_________________________________________________________________
TLFC IV EQUIPMENT LEASE TRUST 1995-1
Class A 6.40% Lease Backed Notes
Class B 7.55% Lease Backed Notes
INDENTURE
Dated as of October 6, 1995
Manufacturers and Traders Trust Company
Indenture Trustee
TABLE OF CONTENTS
Page
ARTICLE I Definitions and Incorporation by Reference. . . .2
SECTION 1.1 Definitions. . . . . . . . . . . . . . . . .2
SECTION 1.2 Other Definitional Provisions. . . . . . . .8
SECTION 1.3 Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . . . .9
ARTICLE II The Notes . . . . . . . . . . . . . . . . . . . .9
SECTION 2.1 Form . . . . . . . . . . . . . . . . . . . .9
SECTION 2.2 Execution, Authentication and Delivery . . 10
SECTION 2.3 Temporary Notes. . . . . . . . . . . . . . 11
SECTION 2.4 Registration; Registration of Transfer or
Exchange . . . . . . . . . . . . . . . . . 11
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen
Notes. . . . . . . . . . . . . . . . . . . 13
SECTION 2.6 Persons Deemed Owner . . . . . . . . . . . 14
SECTION 2.7 Payment of Principal and Interest. . . . . 14
SECTION 2.8 Cancellation . . . . . . . . . . . . . . . 15
SECTION 2.9 Release of Collateral. . . . . . . . . . . 16
SECTION 2.10 Book-Entry Notes . . . . . . . . . . . . . 16
SECTION 2.11 Notices to Clearing Agency . . . . . . . . 17
SECTION 2.12 Definitive Class A Notes . . . . . . . . . 17
SECTION 2.13 Certain Noteholders. . . . . . . . . . . . 18
SECTION 2.14 Tax Treatment. . . . . . . . . . . . . . . 18
SECTION 2.15 Special Terms Applicable to Class B
Notes. . . . . . . . . . . . . . . . . . . 18
ARTICLE III Covenants . . . . . . . . . . . . . . . . . . . 19
SECTION 3.1 Payment of Principal and Interest. . . . . 19
SECTION 3.2 Maintenance of Office or Agency. . . . . . 20
SECTION 3.3 Money for Payments To Be Held in Trust . . 20
SECTION 3.4 Existence. . . . . . . . . . . . . . . . . 22
SECTION 3.5 Protection of Indenture Trust Estate . . . 22
SECTION 3.6 Opinions as to Indenture Trust Estate. . . 23
SECTION 3.7 Performance of Obligations; Servicing of
Leases . . . . . . . . . . . . . . . . . . 24
SECTION 3.8 Negative Covenants . . . . . . . . . . . . 25
SECTION 3.9 Annual Statement as to Compliance. . . . . 26
SECTION 3.10 Consolidation, Merger, etc. of Issuer;
Disposition of Trust Assets. . . . . . . . 27
SECTION 3.11 Successor or Transferee. . . . . . . . . . 29
SECTION 3.12 No Other Business. . . . . . . . . . . . . 29
SECTION 3.13 No Borrowing . . . . . . . . . . . . . . . 29
SECTION 3.14 Servicer's Obligations . . . . . . . . . . 30
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities. . . . . . . . . . . . . . . . 30
SECTION 3.16 Capital Expenditures . . . . . . . . . . . 30
SECTION 3.17 Removal of Administrator . . . . . . . . . 30
SECTION 3.18 Restricted Payments. . . . . . . . . . . . 30
SECTION 3.19 Notice of Events of Default. . . . . . . . 31
SECTION 3.21 Trustee's Assignment of Interest in
Certain Receivables. . . . . . . . . . . . 31
SECTION 3.22 Representations and Warranties by the
Issuer to the Indenture Trustee. . . . . . 32
ARTICLE IV Satisfaction and Discharge. . . . . . . . . . . 32
SECTION 4.1 Satisfaction and Discharge of Indenture. . 32
SECTION 4.2 Application of Trust Money . . . . . . . . 34
SECTION 4.3 Repayment of Monies Held by Paying Agent . 34
ARTICLE V Remedies. . . . . . . . . . . . . . . . . . . . 34
SECTION 5.1 Events of Default. . . . . . . . . . . . . 34
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . 36
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee . . . . . 36
SECTION 5.4 Remedies; Priorities . . . . . . . . . . . 39
SECTION 5.5 Optional Preservation of the Indenture . . 40
SECTION 5.6 Limitation of Suits. . . . . . . . . . . . 41
SECTION 5.7 Unconditional Rights of Noteholders To
Receive Principal and Interest . . . . . . 42
SECTION 5.8 Restoration of Rights and Remedies . . . . 42
SECTION 5.9 Rights and Remedies Cumulative . . . . . . 42
SECTION 5.10 Delay or Omission Not a Waiver . . . . . . 42
SECTION 5.11 Control by Noteholders . . . . . . . . . . 43
SECTION 5.12 Waiver of Past Defaults. . . . . . . . . . 43
SECTION 5.13 Undertaking for Costs. . . . . . . . . . . 44
SECTION 5.14 Waiver of Stay or Extension Laws . . . . . 44
SECTION 5.15 Action on Notes. . . . . . . . . . . . . . 44
SECTION 5.16 Performance and Enforcement of Certain
Obligations. . . . . . . . . . . . . . . . 45
ARTICLE VI Indenture Trustee . . . . . . . . . . . . . . . 46
SECTION 6.1 Duties of Indenture Trustee. . . . . . . . 46
SECTION 6.2 Rights of Indenture Trustee. . . . . . . . 48
SECTION 6.3 Individual Rights of Indenture Trustee . . 48
SECTION 6.4 Indenture Trustee's Disclaimer . . . . . . 48
SECTION 6.5 Notice of Events of Default. . . . . . . . 49
SECTION 6.6 Reports by Indenture Trustee to Holders. . 49
SECTION 6.7 Compensation and Indemnity . . . . . . . . 49
SECTION 6.8 Replacement of Indenture Trustee . . . . . 50
SECTION 6.9 Successor Indenture Trustee by Xxxxxx. . . 51
SECTION 6.10 Appointment of Co-Trustee or Separate
Trustee. . . . . . . . . . . . . . . . . . 52
SECTION 6.11 Eligibility; Disqualification. . . . . . . 53
SECTION 6.12 Preferential Collection of Claims
Against Issuer . . . . . . . . . . . . . . 53
SECTION 6.13 Representations and Warranties of
Indenture Trustee. . . . . . . . . . . . . 54
SECTION 6.14 Indenture Trustee May Enforce Claims
Without Possession of Notes. . . . . . . . 55
ARTICLE VII Noteholders' Lists and Reports. . . . . . . . . 55
SECTION 7.1 Issuer to Furnish Indenture Trustee
Names and Addresses of Noteholders . . . . 55
SECTION 7.2 Preservation of Information;
Communications to Noteholders. . . . . . . 55
SECTION 7.3 Reports by Issuer. . . . . . . . . . . . . 56
SECTION 7.4 Reports by Indenture Trustee . . . . . . . 56
ARTICLE VIII Accounts, Disbursements and Releases. . . . . . 57
SECTION 8.1 Collection of Money. . . . . . . . . . . . 57
SECTION 8.2 Trust Accounts . . . . . . . . . . . . . . 57
SECTION 8.3 General Provisions Regarding Accounts. . . 58
SECTION 8.4 Release of Indenture Trust Estate. . . . . 59
SECTION 8.5 Opinion of Counsel . . . . . . . . . . . . 59
ARTICLE IX Supplemental Indentures . . . . . . . . . . . . 60
SECTION 9.1 Supplemental Indentures Without
Consent of Noteholders . . . . . . . . . . 60
SECTION 9.2 Supplemental Indentures with Consent
of Noteholders . . . . . . . . . . . . . . 61
SECTION 9.3 Execution of Supplemental Indentures . . . 63
SECTION 9.4 Effect of Supplemental Indenture . . . . . 63
SECTION 9.5 Conformity with Trust Indenture Act. . . . 64
SECTION 9.6 Reference in Notes to Supplemental
Indentures . . . . . . . . . . . . . . . . 64
ARTICLE X Redemption of Notes . . . . . . . . . . . . . . 64
SECTION 10.1 Redemption . . . . . . . . . . . . . . . . 64
SECTION 10.2 Form of Redemption Notice. . . . . . . . . 65
SECTION 10.3 Notes Payable on Redemption Date . . . . . 65
ARTICLE XI Miscellaneous . . . . . . . . . . . . . . . . . 66
SECTION 11.1 Compliance Certificates and
Opinions, etc. . . . . . . . . . . . . . . 66
SECTION 11.2 Form of Documents Delivered to
Indenture Trustee. . . . . . . . . . . . . 68
SECTION 11.3 Acts of Noteholders. . . . . . . . . . . . 69
SECTION 11.4 Notices, etc., to Indenture Trustee,
Issuer and Rating Agency . . . . . . . . . 70
SECTION 11.5 Notices to Noteholders; Waiver . . . . . . 71
SECTION 11.6 Alternate Payment and Notice Provisions. . 71
SECTION 11.7 Conflict with Trust Indenture Act. . . . . 72
SECTION 11.8 Effect of Headings and Table of Contents . 72
SECTION 11.9 Successors and Assigns . . . . . . . . . . 72
SECTION 11.10 Severability . . . . . . . . . . . . . . . 72
SECTION 11.11 Benefits of Indenture. . . . . . . . . . . 72
SECTION 11.12 Legal Holidays . . . . . . . . . . . . . . 72
SECTION 11.13 GOVERNING LAW. . . . . . . . . . . . . . . 73
SECTION 11.14 Counterparts . . . . . . . . . . . . . . . 73
SECTION 11.15 Recording of Indenture . . . . . . . . . . 73
SECTION 11.16 No Recourse. . . . . . . . . . . . . . . . 73
SECTION 11.17 No Petition. . . . . . . . . . . . . . . . 74
SECTION 11.18 Inspection . . . . . . . . . . . . . . . . 74
EXHIBITS
Testimonium, Signatures and Seals
Acknowledgments
Exhibit A Form of Class A Note
Exhibit B Form of Class B Note
Exhibit C Form of Depository Agreement
Exhibit D Form of Certificate
Exhibit E Form of Undertaking Letter
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a) (1) ! ..................! 6.11
(a) (2) ! ..................! 6.11
(a) (3) ! ..................! 6.10, 6.11
(a) (4) ! ..................! 6.11, 6.14
(b) ! ..................! 6.11
(c) ! ..................! N.A.
311 (a) ! ..................! 6.12
(b) ! ..................! 6.12
(c) ! ..................! N.A.
312 (a) ! ..................! 7.1, 7.2
(b) ! ..................! 7.2
(c) ! ..................! 7.2
313 (a) ! ..................! 7.4(a), 7.4(b)
(b) (1) ! ..................! 7.4(a)
(b) (2) ! ..................! 7.4(a)
(c) ! ..................! 7.3(a), 7.4(a)
(d) ! ..................! 7.4(a)
314 (a) ! ..................! 7.3(a), 3.9
(b) ! ..................! 3.6
(c) (1) ! ..................! 2.2, 2.9, 4.1, 8.4, 11.1(a)
! ..................! 11.1(a)
(c) (2) ! ..................! 2.2, 2.9, 4.1, 8.4, 11.1(a)
! ..................! 11.1(a)
(c) (3) ! ..................! 2.9, 4.1, 8.4, 11.1(a)
(d) ! ..................! 2.9, 8.4, 11.1(b)
(e) ! ..................! 11.1(a)
(f) ! ..................! 11.1(a)
315 (a) ! ..................! 6.1(b)
(b) ! ..................! 6.5
(c) ! ..................! 6.1(a)
(d) ! ..................! 6.2, 6.1(c)
(e) ! ..................! 5.13
316 (a)last ! ..................!
sentance ! ..................! 1.1
(a) (1)(A)! ..................! 5.11
(a) (1)(B)! ..................! 5.12
(a) (2) ! ..................! Omitted
316 (b),(c) ! ..................! 5.7
317 (a) (1) ! ..................! 5.3(b)
(a) (2) ! ..................! 5.3(d)
(b) ! ..................! 3.3
318 (a) ! ..................! 11.7
N.A. means Not Applicable
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Note: This cross reference table shall not, for any purpose,
be deemed to be part of this Indenture
This INDENTURE dated as of October 6, 1995, between TLFC
IV EQUIPMENT LEASE TRUST 1995-1, a Delaware business trust (the
"Issuer"), and Manufacturers and Traders Trust Company, a banking
corporation organized and existing under the laws of New York,
solely as trustee and not in its individual capacity (the
"Indenture Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the
Notes:
GRANTING CLAUSE
The Issuer hereby grants to the Indenture Trustee, as
trustee for the benefit of the Holders of the Notes, all of the
Issuer's right, title and interest in, to and under the following
property, whether now existing or hereafter arising: (a) the
Leases and all monies due thereon after the Cut-Off Date; (b) the
Issuer's interest in the related Equipment; (c) the Insurance
Policies and any Insurance Proceeds related to the Leases; (d)
all funds on deposit from time to time in the Trust Accounts and
in all investments and proceeds thereof (including all income
thereon); (e) the Pooling and Servicing Agreement (including all
rights of the Seller under the Contribution and Sale Agreement
assigned to the Issuer pursuant to the Pooling and Servicing
Agreement (including the right to cause the Originator to
repurchase Leases under certain circumstances in accordance with
the provisions of the Contribution and Sale Agreement)); and (f)
all present and future claims, demands, causes and choses in
action in respect of any or all of the foregoing and all payments
on or under and all proceeds of every kind and nature whatsoever
in respect of any or all of the foregoing, including all proceeds
of the conversion, voluntary or involuntary, into cash or other
liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks,
deposit accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time
constitute all or part of or are included in the proceeds of any
of the foregoing (collectively, the "Collateral").
The foregoing grant is made in trust to secure the
payment of principal of and interest on, and any other amounts
owing in respect of, the Notes, equally and ratably without
prejudice, priority or distinction (except as otherwise provided
herein) and to secure compliance with the provisions of this
Indenture, all as provided in this Indenture.
The foregoing grant includes all rights, powers and
options (but none of the obligations, if any) of the Issuer under
any agreement or instrument included in the Collateral, including
the immediate and continuing right to claim for, collect, receive
and give receipt for principal and interest payments in respect
of the Leases included in the Collateral and all other monies
payable under the Collateral, to give and receive notices and
other communications, to make waivers or other agreements, to
exercise all rights and options, to bring Proceedings in the name
of the Issuer or otherwise and generally to do and receive
anything that the Issuer is or may be entitled to do or receive
under or with respect to the Collateral.
The Indenture Trustee, as Indenture Trustee on behalf
of the Noteholders, acknowledges such grant and accepts the
trusts under this Indenture in accordance with the provisions of
this Indenture.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.1 Definitions. Except as otherwise
specified herein or as the context may otherwise require, the
following terms have the respective meanings set forth below for
all purposes of this Indenture.
"Act" has the meaning specified in Section 11.3(a).
"Authorized Officer" means, with respect to the Issuer,
any officer of the Owner Trustee or of Bankers Trust Company who
is authorized to act for the Owner Trustee in matters relating to
the Issuer and who is identified on the list of Authorized
Officers, containing the specimen signature of each such Person,
delivered by the Owner Trustee to the Indenture Trustee on the
Closing Date (as such list may be modified or supplemented from
time to time thereafter).
"Basic Documents" means this Indenture, the Pooling and
Servicing Agreement, the Trust Agreement, the Contribution and
Sale Agreement, the Administration Agreement, the Depository
Agreement and the other documents and certificates delivered in
connection therewith.
"Benefit Plan" means any one of (a) an employee benefit
plan (as described in Section 3(3) of ERISA) that is subject to
the provisions of Title I of ERISA, (b) a plan described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying
assets include plan assets by reason of a plan's investment in
such entity.
"Book Entry Notes" means a beneficial interest in the
Class A Notes, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section
2.10.
"Certificate" has the meaning assigned to it in the
Trust Agreement.
"Certificateholder" has the meaning assigned to it in
the Trust Agreement.
"Certificate of Trust" has the meaning assigned to it
in the Trust Agreement.
"Class A Note" means a Class A 6.40% Lease Backed Note,
substantially in the form of Exhibit A, executed by the Issuer
and authenticated by the Indenture Trustee.
"Class B Note" means a Class B 7.55% Lease Backed Note,
substantially in the form of Exhibit B, executed by the Issuer
and authenticated by the Indenture Trustee.
"Clearing Agency" means an organization registered as a
"clearing agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer,
bank, other financial institution or other Person for whom from
time to time a Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated
thereunder.
"Collateral" has the meaning specified in the Granting
Clause of this Indenture.
"Contribution and Sale Agreement" means the Amended and
Restated Contribution and Sale Agreement dated as of the date
hereby by and between the Seller and the Originator, as amended
or supplemented from time to time.
"Corporate Trust Office" means the principal office of
the Indenture Trustee at which at any particular time its
corporate trust business shall be administered which office as of
the date of the execution of this Indenture is located at Xxx X&X
Xxxxx, Xxxxxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Department (7th Floor); or at such other address as the
Indenture Trustee may designate from time to time by notice to
the Noteholders and the Issuer, or the principal corporate trust
office of any successor Indenture Trustee (the addresses of which
the successor Indenture Trustee will notify the Noteholders and
the Issuer).
"Default" means any occurrence that is, or with notice
or the lapse of time or both would become, an Event of Default.
"Definitive Class A Notes" has the meaning specified in
Section 2.10.
"Depository Agreement" means the agreement among the
Issuer, the Indenture Trustee, and The Depository Trust Company,
as the initial Clearing Agency, dated as of the Closing Date,
substantially in the form of Exhibit C.
"Event of Default" has the meaning specified in
Section 5.1.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Executive Officer" means, with respect to any
corporation, the Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer, President, any Executive Vice
President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any
general partner xxxxxxx.
"Holder" or "Noteholder" means the Person in whose name
a Class A Note or a Class B Note is registered on the Note
Register.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Indenture Trustee" means Manufacturers and Traders
Trust Company, a banking corporation organized and existing under
the laws of New York, as Indenture Trustee under this Indenture,
or any successor Indenture Trustee under this Indenture.
"Indenture Trust Estate" means all money, instruments,
rights and other property that are subject or intended to be
subject to the lien and security interest of this Indenture for
the benefit of the Noteholders (including, without limitation,
all property and interests granted to the Indenture Trustee),
including all proceeds thereof.
"Independent" means, when used with respect to any
specified Person, that the Person (a) is in fact independent of
the Issuer, any other obligor upon the Notes, the Seller and any
Affiliate of any of the foregoing Persons, (b) does not have any
direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Seller or any
Affiliate of any of the foregoing Persons and (c) is not
connected with the Issuer, any such other obligor, the Seller or
any Affiliate of any of the foregoing Persons as an officer,
employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
"Independent Certificate" means a certificate or
opinion to be delivered to the Indenture Trustee under the
circumstances described in, and otherwise complying with, the
applicable requirements of Section 11.1, made by an Independent
appraiser or other expert appointed by an Issuer Order, such
opinion or certificate shall state that the signer has read the
definition of "Independent" in this Indenture and that the signer
is Independent within the meaning thereof.
"Issuer" means TLFC IV Equipment Lease Trust 1995-1
until a successor replaces it and, thereafter, means the
successor and, for purposes of any provision contained herein and
required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written
order or request signed in the name of the Issuer by any one of
its Authorized Officers and delivered to the Indenture Trustee.
"Note Owner" means, with respect to a Book-Entry Note,
the Person who is the owner of such Book-Entry Note, as reflected
on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in
each case in accordance with the rules of such Clearing Agency).
"Note Register" and "Note Registrar" have the
respective meanings specified in Section 2.4.
"Notes" means the Class A Notes and the Class B Notes.
"Officer's Certificate" means a certificate signed by
any Authorized Officer of the Issuer, under the circumstances
described in, and otherwise complying with, the applicable
requirements of Section 11.1, and delivered to the Indenture
Trustee. Unless otherwise specified, any reference in this
Indenture to an Officer's Certificate shall be to an Officer's
Certificate of any Authorized Officer of the Issuer.
"Opinion of Counsel" means one or more written opinions
of counsel who may, except as otherwise expressly provided in
this Indenture, be employees of or counsel to the Issuer and who
shall be acceptable to the Indenture Trustee, and which opinion
or opinions shall be addressed to the Indenture Trustee as
Indenture Trustee, and shall comply with any applicable
requirements of Section 11.1.
"Originator" means Trans Leasing International, Inc., a
Delaware corporation, in its capacity as transferor of certain
assets pursuant to the Contribution and Sale Agreement and its
successors.
"Outstanding" means, as of the date of determination,
all Notes theretofore authenticated and delivered under this
Indenture except:
(i) Notes theretofore cancelled by the Note Registrar
or delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which
money in the necessary amount has been theretofore deposited with
the Indenture Trustee or any Paying Agent in trust for the
Holders of such Notes (provided, however, that if such Notes are
to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor, satisfactory to
the Indenture Trustee); and
(iii) Notes in exchange for or in lieu of other Notes
which have been authenticated and delivered pursuant to this
Indenture unless proof satisfactory to the Indenture Trustee is
presented that any such Notes are held by a bona fide purchaser;
provided that in determining whether the Holders of the requisite
Outstanding Amount of the Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or
under any Basic Document, Notes owned by the Issuer, any other
obligor upon the Notes, the Seller or any Affiliate of any of the
foregoing Persons shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Indenture
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Notes that the Indenture Trustee knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Indenture Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, a Certificateholder or
any Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal
amount of all Notes, or a Class of Notes, as applicable,
Outstanding at the date of determination.
"Owner Trustee" means Bankers Trust (Delaware), a
Delaware banking corporation, not in its individual capacity but
solely as Owner Trustee under the Trust Agreement, or any
successor Owner Trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any
Person that meets the eligibility standards for the Indenture
Trustee specified in Section 6.11 authorized by the Issuer to
make the payments to and distributions from the Collection
Account and the Note Distribution Account, including payment of
principal of or interest on the Notes on behalf of the Issuer.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement dated as of the date hereof by and among the
Seller, the Issuer and Trans Leasing International, Inc., a
Delaware corporation, as Servicer, as such agreement may be
amended, modified or supplemented from time to time.
"Predecessor Note" means, with respect to any
particular Note, every previous Note evidencing all or a portion
of the same debt as that evidenced by such particular Note; and,
for the purpose of this definition, any Note authenticated and
delivered under Section 2.5 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or
other judicial or administrative proceeding.
"Record Date" means, with respect to a Payment Date or
a Redemption Date, the close of business on the last day of the
calendar month preceding the calendar month in which such Payment
Date or Redemption Date occurs.
"Redemption Date" means the Payment Date specified as
such by the Servicer or the Issuer as described in Section 10.1
and 10.2.
"Redemption Price" means (a) in the case of a
redemption of the Notes pursuant to Section 10.1(a), an amount
equal to the unpaid principal amount of the Notes redeemed plus
accrued and unpaid interest thereon to but excluding the
Redemption Date, or (b) in the case of a payment made to
Noteholders pursuant to Section 10.1(b), the amount on deposit in
the Note Distribution Account, but not in excess of the amount
specified in clause (a) above.
"Registered Holder" means the Person in whose name a
Note is registered on the Note Register on the applicable Record
Date.
"Responsible Officer" means, with respect to the
Indenture Trustee, any officer within the Corporate Trust Office
of the Indenture Trustee, including any Vice President, Assistant
Vice President, Trust Officer, Secretary, Assistant Secretary, or
any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above
designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because
of such officer's knowledge of and familiarity with the
particular subject.
"State" means any one of the 50 states of the United
States of America or the District of Columbia.
"Trust Indenture Act" or "TIA" means the Trust
Indenture Act of 1939 as in force on the date hereof, unless
otherwise specifically provided.
SECTION 1.2 Other Definitional Provisions.
(a) Capitalized terms used herein and not otherwise
defined have the meanings assigned to them in the Pooling and
Servicing Agreement or, if not defined therein, in the Trust
Agreement.
(b) All terms defined in this Indenture shall have the
defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined
therein.
(c) As used in this Indenture and in any certificate
or other document made or delivered pursuant hereto or thereto,
accounting terms not defined in this Indenture or in any such
certificate or other document, and accounting terms partly
defined in this Indenture or in any such certificate or other
document to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting
principles in effect on the date hereof. To the extent that the
definitions of accounting terms in this Indenture or in any such
certificate or other document are inconsistent with the meanings
of such terms under generally accepted accounting principles, the
definitions contained in this Indenture or in any such
certificate or other documents shall control.
(d) The words "hereof," "herein," "hereunder," and
words of similar import when used in this Indenture shall refer
to this Indenture as a whole and not to any particular provision
of this Indenture; Section and Exhibit references contained in
this Indenture are references to Sections and Exhibits in or to
this Indenture unless otherwise specified; and the term
"including" shall mean "including without limitation."
(e) The definitions contained in this Indenture are
applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter
genders of such terms.
SECTION 1.3 Incorporation by Reference of Trust
Indenture Act. Whenever this Indenture refers to a provision of
the TIA, that 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
Indenture Trustee.
"obligor" on the indenture securities means the Issuer
and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute
or defined by Commission rule have the meaning assigned to them
by such definitions.
ARTICLE II
The Notes
SECTION 2.1 Form. The Class A Notes and Class B
Notes, in each case together with the Indenture Trustee's
certificate of authentication, shall be in substantially the
forms set forth in Exhibits A and B, respectively, with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may
have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may, consistently
herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the
text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Class A Notes and the Class B Notes
shall be typewritten, printed, lithographed or engraved or
produced by any combination of methods (with or without steel
engraved borders), all determined by the officers executing such
Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its
authentication. Each Note shall be a registered Note in the
minimum denomination of $1,000 and, to the extent practicable,
integral multiples thereof (except in the case of the Class B
Notes, which shall be registered Notes in the minimum
denomination of $500,000 and, to the extent practicable, integral
multiples of $100,000 in excess thereof. The terms of the Notes
set forth in Exhibits A and B are part of the terms of this
Indenture.
SECTION 2.2 Execution, Authentication and Delivery.
(a) The Notes shall be executed on behalf of the
Issuer by any of its Authorized Officers. The signature of any
such Authorized Officer on the Notes may be manual or facsimile.
(b) Notes bearing the manual or facsimile signature of
individuals who were at any time Authorized Officers of the
Issuer shall bind the Issuer, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
(c) The Indenture Trustee shall upon Issuer Order
authenticate and deliver Class A Notes for original issue in an
aggregate principal amount of $89,658,869 and Class B Notes for
an original issue in an aggregate principal amount of
$10,802,273. The aggregate principal amount of Class A and Class
B Notes Outstanding at any time may not exceed such amounts,
respectively, except as provided Section 2.5.
(d) No Note shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose, unless
there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its
Responsible Officers, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder.
The Indenture Trustee's certificate of authentication
shall be substantially in the following form:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and
referred to in the within-mentioned Indenture.
Date: _________, 199_ _________________________________,
not in its individual capacity but
solely as Indenture Trustee
By:______________________
Authorized Signature
SECTION 2.3 Temporary Notes. Pending the preparation
of definitive Notes to be issued in exchange for Book-Entry Notes,
the Issuer may execute, and upon receipt of an Issuer Order the
Indenture Trustee shall authenticate and deliver, temporary Notes
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, of the tenor of the definitive Notes in lieu of
which they are issued and with such variations not inconsistent
with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are so issued, the Issuer will cause
definitive Notes to be prepared without unreasonable delay. After
preparation of definitive Notes, the temporary Notes shall be
exchangeable for definitive Notes upon surrender of the temporary
Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the
Issuer shall execute and the Indenture Trustee upon Issuer Order
shall authenticate and deliver in exchange therefor a like
principal amount of definitive Notes of authorized denominations.
Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 2.4 Registration; Registration of Transfer or
Exchange. The Issuer shall cause to be kept a register (the "Note
Register") in which, subject to such reasonable regulations as it
may prescribe, the Issuer shall provide for the registration of
Notes and the registration of transfers of Notes. The Indenture
Trustee shall initially be "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon
any resignation of any Note Registrar, the Issuer shall promptly
appoint a successor or, if it elects not to make such an
appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed
by the Issuer as Note Registrar, the Issuer will give the Indenture
Trustee prompt written notice of the appointment of such Note
Registrar and of the location, and any change in the location, of
the Note Register, and the Indenture Trustee shall have the right
to inspect the Note Register at all reasonable times and to obtain
copies thereof, and the Indenture Trustee shall have the right to
rely upon a certificate executed on behalf of the Note Registrar by
an Executive Officer thereof as to the names and addresses of the
Holders of the Notes and the principal amounts and number of such
Notes.
Upon surrender for registration of transfer of any Note
at the office or agency of the Issuer to be maintained as provided
in Section 3.2, the Issuer shall execute, the Indenture Trustee
shall authenticate and the Noteholders shall obtain from the
Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes of the same series in any
authorized denominations of a like aggregate principal amount.
At the option of the Noteholder, Notes may be exchanged
for other Notes of the same class in any authorized denominations,
of a like aggregate principal amount, upon surrender of such Notes
to be exchanged at the office or agency of the Issuer, the Issuer
shall execute (with such execution constituting an Issuer Order to
authenticate), and the Indenture Trustee shall authenticate and the
Noteholder shall obtain from the Indenture Trustee, such Notes
which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Notes surrendered upon such registration of
transfer or exchange.
Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed by, or be accompanied
by a written instrument of transfer in the form satisfactory to the
Indenture Trustee and the Note Registrar (including, without
limitation, the form of assignment set forth in Exhibits A and B),
duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the
Indenture Trustee which requirements will include membership or
participation in STAMP or such other "signature guarantee program"
as may be determined by the Indenture Trustee in addition to, or in
substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Notes, but the Issuer may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 2.3 or 9.6 not involving any transfer.
The preceding provisions of this Section 2.4
notwithstanding, the Issuer shall not be required to make and the
Note Registrar need not register transfers or exchanges (i) of
Notes selected for redemption pursuant to Article X; (ii) of any
Note for a period of 30 days preceding the due date for the final
repayment of principal with respect to the Note; or (iii) if
Section 2.15 has not been complied with in connection with such
transfer, if applicable.
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen
Notes. If (i) 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
(ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the
Indenture Trustee harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the Indenture Trustee that such Note
has been acquired by a bona fide purchaser, the Issuer shall
execute (with such execution constituting an Issuer Order to
authenticate) and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note of
the same class; provided, however, that if any such destroyed, lost
or stolen Note, but not a mutilated Note, shall have become or
within seven days shall be due and payable, or shall have been
called for redemption, instead of issuing a replacement Note, the
Issuer may pay such destroyed, lost or stolen Note when so due or
payable or upon the Redemption Date without surrender thereof. If,
after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the
preceding sentence, a bona fide purchaser of the original Note in
lieu of which such replacement Note was issued presents for payment
such original Note, the Issuer and the Indenture Trustee shall be
entitled to recover such replacement Note (or such payment) from
(i) the Person to whom it was delivered or (ii) any Person taking
such replacement Note from such Person to whom such replacement
Note was delivered or (iii) any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the Issuer or the Indenture
Trustee in connection therewith.
Upon the issuance of any replacement Note under this
Section, the Issuer may require the payment by the Holder of such
Note of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the
Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall
constitute an original additional contractual obligation of the
Issuer, whether or not the mutilated, destroyed, lost or stolen
Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost
or stolen Notes.
SECTION 2.6 Persons Deemed Owner. Prior to due
presentment for registration of transfer of any Note, the Issuer,
the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name any Note is registered
(as of the day of determination) as the owner of such Note for the
purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, whether or not
such Note be overdue, and neither the Issuer, the Indenture Trustee
nor any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.7 Payment of Principal and Interest.
(a) The Class A Notes and the Class B Notes shall accrue
interest from each Payment Date (or, in the case of the October
1995 Payment Date, from September 15, 1995) to, but excluding, the
following Payment Date at the Class A Interest Rate and the Class
B Interest Rate, respectively, which interest shall be payable on
each Payment Date as specified in the Pooling and Servicing
Agreement. Any installment of interest or principal, if any,
payable on any Note shall be punctually paid or duly provided for
by a deposit by or at the direction of the Issuer into the Note
Distribution Account on the applicable Payment Date as described in
the Pooling and Servicing Agreement. The Indenture Trustee shall
promptly make payment thereof to the Person in whose name such Note
(or one or more Predecessor Notes) is registered on the Record
Date, by check mailed first-class, postage prepaid to such Person's
address as it appears on the Note Register on such Record Date,
except that (i) unless Definitive Class A Notes have been issued
pursuant to Section 2.12, with respect to Class A Notes registered
on the Record Date in the name of the nominee of the Clearing
Agency (initially, such nominee to be Cede & Co.), and (ii) with
respect to Class B Notes registered on the Record Date in the name
of the Person that is the Registered Holder of Class B Notes
representing more than 50% of the Outstanding Amount of Class B
Notes on such Record Date, payment will be made by wire transfer in
immediately available funds to the account designated by such
nominee or Person and except for the final installment of principal
payable with respect to such Note (and except for the Redemption
Price for any Note called for redemption pursuant to Article X),
which shall be payable as provided below. The funds represented by
any such checks returned undelivered shall be held in accordance
with Section 3.3.
(b) The principal of each Note shall be payable in
installments on each Payment Date to the extent provided in the
Pooling and Servicing Agreement. The unpaid principal amount of
each Note is due and payable on the earlier of the Stated Final
Maturity Date and the Redemption Date, if any, pursuant to Section
10.1(a). Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not
previously paid, if and when the Notes are declared to be
immediately due and payable in the manner provided in Section 5.2.
All principal payments on each Class of Notes shall be made pro
rata to the Noteholders of such Class entitled thereto. Upon
notice to the Indenture Trustee by the Issuer, the Indenture
Trustee shall notify the Person in whose name a Note is registered
at the close of business on the Record Date related to the Payment
Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice
shall be mailed no later than five Business Days prior to such
final Payment Date and shall specify that such final installment
will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and
surrendered for payment of such installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.2.
SECTION 2.8 Cancellation. All Notes surrendered for
payment, registration of transfer, exchange or redemption shall, if
surrendered to any Person other than the Indenture Trustee, be
delivered to the Indenture Trustee and shall be promptly cancelled
by the Indenture Trustee. The Issuer may at any time deliver to
the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall
be promptly cancelled by the Indenture Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes may be held or disposed of by the
Indenture Trustee in accordance with its standard retention or
disposal policy as in effect at the time unless the Issuer shall
direct by an Issuer Order that they be destroyed or returned to it;
provided that such Issuer Order is timely and the Notes have not
been previously disposed of by the Indenture Trustee. The
Indenture Trustee shall certify to the Issuer that surrendered
Notes have been duly cancelled and retained or destroyed, as the
case may be.
SECTION 2.9 Release of Collateral. The Indenture
Trustee shall release property from the Lien of this Indenture,
other than as permitted by Sections 3.21, 8.2, 8.4 an 11.1, only
upon receipt of an Issuer Order accompanied by an Officer's
Certificate, an Opinion of Counsel and (to the extent required by
the TIA) Independent Certificates in accordance with TIA ss 314(c)
and 314(d)(1) or an Opinion of Counsel in lieu of such Independent
Certificates to the effect that the TIA does not require any such
Independent Certificates.
SECTION 2.10 Book-Entry Notes. The Class A Notes, upon
original issuance, will be issued in the form of a typewritten Note
or Notes representing the Book-Entry Notes, to be delivered to The
Depository Trust Company, as the initial Clearing Agency, by, or on
behalf of, the Issuer. Such Notes shall initially be registered on
the Note Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Note Owner will receive a
Definitive Note (as hereinafter defined) representing such Note
Owner's interest in such Notes, except as provided in Section 2.12.
Unless and until definitive, fully registered Notes (the
"Definitive Class A Notes") have been issued to Note Owners
pursuant to Section 2.12:
(i) the provisions of this Section shall be
in full
force and effect;
(ii) the Note Registrar and the Indenture Trustee
shall be entitled to deal with the Clearing Agency for
all purposes of this Indenture (including the payment of
principal of and interest on such Notes and the giving of
instructions or directions hereunder) as the sole holder
of such Notes, and shall have no obligation to such Note
Owners;
(iii) to the extent that the provisions of this
Section conflict with any other provisions of this
Indenture, the provisions of this Section shall control;
(iv) the rights of such Note Owners shall be
exercised only through the Clearing Agency and shall be
limited to those established by law and agreements
between such Note Owners and the Clearing Agency and/or
the Clearing Agency Participants and, pursuant to the
Depository Agreement, unless and until Definitive Class
A Notes are issued pursuant to Section 2.12, the initial
Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit
payments of principal of and interest on such Notes to
such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions
of Holders of Notes evidencing a specified percentage of
the Outstanding Amount of the Notes, the Clearing Agency
shall be deemed to represent such percentage only to the
extent that it has (i) received instructions to such
effect from Note Owners and/or Clearing Agency
Participants owning or representing, respectively, such
required percentage of the beneficial interest in such
Notes and (ii) has delivered such instructions to the
Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. With respect
to the Class A Notes, whenever a notice or other communication to
Noteholders is required under this Indenture, unless and until
Definitive Class A Notes representing such Class A Notes shall have
been issued to Note Owners pursuant to Section 2.12, the Indenture
Trustee shall give all such notices and communications specified
herein to be given to such Noteholders to the Clearing Agency, and
shall have no obligation to the related Note Owners or other
Holders of such Notes.
SECTION 2.12 Definitive Class A Notes. If, with
respect to the Book-Entry Notes, (i) the Indenture Trustee is
notified in writing that the Clearing Agency is no longer willing
or able to properly discharge its responsibilities with respect to
such Notes, and the Indenture Trustee is unable to locate a
qualified successor, (ii) the Indenture Trustee, at its option,
elects to terminate the book-entry system through the Clearing
Agency or (iii) after the occurrence of an Event of Default or a
Servicer Default, Note Owners representing beneficial interests
aggregating at least a majority of the Outstanding Amount of Class
A Notes advise the Clearing Agency in writing that the continuation
of a book-entry system through the Clearing Agency is no longer in
the best interests of such Note Owners, then the Clearing Agency
shall notify all such Note Owners and the Indenture Trustee of the
occurrence of any such event and of the availability of Definitive
Class A Notes to such Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Note or Notes
representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute
(with such execution constituting an Issuer Order to authenticate)
and the Indenture Trustee shall authenticate the Definitive Class
A Notes in accordance with the instructions of the Clearing Agency.
None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Class A Notes,
the Indenture Trustee shall recognize the Holders of the Definitive
Class A Notes as Noteholders.
SECTION 2.13 Certain Noteholders. The Seller, in its
individual or any other capacity, may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its affiliates
with the same rights it would have if it were not the Seller.
SECTION 2.14 Tax Treatment. The Issuer and the
Indenture Trustee, by entering into this Indenture, and the
Noteholders and the Note Owners, by acquiring any Note or interest
therein, (i) express their intention that the Notes qualify under
applicable tax law as indebtedness secured by the Collateral and
(ii) unless otherwise required by appropriate taxing authorities,
agree to treat the Notes as indebtedness secured by the Collateral
for the purpose of federal income, state and local income and
franchise taxes, and any other taxes imposed upon, measured by or
based upon gross or net income.
SECTION 2.15 Special Terms Applicable to Class B Notes.
(a) The Class B Notes shall not be registered under the
Securities Act or the securities laws of any other jurisdiction.
Consequently, such Notes shall not be transferable other than
pursuant to an exemption from the registration requirements of the
Securities Act and satisfaction of certain other provisions
specified herein. Except for the transfers of the Class B Notes on
Closing Date by the Seller no sale, pledge or other transfer of any
Class B Note (or interest therein) may be made by any Person unless
such sale, pledge or other transfer is made (i) to a "qualified
institutional buyer" (as defined under Rule 144A under the
Securities Act) in a transaction which meets the requirements of
Rule 144A under the Securities Act, (ii) to First Union Capital
Markets Corp., (iii) through First Union Capital Markets Corp. to
an "institutional accredited investor" (as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) in a
transaction approved by First Union Capital Markets Corp. or (iv)
in a transaction exempt from the registration requirements of the
Securities Act. In each such case, (A) the Indenture Trustee shall
require that both the prospective transferor and the prospective
transferee certify to the Indenture Trustee and the
Certificateholders in writing the facts surrounding such transfer
and the status of such transferee, which certification shall be
substantially in the form of the Certificate attached hereto as
Exhibit D, and (B) in the case of sales, pledges and transfers
pursuant to clause (iv) above, the Indenture Trustee shall require
a written opinion of counsel (which shall not be at the expense of
the Certificateholders, the Issuer, the Owner Trustee, the Servicer
or the Indenture Trustee), satisfactory to the Certificateholders
and the Issuer, to the effect that such transfer will not violate
the Securities Act. None of the Seller, the Certificateholders,
the Issuer, the Owner Trustee, or the Indenture Trustee shall be
obligated to register any Class B Notes under the Securities Act,
qualify any Class B Notes under the securities laws of any state or
provide registration rights to any purchaser or holder thereof.
(b) The Class B Notes may not be acquired by or for the
account of a Benefit Plan. By accepting and holding a Class B
Note, the Holder thereof shall be deemed to have represented and
warranted that it is not a Benefit Plan and, if requested to do so
by the Seller or the Issuer, the Holder of a Class B Note shall
execute and deliver to the Indenture Trustee an undertaking letter
to such effect in form and substance satisfactory to the Issuer and
the Seller.
(c) Each Class B Note shall bear legends to the effect
set forth in the form of the Class B Note attached hereto as
Exhibit B.
ARTICLE III
Covenants
SECTION 3.1 Payment of Principal and Interest. The
Issuer will duly and punctually pay the principal of and interest,
if any, on the Notes in accordance with the terms of the Notes and
this Indenture. Without limiting the foregoing, the Issuer will
cause to be distributed all amounts on deposit in the Note
Distribution Account on a Payment Date (not including Investment
Earnings thereon, if any). 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
Issuer to such Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency. So long
as any of the Notes remain Outstanding, the Issuer will maintain in
the Borough of Manhattan, the City of 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 Issuer in
respect of the Notes and this Indenture may be served. The Issuer
hereby initially appoints the Indenture Trustee to serve as its
agent for the foregoing purposes. The Issuer will give prompt
written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at any
time the Issuer shall fail to maintain any such office or agency or
shall fail to furnish the Indenture Trustee with the address
thereof, such surrenders, notices and demands may be made or served
at the Corporate Trust Office, and the Issuer hereby appoints the
Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust.
(a) As provided in Section 8.2(a) and (b), all payments
of amounts due and payable with respect to any Notes that are to be
made from amounts withdrawn from the Note Distribution Account
pursuant to Section 8.2(c) shall be made on behalf of the Issuer by
the Indenture Trustee or by another Paying Agent, and no amounts so
withdrawn from the Note Distribution Account for payments of Notes
shall be paid over to the Issuer except as provided in this
Section.
(b) On or before each Payment Date and Redemption Date,
the Issuer shall deposit or cause to be deposited in the Note
Distribution Account the aggregate amount described in Section 4.8
of the Pooling and Servicing Agreement, such amount 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.
(c) The Issuer 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 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 Issuer of which it has actual knowledge
(or any other obligor upon the Notes) 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.
(d) The Issuer may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for
any other purpose, by Issuer Order direct any Paying Agent to pay
to the Indenture Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Indenture Trustee upon the same
terms as those upon which the sums were held by such Paying Agent;
and upon such payment by any Paying Agent to the Indenture Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
(e) Subject to applicable laws with respect to escheat
of funds, any money held by the Indenture Trustee or any Paying
Agent in trust for the payment of any amount due with respect to
any Note and remaining unclaimed for one year after such amount has
become due and payable shall be discharged from such trust, and the
Indenture Trustee or such Paying Agent, as the case may be, shall
give prompt notice of such occurrence to the Issuer and shall
release such money to the Issuer on Issuer Request; and the Holder
of such Note shall thereafter, as an unsecured general creditor,
look only to the Issuer for payment thereof (but only to the extent
of the amounts so paid to the Issuer), and all liability of the
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 release of such money to the Issuer, may at the expense of the
Issuer 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 the 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 Issuer. The Indenture Trustee may also adopt and employ, at
the expense of the Issuer, 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 3.4 Existence. The Issuer will keep in full
effect its existence, rights and franchises as a business trust
under the laws of the State of Delaware (unless it becomes, or any
successor Issuer hereunder is or becomes, organized under the laws
of any other State or of the United States of America, in which
case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will
obtain and preserve its qualification to do business in each
jurisdiction in which such qualification is or shall be necessary
to protect the validity and enforceability of this Indenture, the
Notes, the Collateral and each other instrument or agreement
included in the Indenture Trust Estate.
SECTION 3.5 Protection of Indenture Trust Estate. The
Issuer will from time to time prepare, execute, deliver and file
all such supplements and amendments hereto and all such UCC
financing statements, continuation statements, instruments of
further assurance and other instruments, and will take such other
action necessary or advisable to:
(i) establish, maintain or preserve the Lien and
security interest (and the priority thereof) of this
Indenture or carry out more effectively the purposes
hereof;
(ii) perfect, publish notice of or protect the
validity of any grant of a security interest made or to
be made by this Indenture;
(iii) enforce the rights of the Indenture Trustee and
the Noteholders in any of the Collateral; or
(iv) preserve and defend title to the Indenture
Trust Estate and the rights of the Indenture Trustee and
the Noteholders in the Indenture Trust Estate against the
claims of all Persons and parties.
The Issuer hereby designates the Indenture Trustee, and hereby
authorizes the Indenture Trustee as 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. Notwithstanding such designation, the Indenture Trustee
shall not be responsible for the execution or filing of any
financing statement, continuation statement or other instrument
unless the Indenture Trustee shall have been explicitly directed to
take such action pursuant to an Issuer Order.
SECTION 3.6 Opinions as to Indenture Trust Estate.
(a) On the Closing Date, the Issuer shall furnish to the
Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to
the recording and filing of this Indenture, any indentures
supplemental hereto, and other requisite documents, and with
respect to the execution and filing of any financing statements and
continuation statements, as are necessary to perfect and make
effective the Lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the
opinion of such counsel, no such action is necessary to make such
lien and security interest effective.
(b) On or before August 15 in each calendar year,
beginning in 1996, the Issuer shall furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion
of such counsel, such action has been taken with respect to the
recording, filing, re-recording and refiling of this Indenture, any
indentures supplemental hereto and any other requisite documents
and with respect to the execution and filing of any UCC financing
statements and continuation statements as is necessary to maintain
the lien and security interest created by this Indenture and
reciting the details of such action or stating that in the opinion
of such counsel no such action is necessary to maintain such lien
and security interest. Such Opinion of Counsel shall also describe
the recording, filing, re-recording and refiling of this Indenture,
any indentures supplemental hereto and any other requisite
documents and the execution and filing of any financing statements
and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest of
this Indenture until August 15 in the following calendar year. The
Indenture Trustee shall not be responsible for taking any action in
response to the delivery of such Opinion of Counsel (unless one or
more actions are specifically directed in an Issuer Order).
SECTION 3.7 Performance of Obligations; Servicing of
Leases.
(a) The Issuer 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 Indenture Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument
or agreement, except as expressly provided in this Indenture, the
Pooling and Servicing Agreement, the Administration Agreement or
such other instrument or agreement.
(b) The Issuer 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 Issuer shall be deemed
to be action taken by the Issuer. Initially, the Issuer has
contracted with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture. The
Indenture Trustee may acknowledge and accept such contractual
arrangements and accept delivery of all agreements documenting of
such contractual arrangements.
(c) The Issuer will punctually perform and observe all
of its obligations and agreements contained in this Indenture, the
Basic Documents and in the instruments and agreements included in
the Indenture Trust Estate, including but not limited to filing or
causing to be filed all UCC financing statements and continuation
statements required to be filed by the terms of this Indenture and
the Pooling and Servicing Agreement in accordance with and within
the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence
of a Servicer Default under the Pooling and Servicing Agreement,
the Issuer shall promptly notify the Indenture Trustee thereof and
shall specify in such notice the action, if any, the Issuer is
taking with respect to such default. If a Servicer Default shall
arise from the failure of the Servicer to perform any of its duties
or obligations under the Pooling and Servicing Agreement with
respect to the Leases, the Issuer shall take all reasonable steps
available to it to remedy such failure.
(e) If the Indenture Trustee shall succeed to the
Servicer's duties as Servicer of the Leases as provided in the
Pooling and Servicing Agreement, it shall do so in its capacity as
Servicer and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI hereof shall be
inapplicable to the Indenture Trustee in its duties as the
successor to the Servicer and the servicing of the Leases. In case
the Indenture Trustee shall become successor to the Servicer under
the Pooling and Servicing Agreement, the Indenture Trustee shall be
entitled to appoint as Servicer any one of its affiliates, provided
that it shall be fully liable for the actions and omissions of such
affiliate in such capacity as Successor Servicer.
(f) Upon any termination of the Servicer's rights and
powers pursuant to the Pooling and Servicing Agreement, the Issuer
shall promptly notify the Indenture Trustee. As soon as a
Successor Servicer is appointed, the Issuer shall notify the
Indenture Trustee of such appointment, specifying in such notice
the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the
assignment granted to the Indenture Trustee under this Indenture or
the rights of the Indenture Trustee hereunder, the Issuer agrees
that it will not, without the prior written consent of the
Indenture Trustee or the Holders of a least a majority in
Outstanding Amount of the Notes, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of any
Collateral (except to the extent otherwise provided in the Pooling
and Servicing Agreement) or the Basic Documents, or waive timely
performance or observance by the Servicer or the Seller under the
Pooling and Servicing Agreement, or the Seller or the Originator
under the Contribution and Sale Agreement; 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 Leases or distributions that are required to be made
for the benefit of the Noteholders or (ii) reduce the aforesaid
percentage of the Notes which are required to consent to any such
amendment, without the consent of the holders of all the
Outstanding Notes. If any such amendment, modification, supplement
or waiver shall be so consented to by the Indenture Trustee or such
Holders, the Issuer agrees, promptly following a request by the
Indenture Trustee to do so, to execute and deliver, in its own name
and at its own expense, such agreements, instruments, consents and
other documents as the Indenture Trustee may reasonably deem
necessary or appropriate in the circumstances.
SECTION 3.8 Negative Covenants. So long as any Notes
are Outstanding, the Issuer shall not:
(i) sell, transfer, exchange or otherwise dispose
of any of the properties or assets of the Issuer,
including those included in the Indenture Trust Estate,
except the Issuer may (A) collect, liquidate, sell or
otherwise dispose of the Issuer's interest in Receivables
(including Defaulted Leases and Early Termination Leases
and Leases that are subject to a Warranty Event), (B)
make payments and distributions and (C) take other
actions, in each case as contemplated by the Basic
Documents;
(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
Indenture Trust Estate; or
(iii) either (A) permit the validity or effectiveness
of this Indenture to be impaired, or permit the Lien of
this Indenture to be amended, hypothecated, subordinated,
terminated or discharged, or permit any Person to be
released from any covenants or obligations with respect
to the Notes under this Indenture except as may be
expressly permitted hereby, or (B) permit any lien,
charge, excise, claim, security interest, mortgage or
other encumbrance (other than the Lien of this Indenture)
to be created on or extend to or otherwise arise upon or
burden the Indenture Trust Estate or any part thereof or
any interest therein or the proceeds thereof (other than
tax liens, mechanics' liens and other liens that arise by
operation of law, in each case on Equipment and arising
solely as a result of an action or omission of the
related Lessee) or (C) permit the lien of this Indenture
not to constitute a valid first priority (other than with
respect to any such tax, mechanics' or other lien)
security interest in the Indenture Trust Estate.
SECTION 3.9 Annual Statement as to Compliance. The
Issuer will deliver to the Indenture Trustee, within 120 days after
the end of each fiscal year of the Issuer (commencing with the
fiscal year 1996), an Officer's Certificate stating, as to the
Authorized Officer signing such Officer's Certificate, that
(i) a review of the activities of the Issuer during
the 12-month period ending at the end of such fiscal year
(or in the case of the initial Transaction Year, the
period from the Closing Date to June 30, 1996) 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 Issuer has complied
in all material respects with all of its obligations
under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such
obligation, specifying each such default known to such
Authorized Officer and the nature and status thereof. A
copy of such certificate may be obtained by any
Noteholder by a request in writing to the Issuer
addressed to the Corporate Trust Office of the Indenture
Trustee; the Indenture Trustee is hereby specifically
authorized to provide such copy as agent of the Issuer.
SECTION 3.10 Consolidation, Merger, etc. of Issuer;
Disposition of Trust Assets.
(a) The Issuer shall not consolidate or merge with or
into any other Person, unless:
(i) the Person (if other than the Issuer) 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, 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 Issuer to
be performed or observed, all as provided herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion
of Counsel addressed to the Issuer, each stating (A) that
such transaction will not have any material adverse tax
consequence to the Trust, the Issuer or any Noteholder
and (B) that all conditions precedent herein provided for
in this Section 3.10 have been complied with, which shall
include any filing required by the Exchange Act;
(v) any action as is necessary to maintain the Lien
and security interest created by this Indenture shall
have been taken; and
(vi) the Issuer 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
III and that all conditions precedent herein provided for
relating to such transaction have been complied with
(including any filing required by the Exchange Act).
(b) Except as otherwise expressly permitted by this
Indenture or the other Basic Documents, the Issuer shall not convey
or transfer any material portion of its properties or assets
included in the Indenture Trust Estate to any Person, unless:
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer 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 assumes, by
an indenture supplemental hereto, executed and delivered
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 Issuer to be
performed or observed, all as provided herein, (C)
expressly agrees 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 the Noteholders, (D) unless otherwise provided
in such supplemental indenture, expressly agrees to
indemnify, defend and hold harmless the Issuer against
and from any loss, liability or expense arising under or
related to this Indenture and the Notes and (E) expressly
agrees by means of such supplemental indenture that such
Person (or if a group of Persons, then one specified
Person) shall 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 Default or Event of Default shall have
occurred and be continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion
of Counsel addressed to the Issuer, each stating (A) that
such transaction will not have any material adverse tax
consequence to the Trust, the Issuer, any Noteholder or
any Certificateholder and (B) that all conditions
precedent herein provided for in this Section 3.10 have
been complied with, which shall include any filing
required by the Exchange Act;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture shall
have been taken; and
(vi) the Issuer shall have delivered to the
Indenture Trustee an Officer's Certificate and an Opinion
of Counsel each stating that such conveyance or transfer
and such supplemental indenture comply with this Article
III and that all conditions precedent herein provided for
relating to such transaction have been complied with
(including any filing required by the Exchange Act).
SECTION 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in
accordance with Section 3.10(a), 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 Issuer under this Indenture with the same effect
as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of a material portion
of the assets and properties of the Issuer included in the
Indenture Trust Estate pursuant to Section 3.10(b), the Issuer will
be released from every covenant and agreement of this Indenture to
be observed or performed on the part of the Issuer with respect to
the Notes immediately upon the delivery to and acceptance by the
Indenture Trustee of the Officer's Certificate and Opinion of
Counsel specified in Section 3.10(b)(vi) stating that the Issuer is
to be so released.
SECTION 3.12 No Other Business. The Issuer shall not
engage in any business other than financing, purchasing, owning,
selling and managing the Leases in the manner contemplated by this
Indenture and the Basic Documents, issuing the Notes and the
Certificates and activities incidental thereto.
SECTION 3.13 No Borrowing. The Issuer shall not issue,
incur, assume, guarantee or otherwise become liable, directly or
indirectly, for any indebtedness except for money borrowed in
respect of the Notes or in accordance with the Basic Documents.
SECTION 3.14 Servicer's Obligations. The Issuer shall
use its best efforts to cause the Servicer to comply with Sections
3.7, 3.9, 3.10, 3.11, 3.12 and 7.3 of the Pooling and Servicing
Agreement.
SECTION 3.15 Guarantees, Loans, Advances and Other
Liabilities. Except as contemplated by the Pooling and Servicing
Agreement or this Indenture, the Issuer shall not make any loan or
advance or credit to, or guarantee (directly or indirectly
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 3.16 Capital Expenditures. The Issuer shall
not make any expenditure (by long-term or operating lease or
otherwise) for capital assets (real, personal or intangible
property) other than the purchase of the Leases, interests in the
related Equipment and other property and rights from the Seller on
the Closing Date and from time to time thereafter pursuant to the
Pooling and Servicing Agreement.
SECTION 3.17 Removal of Administrator. So long as any
Notes are Outstanding, the Issuer shall not remove the
Administrator without cause unless the Rating Agency Condition
shall have been satisfied in connection with such removal.
SECTION 3.18 Restricted Payments. Except for payments
of principal or interest on or redemption of the Notes, so long as
any Notes are Outstanding, the Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property,
securities or a combination thereof, to the Owner Trustee or any
owner of a beneficial interest in the Issuer or otherwise with
respect to any ownership or equity interest or security in or of
the Issuer or to the Servicer, (ii) redeem, purchase, retire or
otherwise acquire for value any such ownership or equity interest
or security or (iii) set aside or otherwise segregate any amounts
for any such purpose; provided, however, that the Issuer may make,
or cause to be made, distributions to the Servicer, the Seller, the
Owner Trustee and the Certificateholders as permitted by, and to
the extent funds are available for such purpose under, the Pooling
and Servicing Agreement, the Trust Agreement or the other Basic
Documents. The Issuer will not, directly or indirectly, make
payments to or distributions from the Collection Account except in
accordance with this Indenture and the other Basic Documents.
SECTION 3.19 Notice of Events of Default. The Issuer
agrees to give the Indenture Trustee prompt written notice of each
Event of Default hereunder and, within five days after obtaining
knowledge of any of the following occurrences, written notice of
each default on the part of the Servicer or the Seller of its
obligations under the Pooling and Servicing Agreement and each
default on the part of the Seller or the Originator under the
Contribution and Sale Agreement.
SECTION 3.20 Further Instruments and Acts. Upon
request of the Indenture Trustee, the Issuer 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.
SECTION 3.21 Trustee's Assignment of Interest in
Certain Receivables.
(a) The Indenture Trustee shall assign, without
recourse, representation or warranty, to the Servicer, the Seller
or the Originator, as applicable, all the Indenture Trustee's
right, title and interest in and to any Lease assigned by the
Issuer to the Servicer pursuant to or in connection with the
Pooling and Servicing Agreement, such assignment being an
assignment outright and not for security; and the Servicer, the
Seller or the Originator, as applicable, shall thereupon own such
Lease, and all such security and documents, free of any further
obligation to the Indenture Trustee, the Noteholders or the
Certificateholders with respect thereto. If in any enforcement
suit or legal proceeding it is held that the Servicer may not
enforce a Lease on the ground that it is not a real party in
interest or a holder entitled to enforce the Lease, the Indenture
Trustee shall, at the Servicer's expense, take such steps as the
Servicer deems necessary to enforce the Lease, including bringing
suit in the Indenture Trustee's name or the names of the
Noteholders or the Certificateholders.
(b) The Lien and security interest of the Indenture
Trustee in any Lease and the related Equipment shall be released
upon (i) any disposition of such Equipment in accordance with the
Pooling and Servicing Agreement (including any sale to a Lessee
exercising a purchase option) and deposit of the proceeds of such
sale in the Collection Account as required pursuant to the Pooling
and Servicing Agreement, (ii) any purchase of such Lease and
related Equipment by the Originator as contemplated by Section
2.6(b) of the Pooling and Servicing Agreement, (iii) the
substitution of a Substitute Lease and/or Equipment therefor as
contemplated by Section 5.1 of the Pooling and Servicing Agreement
or (iv) the substitution or replacement of any unit of Equipment as
contemplated in Section 3.1(c) of the Pooling and Servicing
Agreement. In connection with any such disposition, purchase,
substitution or replacement or termination, the Indenture Trustee
shall execute and deliver to the Servicer any assignments, bills of
sale, termination statements and any other releases and instruments
as the Servicer may request to in order to effect such release.
SECTION 3.22 Representations and Warranties by the
Issuer to the Indenture Trustee. The Issuer hereby represents and
warrants to the Indenture Trustee as follows:
(a) Good Title. No interest in any Lease or the related
Equipment conveyed to the Issuer has been sold, transferred,
assigned or pledged by the Issuer to any Person other than the
Indenture Trustee; immediately prior to the conveyance of such
Leases and the related Equipment pursuant to this Indenture, the
Issuer had good and marketable title thereto, free of any Lien;
and, upon execution and delivery of this Indenture by the Issuer,
the Indenture Trustee shall have all of the right, title and
interest of the Issuer in, to and under such Leases, free of any
Lien; and
(b) All Filings Made. All filings (including, without
limitation, Uniform Commercial Code filings) necessary in any
jurisdiction to give the Indenture Trustee, upon the acquisition by
the Issuer of any Lease, a first priority perfected security
interest in the Issuer's interest in such Lease and in the related
Equipment (other than motor vehicles) if such Equipment is located
in a Filing Location (subject to Permitted Liens and Liens which
have priority by operation of law) have been made, or with respect
to such Equipment will be made within 5 Business Days after the
date hereof.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect with respect to
the Notes except as to (i) rights of registration of transfer and
exchange, (ii) substitution of mutilated, destroyed, lost or stolen
Notes, (iii) rights of Noteholders to receive payments of principal
thereof and interest thereon, (iv) Sections 3.3, 3.4, 3.5, 3.8,
3.10, 3.12, 3.13 and 3.21, (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights
of the Indenture Trustee under Section 6.7 and the obligations of
the Indenture Trustee under Section 4.2) and (vi) the rights of
Noteholders as beneficiaries hereof with respect to the property so
deposited with the Indenture Trustee payable to all or any of them,
and the Indenture Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture with respect to the Notes, when
(A) either
(1) all Notes theretofore authenticated and
delivered (other than (i) Notes that have been destroyed,
lost or stolen and that have been replaced or paid as
provided in Section 2.5 and (ii) Notes for whose payment
money has theretofore been deposited in trust or
segregated and held in trust or discharged form such
trust, as provided in Section 3.3) have been delivered to
the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the
Indenture Trustee for cancellation
(i) have become due and payable,
(ii) will become due and payable at the Final
Scheduled Payment Date within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name,
and at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) of
subsection (2) above, has irrevocably deposited or caused
to be irrevocably deposited with the Indenture Trustee
cash or direct obligations of or obligations guaranteed
by the United States of America (which will mature prior
to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the
entire indebtedness on such Notes including accrued
interest thereon not theretofore delivered to the
Indenture Trustee for cancellation when due;
(B) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an
Officer's Certificate, an Opinion of Counsel and (if required
by the TIA) an Independent Certificate from a firm of
certified public accountants, each meeting the applicable
requirements of Section 11.1(a) and each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with.
SECTION 4.2 Application of Trust Money. All moneys
deposited with the Indenture Trustee pursuant to Section 4.1 hereof
shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Indenture, to the payment, either
directly or through any Paying Agent, as the Indenture Trustee may
determine, to the Holders of the particular Notes for the payment
or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for
principal and interest; but such moneys need not be segregated from
other funds except to the extent required herein or in the Pooling
and Servicing Agreement or required by law.
SECTION 4.3 Repayment of Monies Held by Paying Agent.
In connection with the satisfaction and discharge of this Indenture
with respect to the Notes, all moneys then held by any Paying Agent
other than the Indenture Trustee under the provisions of this
Indenture with respect to such Notes shall, upon demand of the
Issuer, be paid to the Indenture Trustee to be held and applied
according to Section 3.3 and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.1 Events of Default. "Event of Default,"
wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(i) failure to pay any interest on any Note when
the same becomes due and payable as described in the
Pooling and Servicing Agreement, and such failure
continues unremedied for a period of five days; or
(ii) (A) except as set forth in (B), failure to pay
any installment of the principal of any Note when the
same is due and payable, and such failure continues
unremedied for a period of thirty (30) days or (B)
failure to pay in full the Outstanding Amount on any Note
on or prior to the Stated Final Payment Date; or
(iii) default in the observance or performance of any
covenant or agreement of the Issuer made in this
Indenture (other than a covenant or agreement, a default
in the observance or performance of which is elsewhere in
this Section specifically dealt with) or any
representation or warranty of the Issuer made in this
Indenture, which default has a material adverse effect on
the Noteholders, and such default shall continue or not
be cured, or the circumstance or condition in respect of
which such representation or warranty was incorrect shall
not have been eliminated or otherwise cured, for a
period of 30 days after there shall have been given, by
registered or certified mail, to the Issuer by the
Indenture Trustee or to the Issuer and the Indenture
Trustee by the Holders of at least 25% of the Outstanding
Amount of the Notes, a written notice specifying such
default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(iv) the filing of a decree or order for relief by
a court having jurisdiction in the premises in respect of
the Issuer or any substantial part of the Indenture Trust
Estate in an involuntary case under any applicable
Federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
similar official for the Issuer or for any substantial
part of the Indenture Trust Estate, or ordering the
winding-up or liquidation of the Issuer's affairs, and
such decree or order shall remain unstayed and in effect
for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary
case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in
effect, or the consent by the Issuer to the entry of an
order for relief in an involuntary case under any such
law, or the consent by the Issuer to the appointment or
taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of
the Issuer or for any substantial part of the Indenture
Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure
by the Issuer generally to pay its debts as such debts
become due, or the taking of action by the Issuer in
furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within
five days after the occurrence thereof, written notice in the form
of an Officer's Certificate of any event which with the giving of
notice and the lapse of time would become an Event of Default under
clause (iii), its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default should occur and be continuing,
then and in every such case, unless the principal amount of the
Notes shall have already become due and payable, the Indenture
Trustee or the Holders of Notes representing a majority of the
Outstanding Amount of the Notes may declare all the Notes to be
immediately due and payable, by a notice in writing to the Issuer
(and to the Indenture Trustee if given by Noteholders), and upon
any such declaration the unpaid principal amount of the Notes,
together with accrued and unpaid interest thereon through the date
of acceleration, shall become immediately due and payable.
At any time after such declaration of acceleration of
maturity has been made and before a judgment or decree for payment
of the money due has been obtained by the Indenture Trustee as
hereinafter in this Article V provided, the Holders of Notes
representing a majority of the Outstanding Amount of the Notes, by
written notice to the Issuer and the Indenture Trustee, may rescind
and annul such declaration and its consequences; provided, however,
that no such rescission and annulment shall extend to or affect any
subsequent Event of Default or impair any right consequent thereto;
and provided, further, that if the Indenture Trustee shall have
proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of
such rescission and annulment or for any other reason, or shall
have been determined adversely to the Indenture Trustee, then and
in every such case, the Indenture Trustee, the Issuer and the
Noteholders, as the case may be, shall be restored to their
respective former positions and rights hereunder, and all rights,
remedies and powers of the Indenture Trustee, the Issuer and the
Noteholders, as the case may be, shall continue as though no such
proceedings had been commenced.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee.
(a) The Issuer covenants that if there shall occur an
Event of Default under Sections 5.1(i) or (ii) which has not been
waived pursuant to Section 5.12, the Issuer will, upon demand of
the Indenture Trustee, pay to the Indenture Trustee, for the
ratable benefit of the Noteholders in accordance with their
respective principal amounts, the whole amount then due and payable
on such Notes for principal and interest, with interest upon the
overdue principal for each Class of Notes at the interest rate
borne by such Notes and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name
and as trustee of an express trust, may institute a Proceeding for
the collection of the sums so due and unpaid, and may prosecute
such Proceeding to judgment or final decree, and may enforce the
same against the Issuer or other obligor upon such Notes and
collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Notes, wherever situated, the
moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section
5.4, in its discretion, proceed to protect and enforce its rights
and the rights of the Noteholders, by such appropriate Proceedings
as the Indenture Trustee shall deem most effective to protect and
enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other
proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the
Issuer or any other obligor upon the Notes or any Person having or
claiming an ownership interest in the Indenture Trust Estate,
Proceedings under Title 11 of the United States Code or any other
applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Issuer or its
property or such other obligor or Person, or in case of any other
comparable judicial Proceedings relative to the Issuer or other
obligor upon the Notes, or to the creditors or property of the
Issuer or such other obligor, the Indenture Trustee, irrespective
of whether the principal of any Notes shall then be due and payable
as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture Trustee shall have made any
demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such Proceedings or
otherwise:
(i) to file and prove a claim or claims for the
whole amount of principal and interest owing and unpaid
in respect of the Notes and to file such other papers or
documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any
claim for reasonable compensation to the Indenture
Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred,
and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee, except as a result of
negligence or bad faith) and of the Noteholders allowed
in such Proceedings;
(ii) unless prohibited by applicable law and
regulations, to vote on behalf of the Holders of Notes in
any election of a trustee, a standby trustee or Person
performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute all amounts received with respect to the
claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee or the Holders
of Notes allowed in any judicial proceedings relative to
the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar
official in any such Proceeding is hereby authorized by each of
such Noteholders to make payments to the Indenture Trustee, and, in
the event that the Indenture Trustee shall consent to the making of
payments directly to such Noteholders, to pay to the Indenture
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by
the Indenture Trustee and each predecessor Indenture Trustee except
as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to
authorize the Indenture Trustee to authorize or consent to or vote
for or accept or adopt on behalf of any 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 except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under
this Indenture, or under any of the Notes, may be enforced by the
Indenture Trustee without the possession of any of the Notes or the
production thereof in any trial of other Proceedings relative
thereto, and any such action or Proceedings instituted by the
Indenture Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment
of the expenses, disbursements and compensation of the Indenture
Trustee, each predecessor Indenture Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the
Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee
(and also any Proceedings involving the interpretation of any
provision of this Indenture to which the Indenture Trustee shall be
a party), the Indenture Trustee shall be held to represent all the
Holders of the Notes, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be
continuing and the Notes have been accelerated under Section 5.2,
the Indenture Trustee may (but shall not be required to) do one or
more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all
amounts then payable on the Notes or under this Indenture
with respect thereto, whether by declaration of
acceleration or otherwise, enforce any judgment obtained,
and collect from the Issuer and any other obligor upon
such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with
respect to the Indenture Trust Estate;
(iii) exercise any remedies of a secured party under
the UCC and take any other appropriate action to protect
and enforce the rights and remedies of the Indenture
Trustee and the Holders of the Notes; and
(iv) sell the Indenture Trust Estate or any portion
thereof or rights or interest therein, at one or more
public or private sales called and conducted in any
manner permitted by law or elect to have the Issuer
maintain possession of the Indenture Trust Estate,
including the Leases included therein, and continue to
apply Collections on such Leases as if there had been no
declaration of acceleration;
provided, however, that the Indenture Trustee may not sell or
otherwise liquidate the Indenture Trust Estate following an Event
of Default unless (A) the Holders of 100% of the Outstanding Amount
of the Notes consent thereto, (B) the proceeds of such sale or
liquidation distributable to the Noteholders are sufficient to
discharge in full all amounts then due and unpaid upon such Notes
for principal and interest or (C) the Indenture Trustee determines
that the Indenture Trust Estate will not continue to provide
sufficient funds for the payment of principal of and interest on
the Notes as they would have become due if the Notes had not been
declared due and payable, and the Indenture Trustee obtains the
consent of Holders of 66-2/3% of the Outstanding Amount of the
Notes. In determining such sufficiency or insufficiency with
respect to clause (B) and (C), the Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of
the Indenture Trust Estate for such purpose.
(b) If the Indenture Trustee collects any money or
property pursuant to this Article V, it shall pay out the money or
property in the following order:
FIRST: to the Indenture Trustee for amounts due under
Section 6.7; and
SECOND: to the Collection Account for distribution and
payment in accordance with Section 4.8 of the Pooling and
Servicing Agreement.
SECTION 5.5 Optional Preservation of the Indenture
Trust Estate. If the Notes have been declared to be due and
payable under Section 5.2 following an Event of Default and such
declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Indenture Trust Estate. It is the
desire of the parties hereto and the Noteholders that there be at
all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such
desire into account when determining whether or not to maintain
possession of the Indenture Trust Estate, the Indenture Trustee
may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national
reputation as to the feasibility of such for such purpose.
SECTION 5.6 Limitation of Suits. No Holder of any
Note shall have any right to institute any Proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless:
(i) such Holder has previously given written notice
to the Indenture Trustee of a continuing Event of
Default;
(ii) the Holders of not less than 25% of the
Outstanding Amount of the Notes have made written request
to the Indenture Trustee to institute such Proceeding in
respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(iii) such Holder or Holders have offered to the
Indenture Trustee indemnity against the costs, expenses
and liabilities to be incurred in complying with such
request;
(iv) the Indenture Trustee for 60 days after its
receipt of such notice, request and offer of indemnity
has failed to institute such Proceeding; and
(v) no direction inconsistent with such written
request has been given to the Indenture Trustee during
such 60-day period by the Holders of a majority of the
Outstanding Amount of the Notes;
it being understood and intended that no one or more Holders of
Notes shall have any right in any manner whatsoever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of Notes or to
obtain or seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the
manner herein provided.
In the event the Indenture Trustee shall receive
conflicting or inconsistent requests and indemnity from two or more
groups of Holders of Notes, each representing less than a majority
of the Outstanding Amount of the Notes, the Indenture Trustee in
its sole discretion may determine what action, if any, shall be
taken, notwithstanding any other provisions of this Indenture, and
shall have no liability to any person for such action or inaction.
SECTION 5.7 Unconditional Rights of Noteholders To
Receive Principal and Interest. Notwithstanding any other
provisions in this Indenture, the Holder of any Note shall have the
right, which is absolute and unconditional, to receive payment of
the principal and the interest, if any, on such Note on or after
the respective due dates thereof expressed in such Note or in this
Indenture (or, in the case of redemption, on or after the
Redemption Date) and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the
consent of such Holder.
SECTION 5.8 Restoration of Rights and Remedies. If
the Indenture Trustee or any Noteholder has instituted any
Proceeding to enforce any right or remedy under this Indenture and
such Proceeding has been discontinued or abandoned for any reason
or has been determined adversely to the Indenture Trustee or to
such Noteholder, then and in every such case the Issuer, 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 of the Indenture Trustee and the
Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.9 Rights and Remedies Cumulative. No right
or remedy herein conferred upon or reserved to the Indenture
Trustee or to the Noteholders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay
or omission of the Indenture Trustee or any Holder of any Note to
exercise any right or remedy accruing upon any Default or Event of
Default shall impair any such right or remedy or constitute a
waiver of any such Default or Event of Default or an acquiescence
therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised
from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a
majority of the Outstanding Amount of the Notes shall, subject to
provision being made for indemnification against costs, expenses
and liabilities in a form satisfactory to the Indenture Trustee,
have the right to direct the time, method and place of conducting
any Proceeding for any remedy available to the Indenture Trustee
with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided that
(i) such direction shall not be in conflict with
any rule of law or with this Indenture;
(ii) subject to the express terms of Section 5.4,
any direction to the Indenture Trustee to sell or
liquidate the Indenture Trust Estate shall be by the
Holders of Notes representing not less than 100% of the
Outstanding Amount of the Notes;
(iii) if the conditions set forth in Section 5.5 have
been satisfied and the Indenture Trustee elects to retain
the Indenture Trust Estate pursuant to such Section, then
any direction to the Indenture Trustee by Holders of
Notes representing less than 100% of the Outstanding
Amount of the Notes to sell or liquidate the Indenture
Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not
inconsistent with such direction;
provided, however, that, subject to Section 6.1, the Indenture
Trustee need not take any action that it determines might involve
it in liability (a) with respect to which the Indenture Trustee
shall have reasonable grounds to believe that adequate indemnity
against such liability is not assured to it and (b) which might
materially adversely affect the rights of any Noteholders not
consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Notes as
provided in Section 5.2, the Holders of Notes of not less than a
majority of the Outstanding Amount of the Notes may waive any past
Default or Event of Default and its consequences except a Default
(a) in payment of principal of or interest on any of the Notes or
(b) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Note.
In the case of any such waiver, the Issuer, the Indenture Trustee
and the Holders of the Notes shall be restored to their former
positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or impair any right
consequent thereto.
Upon any such waiver, such Default shall cease to exist
and be deemed to have been cured and not to have occurred, and any
Event of Default arising therefrom shall be deemed to have been
cured and not to have occurred, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent
thereto.
SECTION 5.13 Undertaking for Costs. All parties to
this Indenture agree, and each Holder of any Note by such Xxxxxx's
acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by
it as Indenture Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; but the provisions of this
Section shall not apply to (a) any suit instituted by the Indenture
Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 50% of
the Outstanding Amount of the Notes or (c) any suit instituted by
any Noteholder for the enforcement of the payment of principal of
or interest on any Note on or after the respective due dates
expressed in such Note and in this Indenture (or, in the case of
redemption, on or after the Redemption Date).
SECTION 5.14 Waiver of Stay or Extension Laws. The
Issuer covenants (to the extent it may lawfully do so) that it will
not at any time insist upon, or plead or in any manner whatsoever,
claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, that
may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Indenture Trustee, but will suffer
and permit the execution of every such power as though no such law
has been enacted.
SECTION 5.15 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 be
impaired by the recovery of any judgment by the Indenture Trustee
against the Issuer or by the levy of any execution under such
judgment upon any portion of the Indenture Trust Estate or upon any
of the assets of the Issuer. Any money or property collected by
the Indenture Trustee shall be applied in accordance with Section
5.4(b).
SECTION 5.16 Performance and Enforcement of Certain
Obligations.
(a) Promptly following a request from the Indenture
Trustee to do so, the Issuer agrees to take all such lawful action
as the Indenture Trustee may request to compel or secure the
performance and observance by the Seller and the Servicer, as
applicable, of each of their obligations to the Issuer under or in
connection with the Pooling and Servicing Agreement or by the
Seller or the Originator under or in connection with the
Contribution and Sale Agreement in accordance with the terms
thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection
with the Pooling and Servicing Agreement to the extent and in the
manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Seller or the
Servicer thereunder and the institution of legal or administrative
actions or proceedings to compel or secure performance by the
Seller or the Servicer of each of their obligations under the
Pooling and Servicing Agreement.
(b) If an Event of Default has occurred and is
continuing, the Indenture Trustee at the written direction of the
Holders of 66-2/3% of the Outstanding Amount of the Notes shall
exercise all rights, remedies, powers, privileges and claims of the
Issuer against the Seller or the Servicer under or in connection
with the Pooling and Servicing Agreement, including the right or
power to take any action to compel or secure performance or
observance by the Seller or the Servicer of each of their
obligations to the Issuer thereunder and to give any consent,
request, notice, direction, approval, extension or waiver under the
Pooling and Servicing Agreement, and any right of the Issuer to
take such action shall be suspended.
(c) Promptly following a request from the Indenture
Trustee to do so, the Issuer agrees to take all such lawful action
as the Indenture Trustee may request to compel or secure the
performance and observance in accordance with the terms thereof by
the Originator of each of its obligations to the Seller under or in
connection with the Contribution and Sale Agreement, and to
exercise any and all rights, remedies, powers and privileges
lawfully available to the Issuer under or in connection with the
Contribution and Sale Agreement to the extent and in the manner
directed by the Indenture Trustee, including the transmission of
notices of default on the part of the Seller thereunder and the
institution of legal or administrative actions or proceedings to
compel or secure performance by the Originator of such obligations.
(d) If an Event of Default has occurred and is
continuing, the Indenture Trustee at the written direction of the
Holders of 66-2/3% of the Outstanding Amount of the Notes shall
exercise all rights, remedies, powers, privileges and claims of the
Seller against the Originator under or in connection with the
Contribution and Sale Agreement, including the right or power to
take any action to compel or secure performance or observance by
the Originator of each of its obligations to the Seller thereunder
and to give any consent, request, notice, direction, approval,
extension or waiver under the Contribution and Sale Agreement, and
any right of the Seller to take such action shall be suspended.
ARTICLE VI
Indenture Trustee
SECTION 6.1 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is
continuing, the Indenture Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person's own
affairs, including, without limitation, continuing to hold the
Indenture Trust Estate and receive collections on the Leases
included therein and provided in the Pooling and Servicing
Agreement.
(b) Except during continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform
such duties and only such duties as are specifically set
forth in this Indenture and the Pooling and Servicing
Agreement and no implied covenants or obligations shall
be read into this Indenture against the Indenture
Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, the
Indenture Trustee shall examine the certificates and
opinions to determine whether or not they conform on
their face to the requirements of this Indenture.
The Indenture Trustee shall not be required to determine, confirm
or recalculate the information contained in any statement of the
Servicer delivered to it pursuant to Section 3.10 of the Pooling
and Servicing Agreement.
(c) The Indenture Trustee may not be relieved from
liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Indenture Trustee shall not be liable for
any error of judgment made in good faith by a Responsible
Officer unless it is proved that the Indenture Trustee
was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good
faith in accordance with a direction received by it
pursuant to Section 5.11 or otherwise from Holders under
the Indenture.
(d) The Indenture Trustee shall not be liable for
interest on any money received by it except as the Indenture
Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Indenture Trustee need
not be segregated from other funds except to the extent required by
law or the terms of this Indenture or the Pooling and Servicing
Agreement.
(f) No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers, if it
shall have reasonable grounds to believe that repayments of such
funds or adequate indemnity satisfactory to it against such loss,
liability or expense is not reasonably assured to it.
(g) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to
the Indenture Trustee shall be subject to the provisions of this
Section and to the provisions of the TIA.
SECTION 6.2 Rights of Indenture Trustee.
(a) The Indenture Trustee may rely on any document
believed by it to be genuine and to have been signed or presented
by the proper person. The Indenture Trustee need not investigate
any fact or matter stated in the document.
(b) Before the Indenture Trustee acts or refrains from
acting, it may require an Officer's Certificate from the Issuer or
an Opinion of Counsel that such action or omission is required or
permitted hereunder. The Indenture Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
the Officer's Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys or a custodian or nominee, and
the Indenture Trustee shall not be responsible for any misconduct
or negligence on the part of, or for the supervision of, any such
agent, attorney, custodian or nominee appointed with due care by it
hereunder.
(d) The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to
be authorized or within its rights or powers; provided, however,
that the Indenture Trustee's conduct does not constitute wilful
misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and
the advice or opinion of counsel with respect to legal matters
relating to this Indenture and the Notes shall be full and complete
authorization and protection from liability in respect to any
action taken, omitted or suffered by it hereunder in good faith and
in accordance with the advice or opinion of such counsel.
SECTION 6.3 Individual Rights of Indenture Trustee.
The Indenture Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with
the Issuer or its affiliates with the same rights it would have if
it were not Indenture Trustee; provided, however, the Indenture
Trustee must comply with Sections 6.10 and 6.11. Any Paying Agent,
Note Registrar, co-registrar or co-paying agent may do the same
with like rights.
SECTION 6.4 Indenture Trustee's Disclaimer. The
Indenture Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of the Indenture
Trust Estate, this Indenture or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the Notes,
and it shall not be responsible for any statement of the Issuer in
the Indenture or in any document issued in connection with the sale
of the Notes or in the Notes other than the Indenture Trustee's
certificate of authentication.
SECTION 6.5 Notice of Events of Default. If an Event
of Default occurs and is continuing and if a Responsible Officer of
the Indenture Trustee has actual knowledge of such Event of
Default, the Indenture Trustee shall mail to each Noteholder notice
of such Event of Default within 60 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any
Note (including payments pursuant to the mandatory redemption
provision of such Note), the Indenture Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the
interests of Noteholders; and provided that in the case of any
default of the character specified in Section 5.1(iii), no such
notice to Holders shall be given until at least 30 days after the
occurrence thereof.
SECTION 6.6 Reports by Indenture Trustee to Holders.
Subject to the proviso in Section 7.4(b), the Indenture Trustee
shall deliver to each Noteholder the information and documents set
forth in Article VII, and in addition, all such information as may
be required to enable such Noteholder to prepare its Federal and
state income tax returns. The Indenture Trustee shall only be
required to provide to the Noteholders the information given to it
by the Servicer. The Indenture Trustee shall not be required to
determine, confirm or recompute any such information.
SECTION 6.7 Compensation and Indemnity. The Issuer
shall cause the Servicer pursuant to Section 3.9 of the Pooling and
Servicing Agreement to pay to the Indenture Trustee from time to
time reasonable compensation for its services. The Indenture
Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall
cause the Servicer pursuant to Section 3.9 of the Pooling and
Servicing Agreement to reimburse the Indenture Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation
and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Issuer shall cause
the Servicer pursuant to the Pooling and Servicing Agreement to
indemnify the Indenture Trustee in accordance with Section 6.2 of
the Pooling and Servicing Agreement. The Indenture Trustee shall
notify the Issuer and the Servicer promptly of any claim for which
it may seek indemnity. Neither the Issuer nor the Servicer need
reimburse any expense or indemnify against any loss, liability or
expense incurred by the Indenture Trustee through the Indenture
Trustee's own wilful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section shall survive the discharge of this
Indenture. When the Indenture Trustee incurs expenses after the
occurrence of a Default specified in Section 5.1(iv) or (v) with
respect to the Issuer, the expenses are intended to constitute
expenses of administration under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or
similar law.
SECTION 6.8 Replacement of Indenture Trustee.
(a) The Indenture Trustee may at any time give notice of
its intent to resign by so notifying the Issuer; provided that no
such resignation shall become effective and the Indenture Trustee
shall not resign prior to the time set forth in Section 6.8(c).
The Holders of a majority in Outstanding Amount of the Notes may
remove the Indenture Trustee by so notifying the Indenture Trustee
and may appoint a successor Indenture Trustee. Such resignation or
removal shall become effective in accordance with Section 6.8(c).
The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) the Indenture Trustee is adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer takes charge
of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes
incapable of acting.
(b) If the Indenture Trustee gives notice of its intent
to resign or is removed or if a vacancy exists in the office of
Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee),
the Issuer shall promptly appoint and designate a successor
Indenture Trustee, which successor shall be, if the Originator is
the Servicer, reasonably acceptable to the Seller.
(c) A successor Indenture Trustee shall deliver a
written acceptance of its appointment to the retiring Indenture
Trustee and to the Issuer. Thereupon the resignation or removal of
the retiring Indenture Trustee shall become effective, and the
successor Indenture Trustee shall have all the rights, powers and
duties of the Indenture Trustee under this Indenture. The
successor Indenture Trustee shall mail a notice of its succession
to Noteholders. The retiring Indenture Trustee shall promptly
transfer all property held by it as Indenture Trustee to the
successor Indenture Trustee.
(d) If a successor Indenture Trustee does not take
office within 60 days after the retiring Indenture Trustee resigns
or is removed, the retiring Indenture Trustee, the Issuer or the
Holders of a majority in Outstanding Amount of the Notes may
petition any court of competent jurisdiction for the appointment of
a successor Indenture Trustee.
(e) If the Indenture Trustee fails to comply with
Section 6.11, any Noteholder may petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the
appointment of a successor Indenture Trustee.
(f) Notwithstanding the replacement of the Indenture
Trustee pursuant to this Section, the Issuer's obligations under
Section 6.7 and the Servicer's corresponding obligations under the
Pooling and Servicing Agreement shall continue for the benefit of
the retiring Indenture Trustee.
SECTION 6.9 Successor Indenture Trustee by Xxxxxx. If
the Indenture Trustee consolidates with, merges or converts into,
or transfers all or substantially all its corporate trust business
or assets to, another corporation or banking association, the
resulting, surviving or transferee corporation or banking
association shall be the successor Indenture Trustee, without the
execution or filing of any instrument or any further act on the
part of any of the parties to this Indenture, anything in this
Indenture to the contrary notwithstanding, provided that such
corporation or banking association shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide
the Rating Agency prior written notice of any such transaction.
In case at the time such successor or successors shall
succeed to the trusts created by this Indenture any of the Notes
shall have been authenticated but not delivered, any such successor
to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes
so authenticated; and in case at that time any of the Notes shall
not have been authenticated, any successor to the Indenture Trustee
may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Indenture Trustee;
and in all such cases such certificates shall have the full force
which it is anywhere in the Notes or in this Indenture provided
that the certificate of the Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Trustee or Separate
Trustee.
(a) Notwithstanding any other provisions of this
Indenture, at any time, for the benefit of the Noteholders or any
class of the Noteholders or for the purpose of meeting any legal
requirement of any jurisdiction in which any part of the Trust may
at the time be located, including any requirement of the TIA, the
Indenture Trustee shall have the power and may execute and deliver
all instruments to appoint one or more Persons reasonably
acceptable to the Seller to act as a co-trustee or co-trustees, or
separate trustee or separate 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 hereof, and, subject to the other provisions of this Section,
such powers, duties, obligations, rights and trusts as the
Indenture Trustee may consider necessary or desirable. No
co-trustee or separate trustee hereunder shall be required to meet
the terms of eligibility as a successor trustee under Section 6.11
and no notice to Noteholders of the appointment of any co-trustee
or separate trustee shall be required under Section 6.8 hereof.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by
the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act
separately without the Indenture Trustee joining in such
act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent
or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations
(including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the
Indenture Trustee;
(ii) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee
hereunder; and
(iii) the Indenture Trustee may at any time accept
the resignation of or remove any separate trustee or
co-trustee.
(c) Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the
then separate trustees and co-trustees, as effectively as if given
to each of them. Every instrument appointing any separate trustee
or co-trustee shall refer to this Indenture and the conditions of
this Article VI. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment,
either jointly with the Indenture Trustee or separately, as may be
provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating
to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall
be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact
with full power and authority, to the extent not prohibited by law,
to do any lawful act under or in respect of this Indenture on its
behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in
and be exercised by the Indenture Trustee, to the extent permitted
by law, without the appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The
Indenture Trustee shall at all times satisfy the requirements of
TIA s 310(a) and Section 26(a) of the Investment Company Act. The
Indenture Trustee shall have a combined capital and surplus, and an
aggregate capital, surplus and undivided profits, of at least
$50,000,000.00 as set forth in its most recent published annual
report of condition. The Indenture Trustee shall comply with TIA
s 310(b); provided, however, that there shall be excluded from the
operation of TIA s 310(b)(1) any indenture or indentures under
which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA s 310(b)(1) are
met.
SECTION 6.12 Preferential Collection of Claims Against
Issuer. The Indenture Trustee shall comply with TIA s 311(a),
excluding any creditor relationship listed in TIA s 311(b). An
indenture trustee who has resigned or been removed shall be subject
to TIA s 311(a) to the extent indicated.
SECTION 6.13 Representations and Warranties of Inden-
ture Trustee. The Indenture Trustee represents and warrants as of
the Closing Date that:
(a) the Indenture Trustee is a New York banking
corporation duly organized, validly existing and in good standing
under the laws of the State of New York and the eligibility
requirements set forth in Section 6.11 are satisfied with respect
to the Indenture Trustee;
(b) the Indenture Trustee has full power, authority and
legal right to execute, deliver and perform this Indenture, and has
taken all necessary action to authorize the execution, delivery and
performance by it of this Indenture;
(c) the execution, delivery and performance by the
Indenture Trustee of this Indenture (i) shall not violate any
provision of any law or regulation governing the banking and trust
powers of the Indenture Trustee or any order, writ, judgment or
decree of any court, arbitrator, or Governmental Authority
applicable to the Indenture Trustee or any of its assets, (ii)
shall not violate any provision of the corporate charter or by-laws
of the Indenture Trustee or (iii) shall not violate any provision
of, or constitute, with or without notice or lapse of time, a
default under, or result in the creation or imposition of any lien
on any properties included in the Indenture Trust Estate pursuant
to the provisions of any mortgage, indenture, contract, agreement
or other undertaking to which it is a party, which violation,
default or lien could reasonably be expected to have a materially
adverse effect on the Indenture Trustee's performance or ability to
perform its duties under this Indenture or on the transactions
contemplated in this Indenture;
(d) the execution, delivery and performance by the
Indenture Trustee of this Indenture shall not require the
authorization, consent or approval of, the giving of notice to, the
filing or registration with, or the taking of any other action in
respect of, any Governmental Authority or agency regulating the
banking and corporate trust activities of the Indenture Trustee;
and
(e) this Indenture has been duly executed and delivered
by the Indenture Trustee and constitutes the legal, valid and
binding agreement of the Indenture Trustee, enforceable in
accordance with its terms.
SECTION 6.14 Indenture Trustee May Enforce Claims
Without Possession of Notes. All rights of action and claims under
this Indenture or the Notes may be prosecuted and enforced by the
Indenture Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Indenture Trustee shall be brought in
its own name 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
and (only to the extent expressly provided herein) the
Certificateholders in respect of which such judgment has been
obtained.
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.1 Issuer to Furnish Indenture Trustee Names
and Addresses of Noteholders. The Issuer 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 of Notes as of such Record Date, (b) at such other times as
the Indenture Trustee may request in writing, within 15 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.
SECTION 7.2 Preservation of Information; Communica-
tions to Noteholders.
(a) The Indenture Trustee shall preserve, in as current
a form as is reasonably practicable, the names and addresses of the
Holders of Notes contained in the most recent list furnished to the
Indenture Trustee as provided in Section 7.1 and the names and
addresses of Holders of Notes received by the Indenture Trustee in
its capacity as Note Registrar. The Indenture Trustee may destroy
any list furnished to it as provided in such Section 7.1 upon
receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA s 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 s 312(c).
SECTION 7.3 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days
after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the
information, documents and other reports (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 Issuer 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 s 313(c)) such summaries of
any information, documents and reports required to be
filed by the Issuer pursuant to clauses (i) and (ii) of
this Section 7.3(a) as may be required by rules and
regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal
year of the Issuer shall end on June 30 of each year.
SECTION 7.4 Reports by Indenture Trustee.
(a) If required by TIA s 313(a), within 60 days after
each February 1 beginning with February 1, 1996, the Indenture
Trustee shall mail to each Noteholder as required by TIA s 313(c)
a brief report dated as of such date that complies with TIA
s 313(a). The Indenture Trustee also shall comply with TIA
s 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 Issuer shall notify the Indenture Trustee if and when
the Notes are listed on any stock exchange.
(b) On each Payment Date, the Indenture Trustee shall
include with each payment to each Holder of a Class A Note a copy
of the statement for the related Collection Period applicable to
such Payment Date as required pursuant to Section 3.10 of the
Pooling and Servicing Agreement; provided, however, that unless and
until Definitive Notes representing Class A Notes have been issued
as described in Section 2.12, the Servicer shall deliver such
Monthly Reports to the Clearing Agency as described in Section 3.10
of the Pooling and Servicing Agreement.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.1 Collection of Money. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment
or delivery of, and shall receive and collect, directly and without
intervention or assistance of any fiscal agent or other
intermediary, all money and other property payable to or receivable
by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in
this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or
performance under any agreement or instrument that is part of the
Indenture Trust Estate, the Indenture Trustee may take such action
as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any
right to claim a Default or Event of Default under this Indenture
and any right to proceed thereafter as provided in Article V.
SECTION 8.2 Trust Accounts.
(a) On or prior to the Closing Date, the Issuer shall
cause the Servicer to establish and maintain, in the name of the
Indenture Trustee, for the benefit of the Noteholders and the
Certificateholders, the Trust Accounts as provided in Sections 4.2
and 4.3 of the Pooling and Servicing Agreement.
(b) On or before each Payment Date, the amount required
under Section 4.8 of the Pooling and Servicing Agreement will be
transferred from the Collection Account and deposited in the Note
Distribution Account.
(c) On each Payment Date, the Indenture Trustee shall
pay all amounts on deposit in the Note Distribution Account to
Noteholders in respect of the Notes (to the extent such amounts
have been deposited in the Note Distribution Account as described
in Section 4.8 of the Pooling and Servicing Agreement) in the
following amounts and in the following order of priority:
(i) to the Class A Noteholders to the extent of the
Class A Interest Arrearage and Class A Interest Payment
Amount for such Payment Date;
(ii) to the Class B Noteholders to the extent of the
Class B Interest Arrearage and the Class B Interest
Payment Amount for such Payment Date;
(iii) to the Class A Noteholders to the extent of the
Class A Principal Payment Amount for such Payment Date
plus any additional amount payable to the Holders of the
Class A Notes on such Payment Date as described in clause
(i) of Section 4.8 in the Pooling and Servicing
Agreement; and
(iv) to the Class B Noteholders to the extent of the
Class B Principal Payment Amount for such Payment Date
(reduced by any amounts payable to the Holders of the
Class A Notes as described in clause (i) of Section 4.8
in the Pooling and Servicing Agreement).
Any payments on the Notes will be made pro rata based
upon the outstanding principal balance.
SECTION 8.3 General Provisions Regarding Accounts.
(a) Subject to Section 6.1(c), the Indenture Trustee
shall not in any way be held liable by reason of any insufficiency
in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable
to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its
commercial capacity as principal obligor and not as Indenture
Trustee, in accordance with their terms.
(b) If (i) the Issuer shall have failed to give
investment directions for any funds on deposit in the Trust
Accounts to the Indenture Trustee by 12:00 noon New York Time (or
such other time as may be agreed by the Issuer and Indenture
Trustee) on any Business Day; or (ii) a Default or Event of Default
shall have occurred and be continuing with respect to the Notes but
the Notes shall not have been declared due and payable pursuant to
Section 5.2, or, if such Notes shall have been declared due and
payable following an Event of Default, amounts collected or
receivable from the Indenture Trust Estate are being applied in
accordance with Section 5.3 as if there had not been such a
declaration; then the Indenture Trustee shall, to the fullest
extent practicable, invest and reinvest funds in the Trust Accounts
in one or more Eligible Investments.
SECTION 8.4 Release of Indenture Trust Estate.
(a) Subject to the payment of its fees and expenses
pursuant to Section 6.7, the Indenture Trustee may, and when
required by the provisions of this Indenture shall, execute
instruments to release property from the Lien of this Indenture, or
convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the
provisions of this Indenture. No party relying upon an instrument
executed by the Indenture Trustee as provided in this Article VIII
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
pursuant to Section 6.7 have been paid, release any remaining
portion of the Indenture Trust Estate that secured the Notes from
the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust
Accounts only upon receipt of an Issuer Request accompanied by an
Officer's Certificate, an Opinion of Counsel and (if required by
the TIA) Independent Certificates in accordance with TIA ss 314(c)
and 314(d)(1) meeting the applicable requirements of Section 11.1.
SECTION 8.5 Opinion of Counsel. The Indenture Trustee
shall receive at least seven days' prior written notice when
requested by the Issuer to take any action pursuant to
Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory
to the Indenture Trustee, stating the legal effect of any such
action, outlining the steps required to complete the same, and
concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially
and adversely impair the security for the Notes or the rights of
the Noteholders in contravention of the provisions of this
Indenture; provided, however, that such Opinion of Counsel shall
not be required to express an opinion as to the fair value of the
Indenture Trust Estate. Counsel rendering any such opinion may
rely, without independent investigation, on the accuracy and
validity of any certificate or other instrument delivered to the
Indenture Trustee in connection with any such action.
ARTICLE IX
Supplemental Indentures
SECTION 9.1 Supplemental Indentures Without Consent of
Noteholders.
(a) Without the consent of the Holders of any Notes but
with prior notice to the Rating Agency, the Issuer and the
Indenture Trustee, when authorized by an Issuer Order, at any time
and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution
thereof), in form satisfactory to the Indenture Trustee, for any of
the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of this
Indenture, or better to assure, convey and confirm unto
the Indenture Trustee any property subject or required to
be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with
the applicable provisions hereof, of another person to
the Issuer, and the assumption by any such successor of
the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Holders of the Notes, or to surrender any
right or power herein conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge
any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement
any provision herein or in any supplemental indenture
which may be inconsistent with any other provision herein
or in any supplemental indenture or to make any other
provisions with respect to matters or questions arising
under this Indenture or in any supplemental indenture;
provided that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material
respect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of
the appointment hereunder by a successor trustee with
respect to the Notes and to add to or change any of the
provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of
Article VI;
(vii) to restrict transfers of Class B Notes (or
interests therein) or as otherwise required to prevent
the Issuer from being treated as a "publicly traded
partnership" under Section 7704 of the Code; or
(viii) to modify, eliminate or add to the provisions
of this Indenture to such extent as shall be necessary to
effect the qualification of this Indenture under the TIA
or under any similar Federal statute hereafter enacted
and to add to this Indenture such other provisions as may
be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any
further appropriate agreements and stipulations that may be therein
contained.
(b) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, may, also without the consent of any
of the Holders of the Notes but with prior notice to the Rating
Agency, enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing in any
manner or eliminating any of the provisions of, this Indenture or
of modifying in any manner the rights of the Holders of the Notes
under this Indenture; provided, however, that such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder.
SECTION 9.2 Supplemental Indentures with Consent of
Noteholders.
(a) The Issuer and the Indenture Trustee, when
authorized by an Issuer Order, also may, with prior notice to the
Rating Agency and with the consent of the Holders of not less than
a majority of the Outstanding Amount of the Notes, by Act of such
Holders delivered to the Issuer and the Indenture Trustee, enter
into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of
modifying in any manner the right of the Holders of the Notes under
this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each
Outstanding Note affected thereby:
(i) change the date of payment of any installment
of principal amount thereof, the interest rate thereon or
the Redemption Price with respect thereto, change the
provision of this Indenture relating to the application
of collections on, or the proceeds of the sale of, the
Indenture Trust Estate to payment of principal of or
interest on the Notes, or change any place of payment
where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to
institute suit for the enforcement of the provisions of
this Indenture requiring the application of funds
available therefor, as provided in Article V, to the
payment of any such amount due on the Notes on or after
the respective due dates thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount
of the Notes, the consent of the Holders of which is
required for any such supplemental indenture, or the
consent of the Holders of which is required for any
waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso
to the definition of the term "Outstanding;"
(iv) reduce the percentage of the Outstanding Amount
of the Notes required to direct the Indenture Trustee to
direct the Issuer to sell or liquidate the Indenture
Trust Estate pursuant to Section 5.4 if the proceeds of
such sale would be insufficient to pay the principal
amount of and accrued but unpaid interest on all
Outstanding Notes;
(v) modify any provision of this Section 9.2 to
decrease the required minimum percentage necessary to
approve any amendments to any provisions of this
Indenture;
(vi) modify any of the provisions of this Indenture
in such manner as to affect the calculation of the amount
of any payment of interest or principal due on any Note
on any Payment Date (including the calculation of any of
the individual components of such calculation) or to
affect the rights of the Holders of Notes to the benefit
of any provisions for the mandatory redemption of the
Notes contained herein; or
(vii) permit the creation of any lien ranking prior
to or on a parity with the lien of this Indenture with
respect to any part of the Indenture Trust Estate or,
except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at
any time subject hereto or deprive the Holder of any Note
of the security provided by the lien of this Indenture.
(b) The Indenture Trustee may in its discretion
determine whether or not any Notes would be affected (such that the
consent of each Noteholder would be required) by any supplemental
indenture and any such determination shall be conclusive upon the
Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The Indenture Trustee shall
not be liable for any such determination made in good faith.
(c) It shall not be necessary for any Act of Noteholders
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
(d) Promptly after the execution by the Issuer and the
Indenture Trustee of any supplemental indenture pursuant to this
Section, the Indenture Trustee shall mail to the Holders of the
Notes to which such amendment or supplemental indenture relates a
notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to
mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.3 Execution of Supplemental Indentures. In
executing, or permitting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the
modifications thereby of the trusts created by this Indenture, the
Indenture Trustee shall be entitled to receive, and subject to
Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture and that all
conditions precedent to the execution of any such amendment have
been satisfied. The Indenture Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that
affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Supplemental Indenture. Upon
the execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be
modified and amended in accordance therewith with respect to the
notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this
Indenture of the Indenture Trustee, the Issuer and the Holders of
the Notes shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.5 Conformity with Trust Indenture Act.
Every amendment of this Indenture and every supplemental indenture
executed pursuant to this Article IX shall conform to the
requirements of the Trust Indenture Act as then in effect so long
as this Indenture shall then be qualified under the Trust Indenture
Act.
SECTION 9.6 Reference in Notes to Supplemental
Indentures. Notes authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article IX may, and
if required by the Indenture Trustee shall, bear a notation in form
approved by the Indenture Trustee as to any matter provided for in
such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in
the opinion of the Indenture Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer
and authenticated and delivered by the Indenture Trustee in
exchange for Outstanding Notes of the same series.
ARTICLE X
Redemption of Notes
SECTION 10.1 Redemption.
(a) The Notes are subject to redemption, on any
Redemption Date, in whole, but not in part, upon the exercise by
the Servicer of its Purchase Option pursuant to Section 8.3 of the
Pooling and Servicing Agreement for a purchase price equal to the
applicable Redemption Price; provided, however, that the Issuer has
available funds sufficient to pay the Redemption Price. If any
Notes are to be redeemed, the Servicer or the Issuer shall furnish
the Rating Agency notice of such redemption. If the Notes are to
be redeemed pursuant to this Section 10.1(a), the Servicer or the
Issuer shall furnish notice of such election to the Indenture
Trustee not later than 15 days prior to the Redemption Date and, on
or prior to the Redemption Date, the Issuer shall deposit into the
Note Distribution Account (to the extent not otherwise on deposit
therein) the aggregate Redemption Price of the Notes to be
redeemed.
(b) In the event that the assets of the Trust are sold
pursuant to Section 9.2 of the Trust Agreement or 8.1(a) of the
Pooling and Servicing Agreement, all amounts deposited into the
Note Distribution Account shall be paid to the Noteholders (in the
amounts as described in Section 4.8 of the Pooling and Servicing
Agreement). If amounts are to be paid to Noteholders pursuant to
this Section 10.1(b), the Servicer or the Issuer shall, to the
extent practicable, furnish notice of such event to the Indenture
Trustee not later than 15 days prior to the Redemption Date
whereupon all such amounts shall be payable on the Redemption Date.
SECTION 10.2 Form of Redemption Notice.
(a) Notice of redemption under Section 10.1(a) shall be
given by the Indenture Trustee by first-class mail, postage
prepaid, mailed not less than five days prior to the applicable
Redemption Date to each Holder of Notes, as of the close of
business on the Record Date related to the applicable Redemption
Date, at such Holder's address appearing in the Note Register.
All notices of redemption shall state:
(i) the applicable Redemption Date;
(ii) the applicable Redemption Price; and
(iii) the place where such Notes are to be
surrendered for payment of the Redemption Price (which
shall be the office or agency of the Issuer to be
maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the
Indenture Trustee in the name and at the expense of the Issuer.
Failure to give notice of redemption, or any defect therein, to any
Holder of any Note shall not impair or affect the validity of the
redemption of any other Note.
(b) Prior notice of redemption under Section 10.1(b) is
not required to be given to Noteholders.
SECTION 10.3 Notes Payable on Redemption Date. The
Notes to be redeemed shall, following notice of redemption as
required by Section 10.2 (in the case of redemption pursuant to
Section 10.1(a)), on the Redemption Date cease to the Outstanding
for purposes of this Indenture and shall thereafter represent only
the right to receive the applicable Redemption Price and (unless
the Issuer shall default in the payment of the Redemption Price) no
interest shall accrue on the Redemption Price for any period after
the date to which accrued interest is calculated for purposes of
calculating the Redemption Price.
ARTICLE XI
Miscellaneous
SECTION 11.1 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the
Indenture Trustee to take any action under any provision of this
Indenture, the Issuer shall furnish to the Indenture Trustee (i) an
Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action
have been complied with, (ii) an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any,
have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants
meeting the applicable requirements of this Section, 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.
(b) (i) Except with respect to the substitution of
Leases as contemplated by Section 5.1 of the Pooling and
Servicing Agreement, of prior to the deposit of any
Collateral or other property or securities with the
Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien
of this Indenture, the Issuer shall, in addition to any
obligation imposed in Section 11.1(a) or elsewhere in
this Indenture, furnish to the Indenture Trustee an
Officer's Certificate certifying or stating the opinion
of each person signing such certificate as to the fair
value (within 90 days of such deposit) to the Issuer of
the Collateral or other property or securities to be so
deposited.
(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying
or stating the opinion of any signer thereof as to the
matters described in clause (i) above, the Issuer shall
also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of
all other such securities made the basis of any such
withdrawal or release since the commencement of the
then-current fiscal year of the Issuer, as set forth in the
certificates delivered pursuant to clause (i) above and
this clause (ii), is 10% or more of the Outstanding
Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if
the fair value thereof to the Issuer as set forth in the
related Officer's Certificate is less than $50,000 or
less than one percent of the Outstanding Amount of the
Notes.
(iii) Other than with respect to the release of any
Early Termination Leases, Defaulted Leases or Leases
subject to a Warranty Event, whenever any property or
securities are to be released from the lien of this
Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officer's Certificate certifying or stating
the opinion of each person signing such certificate as to
the fair value (within 90 days of such release) of the
property or securities proposed to be released and
stating that in the opinion of such person the proposed
release will not impair the security under this Indenture
in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to
the Indenture Trustee an Officer's Certificate certifying
or stating the opinion of any signer thereof as to the
matters described in clause (iii) above, the Issuer shall
also furnish to the Indenture Trustee an Independent
Certificate as to the same matters if the fair value of
the property or securities and of all other property
other than Purchased Leases and Defaulted Leases, or
securities released from the lien of this Indenture since
the commencement of the then current calendar year, as
set forth in the certificates required by clause (iii)
above and this clause (iv), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate
need not be furnished in the case of any release of
property or securities if the fair value thereof as set
forth in the related Officer's Certificate is less than
$50,000 or less than one percent of the then Outstanding
Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other
provision of this Section, the Issuer may (A) collect,
liquidate, sell or otherwise dispose of Leases and
related Collateral and proceeds of both as and to the
extent permitted or required by the Basic Documents, (B)
make cash payments out of the Trust Accounts as and to
the extent permitted or required by the Basic Documents
and (C) take any other action not inconsistent with the
TIA or the Basic Documents.
SECTION 11.2 Form of Documents Delivered to Indenture
Trustee. In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it
is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an Authorized Officer of
the Issuer may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion
is based are erroneous. Any such certificate of an Authorized
Officer or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Servicer, the
Seller or the Issuer, stating that the information with respect to
such factual matters is in the possession of the Servicer, the
Seller or the Issuer, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
Whenever in this Indenture, in connection with any
application or certificate or report to the Indenture Trustee, it
is provided that the Issuer shall deliver any document as a
condition of the granting of such application, or as evidence of
the Issuer's compliance with any term hereof, it is intended that
the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report
(as the case may be), of the facts and opinions stated in such
document shall in such case be conditions precedent to the right of
the Issuer to have such application granted or to the sufficiency
of such certificate or report. The foregoing shall not, however,
be construed to affect the Indenture Trustee's right to rely upon
the truth and accuracy of any statement or opinion contained in any
such document as provided in Article VI.
SECTION 11.3 Acts of 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 agents duly appointed in
writing; and except as herein otherwise expressly provided such
action shall become effective when such instrument or instruments
are deliver to the Indenture Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders signing of
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Indenture Trustee and the
Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of
any such instrument or writing may be proved in any manner that the
Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be provided by the Note
Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Notes
shall bind the Holder of every Note issued upon the registration
thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation
of such action is made upon such Note.
(e) The Indenture Trustee shall solicit, obtain and
otherwise act in accordance with any request, demand,
authorization, direction, notice, consent, waiver or other action
given or taken by the Noteholders in appropriate number in
accordance with the terms of this Indenture.
SECTION 11.4 Notices, etc., to Indenture Trustee,
Issuer and Rating Agency. Any request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders or other
documents provided or permitted by this Indenture to be made upon,
given or furnished to or filed with:
(a) The Indenture Trustee by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the
Indenture Trustee and received at its Corporate Trust Office,
or
(b) the Issuer by the Indenture Trustee or by any
Noteholder shall be sufficient for every purpose hereunder if
in writing and mailed, first-class, postage prepaid, to the
Issuer addressed to: TLFC IV Equipment Lease Trust, 1995-1, in
care of Bankers Trust (Delaware), 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, with a copy to Bankers Trust
Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Corporate Trust and Agency Group Structured Finance, or at
any other address previously furnished in writing to the
Indenture Trustee by Issuer. The Issuer shall promptly
transmit any notice received by it from the Noteholders to the
Indenture Trustee.
Notices required to be given to the Rating Agency by the
Issuer, the Indenture Trustee or the Owner Trustee shall be in
writing, personally delivered or mailed by certified mail, return
receipt requested to the following address: Standard & Poor's
Ratings Services, 00 Xxxxxxxx (00xx Xxxxx), Xxx Xxxx, Xxx Xxxx
00000, Attention of Asset Backed Surveillance Department; or at
such other address as shall be designated by written notice to the
other parties.
SECTION 11.5 Notices to Noteholders; Waiver. Where
this Indenture provides for notice to Noteholders of any event,
such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class, postage
prepaid to each Noteholder affected by such event, at his address
as it appears on the Note Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given
by mail, neither the failure to mail such notice nor any defect in
any notice so mailed to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and
any notice that is mailed in the manner herein provided shall
conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by any Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Noteholders shall be filed with the Indenture Trustee but such
filing shall not be a condition precedent to the validity of any
action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail
service as a result of a strike, work stoppage or similar activity,
it shall be impractical to mail notice of any event to Noteholders
when such notice is required to be given pursuant to any provision
of this Indenture, then any manner of giving such notice as shall
be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agency, failure to give such notice shall not affect any other
rights or obligations created hereunder, and shall not under any
circumstance constitute a Default or Event of Default.
SECTION 11.6 Alternate Payment and Notice Provisions.
Notwithstanding any provision of this Indenture or any of the Notes
to the contrary, to the extent satisfactory to the Indenture
Trustee, the Issuer may enter into any agreement with any Holder of
a Note providing for a method of payment, or notice by the
Indenture Trustee or any Paying Agent to such Holder, that is
different from the methods provided for in this Indenture for such
payments or notices. The Issuer will furnish to the Indenture
Trustee a copy of each such agreement and the Indenture Trustee
will cause payments to be made and notices to be given in
accordance with such agreements.
SECTION 11.7 Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflict 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 ss 310 through 317 that impose
duties on any person (including the provisions automatically deemed
included herein unless expressly excluded by this Indenture) are a
part of and govern this Indenture, whether or not physically
contained herein.
SECTION 11.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction
hereof.
SECTION 11.9 Successors and Assigns. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind
its successors and assigns, whether so expressed or not.
All covenants agreements of the Indenture Trustee in this
Indenture shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.10 Severability. In case any provision in
this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 11.11 Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors
hereunder, and the Noteholders and (only to the extent expressly
provided herein) the Certificateholders, and any other party
secured hereunder, and any other Person with an ownership interest
in any part of the Indenture Trust Estate, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 11.12 Legal Holidays. In any case where the
date on which any payment is due shall not be a Business Day, then
(notwithstanding any other provision of the Notes or this
Indenture) payment need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect
as if made on the date on which nominally due, and no interest
shall accrue for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 Counterparts. This Indenture may be
executed in any number of counterparts, each of which so executed
shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.15 Recording of Indenture. If this Indenture
is subject to recording in any appropriate public recording
offices, such recording is to be effected by the Issuer and at its
expense accompanied by an Opinion of Counsel (which may be counsel
to the Indenture Trustee or any other counsel reasonably acceptable
to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other
Person secured hereunder or for the enforcement of any right or
remedy granted to the Indenture Trustee under this Indenture.
SECTION 11.16 No Recourse.
(a) Each Noteholder or Note Owner, by acceptance of a
beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the
obligations of the Issuer, the Owner Trustee or the Indenture
Trustee on the Notes or under this Indenture or any certificate or
other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the
Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee
or of any successor or assign of the Indenture Trustee or the Owner
Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture
Trustee and the Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call
owing to such entity. For all purposes of this Indenture, in the
performance of any duties or obligations of the Issuer hereunder,
the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII and VIII of the
Trust Agreement.
(b) Except as expressly provided in the Basic Documents,
neither the Seller, the Servicer, the Indenture Trustee nor the
Owner Trustee in their respective individual capacities, any owner
of a beneficial interest in the Issuer, nor any of their respective
partners, owners, beneficiaries, agents, officers, directors,
employees or successors or assigns, shall be personally liable for,
nor shall recourse be had to any of them for, the payment of
principal of or interest on, or performance of, or omission to
perform, any of the covenants, obligations or indemnifications
contained in the Notes or this Indenture, it being expressly
understood that said covenants, obligations and indemnifications
have been made by the Owner Trustee solely as the Owner Trustee in
the assets of the Issuer. Each Noteholder or Note Owner by the
acceptance of a Note (or beneficial interest therein) will agree
that, except as expressly provided in the Basic Documents, in the
case of an Event of Default under this Indenture, the Holder shall
have no claim against any of the foregoing for any deficiency, loss
or claim therefrom; provided, however, that nothing contained
herein shall be taken to prevent recourse to, and enforcement
against, the assets of the Issuer for any and all liabilities,
obligations and undertakings contained in this Indenture or in the
Notes.
SECTION 11.17 No Petition. The Indenture Trustee, by
entering into this Indenture, and each Noteholder, by accepting a
Note, or in the case of a Note Owner, by accepting a beneficial
interest in a Note, hereby covenant and agree that they will not at
any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations
relating to the Notes, this Indenture or any of the Basic
Documents.
SECTION 11.18 Inspection. The Issuer agrees that, upon
reasonable request, on reasonable prior notice, it will permit any
representative of the Indenture Trustee, during the Issuer's normal
business hours and at offices designated by the Issuer, to examine
all the books of account, records, reports, and other papers of the
Issuer relating to the Collateral or the Notes, to make copies and
extracts therefrom, to cause such books to be audited by
independent certified public accountants, and to discuss the
Issuer's affairs, finances and accounts relating to the Collateral
or the Notes with the Issuer's officers, employees, and independent
certified public accountants, and at such reasonable times and as
often as may be reasonably requested and subject to the Issuer's
normal security and confidentiality procedure. The Indenture
Trustee shall and shall cause its representatives to hold in
confidence all such information except to the extent disclosure may
be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent
that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder. Nothing
in this Section 11.18 will derogate from any obligation under this
agreement or obligation of the Issuer or the Servicer to observe
any applicable law or agreement prohibiting disclosure of
information regarding the Lessees, and the failure to provide
information or access as provided in this Section 11.18 by reason
of any such obligation will not constitute a breach of this Section
11.18.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee
have caused this Indenture to be duly executed by their respective
officers, thereunto duly authorized, all as of the day and year
first above written.
TLFC IV EQUIPMENT LEASE TRUST
1995-1,
By: Bankers Trust (Delaware) not in
its individual capacity but
solely as Owner Trustee,
By: ______________________________
Name:
Title:
Manufacturers and Traders Trust
Company, not in its individual
capacity but solely as Indenture
Trustee,
By: _________________________
Name:
Title:
STATE OF _________ )
) ss.:
COUNTY OF ________ )
BEFORE ME, the undersigned authority, a Notary Public in
and for said County and State, on this day personally appeared
______________, known to me to be the person and officer whose name
is subscribed to the foregoing instrument and acknowledged to me
that the same was the act of the said TLFC IV Equipment Lease Trust
1995-1, a Delaware business trust, and that he executed the same as
the act of the said business trust for the purpose and
consideration therein expressed, and in the capacities therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
October __, 1995.
_________________________
Notary Public
My commission expires:
__________________________
STATE OF NEW YORK )
) ss.:
COUNTY OF BRONX )
BEFORE ME, the undersigned authority, a Notary Public in
and for said County and State, on this day personally appeared Xxxx
X. Xxxxxx, known to me to be the person and officer whose name is
subscribed to the foregoing instrument and acknowledged to me that
the same was the act of Manufacturers and Traders Trust Company and
that he executed the same as the corporation for the purposes and
consideration therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the day of
October 6, 1995.
_________________________
Notary Public
My commission expires:
__________________________
EXHIBIT E
UNDERTAKING LETTER
TL Lease Funding Corp. IV
Corporate Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Manufacturers and Traders Trust Company
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 14203
Attn: Corporate Trust Administration (Xxxx X. Xxxxxx)
as Indenture Trustee for TLFC IV Equipment Lease Trust 1995-1
Ladies and Gentlemen:
In connection with our purchase of record or beneficial
ownership of a Class B 7.55% Lease Backed Note subject to the
provisions of Section 2.15 of the Indenture dated as of October 6,
1995 (the "Unregistered Note") of the TLFC IV Equipment Lease Trust
1995-1, the undersigned purchaser, record owner or beneficial owner
hereby acknowledges, represents and warrants that such purchaser,
record owner or beneficial owner:
(1) is not, and has not acquired the Unregistered Note
by or for the benefit of, (i) an employee benefit plan (as defined
in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) that is subject to the provisions of
Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended, or (iii) any entity
whose underlying assets include plan assets by reason of a plan's
investment in such entity; and
(2) acknowledges that you and others will rely on our
acknowledgements, representations and warranties, and agrees to
notify you promptly in writing if any of our acknowledgments,
representations or warranties herein cease to be accurate and
complete.
______________________________
Name of Note Owner
By:___________________________
Name:
Title:
Date: ________________________
EXHIBIT C
Form of Depository Agreement
EXHIBIT A
REGISTERED $_____________
No. R-A_
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP NO. __________
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF
THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
TLFC IV EQUIPMENT LEASE TRUST 1995-1
CLASS A 6.40% LEASE BACKED NOTE
TLFC IV Equipment Lease Trust 1995-1, a business trust
organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal
sum of $89,658,869, payable on each Payment Date in the amounts and
to the extent described in the Indenture; provided, however, that
the entire unpaid principal amount of this Note shall be due and
payable on the earlier of the Payment Date in September 2001 and
the Redemption Date, if any, pursuant to Section 10.1(a) of the
Indenture. The Issuer will pay interest on this Note on each
Payment Date in the amounts and to the extent described in the
Indenture.
The principal of and interest on this Note are payable in
such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private
debts. All payments made by the Issuer with respect to this Note
shall be applied first to interest due and payable on this Note as
provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note
set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by
manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument
to be signed, manually or in facsimile, by its Authorized Officer.
Date: ________ __, 199_ TLFC IV EQUIPMENT LEASE TRUST
1995-1,
By: Bankers Trust (Delaware),
not in its individual
capacity but solely as
Owner Trustee,
By: _________________________
Name:
Title:
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to
in the within-mentioned Indenture.
Date: _________ __, 199_ Manufacturers and Traders Trust
Company, not in its individual
capacity but solely as
Indenture Trustee,
By: _________________________
Authorized Signatory
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of
the Issuer, designated as its Class A 6.40% Lease Backed Notes
(herein called the "Class A Notes"), all issued under an Indenture
dated as of October 6, 1995 (such indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and
Manufacturers and Traders Trust Company, as indenture trustee (the
"Indenture Trustee", which term includes any successor indenture
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Class A Notes
are one of two duly authorized Classes of Notes of the Issuer
issued pursuant to the Indenture (collectively, the "Notes"). The
Notes are governed by and subject to all terms of the Indenture
(which terms are incorporated herein and made a part hereof). All
terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Notes are and will be equally and ratably secured by
the Collateral pledged as security therefor as provided in the
Indenture.
Principal of the Notes will be payable on each Payment
Date in an amount and to the extent described in the Indenture.
"Payment Date" means the 15th day of each calendar month or, if any
such date is not a Business Day, the next succeeding Business Day,
commencing October 16, 1995.
As described above, the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the Payment
Date in September 2001 and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders
of the Notes shall have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture.
All principal payments on the Notes of a Class shall be made pro
rata to the Noteholders of such Class entitled thereto.
Payments of interest on this Note on each Payment Date,
together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to
the Person whose name appears as the Registered Holder of this Note
(or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that with respect to
Notes registered on the Record Date in the name of the nominee of
the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transferring immediately available
funds to the account designated by such nominee. Such checks shall
be mailed to the Person entitled thereof at the address of such
Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this
Note (or any one or more Predecessor Notes) effected by any
payments made on any Payment Date shall be binding upon all future
Holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Payment Date,
then the Indenture Trustee, in the name of and on behalf of the
Issuer, will notify the Person who was the Registered Holder hereof
as of the related Record Date by notice mailed within five days of
such Payment Date and the amount then due and payable shall be
payable only upon presentation and surrender of this Note at the
Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee located in the Borough of
Manhattan, the City of New York.
Each Noteholder or Note Owner, by acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note,
covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the
Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder
of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as
any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or
call owing to such entity.
The Issuer and the Indenture Trustee, by entering into
the Indenture, and the Noteholders and the Note Owners, by
acquiring any Note or beneficial interest therein, (i) express
their intention that the Notes qualify under applicable tax law as
indebtedness secured by the Collateral and (ii) unless otherwise
required by appropriate taxing authorities, agree to treat the
Notes as indebtedness secured by the Collateral for the purpose of
federal income, state and local income and franchise taxes, and any
other taxes imposed upon, measured by or based upon gross or net
income.
Each Noteholder or Note Owner, by acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note,
covenants and agrees that it will not, until one year and one day
after the final payment on the Notes, institute against the Seller
or the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States
Federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the Basic
Documents.
Prior to the due presentment for registration of transfer
of this Note, the Issuer, the Indenture Trustee and any agent of
the Issuer or the Indenture Trustee may treat the Person in whose
name this Note (as of the day of determination or as of such other
date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note be overdue,
and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Holders of the
Notes under the Indenture at any time by the Issuer with the
consent of the Holders of Notes representing a majority of the
Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Outstanding Amount of the
Notes, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture
and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Note (or any one or more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of
such consent or waiver is made upon this Note. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder. In addition, the Indenture
may be amended without the consent of the Holders of the Notes to
prevent the Issuer from being treated as a "publicly traded
partnership" under Section 7704 of the Internal Revenue Code.
The term "Issuer" as used in this Note includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of
the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain
limitations therein set forth.
The Notes and the Indenture shall be construed in
accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation
of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Note at the time, place, and
rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except
as expressly provided in the Basic Documents, neither the Owner
Trustee, in its individual capacity, the Indenture Trustee, in its
individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or
performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the
Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Owner
Trustee for the sole purposes of binding the interests of the Owner
Trustee in the assets of the Issuer. The Holder of this Note by
the acceptance hereof agrees that, except as expressly provided in
the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note to the extent provided therein and
herein.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ______________________________
_________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints attorney, to transfer said Note on the
books kept for registration thereof, with full power of
substitution in the premises.
Dated: ______________ ___________________________________
NOTE: The signature to this assign-
ment must correspond with the name
of the registered owner as it
appears on the face of the within
Note in every particular, without
alteration, enlargement or any
change whatsoever.
Signature Guaranteed:
___________________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Indenture Trustee which requirements
will include membership or partici-
pation in STAMP or such other "sig-
nature guarantee program" as may be
determined by the Indenture Trustee
in addition to, or in substitution
for, STAMP, all in accordance with
the Securities Act of 1934, as
amended.
___________________
EXHIBIT B
REGISTERED $____________
No. R-B_
SEE REVERSE FOR CERTAIN DEFINITIONS
THE CLASS B NOTES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT, OR THE SECURITIES LAWS OF ANY OTHER JURISDICTION.
CONSEQUENTLY, SUCH NOTES ARE NOT TRANSFERABLE OTHER THAN PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND SATISFACTION OF CERTAIN OTHER PROVISIONS
SPECIFIED HEREIN. NO SALE, PLEDGE OR OTHER TRANSFER OF ANY CLASS
B NOTE (OR INTEREST THEREIN) MAY BE MADE BY ANY PERSON UNLESS SUCH
SALE, PLEDGE OR OTHER TRANSFER IS MADE (I) TO A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED UNDER RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION WHICH MEETS THE REQUIREMENTS OF
RULE 144A UNDER THE SECURITIES ACT, (II) TO FIRST UNION CAPITAL
MARKETS CORP., (III) THROUGH FIRST UNION CAPITAL MARKETS CORP. TO
AN "INSTITUTIONAL ACCREDITED INVESTOR" (AS DESCRIBED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) IN A
TRANSACTION APPROVED BY FIRST UNION CAPITAL MARKETS CORP., OR (IV)
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. IN EACH SUCH CASE (A) THE PROSPECTIVE TRANSFEROR
AND THE PROSPECTIVE TRANSFEREE SHALL CERTIFY TO THE INDENTURE
TRUSTEE AND THE SELLER IN WRITING THE FACTS SURROUNDING SUCH
TRANSFER AND THE STATUS OF SUCH TRANSFEREE, WHICH CERTIFICATE SHALL
BE SUBSTANTIALLY IN THE FORM OF THE CERTIFICATE ATTACHED TO THE
INDENTURE AS EXHIBIT D, AND (B) IN THE CASE OF SALES, PLEDGES AND
TRANSFERS PURSUANT TO CLAUSE (IV) ABOVE, THE ISSUER SHALL HAVE
RECEIVED A WRITTEN OPINION OF COUNSEL (WHICH SHALL NOT BE AT THE
EXPENSE OF THE SELLER, THE ISSUER, THE OWNER TRUSTEE, THE SERVICER
NOR THE INDENTURE TRUSTEE), SATISFACTORY IN FORM AND SUBSTANCE TO
THE SELLER AND THE INDENTURE TRUSTEE, TO THE EFFECT THAT SUCH
TRANSFER WILL NOT VIOLATE THE SECURITIES ACT. NEITHER THE SELLER,
THE OWNER TRUSTEE, THE ISSUER NOR THE INDENTURE TRUSTEE SHALL BE
OBLIGATED TO REGISTER ANY CLASS B NOTES UNDER THE SECURITIES ACT,
QUALIFY ANY CLASS B NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR
PROVIDE REGISTRATION RIGHTS TO ANY PURCHASER OR HOLDER THEREOF.
THE CLASS B NOTES MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
A BENEFIT PLAN. BY ACCEPTING AND HOLDING A CLASS B NOTE, THE
HOLDER THEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND WARRANTED
THAT IT IS NOT A BENEFIT PLAN AND, IF REQUESTED TO DO SO BY THE
SELLER OR THE INDENTURE TRUSTEE, THE HOLDER OF A CLASS B NOTE SHALL
EXECUTE AND DELIVER TO THE INDENTURE TRUSTEE AN UNDERTAKING LETTER
TO SUCH EFFECT IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER AND
THE SELLER.
NO SALE, PLEDGE OR OTHER TRANSFER OF THIS NOTE MAY BE
MADE TO ANY PERSON IN A FACE AMOUNT OF LESS THAN $500,000. ANY
ATTEMPTED TRANSFER IN CONTRAVENTION OF THIS RESTRICTION WILL BE
VOID AB INITIO AND THE PURPORTED TRANSFEROR WILL CONTINUE TO BE
TREATED AS THE OWNER OF THIS NOTE FOR ALL PURPOSES.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS
SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF
THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF. PAYMENTS HEREUNDER ARE SUBORDINATED TO PAYMENTS ON THE
ISSUER'S CLASS A 6.40% LEASE BACKED NOTES ISSUED UNDER THE
INDENTURE TO THE EXTENT DESCRIBED HEREIN.
TLFC IV EQUIPMENT LEASE TRUST 1995-1
CLASS B 7.55% LEASE BACKED NOTE
TLFC IV Equipment Lease Trust 1995-1, a business trust
organized and existing under the laws of the State of Delaware
(herein referred to as the "Issuer"), for value received, hereby
promises to pay to _________________, or registered assigns, the
principal sum of $____________, payable on each Payment Date in the
amounts and to the extent described in the Indenture; provided,
however, that the entire unpaid principal amount of this Note shall
be due and payable on the earlier of the Payment Date in September
2001 and the Redemption Date, if any, pursuant to Section 10.1(a)
of the Indenture. The Issuer will pay interest on this Note on
each Payment Date in the amounts and to the extent described in the
Indenture.
The principal of and interest on this Note are payable in
such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private
debts. All payments made by the Issuer with respect to this Note
shall be applied first to interest due and payable on this Note as
provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note
set forth on the reverse hereof, which shall have the same effect
as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by
manual signature, this Note shall not be entitled to any benefit
under the Indenture referred to on the reverse hereof, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument
to be signed, manually or in facsimile, by its Authorized Officer.
Date: _________ __, 199_ TLFC IV EQUIPMENT LEASE TRUST
1995-1,
By: Bankers Trust (Delaware),
not in its individual
capacity but solely as
Owner Trustee,
By: _________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to
in the within-mentioned Indenture.
Date: _________ __, 199_ Manufacturers and Traders Trust
Company, not in its individual
capacity but solely as
Indenture Trustee,
By: _________________________
Authorized Signatory
REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of
the Issuer, designated as its Class B 7.55% Lease Backed Notes
(herein called the "Class B Notes"), all issued under an Indenture
dated as of October 6, 1995 (such indenture, as supplemented or
amended, is herein called the "Indenture"), between the Issuer and
Manufacturers and Traders Trust Company, as indenture trustee (the
"Indenture Trustee", which term includes any successor indenture
trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the
Indenture Trustee and the Holders of the Notes. The Class B Notes
are one of two duly authorized Classes of Notes of the Issuer
issued pursuant to the Indenture (collectively, the "Notes"). The
Notes are governed by and subject to all terms of the Indenture
(which terms are incorporated herein and made a part hereof). All
terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them
in or pursuant to the Indenture, as so supplemented or amended.
The Notes are and will be equally and ratably secured by
the Collateral pledged as security therefor as provided in the
Indenture.
Principal of the Notes will be payable on each Payment
Date in an amount and to the extent described in the Indenture.
"Payment Date" means the 15th day of each calendar month or, if any
such date is not a Business Day, the next succeeding Business Day,
commencing October 16, 1995.
As described above, the entire unpaid principal amount of
this Note shall be due and payable on the earlier of the Payment
Date in September 2001 and the Redemption Date, if any, pursuant to
Section 10.1(a) of the Indenture. Notwithstanding the foregoing,
the entire unpaid principal amount of the Notes shall be due and
payable on the date on which an Event of Default shall have
occurred and be continuing and the Indenture Trustee or the Holders
of the Notes shall have declared the Notes to be immediately due
and payable in the manner provided in Section 5.2 of the Indenture.
All principal payments on the Notes of a Class shall be made pro
rata to the Noteholders of such Class entitled thereto. Payments
on the Class B Notes are subordinated to payments on the Class A
Notes to the extent described in the Pooling and Servicing
Agreement.
Payments of interest on this Note on each Payment Date,
together with the installment of principal, if any, to the extent
not in full payment of this Note, shall be made by check mailed to
the Person whose name appears as the Registered Holder of this Note
(or one or more Predecessor Notes) on the Note Register as of the
close of business on each Record Date, except that if such Person
is the Registered Holder of Class B Notes representing more than
50% of the Outstanding Amount of Class B Notes, payments will be
made by wire transferring immediately available funds to the
account designated by such Person. Such checks shall be mailed to
the Person entitled thereof at the address of such Person as it
appears on the Note Register as of the applicable Record Date
without requiring that this Note be submitted for notation of
payment. Any reduction in the principal amount of this Note (or
any one or more Predecessor Notes) effected by any payments made on
any Payment Date shall be binding upon all future Holders of this
Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not
noted hereon. If funds are expected to be available, as provided
in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the related
Record Date by notice mailed within five days of such Payment Date
and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's
principal Corporate Trust Office or at the office of the Indenture
Trustee located in the Borough of Manhattan, the City of New York.
Each Noteholder or Note Owner, by acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note,
covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the
Owner Trustee or the Indenture Trustee on the Notes or under the
Indenture or any certificate or other writing delivered in
connection therewith, against (i) the Indenture Trustee or the
Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner,
beneficiary, agent, officer, director or employee of the Indenture
Trustee or the Owner Trustee in its individual capacity, any holder
of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture
Trustee or the Owner Trustee in its individual capacity, except as
any such Person may have expressly agreed and except that any such
partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or
call owing to such entity.
The Issuer and the Indenture Trustee, by entering into
the Indenture, and the Noteholders and the Note Owners, by
acquiring any Note or beneficial interest therein, (i) express
their intention that the Notes qualify under applicable tax law as
indebtedness secured by the Collateral and (ii) unless otherwise
required by appropriate taxing authorities, agree to treat the
Notes as indebtedness secured by the Collateral for the purpose of
federal income, state and local income and franchise taxes, and any
other taxes imposed upon, measured by or based upon gross or net
income.
Each Noteholder or Note Owner, by acceptance of a Note
or, in the case of a Note Owner, a beneficial interest in a Note,
covenants and agrees that it will not, until one year and one day
after the final payment on the Notes, institute against the Seller
or the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States
Federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes, the Indenture or the Basic
Documents.
Prior to the due presentment for registration of transfer
of this Note, the Issuer, the Indenture Trustee and any agent of
the Issuer or the Indenture Trustee may treat the Person in whose
name this Note (as of the day of determination or as of such other
date as may be specified in the Indenture) is registered as the
owner hereof for all purposes, whether or not this Note be overdue,
and neither the Issuer, the Indenture Trustee nor any such agent
shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Issuer and the rights of the Holders of the
Notes under the Indenture at any time by the Issuer with the
consent of the Holders of Notes representing a majority of the
Outstanding Amount of all Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of Notes
representing specified percentages of the Outstanding Amount of the
Notes, on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture
and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Note (or any one or more Predecessor Notes) shall be conclusive and
binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of
such consent or waiver is made upon this Note. The Indenture also
permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of
Holders of the Notes issued thereunder. In addition, the Indenture
may be amended without the consent of the Holders of the Notes to
prevent the Issuer from being treated as a "publicly traded
partnership" under Section 7704 of the Internal Revenue Code.
The term "Issuer" as used in this Note includes any
successor to the Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain
circumstances, to merge or consolidate, subject to the rights of
the Indenture Trustee and the Holders of Notes under the Indenture.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain
limitations therein set forth.
The Notes and the Indenture shall be construed in
accordance with the laws of the State of New York, without
reference to its conflict of law provisions, and the obligations,
rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation
of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Note at the time, place, and
rate, and in the coin or currency herein prescribed.
Anything herein to the contrary notwithstanding, except
as expressly provided in the Basic Documents, neither the Owner
Trustee, in its individual capacity, the Indenture Trustee, in its
individual capacity, any owner of a beneficial interest in the
Issuer, nor any of their respective partners, beneficiaries,
agents, officers, directors, employees or successors or assigns
shall be personally liable for, nor shall recourse be had to any of
them for, the payment of principal of or interest on, or
performance of, or omission to perform, any of the covenants,
obligations or indemnifications contained in this Note or the
Indenture, it being expressly understood that said covenants,
obligations and indemnifications have been made by the Owner
Trustee for the sole purposes of binding the interests of the Owner
Trustee in the assets of the Issuer. The Holder of this Note by
the acceptance hereof agrees that, except as expressly provided in
the Basic Documents, in the case of an Event of Default under the
Indenture, the Holder shall have no claim against any of the
foregoing for any deficiency loss or claim therefrom; provided,
however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for
any and all liabilities, obligations and undertakings contained in
the Indenture or in this Note to the extent provided therein and
herein.
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee
____________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _____________________________________________
________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints attorney, to transfer said Note on the
books kept for registration thereof, with full power of
substitution in the premises.
Dated: _______________ ________________________NOTE:
The signature to this assignment
must correspond with the name of the
registered owner as it appears on
the face of the within Note in every
particular, without alteration,
enlargement or any change
whatsoever.
Signature Guaranteed:
_________________________
Signatures must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Indenture Trustee which requirements
will include membership or
participation in STAMP or such other
"signature guarantee program" as may
be determined by the Indenture
Trustee in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
_________________________
EXHIBIT D
CERTIFICATE
TL Lease Funding Corp. IV
Corporate Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Manufacturers and Traders Trust Company
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 14203
Attn: Corporate Trust Administration (Xxxx X. Xxxxxx)
as Indenture Trustee for the of TLFC IV Equipment Lease Trust
1995-1
Ladies and Gentlemen:
In connection with the purchase of a Class B 7.55% Lease
Backed Note subject to Section 2.15 of the Indenture dated as of
October 6, 1995 (the "Unregistered Note") of the TLFC IV Equipment
Lease Trust 1995-1, the undersigned buyer ("Buyer") hereby
acknowledges, represents and agrees that:
(a) The Buyer has received the Confidential Private
Placement Memorandum, dated September 27, 1995 (including exhibits
thereto).
(b) The Buyer understands that the Unregistered Note
has not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and are not transferable except as
permitted in the following sentence. The Buyer agrees, on its own
behalf and on behalf of any accounts for which it is acting as
hereinafter stated, that such Unregistered Note may be resold,
pledged or transferred only (i) through First Union Capital Markets
Corp. to an institutional investor that is an "Accredited Investor"
as defined in Rule 501(a)(1),(2),(3) or (7) (an "Institutional
Accredited Investor") under the Securities Act acting for its own
account (and not for the account of others) or as a fiduciary or
agent for others (which others also are Institutional Accredited
Investors unless the holder is a bank acting in its fiduciary
capacity) that, if so requested by the Seller or the Indenture
Trustee, executes a certificate in the form hereof, (ii) to a
"qualified institutional buyer" as defined under Rule 144A under
the Securities Act ("Rule 144A") acting for its own account (and
not for the account of others) or as a fiduciary or agent for
others (which others also are "qualified institutional buyers")
that, if so requested by the Seller or the Indenture Trustee,
executes a certificate in the form hereof in a transaction which
meets the requirements of Rule 144A under the Securities Act, (iii)
to First Union Capital Markets Corp. or (iv) in a transaction
otherwise exempt from the registration requirements of the
Securities Act, in which case (A) the prospective transferor and
the prospective transferee will certify to the Indenture Trustee
and the Seller in writing the facts surrounding such transfer,
which certification shall be in form and substance satisfactory to
the Indenture Trustee and the Seller, and (B) the Indenture Trustee
shall require a written opinion of counsel (which will not be at
the expense of the Seller, the Servicer or the Indenture Trustee)
satisfactory in the form and substance to the Seller and the
Indenture Trustee to the effect that such transfer will not violate
the Securities Act. The Buyer will notify any purchaser of the
Unregistered Note from it of the above resale restrictions, if then
applicable. The Buyer further understands that in connection with
any transfer of the Unregistered Note by it that the Seller and the
Indenture Trustee may request, and if so requested the Buyer will
furnish, such certificates and other information as they may
reasonably require to confirm that any such transfer complies with
the foregoing restrictions.
(c)
CHECK ONE
i. The transaction is through First Union Capital
Markets to a Buyer who is an institutional investor and an
"accredited investor" (as defined in Rule 501(a)(1),(2),(3) or (7)
of Regulation D under the Securities Act) acting for its own
account (and not for the account of others) or as a fiduciary or
agent for others (which others also are Institutional Accredited
Investors unless the Buyer is bank acting in its fiduciary
capacity). The Buyer has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of its investment in the Unregistered Note, and
the Buyer and any accounts for which it is acting is able to bear
the economic risk of investment in the Unregistered Note for an
indefinite period of time. The Buyer is acquiring the Unregistered
Note for investment and not with a view to, or for offer and sale
in connection with, a public distribution.
ii. The transaction meets the requirements of Rule
144A under the Securities Act and the Buyer is a "qualified insti-
tutional buyer" as defined under Rule 144A under the Securities Act
and is acquiring the Unregistered Note for its own account (and not
for the account of others) or as a fiduciary or agent for others
(which others also are "qualified institutional buyers"). The
Buyer is familiar with Rule 144A under the Securities Act and is
aware that the seller of the Unregistered Note and other parties
intend to rely on the statements made herein and the exemption from
the registration requirements of the Securities Act provided by
Rule 144A.
iii. The Buyer is First Union Capital Markets Corp.
iv. The transaction is otherwise exempt from the
registration requirements of the Securities Act. The Buyer
certifies that (A) the description of the facts surrounding the
transfer attached hereto as Annex A is true and correct in all
material respects and (B) attached hereto as Annex B is an opinion
of counsel to the effect that such transfer will not violate the
Securities Act.
(d) The Buyer is not, and has not acquired the
Unregistered Note by or for the benefit of, (i) an employee benefit
plan (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) that is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Internal Revenue Code of 1986, as amended, or
(iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in such entity.
(e) You are entitled to rely upon this letter and you
are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceeding
or official inquiry with respect to the matters covered hereby.
______________________________
Print Name of Buyer
By: __________________________
Name:
Title:
Date: ________________________
AUTHORIZED OFFICERS
