collection Account") for the benefit of the Noteholders as an Eligible Bank
Account, in the name of "First Sierra Equipment Contract-Backed Notes 1999-2
Collection Account, in trust for the registered holders of Equipment
Contract-Backed Notes, Series 1999-2." At the Servicer's written direction, the
Indenture Trustee shall make withdrawals from the Collection Account only as
provided in this Indenture. The Indenture Trustee shall possess all right, title
and interest in all funds on deposit from time to time in the Collection Account
and all proceeds thereof. The Collection Account shall be under the sole
dominion and control of the Indenture Trustee for the benefit of the
Noteholders.
(b) At the times indicated in this Section 3.01(b) or in
Section 3.01(c) below, the following amounts (net of Excluded Amounts) shall be
deposited in the Collection Account in immediately available funds:
(i) The Servicer shall deposit or cause to be
deposited the aggregate amounts of Collections;
(ii) The Servicer shall deposit the aggregate
Servicer Advances payable pursuant to Section 4.03 of the
Servicing Agreement;
(iii) The Servicer shall deposit any Repurchase
Amounts payable by it under the Servicing Agreement, or by the
Originator pursuant to Section 4.01 hereof; and
(iv) Investment Earnings, as described in Section
3.03(a) hereof.
(c) The Servicer shall so transfer the aggregate amount of
Collections no later than two Business Days after the Servicer's receipt of such
amount. The Servicer shall so deposit the aggregate amount of Servicer Advances
no later than one day prior to the related Payment Date. The Servicer shall
instruct the Indenture Trustee in writing to deposit the portion of any
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Advance Payment due and owing for a Collection Period no later than the related
Determination Date. Except as otherwise expressly set forth, any other deposits
and transfers of funds to be made pursuant to this Section 3.01 shall be made no
later than the third Business Day immediately preceding the related Payment
Date.
Notwithstanding the foregoing, the Servicer may deduct from
amounts otherwise payable to the Collection Account amounts previously deposited
by the Servicer into the Collection Account but (i) subsequently uncollectable
as a result of dishonor of the instrument of payment for or on behalf of the
Obligor or (ii) later determined to have resulted from mistaken deposits.
Section 3.02 Reserved.
Section 3.03 Investment of Monies Held in the Accounts;
Subaccounts. (a) The Servicer shall direct the Indenture Trustee in writing to
invest the amounts in each Account in Eligible Investments that mature not later
than the Business Day immediately preceding the next Payment Date following the
investment of such amounts. Eligible Investments shall not be sold or disposed
of prior to their maturities. The Trust Certificate Holder shall be entitled to
the Investment Earnings on amounts held in the Accounts as earned. The amount of
any Insured Payment shall be held uninvested.
(b) The Indenture Trustee and the Servicer may, from time to
time and in connection with the administration of any Account, establish and
maintain with the Indenture Trustee one or more sub-accounts of any of the
Accounts, as the Indenture Trustee and/or the Servicer may consider useful.
Section 3.04 Reserve Account. (a) The Servicer shall establish
and maintain with the Indenture Trustee an Eligible Bank Account (the "Reserve
Account") for the benefit of the Noteholders as an Eligible Bank Account, in the
name of "First Sierra Equipment Contract-Backed Notes 1999-2 Collection Account,
in trust for the registered holders of Equipment Contract-Backed Notes, Series
1999-2." At the Servicer's written direction, the Indenture Trustee shall make
withdrawals from the Reserve Account only as provided in this Indenture. The
Indenture Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Reserve Account and all proceeds thereof. The
Reserve Account shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Noteholders.
(a) On the Closing Date, the Indenture Trustee shall deposit
the Requisite Amount into the Reserve Account from the proceeds of the sale of
the Notes. Amounts on deposit in the Reserve Account shall be invested in
accordance with Section 3.02 hereof. The Trust Certificate Holder shall be
entitled to any net income from such investment.
(b) On each Payment Date, to the extent that the related
Monthly Statement discloses a deficiency, the Indenture Trustee shall withdraw
from Reserve Account, to the extent necessary, the amounts, if any, necessary to
fund such deficiencies in the following amounts, in the following order of
priority:
(i) the Class A Note Interest then due;
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(ii) the Class B Note Interest then due;
(iii) the Class C Note Interest then due;
(iv) the Class D Note Interest then due;
(v) the amount necessary to reduce the Note Principal
Balance of any Class of Notes having its stated
Maturity Date on such Payment Date to zero;
(vi) the Class A Principal Payment Amount, the Class B
Principal Payment Amount, the Class C Principal
Payment Amount, the Class D Principal Payment Amount,
and Reallocated Principal in accordance with the
payment priorities set forth in clauses (x) through
(xiv) of Section 3.05(b) hereof;
(vii) the Class E Note Interest then due; and
(viii) the Class E Principal Payment Amount due on such
Payment Date;
provided; however, that in the event that payments on the
Contracts may not be used to make payments on the Notes due to the bankruptcy of
First Sierra, amounts on deposit in the Reserve Account shall only be available
to pay Note Interest on the related Class of Notes and principal payments on the
related Maturity Date of the Notes in the priorities set forth above.
(c) On each Payment Date, (after giving effect to any
withdrawals therefrom on such Payment Date in accordance with the foregoing),
the Available Funds remaining after the distributions made pursuant to clauses
(i) through (xvii) of Section 3.05(b) hereof, if any, will be deposited in the
Reserve Account in the amount necessary to maintain the amount on deposit in the
Reserve Account at the Requisite Amount with respect to such Payment Date. On
any Payment Date, if the amount on deposit in the Reserve Account (after giving
effect to any withdrawals therefrom on such Payment Date in accordance with the
foregoing) is in excess of the Requisite Amount with respect to such Payment
Date, such excess shall be distributed to the Trust Certificate Holder.
Section 3.05 Disbursements From Collection Account. (a) On
each Payment Date, the Indenture Trustee shall pay the entire amount of money
then on deposit in the Collection Account with respect to the related Collection
Period, as indicated on the Monthly Statement, as applicable, to the Persons to
which such money is then due, calculated on the basis of and in accordance with
the Monthly Statement for the related Collection Period; provided, however, that
in the event the Servicer fails to deliver a Monthly Statement by a Payment Date
the Indenture Trustee shall, nevertheless, pay interest on each Class of Notes
from the sources of funding set forth herein, in each case in an amount with
respect to each Class equal to the product of (i) one-twelfth, (ii) the related
Note Rate and (iii) the related Note Principal Balance, as reflected on the
Monthly Statement most recently delivered by the Servicer (net of any principal
payments in respect thereof on the immediately preceding Payment Date).
(b) On each Payment Date, the Indenture Trustee shall pay such
money to the following Persons, in the following order of priority, without
duplication:
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(i) To First Sierra by wire transfer of immediately
available funds, the aggregate amount of any Initial Unpaid
Amounts inadvertently deposited in the Collection Account;
(ii) From the amount then remaining in the Collection
Account, to any party entitled thereto, by check, any
indemnity payments paid pursuant to any Contract, to the
extent that such amounts are inadvertently deposited in the
Collection Account;
(iii) From the Available Funds then remaining in the
Collection Account, to the Servicer by wire transfer to the
account designated in writing by the Servicer of immediately
available funds, the aggregate amount of the following:
(A) An amount equal to the unreimbursed
Servicer Advances (other than Servicer Advances for
the current Collection Period);
(B) An amount equal to the Servicer Fee
owing on such Payment Date, plus any unpaid Servicer
Fee owing from prior Collection Periods; and
(C) Any Servicing Charges inadvertently
deposited in the Collection Account;
(iv) From the Available Funds then remaining in the
Collection Account, to the Indenture Trustee by wire transfer
to the account designated in writing by the Indenture Trustee,
an amount equal to the Indenture Trustee Fees owing on such
Payment Date, plus any unpaid Indenture Trustee Fees from
prior Collection Periods, subject to the limitation set forth
in Section 7.07 (a)(i) hereof;
(v) From the Available Funds then remaining in the
Collection Account, to the Indenture Trustee by wire transfer
to the account designated in writing by the Indenture Trustee,
an amount equal to the reimbursable expenses due and unpaid to
the Indenture Trustee in accordance with and subject to
Section 7.07(a)(ii) hereof;
(vi) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, to the Class A-1 Noteholders, the Class
A-1 Note Interest for the related Collection Period, to the
Class A-2 Noteholders, the Class A-2 Note Interest for the
related Collection Period, to the Class A-3 Noteholders, the
Class A-3 Note Interest for the related Collection Period, and
to the Class A-4 Noteholders, the Class A-4 Note Interest for
the related Collection Period pari passu;
(vii) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, to the Class B Noteholders an amount
equal to the Class B Note Interest for the related Collection
Period;
(viii) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, to the Class C
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Noteholders an amount equal to the Class C Note Interest for
the related Collection Period;
(ix) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, to the Class D Noteholders an amount
equal to the Class D Note Interest for the related Collection
Period;
(x) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account until the Class A Note Principal Balance
has been reduced to zero, to the Class A Noteholders from the
Available Funds then remaining in the Collection Account, the
Class A Principal Payment Amount for such Payment Date, such
amount to be applied sequentially, with 100% of such amount
being applied to reduce the Note Principal Balance of the
Class A Notes then Outstanding and having the lowest numerical
designation (e.g., first to the Class A-1 Notes) to zero
before any principal payment is made to the next Class;
(xi) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, until the Class B Note Principal Balance
has been reduced to zero, to the Class B Noteholders, the
Class B Principal Payment Amount for such Payment Date;
(xii) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, until the Class C Note Principal Balance
has been reduced to zero, to the Class C Noteholders, Class C
Principal Payment Amount for such Payment Date;
(xiii) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, until the Class D Note Principal Balance
has been reduced to zero, to the Class D Noteholders, the
Class D Principal Payment Amount for such Payment Date;
(xiv) From the Available Funds then on deposit in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, to pay the Reallocated Principal, if any,
as an additional reduction of principal to the Class A
Noteholders, as provided in clause (x) above, until the Note
Principal Balance on all of the Class A Notes has been reduced
to zero, then to Class B Noteholders until the Note Principal
Balance on the Class B Notes has been reduced to zero, then to
the Class C Noteholders until the Note Principal Balance on
the Class C Notes has been reduced to zero, then to the Class
D Noteholders until the Note Principal Balance on the Class D
Notes has been reduced to zero, and finally to the Class E
Noteholders, until the Note Principal Balances on the Class E
Notes has been reduced to zero;
(xv) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, to the Class E Noteholders an amount
equal to the Class E Note Interest for the related Collection
Period;
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(xvi) From the Available Funds then remaining in the
Collection Account and from amounts, if any, transferred from
the Reserve Account, until the Class E Note Principal Balance
has been reduced to zero, to the Class E Noteholders, the
Class E Principal Payment Amount for such Payment Date;
(xvii) From the Available Funds then on deposit in
the Collection Account, to pay the Supplemental Principal
Payment Amount, if any, first, to the Class A-1 Noteholders,
until the Class A-1 Note Principal Balance has been reduced to
zero and second, after the Class A-1 Note Principal Balance
has been reduced to zero, to the Noteholders of each Class of
Notes then Outstanding, on a pro rata basis;
(xviii) From Available Funds then remaining in the
Collection Account, to the Reserve Account, the amount
necessary to maintain the amount on deposit therein at the
Requisite Amount for such Payment Date;
(xix) From the Available Funds then remaining in the
Collection Account, to the Indenture Trustee, the Indenture
Trustee Expenses then due together with any Indenture Trustee
Expenses from prior Collection Periods, in excess of the
$75,000 limitation set forth in Section 7.07(a)(ii) hereof,
and
(xx) From the Available Funds then remaining in the
Collection Account, to the Trust Certificate Holder, any
remaining amounts.
(c) All payments to Noteholders shall be made on each Payment
Date to each Noteholder of record on the related Record Date by check, or, if
requested by such Noteholder, by wire transfer to the account designated in
writing in the form of Exhibit B hereto (or such other account as the Noteholder
may designate in writing) delivered to the Indenture Trustee on or prior to the
related Determination Date, in immediately available funds, in amounts equal to
such Noteholder's pro rata share (based on the aggregate Class A Percentage
Interest in the case of the Class A Noteholders, the Class B Percentage Interest
in the case of the Class B Noteholders, the Class C Percentage Interest in the
case of the Class C Noteholders, the Class D Percentage in the case of the Class
D Noteholders and the Class E Percentage in the case of the Class E Noteholders)
of such payment.
Section 3.06 Statements to Noteholders. (a) If the Servicer
has delivered the Monthly Statement on the preceding Determination Date, then on
each Payment Date, the Servicer will forward such Monthly Statement to the
Indenture Trustee. Not later than one Business Day prior to such Payment Date,
the Indenture Trustee will mail to the Rating Agencies a statement (which
statement will be prepared by the Servicer furnished to the Indenture Trustee in
the Monthly Statement delivered pursuant to Section 4.07 of the Servicing
Agreement or otherwise pursuant to this Indenture), setting forth the following
information (per $1,000 of the Initial Class A Note Principal Amount, the
Initial Class B Note Principal Amount, the Initial Class C Note Principal
Amount, the Initial Class D Note Principal Amount or the Initial Class D Note
Principal Amount (as the case may be) as to (i) and (ii) below):
(i) With respect to a statement to a Class A
Noteholder, a Class B Noteholder, a Class C Noteholder, a
Class D Noteholder or a Class E Noteholder, the amount of such
payment allocable to such Noteholder's Percentage Interest of
the Class A
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Principal Payment Amount, Class B Principal Payment Amount,
Class C Principal Payment Amount, Class D Principal Payment
Amount or Class E Principal Payment Amount, as applicable;
(ii) With respect to a statement to a Noteholder, the
amount of such payment allocable to such Noteholder's
Percentage Interest of Class A-1, Class A-2, Class A-3, Class
A-4, Class B, Class C, Class D or Class E Note Current
Interest and Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class
B, Class C, Class D or Class E Overdue Interest, as
applicable;
(iii) The aggregate amount of fees and compensation
received by the Servicer pursuant to Section 3.05 hereof for
the Collection Period;
(iv) The aggregate Class A Note Principal Balance
(and, individually, the Class A-1 Note Principal Balance, the
Class A-2 Note Principal Balance, the Class A-3 Note Principal
Balance, the Class A-4 Note Principal Balance), the aggregate
Class B Note Principal Balance, the aggregate Class C Note
Principal Balance, the aggregate Class D Note Principal
Balance and the aggregate Class E Note Principal Balance, the
Class A Percentage, the Class B Percentage, the Class C
Percentage, the Class D Percentage, the Class E Percentage,
the Class A Note Factor, the Class B Note Factor, the Class C
Note Factor, the Class D Note Factor, the Class E Note Factor,
the Pool Factor and the Aggregate Discounted Contract
Principal Balance, after taking into account all distributions
made on such Payment Date;
(v) The total unreimbursed Servicer Advances with
respect to the related Collection Period;
(vi) The amount of Residual Receipts and Defaulted
Contract Recoveries for the related Collection Period and the
Aggregate Discounted Contract Principal Balances for all
Contracts that became Defaulted Contracts during the related
Collection Period; and
(vii) The total number of Contracts and the Aggregate
Discounted Contract Principal Balances thereof, together with
the number and Aggregate Discounted Contract Principal
Balances of all Contracts as to which the Obligors, as of the
related Calculation Date, have missed one, two, three or four
Scheduled Payments (including Final Scheduled Payments), and
Delinquent Contracts reconveyed.
(b) By January 31 of each calendar year, commencing January
31, 2000, or as otherwise required by applicable law, the Indenture Trustee
shall furnish to each Person who at any time during the immediately preceding
calendar year was a Noteholder a statement prepared by the Servicer, and
delivered to the Indenture Trustee, containing the applicable aggregate amounts
distributed with respect to such Noteholder hereof for such calendar year or, in
the event such Person was a Noteholder during a portion of such calendar year,
for the applicable portion of such year, for the purposes of such Noteholder's
preparation of federal income tax returns. In addition to the foregoing the
Servicer and the Indenture Trustee (to the extent the Servicer has provided the
necessary information to the Indenture Trustee) shall make available to
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Noteholders any other information provided to the Servicer or the Indenture
Trustee or otherwise in the Indenture Trustee's possession reasonably requested
by Noteholders in connection with tax matters, in accordance with the written
directions of the Servicer.
(c) The Servicer shall furnish to each Subordinate Noteholder,
on request, during the term of this Indenture, such periodic, special or other
reports or information not specifically provided for herein, as shall be
necessary, reasonable or appropriate with respect to such Subordinate Noteholder
all such reports or information to be provided by and in accordance with such
applicable instructions and directions as the Subordinate Noteholder may
reasonably require and as the Servicer may reasonably be able to produce;
provided, however, that the Servicer may require such Subordinate Noteholder to
execute a confidentiality agreement in form and substance acceptable to the
Servicer.
(d) The Indenture Trustee shall promptly send to each
Noteholder and to the Rating Agencies in writing:
(i) Notice of any breach by First Sierra, the
Depositor, the Trust, the Originator or the Servicer of any of
their respective representations, warranties and covenants
made herein, the Servicing Agreement or in the Receivables
Transfer Agreement.
(ii) A copy of each Servicer compliance statement
delivered to the Indenture Trustee pursuant to Section 4.09 of
the Servicing Agreement.;
(iii) Notice of any breach by the Indenture Trustee
of its representations and warranties set forth in Section
7.17 hereof of which a Responsible Officer has actual
knowledge;
(iv) Notice of the occurrence of any Event of Default
(which shall also be given to the Rating Agencies);
(v) Notice of any Event of Servicing Termination, or
any other default under any of the Transaction Documents; and
(vi) Notice of the resignation or removal of the
Indenture Trustee;
provided, however, that in each case the Indenture Trustee shall only be
required to send such notices and other items to the Subordinate Noteholders to
the extent that the Indenture Trustee has itself received the related
information and the Subordinate Noteholders have not already received such
notice or other items. Except as may be specifically provided herein, the
Indenture Trustee shall have no obligation to seek to obtain any such
information.
Section 3.07 Compliance With Withholding Requirements.
Notwithstanding any other provisions of this Indenture, the Indenture Trustee,
as paying agent for and on behalf of, and at the direction of the Servicer,
shall comply with all federal withholding requirements respecting payments (or
advances thereof) to Noteholders as may be applicable to instruments
constituting indebtedness for federal income tax purposes. Any amounts so
withheld shall be
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treated as having been paid to the related Noteholder for all purposes of this
Indenture. In no event shall the consent of Noteholders be required for any
withholding.
ARTICLE IV.
REMOVAL OF NON-CONFORMING PLEDGED
PROPERTY; SUBSTITUTION OF CONTRACTS
Section 4.01 Removal of Non-Conforming Pledged Property. (a)
Upon discovery by the Trust, the Servicer (or any of its successors or assigns)
or in the case of the Indenture Trustee, upon actual knowledge of a Responsible
Officer of the Indenture Trustee, of a breach of any of the representations or
warranties set forth in Section 2.02 of the Servicing Agreement that materially
and adversely affects any Contract, the related Equipment or the related
Contract File, as the case may be, or if the Servicer fails to cause delivery of
evidence of filing or copies of any UCC financing statement or delivery of any
Certificate of Title in accordance with the Servicing Agreement (any such event,
a "Warranty Event"), the party (including any such successor or assign)
discovering such breach shall give prompt written notice to the other parties.
As of the last day of the calendar month following the month of its discovery or
its receipt of notice of breach (or, at First Sierra's election, any earlier
date), First Sierra shall deposit (or cause to be deposited) to the Collection
Account the Repurchase Amount with respect to such Contract or replace such
contract with a Substitute Contract pursuant to Section 4.02 hereof. Any such
nonconforming Contract so removed shall not be deemed to be a Defaulted Contract
for purposes of this Article IV.
(b) The obligation of First Sierra to remove any Pledged
Property from the Trust and to remit the Repurchase Amount or substitute a
Substitute Contract, as appropriate, with respect to the related Contract as to
which a breach has occurred and is continuing shall constitute the sole remedy
against First Sierra for such breach available to the Indenture Trustee and the
Noteholders, except to the extent that such breach is the result of any fraud or
willful misconduct on the part of First Sierra.
Section 4.02 Substitution of Contracts. (a) Subject to the
provisions of Sections 4.02(b) through (d) hereof, First Sierra, upon notice
from the Servicer, may substitute one or more Contracts (each a "Substitute
Contract") and transfer all of its right, title and interest in the Substitute
Conveyed Assets for and replace any Contract and terminate the security interest
in the related Equipment that (i) becomes a Delinquent Contract, Defaulted
Contract or an Early Termination Contract or (ii) is the subject of a
Prepayment, a Casualty Loss or a Warranty Event.
(b)Each Substitute Contract shall be a Contract with respect
to which all of the representations and warranties set forth in Section 2.02 of
the Servicing Agreement were true as of the related Substitute Cut-Off Date.
(c) Any substitution of a Contract pursuant to this Section
4.02 will be effected by (i) delivery to the Trustee of the Contract File for
each such Substitute Contract, (ii) the filing of any UCC financing statements
in accordance with the Filing Requirements necessary to perfect
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the interest of the Indenture Trustee in the Substitute Contract, (iii) delivery
to the Indenture Trustee of the List of Substitute Contracts reflecting the
substitution, and (iv) delivering to the Indenture Trustee a release request, in
form and substance acceptable to the Indenture Trustee, with respect to the
Contract being replaced and the originally executed trust receipt relating
thereto.
(d) No such substitution under this Section 4.02 shall be
permitted on any Substitute Transfer Date if:
(i) on a cumulative basis from the Initial Cut-Off
Date, the sum of the Discounted Contract Principal Balances
(as of the related Substitute Cut-Off Date) of such Substitute
Contracts would exceed ten percent (10%) of the sum of the
Aggregate Discounted Contract Principal Balance of all
Contracts as of the Initial Cut-Off Date;
(ii) as of the related Substitute Cut-Off Date, the
Substitute Contracts then being transferred have a Discounted
Contract Principal Balance less than the Discounted Contract
Principal Balance of the Contracts being replaced; and
(iii) as a result thereof, (x) the sum of the
Scheduled Payments on all Contracts due in any Collection
Period thereafter would be less than or increase the amount by
which it is less than (y) the sum of the Scheduled Payments
which would otherwise be due in such Collection Period.
For purposes of determining compliance with clause
(ii), if more than one Substitute Contract is being provided on any date, the
Discounted Contract Principal Balance of the Substitute Contracts and the
Contracts being replaced shall be determined on an aggregate basis.
(e) Upon the replacement of a Contract and the related
Equipment with a Substitute Contract as described above, the security interest
of the Indenture Trustee in such replaced Contract, the related Equipment and
all proceeds thereon shall be terminated and the replaced Contract and the
related Equipment shall be transferred to the Trust and to First Sierra.
Section 4.03 Release of Pledged Property. (a) The Indenture
Trustee, when required by the Trust and the provisions of this Indenture, shall
execute instruments provided to it in order to release property from the lien of
this Indenture in a manner and under circumstances that are not inconsistent
with the provisions of this Indenture and the Servicing Agreement. No party
relying upon an instrument executed by the Indenture Trustee as provided in this
Article IV shall be bound to ascertain the Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any monies.
(b)The Indenture Trustee shall, at such time as there are no
Notes outstanding and all sums due the Indenture Trustee have each been paid,
release any remaining portion of the Pledged Property that secured the Note from
the lien of this Indenture and release to the Trust or any other Person entitled
thereto any funds then on deposit in the Collection Account or any subaccounts
thereof as may have been established pursuant to Sections 3.01 and 3.02. The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 4.03(b) only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an
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Opinion of Counsel and (if required by the TIA) Independent Certificates in
accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable
requirements of Section 10.05 hereof.
ARTICLE V.
THE NOTES
Section 5.01 The Notes. (a) The Class A Notes will be issued
in denominations of $1,000 and multiples of $1,000 in excess thereof (with the
exception of one Note of each class which will be issued in an odd amount) of
the Initial Class A-1 Note Principal Balance, the Initial Class A-2 Note
Principal Balance, the Initial Class A-3 Note Principal Balance, the Initial
Class A-4 Note Principal Balance and the Subordinate Notes will be issued in
denominations of $1,000,000 and $1,000 increments above $1,000,000 of the
Initial Class B Note Principal Balance, the Initial Class C Note Principal
Balance, the Initial Class D Note Balance and the Initial Class E Note Principal
Balance. Each Note shall represent a validly issued and binding obligation, but
only if such Note has been executed on behalf of the Trust by a Responsible
Officer of the Owner Trustee by manual signature, and authenticated on behalf of
the Indenture Trustee by a Responsible Officer of the Indenture Trustee by
manual signature. Each Note bearing the manual signatures of individuals who
were, at the time when such signatures were affixed, authorized to sign on
behalf of the Trust shall be valid and binding obligations, notwithstanding that
such individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Note or did not hold such offices at the
date of such Note. No Note shall be entitled to any benefit under this
Indenture, or be valid for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form set forth in the form of
the Notes of the related Class, each attached as Exhibits hereto, signed by the
Indenture Trustee by manual signature, and such signature upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. All Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes shall be substantially in the forms set
forth in Exhibits C-1, C-2, C-3 and C-4 hereto, respectively, all Class B Notes
shall be substantially in the form set forth in Exhibit D-1 hereto, all Class C
Notes shall be substantially in the form set forth in Exhibit D-2 hereto, all
Class D Notes shall be substantially in the form set forth in Exhibit D-3
hereto, and all Class E Notes shall be in substantially the same form as set
forth in Exhibit D-4. Each Note shall be dated the date of its authentication.
Neither the Notes nor the Contracts are insured by the Federal Deposit Insurance
Corporation or any other governmental agency.
(b)It is intended that the Offered Notes be registered so as
to participate in a global book-entry system with the Trust, as set forth
herein. The Offered Notes shall, except as otherwise provided in the next
paragraph, be initially issued in the form of a single fully registered Class
A-1 Note, Class A-2 Note, Class A-3 Note, Class A-4 Note and Class B Note, each
with a denomination equal to the Initial Class A-1 Note Principal Balance, the
Initial Class A-2 Note Principal Balance, the Initial Class A-3 Note Principal
Balance the Initial Class A-4 Principal Balance and the Initial Class B Note
Principal Balance, respectively. Upon initial issuance, the ownership of each
such Offered Note shall be registered in the Register in the name of Cede & Co.,
or any successor thereto, as nominee for the Trustee.
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The Trust and the Indenture Trustee are hereby authorized to
execute and deliver the Representation Letter with the Depository.
With respect to Offered Notes registered in the Register in
the name of Cede & Co., as nominee of the Depository, the Trust and the
Indenture Trustee shall have no responsibility or obligation to Direct or
Indirect Participants or beneficial owners for which the Depository holds
Offered Notes from time to time as a trustee. Without limiting the immediately
preceding sentence, the Trust, the Servicer and the Indenture Trustee shall have
no responsibility or obligation with respect to (i) the accuracy of the records
of the Depository, Cede & Co., or any Direct or Indirect Participant with
respect to any ownership interest in any Offered Note, (ii) the delivery to any
Direct or Indirect Participant or any other Person, other than a Noteholder, of
any notice with respect to the Offered Notes or (iii) the payment to any Direct
or Indirect Participant or any other Person, other than a Noteholder, of any
amount with respect to any distribution of principal or interest on the Offered
Notes. No Person other than a Noteholder shall receive a certificate evidencing
such Offered Note.
Upon delivery by the Depository to the Indenture Trustee of
written notice to the effect that the Depository has determined to substitute a
new nominee in place of Cede & Co., and subject to the provisions hereof with
respect to the payment of interest by the mailing of checks or drafts to the
Noteholders appearing as Noteholders at the close of business on a Record Date,
the name "Cede & Co." in this Indenture shall refer to such new nominee of the
Depository.
(c) In the event that (i) the Depository or the Servicer
advises the Indenture Trustee in writing that the Depository is no longer
willing or able to discharge properly its responsibilities as nominee and
depository with respect to the Offered Notes and the Servicer or the Depository
is unable to locate a qualified successor or (ii) the Indenture Trustee at its
sole option elects to terminate the book-entry system through the Depository,
the Offered Notes shall no longer be restricted to being registered in the
Register in the name of Cede & Co. (or a successor nominee) as nominee of the
Depository. At that time, the Servicer may determine that the Offered Notes
shall be registered in the name of and deposited with a successor depository
operating a global book-entry system, as may be acceptable to the Servicer, or
such depository's agent or designee but, if the Servicer does not select such
alternative global book-entry system, then the Offered Notes may be registered
in whatever name or names Noteholders transferring Offered Notes shall
designate, in accordance with the provisions hereof; provided, however, that any
such registration shall be at the expense of the Servicer.
(d) Notwithstanding any other provision of this Indenture to
the contrary, so long as any Offered Note is registered in the name of Cede &
Co., as nominee of the Depository, all distributions of principal or interest on
such Offered Notes, as the case may be, and all notices with respect to such
Offered Notes, as the case may be, shall be made and given, respectively, in the
manner provided in the Representation Letter.
In the event any Notes are issued in book-entry form with the
Depository: (i) the Indenture Trustee may deal with the Depository as the
authorized representative of the Noteholders; (ii) the rights of the Noteholders
shall be exercised only through the Depository and shall be limited to those
established by law and agreement between the Noteholders and the
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Depository; (iii) the Depository will make book-entry transfers among the direct
participants of the Depository and will receive and transmit distributions of
principal and interest on the Notes to such direct participants; and (iv) the
direct participants of the Depository shall have no rights under this Indenture
under or with respect to any of the Notes held on their behalf by the
Depository, and the Depository may be treated by the Indenture Trustee and its
agents, employees, officers and directors as the absolute owner of the Notes for
all purposes whatsoever.
(e) No transfer of any Subordinate Note shall be made unless
such transfer is made in a transaction which does not require registration or
qualification under the Securities Act or qualification under any state
securities or "Blue Sky" laws. If such a transfer is to be made in reliance upon
an exemption from the Securities Act other than Rule 144A thereunder, (A) the
Indenture Trustee shall receive an Opinion of Counsel that such transfer may be
made pursuant to an exemption from the Securities Act, describing the applicable
exemption and the basis therefor, which Opinion of Counsel shall not be an
expense of First Sierra, the Depositor, the Servicer, the Trust or the Indenture
Trustee or (B) the Indenture Trustee shall require the transferee to execute a
certification, substantially in the form of Exhibit F hereto, setting forth the
facts surrounding such transfer. In the event that a transfer is to be made in
reliance on Rule 144A under the Securities Act, the Subordinate Noteholder shall
cause its prospective transferee to execute and deliver a certificate
substantially in the form of Exhibit G hereto; provided, however, that with
respect to any sale of a Subordinate Note by an investment company registered
under the Investment Company Act of 1940, as amended, made in reliance on Rule
144A, the Subordinate Noteholder may (in lieu of delivering a certificate in the
form of Exhibit G) deliver to the Indenture Trustee a certificate in the form of
Exhibit H hereto with a copy of a Qualified Institutional Buyer Certificate in
the form of Addendum 1 thereto. The Servicer promptly shall furnish to any
Holder, or any prospective purchaser designated by a Holder, the information
required to be delivered to Holders and prospective purchasers of Subordinate
Notes in connection with the resale of the Subordinate Notes to permit
compliance with Rule 144A in connection with such resale. No Subordinate Note
may be subdivided for resale or other transfer into a unit smaller than a unit
the initial offering price of which would have been in the aggregate $1,000,000.
No resale or other transfer of the Subordinate Notes may be made to a
nonresident alien individual, foreign corporation or other non-United States
person.
(f) Notwithstanding anything else contained in this Indenture,
neither the Indenture Trustee nor the Note Registrar shall effect the
registration of any transfer of a Subordinate Note (i) unless, prior to such
transfer, the Indenture Trustee shall have received from the Subordinate
Noteholder (with a copy to each Rating Agency) an Opinion of Counsel to the
effect that such transfer will not result in the Trust becoming subject to
taxation as an association taxable as a corporation or (ii) if following such
transfer the sum of (a) the number of Holders of a Subordinate Note and (b) the
number of Holders of the Trust Certificate, would be more than 99. Ownership of
the Trust Certificate shall be nontransferable, but may be pledged to secure
non-recourse debt of the Depositor.
Section 5.02 Initial Issuance of Notes. The Indenture Trustee
shall, upon the written instruction of the Trust, in exchange for the Pledged
Property, authenticate and deliver the Class A Notes and the Subordinate Notes
executed by the Trust in authorized denominations equaling in the aggregate the
Initial Class A Note Principal Balance, the Initial Class B Note
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Principal Balance, the Initial Class C Note Principal Balance, the Initial Class
D Note Principal Balance and the Initial Class D Note Principal Balance.
Section 5.03 Registration of Transfer and Exchange of Notes.
(a) The Indenture Trustee, as initial Note Registrar, shall maintain, or cause
to be maintained, at the Corporate Trust Office, a register (the "Register") in
which the Indenture Trustee shall provide for the registration of Notes and of
transfers and exchanges of Notes as herein provided. All Notes shall be so
registered.
(b) Upon surrender for registration of transfer of any Note at
the Corporate Trust Office, the Trust shall execute, and the Indenture Trustee
shall authenticate and deliver, subject to the requirements of Sections 5.01(e)
and (f) hereof in the case of the Subordinate Notes, in the name of the
designated transferee or transferees, one or more new Notes in authorized
denominations of the same class, of a like aggregate Class A-1 Percentage
Interest, Class A-2 Percentage Interest, Class A-3 Percentage Interest, Class
A-4 Percentage Interest, Class B Percentage Interest, Class C Percentage
Interest, Class D Percentage Interest or Class E Percentage Interest, as the
case may be, dated the date of such authentication.
(c) At the option of a Noteholder, Notes may be exchanged for
other Notes of the same class (of authorized denominations in the case of Class
A Notes and Subordinate Notes) of a like aggregate Class A-1 Percentage
Interest, Class A-2 Percentage Interest, Class A-3 Percentage Interest, Class
A-4 Percentage Interest, Class B Percentage Interest, Class C Percentage
Interest, Class D Percentage Interest or Class E Percentage Interest, as the
case may be, upon surrender of the Notes to be exchanged at any such office or
agency. Whenever any Notes are so surrendered for exchange, the Trust shall
execute, and the Indenture Trustee shall authenticate and deliver the Notes that
the Noteholder making the exchange is entitled to receive. Every Note presented
or surrendered for registration of transfer or exchange shall be accompanied by
a written instrument of transfer substantially in the form of Exhibit H hereto,
duly executed by the Noteholder thereof or its attorney duly authorized in
writing.
(d) No service charge shall be made for any registration of
transfer of any Note or for the exchange of any Note, but the Indenture Trustee
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer of any Note or exchange of
any Note.
(e) All Notes surrendered for registration of transfer and all
Notes surrendered for exchange shall be delivered to the Indenture Trustee and
cancelled and subsequently destroyed by the Indenture Trustee in accordance with
its customary practices in effect from time to time.
(f) The Note Registrar shall not register the transfer of any
Note (other than the transfer of an Offered Note to the nominee of the
Depository or a successor depository) unless the transferee has executed and
delivered to the Indenture Trustee a certification to the effect that either (i)
the transferee is not (A) an employee benefit plan (as defined in Section 3(3)
of ERISA) that is subject to the provisions of Title I of ERISA or (B) a plan
(as defined in Section 4975(e)(1) of the Code) that is subject to Section 4975
of the Code (each of the foregoing, a "Benefit Plan"), and is not acting on
behalf of or investing the assets of a Benefit Plan, or (ii)
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with respect to the transfer of any Note other than a Class D Note and a Class E
Note, that the transferee's acquisition and continued holding of the Note will
be entitled to exemptive relief pursuant to a U.S. Department of Labor
prohibited transaction class exemption. Each transferee of a beneficial interest
in a Note that is registered in the name of, and deposited with, a depository
operating a global book-entry system shall be deemed to make one of the
foregoing representations. No Class D Note or Class E Note may be sold or
transferred (including, without limitation, by pledge or hypothecation) if the
sale or transfer thereof increases the number of the sum of (A) the number of
holders of Class D Notes, (B) the number of holders of Class E Notes, and (C)
the number of holders of trust certificates of the Issuer, to more than 99.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Notes. If
any mutilated Note is surrendered to the Indenture Trustee, or the Indenture
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, and (a) there is delivered to the Trust, the Owner Trustee, the
Servicer and the Indenture Trustee such security or indemnity satisfactory to
each of them as may be required by them to save each of them harmless (provided,
that with respect to a Subordinate Noteholder which is an insurance company
whose long-term debt or claims paying ability is rated investment grade or
better by the Rating Agencies at such time, a letter of indemnity furnished by
it shall be sufficient for this purpose), then, in the absence of notice to the
Indenture Trustee that any such Note has been acquired by a bona fide purchaser,
the Trust shall execute and the Indenture Trustee shall authenticate and deliver
in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note
a new Note of like Class and Percentage Interest. In connection with the
issuance of any new Note under this Section 5.04, the Indenture Trustee may
require the payment by the Noteholder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto. Any other
expenses (including the fees and expenses of the Indenture Trustee) in
connection therewith shall be paid by the Servicer. Any duplicate Note issued
pursuant to this Section 5.04 shall constitute a Note duly issued by the Trust,
as if originally issued, whether or not the lost, stolen or destroyed Note shall
be found at any time.
Section 5.05 Persons Deemed Owners. The Indenture Trustee may
treat the Person in whose name any Note is registered as the owner of such Note
for the purpose of receiving distributions pursuant to Section 3.05 hereof and
for all other purposes whatsoever, and the Indenture Trustee shall not be
affected by any notice to the contrary.
Section 5.06 Access to List of Noteholders' Names and
Addresses. (a) The Indenture Trustee will furnish or cause to be furnished to
the Servicer within 15 days after receipt by the Indenture Trustee of a request
therefor from the Servicer in writing, a list of the names and addresses of the
Noteholders as of the most recent Record Date. If one or more Noteholders
representing a Class A Percentage Interest, a Class B Percentage Interest, a
Class C Percentage Interest, a Class D Percentage Interest or a Class E
Percentage Interest of not less than 25% (an "Applicant") shall apply in writing
to the Indenture Trustee, and such application shall state that the Applicant
desires to communicate with other Noteholders with respect to its rights under
this Indenture or under the Notes, then the Indenture Trustee shall, within five
Business Days after the receipt of such application, send such notice to the
current list of Noteholders. Every Noteholder, by receiving and holding a Note,
agrees with the Trust, the Owner Trustee, the Servicer and the Indenture Trustee
that none of the Trust, the Owner Trustee,
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the Servicer nor the Indenture Trustee shall be held accountable by reason of
the disclosure of any such information, regardless of the source from which such
information was derived.
Section 5.07 Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by an agent 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
required, to the Trust or the Servicer. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 7.01 hereof) conclusive in
favor of the Indenture Trustee, the Trust, First Sierra and the Servicer, if
made in the manner provided in this Section 5.07.
(b) The fact and date of the execution by any Noteholder of
any such instrument or writing may be proven in any reasonable manner which the
Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proven by the Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Noteholder shall bind every holder of every
Note issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof, in respect of anything done or omitted to be done by the
Indenture Trustee, the Owner Trustee, the Trust or the Servicer in reliance
thereon, whether or not notation of such action is made upon such Note.
Section 5.08 No Proceedings. By its acceptance of a Note, each
Noteholder shall be deemed to have agreed that it will not directly or
indirectly institute, or cause to be instituted, against the Trust Certificate
Holder or the Trust any bankruptcy or insolvency proceeding so long as there
shall not have elapsed one year plus one day since the maturity date of the
latest maturing securities of the Trust.
ARTICLE VI.
THE TRUST
Section 6.01 Liability of the Trust. (a) The Trust shall be
liable for payments in respect of the Notes in accordance herewith only to the
extent of the obligations specifically undertaken by the Trust herein.
Section 6.02 Limitation on Liability of the Trust. (a) Neither
the Owner Trustee nor the directors, officers, employees or agents of the Trust
or the Owner Trustee shall be under any liability to the Indenture Trustee, the
Noteholders, First Sierra, the Servicer, the Trust Certificate Holder or any
other Person hereunder or pursuant to any document delivered hereunder, it being
expressly understood that all such liability is expressly waived and released as
a condition of, and as consideration for, the Trust's execution and delivery of
this Indenture and the issuance of the Notes. The Trust shall not be under any
liability to the Indenture Trustee,
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the Noteholders, First Sierra, the Servicer, the Trust Certificate Holder or any
other Person for any action taken or for refraining from the taking of any
action in its capacity as Trust pursuant to this Indenture whether arising from
express or implied duties under this Indenture; provided, however, that this
provision shall not protect the Trust against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith,
misrepresentation or gross negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder. The Trust may rely in
good faith on any document of any kind prima facie properly executed and
submitted by any other Person respecting any matters arising hereunder.
Section 6.03 Indemnity for Liability Claims. (a) The Trust
Certificate Holder on behalf of the Trust shall be deemed to have agreed to
indemnify, defend and hold harmless the Indenture Trustee (which shall include
any of its directors, employees, officers and agents), the Owner Trustee (which
shall include any of its directors, employees, officers and agents), the
Noteholders against and from any and all costs, expenses, losses, damages,
claims and liabilities arising out of or resulting from the use, repossession or
operation of the Equipment to the extent not covered by the Servicer's indemnity
provided by Section 5.01 of the Servicing Agreement; provided, however, that
such amounts shall be payable solely from amounts payable to the Trust
Certificate Holder pursuant to Section 3.05(b)(xviii) hereof.
Section 6.04 Liabilities. Notwithstanding any provision of
this Indenture, by entering into this Indenture, the Trust and the Trust
Certificate Holder agrees to be liable, directly to the injured party, for the
entire amount of any losses, claims, damages or liabilities (other than those
losses incurred by a Class A Noteholder, a Class B Noteholder, a Class C
Noteholder, a Class D Noteholder or a Class E Noteholder in the capacity of an
investor in the Class A Notes, the Class B Notes, the Class C Notes, the Class D
Notes or the Class E Notes) imposed on or asserted against the Trust or
otherwise arising out of or based on the arrangements created by this Indenture
(to the extent of the Trust assets remaining after the Class A Noteholders and
the Subordinate Noteholders have been paid in full are insufficient to pay such
losses, claims, damages or liabilities).
Section 6.05 [Reserved.]
Section 6.06 Annual Statement as to Compliance. The Servicer
on behalf of the Trust will deliver to the Indenture Trustee, within 90 days
after the end of each fiscal year of the Trust (commencing with the fiscal year
ended December 31, 2000), and otherwise in compliance with the requirements of
TIA Section 314(a)(4) an Officer's Certificate stating, as to the Authorized
Officer signing such Officer's Certificate, that
(i) a review of the activities of the Trust during
such year and of performance 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 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.
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Section 6.07 Payment of Principal and Interest. The Indenture
Trustee on behalf of the Trust will pay or cause to be duly and punctually paid
the principal of and interest on the Notes in accordance with the terms of the
Notes and this Indenture. Amounts properly withheld under the Code by any Person
from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Trust to such Noteholder for all purposes
of this Indenture.
Section 6.08 Maintenance of Office or Agency. The Note
Registrar shall, and the Indenture Trustee, as initial Note Registrar agrees to,
maintain in New York, New York, an office or agency where Notes may be
surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Trust in respect of the Notes and this Indenture may be
served. The Indenture Trustee will give prompt written notice to the Trust of
the location, and of any change in the location, of any such office or agency.
Section 6.09 Money for Payments to be Held in Trust. On or
before each Payment Date, the Servicer on behalf of the Trust shall deposit or
cause to be deposited in the Collection Account, but only from the sources
described herein, an aggregate sum sufficient to pay the amounts then becoming
due under the 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 Servicer on behalf of the Trust 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), subject to the provisions of this Section, that such paying agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default
by the Trust (or any other obligor upon the Notes) of which it
has actual knowledge in the making of any payment required to
be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the 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 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
Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in
connection therewith.
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The Trust may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, 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 a
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 the 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 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 Trust and shall be deposited by the Indenture
Trustee in the Collection Account; and the Holder of such Note shall thereafter,
as an unsecured general creditor, look only to the Trust for payment thereof
(but only to the extent of the amounts so paid to the Trust), and all liability
of the 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, shall at the
expense of the 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 Trust. The Indenture Trustee shall also adopt
and employ, at the expense of the Trust, any other reasonable means of
notification of such repayment (including, but not limited to, mailing notice of
such repayment to Holders whose 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
Holder).
Section 6.10 Existence. Except as otherwise permitted by the
provisions of Section 6.13, the Owner Trustee, on behalf of the Trust, will keep
in full effect the Trust's existence, rights and franchises as a common law
trust under the laws of the State of Delaware (unless the Trust becomes, or any
successor Trust hereunder is or becomes, organized under the laws of any other
state or of the United States of America, in which case the Owner Trustee or a
successor Owner Trustee, on behalf of the Trust, will keep in full effect the
Trust's existence, rights and franchises under the laws of such other
jurisdiction) and the Servicer, on behalf of the Trust, will obtain and preserve
the Trust's 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 Notes and each other instrument or
agreement included in the Pledged Property.
Section 6.11 Protection of Pledged Property. The Trust intends
the security interest granted pursuant to this Indenture in favor of the
Indenture Trustee and the Noteholders, as their interests appear herein, to be
prior to all other liens in respect of the Pledged Property, and the Servicer on
behalf of the Trust shall take all actions necessary to obtain and maintain, in
favor of the Indenture Trustee, for the benefit of the Noteholders, a first lien
on and a first priority, perfected security interest in the Pledged Property.
The Servicer on behalf of the Trust will from time to time prepare (or shall
cause to be prepared), execute and deliver all such supplements and amendments
hereto and all such financing statements, continuation statements,
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instruments of further assurance and other instruments, and will take such other
action necessary or advisable to:
(i) grant more effectively all or any portion of the
Pledged Property;
(ii) maintain or preserve the lien and security
interest (and the priority thereof) in favor of the Indenture
Trustee for the benefit of the Noteholders, created by this
Indenture or carry out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the
validity of any grant made or to be made by this Indenture;
(iv) enforce any of the Pledged Property;
(v) preserve and defend title to the Pledged Property
and the rights of the Indenture Trustee in such Pledged
Property against the claims of all persons and parties; and
(vi) pay all taxes or assessments levied or assessed
upon the Pledged Property when due.
The 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 6.11.
Section 6.12 Performance of Obligations; Servicing of
Receivables. (a) The Trust will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Pledged Property 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 ordered by any bankruptcy or other court or as expressly provided in
this Indenture, the other Transaction Documents or any other instrument or
agreement.
(b) The Trust 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 Officer's Certificate of
the Trust shall be deemed to be action taken by the Trust. Initially, the Trust
has contracted with the Servicer to substantially perform the Trust's duties
under this Indenture, and in such regard, the Trust may rely upon information
provided by the Servicer in connection with any Officer's Certificates of the
Trust to be provided pursuant to this Indenture and any other action to be take
by the Trust pursuant to this Indenture.
(c) The Trust will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Transaction
Documents and in the instruments and agreements included in the Pledged
Property, including, but not limited to, preparing (or causing to be prepared)
and 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 Servicing Agreement in accordance with and within the time periods provided
for herein and therein.
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(d) If a Responsible Officer of the Owner Trustee shall have
actual knowledge of the occurrence of an Event of Servicing Termination under
the Servicing Agreement, the Trust shall promptly notify the Indenture Trustee
and the Rating Agencies in writing thereof, and shall specify in such notice the
action, if any, the Trust is taking in respect of such default. If a Servicer
Termination Event shall arise from the failure of the Servicer to perform any of
its duties or obligations under the Servicing Agreement with respect to the
Contracts, the Trust shall take all reasonable steps available to it to remedy
such failure.
Section 6.13 Negative Covenants. So long as any Notes are
Outstanding, the Trust shall not:
(i) except as expressly permitted by this Indenture
or the Transaction Documents, sell, transfer, exchange or
otherwise dispose of any of the properties or assets of the
Trust, including those included in the Pledged Property;
(ii) claim any credit on, or make any deduction from
the principal or interest payable in respect of, the Notes
(other than amounts properly withheld from such payments under
the Code) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or
assessed upon any part of the Pledged Property; or
(iii) (A) permit the validity or effectiveness of
this Indenture to be impaired, or permit the lien in favor of
the Indenture Trustee created by this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or
permit any Person to be released from any covenants or
obligations with respect to the Notes 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 Pledged Property 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 Equipment and arising solely as a result
of an action or omission of the related Obligor), 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 Pledged
Property;
Section 6.14 Trust May Consolidate, Etc. Only on Certain
Terms. (a) The Trust shall not consolidate or merge with or into any other
Person, unless
(i) the Person (if other than the Trust) formed by or
surviving such consolidation or merger shall be a Person
organized and existing under the laws of the United States of
America or any state and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of
the Trust to be performed or observed, all as provided herein;
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(ii) immediately after giving effect to such
transaction, no Event of Default or Restricting Event shall
have occurred and be continuing;
(iii) the Trust shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction will
not have any material adverse tax consequence to the Trust or
any Noteholder;
(iv) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken;
(v) the Trust shall have delivered to the Indenture
Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation or merger and such
supplemental indenture comply with this Article VI and that
all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing
required by the Exchange Act); and
(vi) the Rating Agencies have confirmed that such
transaction will not result in the reduction or withdrawal of
any rating on any class of Notes.
(b) The Trust shall not convey or transfer all or
substantially all of its properties or assets, including those included in the
Pledged Property, to any Person, unless
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Trust the conveyance
or transfer of which is hereby restricted shall (A) be a
United States citizen or a Person organized and existing under
the laws of the United States of America or any state, (B)
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of
this Indenture and each of the Transaction Documents on the
part of the Trust to be performed or observed, all as provided
herein, (C) expressly agree by means of such supplemental
indenture that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of
Holders of the Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agree to indemnify, defend
and hold harmless the Trust against and from any loss,
liability or expense arising under or related to this
Indenture and the Notes and (E) expressly agree by means of
such supplemental indenture that such Person (or if a group of
persons, then one specified Person) shall prepare (or cause to
be prepared) and make all filings with the Commission (and any
other appropriate Person) required by the Exchange Act in
connection with the Notes;
(ii) immediately after giving effect to such
transaction, no Event of Default or Restricting Event shall
have occurred and be continuing;
(iii) the Trust shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the
Indenture Trustee) to the effect that such transaction will
not have any material adverse tax consequence to the Trust or
any Noteholder;
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(iv) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken;
(v) the Trust shall have delivered to the Indenture
Trustee an Officers' Certificate and an Opinion of Counsel
each stating that such conveyance or transfer and such
supplemental indenture comply with this Article VI and that
all conditions precedent herein provided for relating to such
transaction have been complied with (including any filing
required by the Exchange Act); and
(vi) the Rating Agencies have confirmed that such
transaction will not result in the reduction or withdrawal of
any rating on any class of Notes.
Section 6.15 Successor or Transferee. (a) Upon any
consolidation or merger of the Trust in accordance with Section 6.14, the Person
formed by or surviving such consolidation or merger (if other than the Issuer)
shall succeed to, and be substituted for, and may exercise every right and power
of, the Trust under this Indenture with the same effect as if such Person had
been named as the Trust herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Trust pursuant to Section 6.14(b), the Trust will be released
from every covenant and agreement of this Indenture to be observed or performed
on the part of the Trust with respect to the Notes immediately upon the delivery
of written notice to the Indenture Trustee stating that the Trust is to be so
released.
Section 6.16 No Other Business. The Trust shall not engage in
any business other than financing, purchasing, owning, selling and managing the
Receivables in the manner contemplated by this Indenture and the other
Transaction Documents and activities incidental thereto.
Section 6.17 No Borrowing. The Trust shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except for (i) the Notes and (ii) any other Indebtedness permitted
by or arising under the Transaction Documents. The proceeds of the Notes shall
be used exclusively to fund the Trust's purchase of the Contracts and the other
assets constituting the Pledged Property and to pay the Trust's organizational,
transactional and start-up expenses.
Section 6.18 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Servicing Agreement or this
Indenture, the 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, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
Section 6.19 Capital Expenditures. The Trust shall not make
any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personal).
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Section 6.20 Compliance with Laws. The Trust shall comply with
the requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Trust to perform its obligations under the Notes, this Indenture or any
other Transaction Document.
Section 6.21 Further Instruments and Acts. Upon request of the
Indenture Trustee, the 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 and the other Transaction
Documents.
ARTICLE VII.
THE INDENTURE TRUSTEE
Section 7.01 Duties of Indenture Trustee. (a) The Indenture
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. If an Event of Default of which a
Responsible Officer of the Indenture Trustee shall have actual knowledge has
occurred and has not been cured or waived, the Indenture Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise as a prudent Person would exercise or
use under the circumstances in the conduct of such Person's own affairs.
(b) The Indenture Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Indenture Trustee that are specifically required to
be furnished pursuant to any provision of this Indenture, shall examine them to
determine whether they conform as to form to the requirements of this Indenture.
No acceptance of, or reliance on, any such item by the Indenture Trustee shall
constitute a representation by the Indenture Trustee of the enforceability or
sufficiency of such item.
(c) No provision of this Indenture shall be construed to
relieve the Indenture Trustee from liability for its own grossly negligent
action, its own grossly negligent failure to act or its own willful misconduct;
provided, however, that:
(i) Prior to the occurrence of an Event of Default,
and after the curing of all such Events of Default that may
have occurred, the duties and obligations of the Indenture
Trustee shall be determined solely by the express provisions
of this Indenture; the Indenture Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Indenture; no implied
covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and in the absence of bad faith
on the part of the Indenture Trustee, the Indenture Trustee
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Indenture Trustee
and, if specifically required to be furnished pursuant to any
provision of this Indenture, conforming to the requirements of
this Indenture;
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(ii) The Indenture Trustee shall not be liable for an
error of judgment made in good faith by a Responsible Officer
of the Indenture Trustee unless it shall be proved that the
Indenture Trustee was grossly negligent in ascertaining the
pertinent facts;
(iii) The Indenture Trustee shall not be personally
liable with respect to any action taken, suffered or omitted
to be taken by it in good faith in accordance with this
Indenture, pursuant to the direction of the Notes evidencing
Percentage Interests in the related Class of not less than
25%, relating to the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee,
or exercising, suffering or omitting to take any trust or
power conferred upon the Indenture Trustee, under this
Indenture;
(iv) The Indenture Trustee shall not be charged with
knowledge of any Event of Servicing Termination, any Event of
Default or Restricting Event unless a Responsible Officer of
the Indenture Trustee obtains actual knowledge of such failure
or event or the Indenture Trustee receives written notice of
such failure or event from the Servicer, the Trust or any
Noteholder; and
(v) The Indenture Trustee shall have no duty to
monitor the performance of the Servicer (as custodian or
otherwise), nor shall it have any liability in connection with
the malfeasance or nonfeasance by the Servicer. The Indenture
Trustee shall have no liability in connection with compliance
of the Servicer or the Trust with statutory or regulatory
requirements related to the Contracts or the related
Equipment. The Indenture Trustee shall not make or be deemed
to have made any representations or warranties with respect to
the Contracts or related Equipment or the validity or
sufficiency of any assignment of the Contracts to the Trust or
the Indenture Trustee. The Indenture Trustee shall have no
obligation or liability in respect of the maintenance of
casualty or liability insurance in connection with the
Contracts or the related Equipment.
(d) The Indenture Trustee shall not be required 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 there is reasonable ground for believing that the repayment of such funds or
indemnity satisfactory to it against such risk or liability is not assured to
it, and none of the provisions contained in this Indenture shall in any event
require the Indenture Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of the Servicer under this Indenture or
the Servicing Agreement except during such time, if any, as the Indenture
Trustee shall be the successor to, and be vested with the rights, duties, powers
and privileges of, the Servicer in accordance with the terms of this Indenture.
(e) On each Determination Date, the Indenture Trustee shall
give notice, by facsimile, to a Servicing Officer of the Servicer if the total
amount then on deposit in the Collection Account is less than the amount
indicated in the Monthly Statement.
Section 7.02 Eligible Investments. The Servicer shall direct
the Indenture Trustee to invest in Eligible Investments, as further specified
from time to time by written notice to the Indenture Trustee executed by a
Servicing Officer, any cash amounts deposited in the
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Collection Account pursuant to the terms of this Indenture or the Servicing
Agreement, immediately upon deposit of any such cash amounts; provided, however,
that each such Eligible Investment (i) shall mature no later than the Business
Day immediately preceding the Payment Date in respect of the Collection Period
during which such deposit was made and (ii) shall not be sold or disposed of
prior to its maturity. The Indenture Trustee shall not be liable or responsible
for the selection of or losses on any investments made by it pursuant to and in
compliance with such instructions of the Servicer pursuant to this Section 7.02.
The Indenture Trustee shall have no obligation to initiate any investments in
the absence of such written direction.
Section 7.03 Indenture Trustee's Assignment of Contracts. If
in any enforcement suit or legal proceeding it is held, or in connection with
the collection of a Defaulted Contract the Servicer or its assigns reasonably
anticipates, that the Servicer or its assigns may not or will not be able to
enforce a Contract on the ground that neither the Servicer nor its assigns are a
real party in interest or a holder entitled to enforce the Contract, then the
Indenture Trustee shall, at the Servicer's or its assigns' expense, take such
steps as the Indenture Trustee deems necessary to enforce the Contract,
including (i) bringing suit in the Indenture Trustee's name or the names of the
Noteholders and (ii) executing and delivering all such instruments or documents
as shall be required to transfer title to a Contract to the Servicer or its
assigns or otherwise enforce such Contract.
Section 7.04 Certain Matters Affecting the Indenture Trustee.
Except as otherwise provided in Section 7.01:
(i) The Indenture Trustee may conclusively rely and
shall be fully protected in acting or refraining from acting
upon any resolution, Officer's Certificate, certificate of
auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
(ii) The Indenture Trustee may consult with counsel
and any Opinion of Counsel or advice shall constitute full and
complete authorization and protection in respect of any action
taken or suffered or omitted by it hereunder in good faith and
in accordance with such Opinion of Counsel or advice;
(iii) The Indenture Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Indenture, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request,
order or direction of any of the Noteholders, pursuant to the
provisions of this Indenture unless such Noteholders shall
have offered to the Indenture Trustee such security or
indemnity satisfactory to it against the costs, expenses, and
liabilities that may be incurred therein or thereby that are
reasonable in the opinion of the Indenture Trustee; provided,
however, that nothing contained herein shall relieve the
Indenture Trustee of the obligations, upon the occurrence of
an Event of Default (that has not been cured), to exercise
such of the rights and powers vested in it by this Indenture
and to use the same degree of skill and care in their exercise
as a prudent Person would exercise under the circumstances in
the conduct of such Person's own affairs;
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(iv) The Indenture Trustee shall not be personally
liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture;
(v) Prior to the occurrence of an Event of Default of
which a Responsible Officer of the Indenture Trustee shall
have actual knowledge and after the curing of all Events of
Default that may have occurred, the Indenture Trustee shall
not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in
writing to do so by the Holders of Notes of any Class
evidencing Percentage Interests of not less than 25% of such
Class; provided, however, that if the payment within a
reasonable time to the Indenture Trustee of the costs,
expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the
Indenture Trustee, not reasonably assured to the Indenture
Trustee by the security afforded to it by the terms of this
Indenture, the Indenture Trustee may require indemnity
satisfactory to it against such cost, expense or liability as
a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the requesting party or, if
paid by the Indenture Trustee, shall be reimbursed by the
Servicer upon demand. Nothing in this clause (v) shall
derogate from the obligation of the Servicer to observe any
applicable law prohibiting disclosure of information regarding
the Obligors; and
(vi) The Indenture Trustee may execute any of the
trusts or powers or perform any duties hereunder either
directly or by or through agents or attorneys or a custodian.
The Indenture Trustee shall not be responsible for the
misconduct, negligence or for the supervision of any of the
Indenture Trustee's agents or attorneys appointed with due
care by the Indenture Trustee hereunder or that of First
Sierra, the Servicer or the Trust.
Section 7.05 Indenture Trustee Not Liable for Notes or
Contracts. The Notes do not represent an obligation issued by the Indenture
Trustee or any Affiliate thereof. The promise to pay the Notes according to
their terms and the terms of this Indenture set forth in the Notes and in
Section 2.05 hereof provides recourse to the Pledged Property only. The
Indenture Trustee does not assume any responsibility for the accuracy of the
statements herein or in the Notes (other than as set forth in Section 7.17 and
the certificate of authentication on the Notes). The Indenture Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes (other than the certificate of authentication on the Notes) or of any
Contract or related document. The Indenture Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity or
enforceability of any security interest in any Equipment or any Contract, to the
perfection or priority thereof, or to the efficacy of the Trust or any portion
thereof to pay any Note, the existence or validity of any Contract, the validity
of the assignment of any Contract or the related Pledged Property to the Trust
or of any intervening assignment, the review of any Contract, any Contract File
or the Computer Tape (it being understood that neither the Indenture Trustee nor
any of its agents have reviewed or intend to review such matters, the sole
responsibility for such review being vested in the Trust), the completeness of
any Contract File, the receipt by it or its custodian of any Contract, the
performance or enforcement of any Contract, subject to Section 4.01 of the
Servicing Agreement, the compliance by the Trust with
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any covenant or the breach by First Sierra or the Trust of any warranty or
representation made under the Servicing Agreement, the Receivables Transfer
Agreement or in any related document or the accuracy of any such warranty or
representation, any investment of monies in the Collection Account (except to
the extent that the Indenture Trustee, in its individual capacity, is an obligor
with respect to any such investment) or any loss resulting therefrom, the acts
or omissions of the Servicer, or any Obligor, any action of the Servicer taken
in the name of the Indenture Trustee, any action by the Indenture Trustee taken
at the instruction of the Servicer or the preparation and filing of tax returns
for the Trust. No recourse shall be had for any claim based on any provision of
this Indenture, the Notes or any Contract or assignment thereof against Bankers
Trust Company in its individual capacity, and Bankers Trust Company shall not
have any personal obligation, liability or duty whatsoever to any Noteholder or
any other Person with respect to any such claim, and any such claim shall be
asserted solely against the Trust or any indemnitor who shall furnish indemnity
as provided herein, except for such liability as is determined to have resulted
from its own gross negligence or willful misconduct. The Indenture Trustee shall
not be accountable for the use or application by First Sierra or the Trust of
any of the Notes or of the proceeds of such Notes or for the use or application
of any funds paid to the Servicer in respect of the Contracts.
Section 7.06 Indenture Trustee May Own Notes. The Indenture
Trustee in its individual or any other capacity may become the owner or pledge
of Notes with the same rights as it would have if it were not Indenture Trustee,
subject to the definition of the term "Noteholder" in Annex A hereto.
Section 7.07 Indenture Trustee's Fees and Expenses. (a) The
Servicer on behalf of the Trust Certificate Holder agrees:
(i) to pay to the Indenture Trustee, pursuant to
Section 3.05(b)(v), as applicable, on each Payment Date
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a Indenture
Trustee of an express trust); provided, however, that to the
extent payment of any such Indenture Trustee Fees from the
Collection Account would result in an Available Funds
Shortfall, such Indenture Trustee Fees in an amount equal to
the amount of the Available Funds Shortfall shall instead be
paid directly by First Sierra to the Indenture Trustee;
(ii) except to the extent otherwise expressly
provided herein, to reimburse the Indenture Trustee, pursuant
to Section 3.05(b)(vi), as applicable, upon its request, for
all reasonable expenses, disbursements and advances incurred
or made by the Indenture Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and expenses and disbursements of any of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its gross negligence or
willful misconduct; provided, however, that for purposes of
this clause (ii), such expenses, disbursements and advances
shall be limited to an aggregate amount of $75,000; provided,
further, however, that to the extent payment of any such
Indenture Trustee Expenses from the Collection Account would
result in an Available Funds Shortfall, such Indenture Trustee
Expenses in an amount equal to the amount of the
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Available Funds Shortfall shall instead be paid directly by
First Sierra to the Indenture Trustee; and
(iii) to reimburse the Indenture Trustee, pursuant to
Section 3.05(b)(xviii), as applicable, for all reasonable
expenses, disbursements and advances that would have been paid
pursuant to Section 7.07(a)(ii) but for the $75,000
limitation.
(b) The Servicer's obligations under this Section 7.07 shall
survive the termination of this Indenture or the earlier resignation or removal
of the Indenture Trustee. The Indenture Trustee shall not be entitled to any
other or additional compensation or reimbursement, except as expressly provided
herein or as otherwise agreed from time to time.
(c) Subject to Section 7.10 hereof, the failure by the
Servicer to pay to the Indenture Trustee any compensation or other expenses
shall not relieve the Indenture Trustee of its obligations hereunder.
(d) In the event the Indenture Trustee performs services or
incurs expenses in the context of a proceeding described in Sections
6.01(a)(iv), 6.01(a)(v) or 6.01(a)(vii) of the Servicing Agreement, the fees for
such services and such expenses shall be considered expenses of administration
for the purposes of any bankruptcy laws or laws relating to creditors rights
generally.
Section 7.08 Eligibility Requirements for Indenture Trustee.
The Indenture Trustee shall at all times satisfy the requirements of TIA Section
310(a). The Indenture Trustee hereunder shall at all times be a corporation
having its principal office in a State, organized and doing business under the
laws of any State or the United States of America, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or State
authority; provided, however, that no entity shall qualify as Indenture Trustee
hereunder to the extent that such qualification would, in itself, affect any
then current rating of the Offered Notes or the Subordinate Notes by the Rating
Agencies. If such corporation publishes reports of condition at least annually,
pursuant to law or the requirements of the aforesaid supervising or examining
authority, then for the purpose of this Section 7.08, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. Any
successor Indenture Trustee's deposit ratings shall be at least "investment
grade" by the Rating Agencies. In case at any time the Indenture Trustee shall
cease to be eligible in accordance with the provisions of this Section 7.08, the
Indenture Trustee shall resign immediately in the manner and with the effect
specified in Section 7.10 hereof. The Indenture Trustee shall comply with TIA
Section 310(b), including the optional provision permitted by the second
sentence of TIA Section 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities of the Trust are outstanding if the requirements
for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 7.09 Preferential Collection of Claims Against Issuer.
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 7.10 Resignation or Removal of Indenture Trustee. The
Indenture Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Servicer, the Trust and
each Noteholder, which resignation will not become effective until such time as
a successor Indenture Trustee has been appointed in accordance with the
provisions of this Section 7.10. Upon receiving such notice of resignation, the
Servicer shall promptly appoint a successor Indenture Trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Indenture Trustee and one copy to the successor Indenture Trustee. If
no successor Indenture Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Indenture Trustee may petition any court of competent jurisdiction for
the appointment of a successor Indenture Trustee.
(a) If at any time the Indenture Trustee shall cease to be
eligible in accordance with the provisions of Section 7.08 hereof and shall fail
to resign after written request therefor by the Servicer, or the Holders of
Notes of any Class evidencing Percentage Interests of more than 25% of such
Class, or, if at any time the Indenture Trustee shall be legally unable to act,
or shall be adjudged a bankrupt or insolvent, or a receiver of the Indenture
Trustee or of its property shall be appointed, or any public officer shall take
charge or control of the Indenture Trustee or of its property or affairs for the
purpose of rehabilitation, conservation, or liquidation, then the Servicer
shall, at the direction of the Holders of Notes of any Class evidencing
Percentage Interests of more than 25% of the related Class remove the Indenture
Trustee. If the Servicer or Noteholders remove the Indenture Trustee, the
Servicer or such Noteholders shall promptly appoint a successor Indenture
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the Indenture Trustee so removed and one copy to the successor
Indenture Trustee.
(b) Any resignation or removal of the Indenture Trustee and
appointment of a successor Indenture Trustee pursuant to this Section 7.10 shall
not become effective until acceptance of appointment by the successor Indenture
Trustee as provided in Section 7.11 hereof. Notice of the resignation or removal
of the Indenture Trustee shall be given in writing to the Rating Agencies by the
Servicer. In the event no successor Indenture Trustee has been appointed within
30 days of the resignation or removal of the Indenture Trustee, the Indenture
Trustee or the Majority Holders of the Notes may petition a court of competent
jurisdiction to appoint a successor Indenture Trustee.
Section 7.11 Successor Indenture Trustee. (a) Any successor
Indenture Trustee appointed as provided in Section 7.10 hereof shall execute,
acknowledge and deliver to the Servicer, the Trust and the predecessor Indenture
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Indenture Trustee shall become
effective and such successor Indenture Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Indenture Trustee. The predecessor Indenture Trustee shall deliver to
the successor Indenture Trustee all documents and statements held by it
hereunder. The Servicer, the Trust and the predecessor Indenture Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Indenture Trustee all
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such rights, powers, duties and obligations. The predecessor Indenture Trustee
shall not be liable for the acts or omissions of any successor Indenture Trustee
hereunder.
(b) No successor Indenture Trustee shall accept appointment as
provided in this Section 7.11 unless at the time of such acceptance such
successor Indenture Trustee shall be eligible as the Indenture Trustee under the
provisions of Section 7.08 hereof, and as a successor Servicer under the
provisions of Section 6.02 of the Servicing Agreement.
(c) Upon acceptance of appointment by a successor Indenture
Trustee as provided in this Section 7.11, the Servicer shall mail notice of the
succession of such Indenture Trustee hereunder to all Noteholders at their
addresses as shown in the Note Register. If the Servicer fails to mail such
notice within 10 days after acceptance of appointment by such successor
Indenture Trustee, then the successor Indenture Trustee shall cause such notice
to be mailed at the expense of the Servicer.
Section 7.12 Merger or Consolidation of Indenture Trustee. Any
corporation into which the Indenture Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion, or consolidation to which the Indenture Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Indenture
Trustee, shall be the successor of the Indenture Trustee hereunder, provided
such corporation shall be eligible under the provisions of Section 7.08 hereof,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
Section 7.13 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 requirements of any
jurisdiction in which any part of the Trust or any Equipment may at the time be
located, the Indenture Trustee shall execute and deliver all instruments to
appoint one or more Persons approved by the Indenture Trustee to act as
co-Indenture Trustee or co-Indenture Trustees, jointly with the Indenture
Trustee, or separate Indenture Trustee or separate Indenture Trustees, of all or
any part of the Trust, and to vest in such Person or Persons, in such capacity
and for the benefit of the Noteholders, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 7.13, such powers,
duties, obligations, rights and trusts as the Servicer, the Trust and the
Indenture Trustee may consider necessary or desirable. If the Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, or in the case an Event of Servicing Termination shall have
occurred and be continuing, the Indenture Trustee alone shall have the power to
make such appointment; provided, however, that if the Trust shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, the Indenture Trustee alone shall have the power to make such
appointment. No co-Indenture Trustee or separate Indenture Trustee hereunder
shall be required to meet the terms of eligibility as a successor Indenture
Trustee under Section 7.08 hereof, and no notice to Noteholders of the
appointment of any co-Indenture Trustee or separate Indenture Trustee shall be
required under Section 7.12 hereof.
(b) Every separate Indenture Trustee and co-Indenture Trustee
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
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(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 Indenture Trustee or
co-Indenture Trustee jointly (it being understood that such
separate Indenture Trustee or co-Indenture 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 (whether as Indenture Trustee hereunder or as
successor to the Servicer hereunder), 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 Pledged
Property or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate
Indenture Trustee or co-Indenture Trustee but solely at the
direction of the Indenture Trustee;
(ii) No separate Indenture Trustee or co-Indenture
Trustee hereunder shall be personally liable by reason of any
act or omission of any other separate Indenture Trustee or
co-Indenture Trustee hereunder; and
(iii) The Indenture Trustee may at any time accept
the resignation of or remove any separate Indenture Trustee or
co-Indenture Trustee.
(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 Indenture Trustees and co-Indenture Trustees, as effectively as if
given to each of them. Every instrument appointing any separate Indenture
Trustee or co-Indenture Trustee shall refer to this Indenture and the conditions
of this Article VII. Each separate Indenture Trustee and co-Indenture 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 and a copy thereof given to the Servicer and the Trust.
(d) Any separate Indenture Trustee or co-Indenture 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 Indenture Trustee or co-Indenture Trustee shall die, become
incapable of acting, resign or be removed, then 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 separate Indenture Trustee or successor co-Indenture Trustee.
(e) The Servicer shall be responsible for the payment of any
fees or expenses of any separate Indenture Trustee or co-Indenture Trustee.
Section 7.14 Indenture Trustee May Enforce Claims Without
Possession of Note. All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Indenture Trustee without the
possession of any of the Notes or the production
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thereof in any proceeding relating thereto, and any such proceeding instituted
by the Indenture Trustee shall be brought in its own name or in its capacity as
Indenture Trustee. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee, its agents and counsel, be for the ratable benefit of the
Noteholders in respect of which such judgment has been recovered.
Section 7.15 Suits for Enforcement. In case an Event of
Servicing Termination or other default by the Servicer under the Servicing
Agreement or under this Indenture shall occur and be continuing, the Indenture
Trustee, in its discretion, may, subject to the provisions of 6.04 of the
Servicing Agreement, proceed to protect and enforce its rights and the rights of
the Noteholders under this Indenture by a suit, action or proceeding in equity
or at law or otherwise, whether for the specific performance of any covenant or
agreement contained in this Indenture or in aid of the execution of any power
granted in this Indenture or for the enforcement of any other legal, equitable
or other remedy, as the Indenture Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Indenture Trustee
and the Noteholders.
Section 7.16 Undertaking for Costs. All parties to this
Indenture agree (and each holder of any Note by its acceptance thereof shall be
deemed to have agreed) that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the 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 shall not apply to any suit instituted by the
Indenture Trustee, to any suit instituted by any Noteholder, or group of
Noteholders, holding in the aggregate more than 10% of the then outstanding
principal balance of the Notes, or to any suit instituted by any Noteholder for
the enforcement of the payment of the principal of or interest on any Note on or
after the maturities for such payments, including the stated maturity as
applicable.
Section 7.17 Representations and Warranties of Indenture
Trustee. The Indenture Trustee represents and warrants for the benefit of the
Noteholders that:
(a) Organization and Good Standing. The Indenture Trustee is a
banking corporation duly organized, validly existing and in good standing under
the laws of the state of New York.
(b) Authorization. The Indenture Trustee has the power,
authority and legal right to execute, deliver and perform this Indenture, and
the execution, delivery and performance of this Indenture have been duly
authorized by the Indenture Trustee by all necessary corporate action.
(c) Binding Obligations. This Indenture, assuming due
authorization, execution and delivery by all other parties thereto, constitutes
the legal, valid and binding obligation of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with its terms, except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
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or other similar laws (whether statutory, regulatory or decisional) now or
hereafter in effect relating to creditors' rights generally and the rights of
trust companies in particular and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, whether in a proceeding at law or in equity.
Section 7.18 Tax Returns. In the event the Trust shall be
required to file tax returns, the Servicer shall prepare or shall cause to be
prepared any tax returns required to be filed by the Trust and shall remit such
returns to the Owner Trustee for signature at least five days before such
returns are due to be filed. The Indenture Trustee, upon request, will furnish
the Servicer with all such information known to the Indenture Trustee as may be
reasonably required in connection with the preparation of all tax returns of the
Trust. In no event shall the Indenture Trustee or the Owner Trustee in their
respective individual capacities be liable for any liabilities, costs or
expenses of the Trust, the Noteholders or the Servicer arising under any tax law
or regulation, including, without limitation, federal, state or local income or
excise taxes or any other tax imposed on or measured by income (or any interest
or penalty with respect thereto or arising from any failure to comply
therewith).
ARTICLE VIII.
EVENTS OF DEFAULT; REMEDIES
Section 8.01 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 without regard to 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):
(a) failure to distribute or cause to be distributed to the Indenture Trustee,
for the benefit of the Noteholders, all or part of any payment of interest
required to be made under the terms of such Notes or this Indenture on each
monthly Payment Date when such amount is due and payable; and
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(b) failure to distribute or cause to be distributed to the
Indenture Trustee, for the benefit of the Noteholders (x) on any Payment Date,
an amount equal to the principal due on the Outstanding Notes as of such Payment
Date to the extent that sufficient Available Funds are on deposit in the
Collection Account or (y) on the Class A-1 Maturity Date, the Class A-2 Maturity
Date, the Class A-3 Maturity Date, the Class A-4 Maturity Date, the Class B
Maturity Date, the Class C Maturity Date, the Class D Maturity Date or the Class
E Maturity Date, as the case may be, any remaining principal owed on the
Outstanding Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes,
Class B Notes, Class C Notes, Class D Notes or Class E Notes, as the case may
be.
Section 8.02 Acceleration of Maturity, Rescission and Annulment.
(a) If an Event of Default occurs and is continuing, then and in every such case
the Indenture Trustee, at the written direction of the Controlling Parties,
shall declare the principal of all of the Notes to be immediately due and
payable, by a notice in writing to the Servicer, and upon any such declaration
such principal (together with all accrued and previously unpaid interest) shall
become immediately due and payable. The Indenture Trustee shall give notice to
each Noteholder and the Rating Agencies of such declaration.
(b) At any time, after such a declaration of acceleration has been
made, but before any sale of the Pledged Property has been made or a judgment or
decree for payment of the money due has been obtained by the Indenture Trustee
as hereinafter in this Article VIII provided, the Controlling Parties, by
written notice to the Servicer and the Indenture Trustee, may rescind and annul
such declaration and its consequence if monies have been paid or deposited with
the Indenture Trustee in a sum sufficient to pay:
(i) all overdue installments of interest on all Class
A Notes and the Subordinate Notes;
(ii) the principal of any of the Class A Notes or the
Subordinate Notes which has become due otherwise than by such
declaration of acceleration and interest thereon at the
applicable Note Rate;
(iii) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on the
Class A Notes and the Subordinate Notes at the rate specified
therefor in the applicable Notes; and
(iv) all sums paid or advanced, together with
interest thereon, by the Indenture Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and its agents and counsel.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Subsequent to any such declaration of acceleration and so long as such
declaration and its consequences have not been rescinded and annulled, prior to
the exercise by the Indenture Trustee of the remedies set forth in Section
8.03(b) or (c) hereof, the Indenture Trustee shall give the Noteholders ten days
notice of its intention to take such actions.
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Section 8.03 Remedies. (a) If an Event of Default shall have
occurred and be continuing, the Indenture Trustee, at the written direction of
the Controlling Parties, may do one or more of the following:
(b) institute, in its own name and as Indenture Trustee,
Proceedings for the collection of the entire amount of principal and interest
remaining unpaid on the Notes, or under this Indenture in respect of the Notes,
whether by declaration or otherwise, enforce any judgment obtained, and collect
from the Pledged Property securing the Notes the monies adjudged due;
(c) sell the Pledged Property or any portion thereof or rights
or interest therein, at one or more sales called and conducted in any manner
permitted by law;
(d) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Pledged Property
securing the Notes; or
(e) exercise any remedies of a secured party under the UCC or
other applicable law and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee or the Noteholders
hereunder.
Section 8.04 Notice of Event of Default. Within two Business
Days after a Responsible Officer obtaining actual knowledge of the occurrence of
any Event of Default, the Indenture Trustee shall transmit, by certified mail
return receipt requested, hand delivery or overnight courier, to all
Noteholders, as their names and addresses appear in the Register, notice of such
Event of Default, unless such Event of Default shall have been cured or waived.
Section 8.05 Exercise of Power by Indenture Trustee In case an
Event of Default has occurred and is continuing to the actual knowledge of a
Responsible Officer of the Indenture Trustee, the Indenture Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
Section 8.06 Indenture Trustee May File Proofs of Claim. In
case of the pendency of any receivership, insolvency, liquidation,
reorganization, arrangement, adjustment, composition or other judicial
Proceeding, relating to the Trust or any other obligor upon the Notes or the
property of the Trust or of such other obligor or their creditors, the Indenture
Trustee (irrespective of whether the principal of any class of 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 for the
payment of overdue principal or interest) shall be entitled and empowered, to
intervene in such proceeding or otherwise:
(a) to file and prove a claim for all amounts owing and unpaid
in respect of the Notes and to file such other papers or documents and take such
other action including participating as a member, voting or otherwise, in any
committee of creditors appointed in the matter, as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including, in each case,
any claim for the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and its agents and counsel) and the Noteholders allowed
in such judicial Proceeding;
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(b) to petition for lifting of the automatic stay and
thereupon to foreclose upon the Pledged Property as elsewhere provided herein;
and
(c) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, or sequestrator (or other
similar official) in any such judicial Proceeding is hereby authorized by each
Noteholder to make such payments to the Indenture Trustee, and in the event that
the Indenture Trustee shall consent to the making of such payments directly to
the Noteholders, to pay to the Indenture Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee, its agents and counsel.
Nothing herein contained shall be deemed to authorize the Indenture Trustee to
authorize or to consent or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Indenture Trustee to vote
in respect of the claim of any Noteholder in any such Proceeding.
Section 8.07 Allocation of Money Collected. Any money collected by the
Indenture Trustee with respect to the Notes pursuant to the remedies set forth
in Section 8.03 (and any funds then held or thereafter received by the Indenture
Trustee) shall be applied in the following order, at the date or dates fixed by
the Indenture Trustee; provided, however, that the provisions of this Section
8.07 shall not preclude the Indenture Trustee from receiving indemnities
satisfactory to it from the Noteholders against the costs, expenses and
liabilities it may incur in acting in compliance with the written directions of
any Noteholder or Noteholders; provided, further, that any such indemnities
shall not be withheld or offset from the amounts payable to any Noteholders
pursuant to clauses THIRD through SEVENTH, NINTH and TENTH below:
FIRST: To the payment of all amounts due the
Indenture Trustee under Section 7.07 hereof;
SECOND: To the payment of Class A-1 Note
Interest to the Class A-1 Noteholders, Class A-2 Note Interest to the Class A-2
Noteholders, Class A-3 Note Interest to the Class A-3 Noteholders and Class A-4
Note Interest to the Class A-4 Noteholders, pari passu;
THIRD: To the payment of the Class B Note
Interest to the Class B Noteholders;
FOURTH: To the payment of Class C Note Interest
to the Class C Noteholders;
FIFTH: To the payment of Class D Note Interest
to the Class D Noteholders;
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SIXTH: To the payment of the outstanding Class
A Note Principal Balance to the Class A Noteholders (in the sequential-pay
fashion described in Section 3.05(b)(xi) hereof);
SEVENTH: To the payment of the outstanding
Class B Note Principal Balance to the Class B Noteholders;
EIGHTH: To the payment of the outstanding Class
C Note Principal Balance to the Class C Noteholders;
NINTH: To the payment of the outstanding Class
D Note Principal Balance to the Class D Noteholders;
TENTH: To the payment of Class E Note Interest
to the Class E Noteholders
ELEVENTH: To the payment of the outstanding
Class E Note Principal Balance to the Class E Noteholders
TWELFTH: To the payment of all reasonable costs
and expenses incurred by any Noteholder in connection with the enforcement of
its rights hereunder or under the Notes, ratably, without preference or priority
of any kind; and
THIRTEENTH: To the payment of any surplus to or
at the written direction of the Trust Certificate Holder.
Section 8.08 Waiver of Events of Default. (a) The holders of
66-2/3% of the then outstanding principal balance of the Notes may, by one or
more instruments in writing, waive any Event of Default hereunder and its
consequences, except a continuing Event of Default:
(i) in respect of the payment of the principal of or
interest on any Note (which may only be waived by the Holder
of such Note), or
(ii) in respect of a covenant or provision hereof
which under Article XI cannot be modified or amended without
the consent of the Holder of each Note outstanding affected
(which only may be waived by the Holders of all Notes
outstanding affected).
(b) A copy of each waiver pursuant to Section 8.08(a) shall be
furnished by First Sierra to the Indenture Trustee. Upon any such waiver, such
Event of Default shall cease to exist and shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon.
Section 8.09 Limitation On Suits. No Holder 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:
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(a) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Controlling Parties shall have made written request to
the Indenture Trustee to institute Proceedings in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(c) such Holder or Holders have offered to the Indenture
Trustee indemnity reasonably satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Indenture Trustee for 30 days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
Proceeding; and
(e) no direction inconsistent with such written request has
been given to the Indenture Trustee during such 30 day period by the Controlling
Parties;
it being understood and intended that no one or more Holders 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 Holders
or to enforce any right under this Indenture, except in the manner herein
provided.
Section 8.10 Unconditional Right of Noteholders to Receive
Principal and Interest. Notwithstanding any other provision in this Indenture,
the Noteholders shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Note as such principal
and interest becomes due and payable in accordance with the terms of this
Indenture (including, without limitation, the limitation on such payments to the
extent of Available Funds on each Payment Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Noteholder.
Section 8.11 Restoration of Rights and Remedies. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any
right or remedy in accordance with the terms of this Indenture and such
Proceeding has been discontinued or abandoned for any reason, or has been
determined adverse to the Indenture Trustee or to such Noteholder, then and in
every such case, the Indenture Trustee and the 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
hereunder shall continue as though no such Proceeding has been instituted.
Section 8.12 Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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Section 8.13 Delay or Omission Not Waiver. No delay or
omission of the Indenture Trustee or any Noteholder to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Indenture Trustee
or the Noteholders, or any of them, may be exercised from time to time, as often
as may be deemed expedient, by the Indenture Trustee or the Noteholders.
Section 8.14 Control by Controlling Parties. The Controlling
Parties shall have the right to direct in writing the decision whether to
conduct, and the time, method and place of conducting, any Proceeding for any
remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee with respect to
the Notes; provided, that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture; and
(b) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee which is not inconsistent with such direction;
provided, however, that the Indenture Trustee need not take any action which it
determines might involve it in liability or be unjustly prejudicial to the
Holders not consenting.
Section 8.15 Sale of Pledged Property. (a) The power to effect
any sale pursuant to Section 8.03 hereof shall not be exhausted by any one or
more sales as to any portion of the Pledged Property remaining unsold, but shall
continue unimpaired until the entire Pledged Property securing the Notes shall
have been sold or all amounts payable under this Indenture with respect thereto
shall have been paid. The Indenture Trustee may from time to time postpone any
sale by public announcement made at the time and place of such sale.
(b) Any Noteholder may bid for and acquire any portion of the
Pledged Property securing the Notes in connection with any sale thereof.
(c) Each of the parties hereby covenants and agrees that a
sale of the entirety of the Contracts and the Equipment by a public sale held
not less than ten days after notice thereof is commercially reasonable.
(d) The Indenture Trustee shall execute and deliver an
appropriate instrument of conveyance, provided to it by the Servicer,
transferring its interest in any portion of the Pledged Property in connection
with a sale thereof. In addition, the Indenture Trustee is hereby irrevocably
appointed the agent and attorney-in-fact of the Trust to transfer and convey its
interest in any portion of the Pledged Property in connection with a sale
thereof, and to take all action necessary to effect such sale. No purchaser or
transferee at such a sale shall be bound to ascertain the Indenture Trustee's
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any monies.
Section 8.16 Action on Notes. The Indenture Trustee's right to
seek and recover judgment on the 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 Noteholders shall
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be impaired by the recovery of any judgment by the Indenture Trustee against the
Trust or the Depositor or by the levy of any execution under such judgment upon
any portion of the Pledged Property or upon any of the assets of the Trust or
the Depositor.
ARTICLE IX.
TERMINATION
Section 9.01 Termination of Obligations and Responsibilities.
The respective obligations and responsibilities of First Sierra, the Servicer,
the Indenture Trustee and the Trust created hereby shall terminate (i) at the
option of the Trust Certificate Holder, at any time which is 123 days after the
payment to Noteholders of all amounts required to be paid to them pursuant to
this Indenture, reducing the Class A Note Principal Balance, the Class B Note
Principal Balance, the Class C Note Principal Balance, the Class D Note Balance
and the Class E Note Principal Balance to zero or (ii) after the 120th day
following the Class A-4 Maturity Date; provided that all amounts then owing to
the Indenture Trustee pursuant to the Transaction Documents have been paid to
such parties; and provided, however, that in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants living on the date of this Indenture of Xxxxxx X.
Xxxxxxx, late Ambassador to the Court of St. Xxxxx. Notwithstanding the
foregoing, the representations and warranties and indemnification obligations of
First Sierra and the Servicer hereunder and under the Servicing Agreement shall
survive the termination of the Trust and of this Indenture. Upon termination of
the Trust, the Indenture Trustee shall release any remaining Pledged Property to
the Trust Certificate Holder but not if the Class A Note Principal Balance, the
Class B Note Principal Balance, the Class C Note Principal Balance, the Class D
Note Principal Balance and the Class E Note Principal Balance have not been
reduced to zero or any amounts are owing to the Indenture Trustee.
Section 9.02 Optional Redemption of Notes; Final Disposition
of Funds. (a) On any Payment Date following any Calculation Date on which the
Aggregate Discounted Contract Principal Balance is less than fifteen percent
(15%) of the sum of the Aggregate Discounted Contract Principal Balance as of
the Closing Date, the Trust Certificate Holder shall have the option to redeem
the Notes in whole by depositing or causing to be deposited into the Collection
Account the greater of (x) the sum of (1) the Class A Note Principal Balance,
the Class B Note Principal Balance, the Class C Note Principal Balance, the
Class D Note Principal Balance and the Class E Note Principal Balance and (2)
the Class A Note Interest, the Class B Note Interest, the Class C Note Interest,
the Class D Note Interest and the Class E Note Interest and (y) the Repurchase
Amount for each Contract that was not a Defaulted Contract as of the close of
business on the second preceding Collection Period, by two Business Days prior
to such Payment Date; it being understood that in the event the purchase price
paid is equal to the amount in clause (y) above, any Defaulted Contracts and any
related recoveries shall remain property of the Trust. In the event that the
Trust Certificate Holder elects to redeem the Notes in accordance with this
Section 9.02(a), the Trust Certificate Holder shall be required to notify the
Indenture Trustee in writing by no later than two (2) Business Days prior to a
notice required to be sent by the Indenture Trustee pursuant to Section 9.02(b).
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(b) Notice of any termination pursuant to Section 9.02(a)
shall be given promptly by the Indenture Trustee, by letter to Noteholders
mailed not later than the 10th day of the month immediately preceding the month
of such final Payment Date specifying (i) the Payment Date upon which final
payment of the Notes will be made, (ii) the scheduled amount of any such final
payment, (iii) that interest shall cease to accrue on the Class A Notes and the
Subordinate Notes on such final Payment Date and (iv) the address for
presentation of the Notes for final payment. On such final Payment Date, the
Indenture Trustee shall cause to be distributed the amounts otherwise
distributable on such Payment Date pursuant to Section 3.05 hereof, taking into
account the purchase pursuant to Section 9.02(a). After such Payment Date,
interest on the Class A and Subordinate Notes shall cease to accrue.
(c) The final payment on any Note shall only be made upon the
presentation of such Note to the Indenture Trustee at the office specified in
the notice described in Section 9.02(b) above.
(d) In the event that any amount due to any Noteholder remains
unclaimed, the Servicer shall, at its expense, cause to be published once, in
the eastern edition of The Wall Street Journal, notice that such money remains
unclaimed. If, within two years after such publication, such amount remains
unclaimed, the Servicer shall be entitled to all unclaimed funds and other
assets which remain subject hereto, and the Indenture Trustee upon written
direction from the Servicer shall transfer such funds and shall be discharged of
any responsibility for such funds and, the Noteholders shall look to the
Servicer for payment.
ARTICLE X.
Noteholders' Lists and Reports
Section 10.01 Note Registrar To Furnish To Indenture Trustee
Names and Addresses of Noteholders. The Note Registrar will furnish or cause to
be furnished to the Indenture Trustee (a) not more than five days after the
earlier of (i) each Record Date and (ii) three months after the last Record
Date, a list, in such form as the Indenture Trustee may reasonably require, of
the names and addresses of the Holders as of such Record Date, (b) at such other
times as the Indenture Trustee may request in writing, within 30 days after
receipt by the Issuer 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 the Indenture Trustee is the Note Registrar,
no such list shall be required to be furnished. The Indenture Trustee or, if the
Indenture Trustee is not the Note Registrar, the Note Registrar shall furnish to
the Trust in writing upon their written request and at such other times as the
Trust may request a copy of the list of Noteholders.
Section 10.02 Preservation of Information; Communications to
Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Noteholders contained
in the most recent list furnished to the Indenture Trustee and the names and
addresses of Noteholders received by the Indenture Trustee in its capacity as
Note Registrar.
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(b) Noteholders may communicate pursuant to TIA Section 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA Section 312(c).
Section 10.03 Reports by the Trust. (a) The Servicer, on
behalf of the Trust, shall:
(i) file with the Indenture Trustee, within 15 days
after the Trust is required to file the same with the
Commission, copies of the annual reports and copies 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
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 such additional
information, documents and reports with respect to compliance
by the Issuer 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 Noteholders
described in TIA Section 313(c)) such summaries of any
information, documents and reports required to be filed by the
Trust pursuant to clauses (i) and (ii) of this Section
10.03(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Trust otherwise determines, the fiscal year of
the Trust shall end as of December 31 of each year for purposes of this section.
Section 10.04 Reports by Indenture Trustee. If required by TIA
Section 313(a), within 60 days after each August 31, beginning with August 31,
1999, the Indenture Trustee shall mail to each 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
Noteholders shall be filed by the Indenture Trustee with the Commission and each
stock exchange, if any, on which the Notes are listed. The Trust shall notify
the Indenture Trustee if and when the Notes are listed on any stock exchange.
Section 10.05 Compliance Certificates and Opinions, etc. Upon
any application or request by the Trust to the Indenture Trustee to take any
action under any provision of this Indenture, the Trust 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
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meeting the applicable requirements of this Section, 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 or has caused to be 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.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment. (a) This Indenture may be amended
from time to time by the Trust, the Servicer, the Originator and the Indenture
Trustee, without the consent of any of the Noteholders, to cure any ambiguity
herein; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel acceptable to the Indenture Trustee, adversely affect in any
respect the interests of any Noteholder.
(b) This Indenture may also be amended from time to time by
the Trust, the Servicer, the Originator and the Indenture Trustee with the
consent of the Majority Holders for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Noteholders; provided, however,
that no such amendment shall (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Contracts or
distributions that are required to be made on any Note without the consent of
the Holder of such Note or (ii) reduce the aforesaid percentage required to
consent to any such amendment, without the consent of the Holders of all Notes
then outstanding.
(c) Prior to the effectiveness of any amendment under Section
11.01(a) or (b), the Rating Agencies shall have confirmed in writing their
respective ratings of the Notes.
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(d) Promptly after the execution of any such amendment, the
Indenture Trustee shall furnish a written copy of the text of such amendment
(and any consent required with respect thereto) to each Noteholder and the
Rating Agencies.
(e) Approval of the particular form of any proposed amendment
or consent shall not be necessary for the consent of the Noteholders under
Section 11.01(b), but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by the Noteholders shall be subject to
such reasonable requirements as the Indenture Trustee may prescribe.
(f) The Indenture Trustee shall be entitled to receive an
Officer's Certificate and an Opinion of Counsel to the effect that all
conditions precedent to the amendment of this Indenture have been satisfied. The
Indenture Trustee may, but shall not be obligated to, execute and deliver any
such amendment which affects that Indenture Trustee's rights, powers, immunities
or indemnifications hereunder.
Section 11.02 Conformity With Trust Indenture Act. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article XI shall conform to the requirements of the Trust Indenture Act
as then in effect so long as this Indenture shall then be qualified under the
TIA.
Section 11.03 Limitation on Rights of Noteholders. (a) The
death or incapacity of any Noteholder shall not operate to terminate this
Indenture or the Trust, nor entitle such Noteholder's legal representatives or
heirs to claim an accounting or to take any action or commence any proceeding in
any court for a partition or winding up of the Trust, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) It is understood and intended, and expressly covenanted by
each Noteholder with every other Noteholder and the Indenture Trustee, that no
one or more Holders of Notes shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Indenture
to affect, disturb or prejudice the rights of the Holders of any other of the
Notes, to obtain or seek to obtain priority over or preference to any other
Holder of the same class of Notes or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common
benefit of all Noteholders of the same class. For the protection and enforcement
of the provisions of this Section 11.03, each and every Noteholder and the
Indenture Trustee shall be entitled to such relief as can be given either at law
or in equity.
Section 11.04 Counterparts. For the purpose of facilitating
the execution of this Indenture and for other purposes, this Indenture may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
Section 11.05 Governing Law. THIS INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH
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SUCH LAWS, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS OF ANY STATE.
Section 11.06 Notices. All demands, notices, instructions,
directions and communications (other than periodic communications of a routine
nature made in connection with the dissemination of information regarding the
Pledged Property, the Servicer and the Trust required to be delivered hereunder,
which shall be delivered or mailed by first class mail or facsimile
transmission) hereunder shall be in writing, personally delivered or mailed by
overnight courier, and shall be deemed to have been duly given upon receipt (a)
in the case of the Servicer, at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, Attention: Xxxxx Xx, telephone (000) 000-0000, telecopy (000) 000-0000,
(b) in the case of the Trust, First Union Trust Company, National Association,
at One Xxxxxx Square, 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration, telephone (000) 000-0000, telecopy
(000) 000-0000, (c) in the case of the Indenture Trustee, at Four Albany Street,
10th Floor, New York, New York 10006, Attention: Corporate Trust and Agency
Group Structured Finance Team, telephone 000-000-0000, telecopy 000-000-0000,
(d) in the case of S&P, at 00 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Asset Backed Surveillance, telephone (000) 000-0000, telecopy (212)
438-2664, (e) in the case of Fitch, at Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Asset Backed Surveillance, telephone (000) 000-0000,
telephone (000) 000-0000, (f) in the case of Moody's, 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring Group, telephone (000) 000-0000,
telecopy (000) 000-0000, (g) in the case of DCR, 00 Xxxx Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed Monitoring - Equipment
Leases, telephone (000) 000-0000, telecopy (000) 000-0000 and (h) any notice so
mailed within the time prescribed in this Indenture shall be conclusively
presumed to have been duly given on the fifth Business Day following mailing,
whether or not the Noteholder receives such notice.
Section 11.07 Severability of Provisions. If any one or more
of the covenants, agreements, provisions, or terms of this Indenture shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Indenture and shall in no way affect the
validity or enforceability of the other provisions of this Indenture or of the
Notes or the rights of the Holders thereof.
Section 11.08 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
The provisions of TIA Sections 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.
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Section 11.09 Reserved.
Section 11.10 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 5.02 of the Servicing
Agreement, this Indenture may not be assigned by the Servicer except with the
prior written consent of the Trust and the Holders of the Notes of the
applicable Class evidencing Percentage Interests of not less than 66-2/3%.
Notice of any such assignment received by a Responsible Officer of the Indenture
Trustee shall be given to the Rating Agencies by the Indenture Trustee.
Section 11.11 Binding Effect. This Indenture shall inure to
the benefit of, and shall be binding upon the Servicer, the Trust, the Indenture
Trustee and the Noteholders and their respective successors and permitted
assigns, subject, however, to the limitations contained in this Indenture. This
Indenture shall not inure to the benefit of any Person other than the Trust, the
Servicer, the Indenture Trustee and the Noteholders.
Section 11.12 Survival of Agreement. All covenants,
agreements, representations and warranties made herein and in the other
documents delivered pursuant hereto shall survive the pledge of the Pledged
Property and the issuance of the Notes and shall continue in full force and
effect until terminated pursuant to Section 9.01 hereof.
Section 11.13 Captions. The captions or headings in this
Indenture are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Indenture.
Section 11.14 Exhibits. The Exhibits to this Indenture are
hereby incorporated herein and made a part hereof and are an integral part of
this Indenture.
Section 11.15 Calculations. Except as otherwise provided in
this Indenture, including, without limitation, with respect to the calculation
of interest on the Class A-1 Notes, all interest rate calculations under this
Indenture, including those with respect to the Contracts, will be made on the
basis of a 360-day year and twelve 30-day months (i.e., each Interest Accrual
Period shall be deemed to be equal 30 day periods) and will be carried out to at
least seven decimal places.
Section 11.16 No Proceedings. The Servicer, the Originator,
the Trust and the Indenture Trustee each hereby agrees that it will not directly
or indirectly institute, or cause to be instituted, against the Trust
Certificate Holder or the Trust any bankruptcy or insolvency proceeding so long
as there shall not have elapsed one year plus one day since the maturity date of
the latest maturing securities of the Trust.
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IN WITNESS WHEREOF, the Trust, the Servicer, the Originator
and the Indenture Trustee have caused this Indenture to be duly executed by
their respective officers, all as of the day and year first above written.
FIRST SIERRA EQUIPMENT CONTRACT
TRUST 1999-2, a common law
trust acting through its trustee,
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
owner trustee, as Issuer
By /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
FIRST SIERRA FINANCIAL, INC., as
Servicer and as Originator
By /s/ E. Xxxxx Xxxxxxx
---------------------------------
Name: E. Xxxxx. Xxxxxxx
Title: Senior Vice President
BANKERS TRUST COMPANY, not in its
individual capacity but solely as
Indenture Trustee
By /s/ Xxxxxxxx X.X. Xxxxx
---------------------------------
Name: Xxxxxxxx X.X. Xxxxx
Title: Vice President
[Signature Page to Indenture]
