EXHIBIT 4.1
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PROVIDENT EQUIPMENT LEASE TRUST 0000-X,
Xxxxxx
XXX
XXXXXXX XXXX XXXXXXXXX, NATIONAL ASSOCIATION,
Indenture Trustee
INDENTURE
Dated as of September 1, 1998
$73,303,000 of 5.28% Class A-1 Lease-Backed Notes
$19,242,000 of 5.78% Class A-2 Lease-Backed Notes
$90,935,000 of 5.60% Class A-3 Lease-Backed Notes
$18,576,000 of 5.75% Class A-4 Lease-Backed Notes
$7,687,000 of 6.20% Class B Lease-Backed Notes
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
Reconciliation and Tie between the Indenture dated as of September
1, 1998 and the Trust Indenture Act of 1939, as amended
Trust Indenture Act Section Indenture Section
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310(a)(1) Section 7.8
(a)(2) 7.8
(a)(3) 7.8
(a)(4) Not Applicable
(b) 7.8; 7.9; 6.7; 1.5; 1.6
(c) Not Applicable
311(a) 7.14
(b) 7.14
312(a) 2.11
(b) 11.2
(c) 11.2
313(a) 7.15
(b)(1) 7.15
(b)(2) 7.15
(c) 7.15; 1.6
(d) 7.15
314(a) 8.12; 8.9; 1.6
(b) Not Applicable
(c)(1) 11.3
(c)(2) 11.3
(c)(3) 11.1
(d) 11.1
(e) 11.4
(f) Not Applicable
315(a) 7.1(a)
(b) 7.2; 1.6
(c) 7.1(b)
(d) 7.1(c)
(e) 6.14
316(a)(last sentence) 2.12
(a)(1)(A) 6.12
(a)(1)(B) 6.13
(a)(2) Not Applicable
317(a)(1) 6.3(c)
(a)(2) 6.4
(b) 8.3(b)
318(a) 11.1
(c) 11.1
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions; Interpretive Provisions........................3
SECTION 1.2. Compliance Certificates and Opinions........................3
SECTION 1.3. Form of Documents Delivered to Indenture Trustee............4
SECTION 1.4. Acts of Noteholders, etc....................................5
SECTION 1.5. Notices, etc., to Indenture Trustee, Servicer, Issuer
and Rating Agencies.........................................6
SECTION 1.6. Notice to Noteholders; Waiver...............................7
SECTION 1.7. Effect of Headings and Table of Contents....................8
SECTION 1.8. Successors and Assigns......................................8
SECTION 1.9. GOVERNING LAW...............................................8
SECTION 1.10. Legal Holidays..............................................8
SECTION 1.11. Execution in Counterparts...................................8
SECTION 1.12. Survival of Representations and Warranties..................8
ARTICLE 2.
THE NOTES
SECTION 2.1. General Provisions..........................................9
SECTION 2.2. Execution, Authentication, Delivery, and Dating............11
SECTION 2.3. Transfer and Exchange......................................11
SECTION 2.4. Mutilated, Destroyed, Lost and Stolen Notes................12
SECTION 2.5. Book-Entry Registration of Class A Notes and
Class B Notes..............................................13
SECTION 2.6. Notice to Clearing Agency..................................14
SECTION 2.7. Definitive Class A Notes and Definitive Class B Notes......15
SECTION 2.8. Payment of Interest and Principal; Rights Preserved........16
SECTION 2.9. Persons Deemed Owners......................................16
SECTION 2.10. Cancellation...............................................17
SECTION 2.11. Noteholder Lists...........................................17
SECTION 2.12. Treasury Securities........................................17
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ARTICLE 3.
ACCOUNTS; INVESTMENT OF MONEYS;
COLLECTION AND APPLICATION OF MONEYS; REPORTS
SECTION 3.1. Trust Accounts; Investments by Indenture Trustee........18
SECTION 3.2. Collection of Moneys....................................19
SECTION 3.3. Collection Account; Payments............................19
SECTION 3.4. Reports by Indenture Trustee; Notices of Certain
Payments................................................20
SECTION 3.5. Indenture Trustee May Rely on Certain Information
from Servicer...........................................21
ARTICLE 4.
RELEASE OF COLLATERAL
SECTION 4.1. Release of Collateral...................................22
SECTION 4.2. Release of Leases Upon Final Lease Payment..............22
SECTION 4.3. Execution of Documents..................................23
SECTION 4.4. Officer's Certificates..................................23
ARTICLE 5.
SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER
SECTION 5.1. Servicer Events of Default.................................23
SECTION 5.2. Substitute Servicer........................................24
ARTICLE 6.
EVENTS OF DEFAULT; REMEDIES
SECTION 6.1. Events of Default.........................................24
SECTION 6.2. Acceleration of Maturity; Rescission and Annulment........25
SECTION 6.3. Remedies..................................................26
SECTION 6.4. Indenture Trustee Shall File Proofs of Claim..............27
SECTION 6.5. Indenture Trustee May Enforce Claims Without
Possession of Notes.......................................28
SECTION 6.6. Application of Money Collected............................28
SECTION 6.7. Limitation on Suits.......................................29
SECTION 6.8. Unconditional Right of Noteholders to Receive
Principal and Interest....................................30
SECTION 6.9. Restoration of Rights and Remedies........................31
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SECTION 6.10. Rights and Remedies Cumulative...........................31
SECTION 6.11. Delay or Omission Not Waiver.............................31
SECTION 6.12. Control by Noteholders...................................31
SECTION 6.13. Waiver of Events of Default..............................32
SECTION 6.14. Undertaking for Costs....................................32
SECTION 6.15. Waiver of Stay or Extension Laws.........................33
SECTION 6.16. Sale of Trust Estate.....................................33
ARTICLE 7.
THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities.......................35
SECTION 7.2. Notice of Defaults or Events of Default...................36
SECTION 7.3. Certain Rights of Indenture Trustee.......................36
SECTION 7.4. Not Responsible for Recitals or Issuance of Notes.........37
SECTION 7.5. May Hold Notes............................................37
SECTION 7.6. Money Held in Trust.......................................38
SECTION 7.7. [Reserved.]...............................................38
SECTION 7.8. Corporate Indenture Trustee Required; Eligibility.........38
SECTION 7.9. Resignation and Removal; Appointment of Successor.........39
SECTION 7.10. Acceptance of Appointment by Successor....................40
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business..................................................41
SECTION 7.12. Co-trustees and Separate Indenture Trustees...............41
SECTION 7.13. Acceptance by Indenture Trustee...........................43
SECTION 7.14. Preferential Collection of Claims Against Issuer..........43
SECTION 7.15. Reports by Indenture Trustee to Noteholders...............43
SECTION 7.16. No Proceedings............................................43
ARTICLE 8.
COVENANTS
SECTION 8.1. Payment of Principal and Interest.........................44
SECTION 8.2. Maintenance of Office or Agency; Chief Executive
Office....................................................44
SECTION 8.3. Money for Payments to Noteholders to be Held in Trust.....44
SECTION 8.4. Corporate Existence; Merger; Consolidation, etc...........45
SECTION 8.5. Protection of Trust Estate; Further Assurances............47
SECTION 8.6. [Reserved]................................................48
SECTION 8.7. Performance of Obligations; Pooling and Servicing
Agreement.................................................48
SECTION 8.8. Negative Covenants........................................49
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SECTION 8.9. Notice of Events of Default..............................50
SECTION 8.10. Taxes....................................................50
SECTION 8.11. Indemnification..........................................50
SECTION 8.12. Commission Reports; Reports to Indenture Trustee;
Reports to Noteholders...................................51
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Noteholders...52
SECTION 9.2. Supplemental Indentures with Consent of Noteholders......52
SECTION 9.3. Execution of Supplemental Indentures.....................53
SECTION 9.4. Effect of Supplemental Indentures........................54
SECTION 9.5. Reference in Notes to Supplemental Indentures............54
SECTION 9.6. Compliance with Trust Indenture Act......................54
ARTICLE 10.
SATISFACTION AND DISCHARGE
SECTION 10.1. Satisfaction and Discharge of Indenture..................54
SECTION 10.2. Application of Trust Money...............................56
ARTICLE 11.
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls.............................56
SECTION 11.2. Communication by Noteholders with Other Noteholders......56
SECTION 11.3. Officers' Certificate and Opinion of Counsel as to
Conditions Precedent.....................................56
SECTION 11.4. Statements Required in Certificate or Opinion............57
SECTION 11.5. Nonpetition..............................................57
SECTION 11.6. ERISA Matters............................................57
SECTION 11.7. Lessees..................................................57
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SCHEDULES
SCHEDULE 1 Leases
EXHIBITS
EXHIBIT A Forms of Notes and Form of Indenture Trustee's Certificate
of Authentication
APPENDIX
APPENDIX X Definitions
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INDENTURE
This INDENTURE dated as of September 1, 1998, is between PROVIDENT
EQUIPMENT LEASE TRUST 1998-A (herein called the "Issuer"), and NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as
indenture trustee (the "Indenture Trustee").
RECITALS OF THE COMPANY
Issuer has duly authorized the issuance of $209,743,000 in
aggregate principal amount of its Lease-Backed Notes, Series 1998-A,
consisting of $73,303,000 aggregate principal amount of 5.28% Class A-1
Lease-Backed Notes (the "Class A-1 Notes"), $19,242,000 aggregate principal
amount of 5.78% Class A-2 Lease-Backed Notes (the "Class A-2 Notes"),
$90,935,000 aggregate principal amount of 5.60% Class A-3 Lease-Backed
Notes (the "Class A-3 Notes"), $18,576,000 aggregate principal amount of
5.75% Class A-4 Lease-Backed Notes (the "Class A-4 Notes", together with
the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the
"Class A Notes") and $7,687,000 aggregate principal amount of 6.20% Class B
Lease-Backed Notes (the "Class B Notes", the Class A Notes and the Class B
Notes are referred to collectively as the "Notes"), of substantially the
tenor hereinafter set forth, and to provide therefor Issuer has duly
authorized the execution and delivery of this Indenture. The Class A Notes
and the Class B Notes shall be entitled to payments of interest and
principal as set forth herein.
All things necessary to make the Notes, when executed by Issuer
and authenticated and delivered hereunder, the valid obligations of Issuer,
and to make this Indenture a valid agreement of Issuer, in accordance with
its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the holders thereof, it is mutually covenanted and agreed, for the
benefit of all Noteholders, as follows:
GRANTING CLAUSE
Issuer hereby Grants to Indenture Trustee on the Issuance Date,
for the benefit and security of the Noteholders, all of Issuer's right,
title and interest in and to:
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(a) the Leases listed in Schedule 1 to the Pooling and Servicing
Agreement, as such Schedule 1 is amended or supplemented from time to time,
including all instruments, documents, books and other records relating
thereto,
(b) all Lease Payments, Casualty Payments, Termination Payments
and other amounts not collected with respect thereto on or prior to the
Cut-Off Date (other than any prepayments of rent required pursuant to the
terms of any Lease at or before the commencement of the Lease), all
Payaheads relating to payments on the Leases due or becoming due after the
Cut-Off Date and all Substitute Leases and all Lease Payments, Casualty
Payments, Termination Payments and other amounts not collected with respect
thereto prior to the effective date of their respective substitution (other
than any prepayments of rent required by the terms of any Substitute Lease
at or before the commencement of the Substitute Lease) and all Payaheads
relating to payments on the Substitute Leases due or becoming due after the
effective date of their respective substitution,
(c) all rights of Issuer to or under any guarantees of or
collateral (including all rights of Issuer in any security deposits) for
the Lessee's obligations under any Lease and all UCC financing statements
relating to such collateral,
(d) all interests of Issuer in the Equipment at any time subject
to any Lease, including any security interest of Issuer in the Equipment,
(e) any proceeds with respect to the Leases from claims on
insurance policies covering the Equipment or Lessees,
(f) all moneys from time to time on deposit in any of the Trust
Accounts, including all investments and income from the investment of such
moneys,
(g) all rights of Issuer under the Pooling and Servicing Agreement
and the Contribution Agreement, including the right of Issuer to cause
Transferor and ILC to repurchase Leases under the Pooling and Servicing
Agreement and Contribution Agreement, respectively; and
(h) all proceeds of the foregoing, whether by voluntary or
involuntary conversion thereof (collectively, the "Granted Assets"). Such
Grant is made in trust to secure (i) the payment of all amounts due on the
Class A Notes and the Class B Notes, in accordance with their terms,
equally and ratably without prejudice, priority, or distinction among any
of the Class A Notes and the Class B Notes, respectively, by reason of
differences in time of issuance or otherwise, (ii) the payment of all other
sums payable under this Indenture with respect to the Notes and (iii)
compliance with the provisions of this Indenture with respect to the Notes.
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Indenture Trustee acknowledges such Grant, accepts the trusts
hereunder in accordance with the provisions hereof, and agrees to perform
the duties herein required to the best of its ability and to the end that
the interests of the Noteholders may be adequately and effectively
protected as hereinafter provided.
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions; Interpretive Provisions. (a) Capitalized
terms used and not otherwise defined herein shall have the meanings ascribed to
such terms in Appendix X to this Indenture.
(b) The other interpretive provisions specified in Appendix X to
the Indenture shall apply to this Agreement.
(c) It is understood and agreed that all transfers of Leases made
pursuant to the Contribution Agreement shall be made as contributions by
ILC to the capital of Transferor. Each reference herein to any "purchase"
of leases by Transferor from ILC, or "sale" of leases by ILC to Transferor
or similar terms shall be deemed to refer to such capital contributions.
Each reference to Leases "sold" by ILC or "purchased" by Transferor shall
be deemed to refer to Leases that are contributed by ILC to the capital of
Transferor. All other terms of this Indenture shall be construed in a
manner consistent with the foregoing.
SECTION 1.2. Compliance Certificates and Opinions.
-------------------------------------
Upon any written application or request (or oral application with
prompt written or telecopied confirmation) by Issuer to Indenture Trustee
to take any action under any provision of this Indenture, other than any
request that (a) Indenture Trustee authenticate the Notes specified in such
request, (b) Indenture Trustee invest moneys in any of the Trust Accounts
pursuant to the written directions specified in such request, or (c)
Indenture Trustee pay moneys due and payable to Issuer hereunder to the
Issuer's assignee specified in such request, Indenture Trustee shall
require Issuer to furnish to Indenture Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and that
the request otherwise is in accordance with the terms of the Indenture, and
an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the
case of any such requested action as to which other evidence of
satisfaction of the conditions precedent thereto is specifically required
by any provision of this Indenture, no additional certificate or opinion
need be furnished.
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SECTION 1.3. 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 Issuer
delivered to Indenture Trustee may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to
the matters upon which his certificate or opinion is based are erroneous.
Any such certificate or opinion and any Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of Servicer, Transferor, or
the Manager as to such factual matters unless such officer or counsel
knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous. Any Opinion of Counsel may be based on the written opinion of
other counsel, in which event such Opinion of Counsel shall be accompanied
by a copy of such other counsel's opinion and shall include a statement to
the effect that such counsel believes that such counsel and Indenture
Trustee may reasonably rely upon the opinion of such other counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
Wherever in this Indenture, in connection with any application or
certificate or report to Indenture Trustee, it is provided that Issuer
shall deliver any document as a condition of the granting of such
application, or as evidence of compliance with any term hereof, it is
intended that the truth and accuracy, at the time of the granting of such
application or at the effective date of such certificate or report (as the
case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of Issuer to have such
application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect Indenture
Trustee's right to rely upon the truth and accuracy of any statement or
opinion contained in any such document as provided in Section 7.1(a)(ii).
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Whenever in this Indenture it is provided that the absence of the
occurrence and continuation of a Default or Event of Default or Servicer
Event of Default is a condition precedent to the taking of any action by
Indenture Trustee at the request or direction of Issuer, then,
notwithstanding that the satisfaction of such condition is a condition
precedent to the Issuer's right to make such request or direction,
Indenture Trustee shall be protected in acting in accordance with such
request or direction if it does not have knowledge of the occurrence and
continuation of such Default or Event of Default or Servicer Event of
Default. For all purposes of this Indenture, Indenture Trustee shall not be
deemed to have knowledge of any Default or Event of Default nor shall
Indenture Trustee have any duty to monitor or investigate to determine
whether a default has occurred (other than an Event of Default of the kind
described in Section 6.1(a)) or Servicer Event of Default unless a
Responsible Officer of Indenture Trustee shall have actual knowledge
thereof or shall have been notified in writing thereof by Issuer, Servicer,
Transferor, or any Noteholder.
SECTION 1.4. Acts of Noteholders, etc.
-------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in
person or by agents duly appointed in writing; and, except as otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to Indenture Trustee and, where it is hereby
expressly required, to Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are sometimes referred to as
the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 7.1) conclusive in favor of Indenture Trustee and Issuer, if made
in the manner provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than such signer's individual capacity, such certificate or affidavit
shall also constitute sufficient proof of such signer's authority. The fact
and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner which Indenture Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holder of any Note shall bind every future
Holder of the same Note
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and the Holder of every Note issued upon the registration of transfer
thereof or in exchange therefore or in lieu thereof in respect of anything
done, omitted or suffered to be done by Indenture Trustee or Issuer in
reliance thereon, whether or not notation of such action is made upon such
Note.
(d) By accepting the Notes issued pursuant to this Indenture, each
Noteholder irrevocably appoints Indenture Trustee hereunder as the special
attorney-in-fact for such Noteholder vested with full power on behalf of
such Noteholder to effect and enforce the rights of such Noteholder and the
revisions pursuant hereto for the benefit of such Noteholder; provided that
nothing contained in this Section 1.4(d) shall be deemed to confer upon
Indenture Trustee any duty or power to vote on behalf of the Noteholders
with respect to any matter on which the Noteholders have a right to vote
pursuant to the terms of this Indenture.
SECTION 1.5. Notices, etc., to Indenture Trustee, Servicer, Issuer
and Rating Agencies.
--------------------
Any request, demand, authorization, direction, notice, consent,
waiver, Act of Noteholders, or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, Indenture
Trustee, Issuer or Servicer shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid or certified mail return receipt requested, or
sent by private courier or confirmed telecopy. Unless otherwise
specifically provided herein, no such request, demand, authorization,
direction, notice, consent, waiver, Act of Noteholders or other document
shall be effective until received and any provision hereof requiring the
making, giving, furnishing, or filing of the same on any date shall be
interpreted as requiring the same to be sent or delivered in such fashion
that it will be received on such date. Any such request, demand,
authorization, direction, notice, consent, waiver, Act of Noteholders, or
other document shall be sent or delivered to the following addresses:
(a) if to Indenture Trustee, at the Corporate Trust Office,
Attention: Corporate Trust Services/Asset-Backed Administration (Number
for telecopy: (000) 000-0000, or at any other address previously
furnished in writing to Issuer and Servicer by Indenture Trustee; or
(b) if to Issuer, at Provident Equipment Lease Trust
1998-A, in care of Trustee, Attention: Corporate Trust
Administration (Number for telecopy: (000) 000-0000), with copies
to Servicer at the address set forth in clause (c), or at any
other addresses previously furnished in writing to Indenture
Trustee and Servicer by Issuer; or
(c) if to Servicer, Information Leasing Corporation, c/o The
Provident Bank, at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000,
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Attention: Treasury Services Department (Number for telecopy: (513)
579-2233), or at any other address previously furnished in writing to
Indenture Trustee and Issuer by Servicer.
(d) if to the Rating Agencies: to Fitch IBCA, Inc., 0 Xxxxx
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attn: Surveillance (Number for
telecopy: (000) 000-0000) and to Xxxxx'x Investors Service, Inc.,
00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring
Department (Number for telecopy: (000) 000-0000.
SECTION 1.6. Notice to Noteholders; Waiver.
------------------------------
(a) Where this Indenture provides for notice to Noteholders of any
event, or the mailing of any report to Noteholders, such notice or report
shall be sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid or certified mail return
receipt requested, or sent by private courier or confirmed telecopy to each
Noteholder affected by such event or to whom such report is required to be
mailed, at its address as it appears in the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice or the mailing of such report. In any case where a
notice or report to Noteholders is mailed, neither the failure to mail such
notice or report, nor any defect in any notice or report so mailed, to any
particular Noteholder shall affect the sufficiency of such notice or report
with respect to other Noteholders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled
to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Noteholders
shall be filed with Indenture Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon
such waiver.
(b) In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to mail or send
notice to Noteholders, in accordance with Section 1.6(a), of any event or
any report to Noteholders when such notice or report is required to be
delivered pursuant to any provision of this Indenture, then such
notification or delivery as shall be made with the approval of Indenture
Trustee shall constitute a sufficient notification for every purpose
hereunder.
(c) Indenture Trustee shall have no liability to any Noteholder or
Note Owner that fails to respond to any notice or request delivered by
Indenture Trustee within the time period set forth in such notice or
request for any action taken pursuant to the direction of the required
percentage of Noteholders in accordance with the terms of this Indenture.
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SECTION 1.7. Effect of Headings and Table of Contents.
-----------------------------------------
The Article and Section headings herein and in the Table of
Contents are for convenience only and shall not affect the construction
hereof.
SECTION 1.8. Successors and Assigns.
All covenants and agreements in this Indenture by Issuer or
Indenture Trustee shall bind its respective successors and permitted
assigns, whether so expressed or not.
SECTION 1.9. GOVERNING LAW.
--------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. THIS INDENTURE IS
SUBJECT TO THE TRUST INDENTURE ACT OF 1939 AND SHALL BE GOVERNED THEREBY
AND CONSTRUED IN ACCORDANCE THEREWITH.
SECTION 1.10. Legal Holidays.
---------------
In any case where any Payment Date or the Stated Maturity or any
other date on which principal of or interest on any Note is proposed to be
paid shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Notes) such payment need not be made on such
date, but may be made on the next succeeding Business Day with the same
force and effect as if made on such Payment Date, Stated Maturity, or other
date on which principal of or interest on any Note is proposed to be paid,
provided that no interest shall accrue for the period from and after such
Payment Date, Stated Maturity, or any other date on which principal of or
interest on any Note is proposed to be paid, as the case may be, until such
next succeeding Business Day.
SECTION 1.11. Execution in Counterparts.
--------------------------
This Indenture may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
SECTION 1.12. Survival of Representations and Warranties.
-------------------------------------------
The representations, warranties and certifications of the Issuer
made in this Indenture or in any certificate or other writing delivered by
Issuer pursuant hereto shall survive the authentication and delivery of the
Notes hereunder.
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ARTICLE 2.
THE NOTES
SECTION 2.1. General Provisions.
-------------------
(a) The Notes shall consist of $73,303,000 principal amount of
Class A-1 Notes, $19,242,000 principal amount of Class A-2 Notes,
$90,935,000 principal amount of Class A-3 Notes, $18,576,000 principal
amount of Class A-4 Notes and $7,687,000 principal amount of Class B Notes,
and the forms thereof and of Indenture Trustee's certificate of
authentication shall be in substantially the forms set forth in Exhibit A
hereto, with such appropriate insertions, omissions, substitutions, and
other variations as are required or permitted by this Indenture.
The aggregate principal amount of Notes which may be authenticated
and delivered under this Indenture is limited to $209,743,000, except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Section 2.3, 2.4, or
9.5. The Notes shall be issuable only in registered form and only in
minimum denominations of at least $1,000 with respect to the Class A Notes
and the Class B Notes; provided that the foregoing shall not restrict or
prevent the transfer in accordance with Section 2.3 of any Note having a
remaining Outstanding Principal Amount of other than an integral multiple
of $1,000, or the issuance of a single Class A Note and a single Class B
Note with a denomination less than $1,000.
(b) For each Payment Date, payments of principal (the "Principal
Payments") on the Notes will be made in accordance with Sections 3.3(b) or
6.6, as applicable; it being understood that unless the Notes are
accelerated pursuant to Section 6.2, prior to the Stated Maturity of any
class of Notes, principal payments shall be due on such class of Notes only
to the extent of Available Funds available to make payments on principal of
such class in accordance with the priorities set forth in Section 3.3(b).
Except as otherwise provided in Section 6.2, no part of the principal of
any Note shall be paid prior to the Payment Date on which such principal is
due in accordance with the preceding provisions of this Section 2.1(b),
except that Issuer may redeem the Notes in their entirety, without premium,
as of any Payment Date on which the Discounted Present Value of the
Performing Leases (after giving effect to all Principal Payments on such
Payment Date) is less than or equal to five percent (5%) of the aggregate
Discounted Present Value of the Leases as of the Cut-Off Date. Issuer will
give notice of any such redemption to each Noteholder and Indenture Trustee
at least 30 days before the Payment Date fixed for such prepayment by
certified mail return receipt requested, hand delivery or overnight
courier. Notice of such prepayment having been so given, the remaining
unpaid principal as of the Payment Date fixed for prepayment together with
all interest
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accrued and unpaid to such Payment Date, shall become due and payable on
such Payment Date.
(c) For each Payment Date, the interest due and payable (the
"Interest Payments") with respect to the Notes will be the interest that
has accrued on the respective Notes since the last Payment Date or, in the
case of the first Payment Date, since the Closing Date, at the Class A-1
Interest Rate, Class A-2 Interest Rate, Class A-3 Interest Rate, Class A-4
Interest Rate and Class B Interest Rate, respectively, applied to the then
Outstanding Principal Amounts of the Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes, Class A-4 Notes and Class B Notes, respectively, on the
preceding Payment Date. Interest Payments will be made in accordance with
Sections 3.3(b) and 6.6, as applicable.
(d) All payments made with respect to any Note shall be made in
such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts and shall
be applied first to the interest then due and payable on such Notes, then
to the principal thereof, and finally to premium, if any.
(e) All Class A-1 Notes issued under this Indenture shall be in
all respects equally and ratably entitled to the benefits hereof without
preference, priority or distinction on account of the actual time or times
of authentication and delivery, all in accordance with the terms and
provisions of this Indenture. Payments of principal and interest on the
Class A-1 Notes shall be made pro rata among all Outstanding Class A-1
Notes, without preference or priority of any kind.
(f) All Class A-2 Notes issued under this Indenture shall be in
all respects equally and ratably entitled to the benefits hereof without
preference, priority or distinction on account of the actual time or times
of authentication and delivery, all in accordance with the terms and
provisions of this Indenture. Payments of principal and interest on the
Class A-2 Notes shall be made pro rata among all Outstanding Class A-2
Notes, without preference or priority of any kind.
(g) All Class A-3 Notes issued under this Indenture shall be in
all respects equally and ratably entitled to the benefits hereof without
preference, priority or distinction on account of the actual time or times
of authentication and delivery, all in accordance with the terms and
provisions of this Indenture. Payments of principal and interest on the
Class A-3 Notes shall be made pro rata among all Outstanding Class A-3
Notes, without preference or priority of any kind.
(h) All Class A-4 Notes issued under this Indenture shall be in
all respects equally and ratably entitled to the benefits hereof without
preference, priority or distinction on account of the actual time or times
of authentication and delivery, all in accordance with the terms and
provisions of this Indenture. Payments of principal
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and interest on the Class A-4 Notes shall be made pro rata among all
Outstanding Class A-4 Notes, without preference or priority of any kind.
(i) The Class B Notes shall be subordinated to the Class A Notes
to the extent set forth herein. All Class B Notes issued under this
Indenture shall be in all respects equally and ratably entitled to the
benefits hereof without preference, priority or distinction on account of
the actual time or times of authentication and delivery, all in accordance
with the terms and provisions of this Indenture. Payments of principal and
interest on the Class B Notes shall be made pro rata among all Outstanding
Class B Notes, without preference or priority of any kind.
SECTION 2.2. Execution, Authentication, Delivery, and Dating.
------------------------------------------------
(a) The Notes shall be manually executed on behalf of Issuer by
any of its Authorized Officers. The signature of any such Authorized
Officer on the Notes may be manual or facsimile.
(b) Any Note bearing the signature of an individual who was at the
time of execution thereof an Authorized Officer of Issuer shall bind
Issuer, notwithstanding that such individual ceases to hold such office
prior to the authentication and delivery of such Note or did not hold such
office at the date of such Note.
(c) No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note
a certificate of authentication substantially in the form provided for
herein, executed by Indenture Trustee by manual signature, and such
certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered
hereunder. Each Note shall be dated the date of its authentication.
(d) The Notes may from time to time be executed by Issuer and
delivered to Indenture Trustee for authentication together with an Issuer
Request to Indenture Trustee directing the authentication and delivery of
such Notes and thereupon the same shall be authenticated and delivered by
Indenture Trustee in accordance with such Trust Request.
SECTION 2.3. Transfer and Exchange.
----------------------
(a) Issuer shall cause to be kept at the Corporate Trust Office a
register (the "Note Register") in which, subject to such reasonable
regulations as Indenture Trustee may prescribe, Issuer shall provide for
the registration of Notes and of transfers of Notes. Indenture Trustee is
hereby appointed "Note Registrar" for the purpose of registering Notes and
transfers of Notes as herein provided. Upon any
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resignation of any Note Registrar, 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 Indenture Trustee is appointed by Issuer as
Note Registrar, Issuer will give Indenture Trustee prompt written notice of
the appointment of such Note Registrar and of the location, and any change
in the location, of Note Register, and Indenture Trustee shall have the
right to inspect Note Register at all reasonable times, to obtain copies
thereof and to rely upon a certificate executed on behalf of Note Registrar
by an executive officer thereof as to the names and addresses of Holders of
Notes and the principal amounts and number of such Notes.
(b) Subject to Section 2.3(a), upon surrender for registration of
transfer of any Note at the office of Issuer designated pursuant to Section
8.2 for such purpose, Issuer shall execute and Indenture Trustee upon
request shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate original principal amount. Indenture
Trustee shall make a notation on any such new Note of the amount of
principal, if any, that has been paid on such Note.
(c) All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
(d) Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by Issuer or Indenture
Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to Issuer and Indenture Trustee duly
executed, by the Holder thereof or his attorney duly authorized in writing.
(e) No service charge shall be made for any registration of
transfer or exchange of Notes, but Issuer or Indenture Trustee may require
payment by the transferor of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration
of transfer or exchange of Notes, other than exchanges pursuant to Section
9.5 not involving any transfer.
SECTION 2.4. Mutilated, Destroyed, Lost and Stolen Notes.
--------------------------------------------
(a) If any mutilated Note is surrendered to Indenture Trustee,
Issuer shall execute and Indenture Trustee shall authenticate and deliver
in exchange therefore a replacement Note of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
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(b) If there shall be delivered to Issuer and Indenture Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Note and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence
of actual notice to Issuer or Indenture Trustee that such Note has been
acquired by a bona fide purchaser, Issuer shall execute and upon its
request Indenture Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Note, a replacement Note of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
(c) In case the final installment of principal on any such
mutilated, destroyed, lost or stolen Note has become or will at the next
Payment Date become due and payable, Issuer in its discretion may, instead
of issuing a replacement Note, pay such Note.
(d) Upon the issuance of any replacement Note under this Section,
Issuer or Indenture Trustee may require the payment by the Noteholder of a
sum sufficient to cover any tax or other governmental charge that may be
imposed as a result of the issuance of such replacement Note.
(e) Every replacement Note issued pursuant to this Section 2.4 in
lieu of any destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of Issuer, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(f) The provisions of this Section 2.4 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 2.5. Book-Entry Registration of Class A Notes and Class
B Notes.
--------
Each of the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes and the Class B Notes, upon original issuance, shall be
issued in the form of one or more typewritten Class A-1 Notes, Class A-2
Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes, respectively,
(the "Book-Entry Class A-1 Notes," "Book-Entry Class A-2 Notes,"
"Book-Entry Class A-3 Notes," "Book-Entry Class A-4 Notes" and "Book-Entry
Class B Notes", respectively) to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, Issuer. Each of
the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes , Class A-4 Notes and
Class B Notes shall initially be registered on the Note Register in the
name of Cede & Co., the nominee of The Depository Trust Company, as the
initial Clearing Agency, and no Class A-1 Note Owner, Class A-2 Note Owner,
Class A-3 Note Owner, Class A-4 Note Owner or Class B Note Owner will
receive a definitive note
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representing such Note Owner's interest in the Class A-1 Notes, Class A-2
Notes, Class A-3 Notes, Class A-4 Notes or Class B Notes, as the case may
be, except as provided in Section 2.7. Unless and until Definitive Class
A-1 Notes, Definitive Class A-2 Notes, Definitive Class A-3 Notes,
Definitive Class A-4 Notes and/or Definitive Class B Notes have been issued
to the applicable Note Owners pursuant to Section 2.7:
(a) the provisions of this Section 2.5 shall be in full force and
effect with respect to the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes or the Class B Notes, as the case may be;
(b) Issuer, Servicer and Indenture Trustee may deal with the
Clearing Agency and the Clearing Agency Participants for all purposes with
respect to the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes or Class B Notes, as the case may be, (including the making of
distributions on the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes and the Class B Notes, as the case may be) as the
authorized representatives of the respective Note Owners;
(c) to the extent that the provisions of this Section 2.5 conflict
with any other provisions of this Indenture, the provisions of this Section
2.5 shall control; and
(d) the rights of the respective Note Owners shall be exercised
only through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between such
respective Note Owners and the Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Class A-1 Notes, Definitive Class A-2 Notes, Definitive Class
A-3 Notes, Definitive Class A-4 Notes or Definitive Class B Notes, as the
case may be, are issued pursuant to Section 2.7, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal and
interest on the related Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes and Class B Notes, as the case may be, to such Clearing
Agency Participants.
(e) 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 Principal Amount of the Notes (or
a class of Notes), the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Note Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the Notes (or class of Notes) and has delivered such
instructions to Indenture Trustee.
SECTION 2.6. Notice to Clearing Agency.
--------------------------
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Whenever notice or other communication to the Class A-1
Noteholders, Class A-2 Noteholders, Class A-3 Noteholders, Class A-4
Noteholders or Class B Noteholders is required under this Agreement, unless
and until Definitive Class A-1 Notes, Definitive Class A-2 Notes,
Definitive Class A-3 Notes, Definitive Class A-4 Notes or Definitive Class
B Notes shall have been issued to the related Note Owners pursuant to
Section 2.7, Indenture Trustee shall give all such notices and
communications specified herein to be given to such Noteholders to the
applicable Clearing Agency which shall give such notices and communications
to the related Class A-1 Note Owners, Class A-2 Note Owners, Class A-3 Note
Owners, Class A-4 Note Owners and Class B Note Owners in accordance with
its applicable rules, regulations and procedures.
SECTION 2.7. Definitive Class A Notes and Definitive Class B
Notes.
------
If (a) (i) Manager advises Indenture Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities under the Depository Agreement with respect to the Class
A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and/or the
Class B Notes and (ii) Indenture Trustee or Manager is unable to locate a
qualified successor, (b) Manager, at its option, advises Indenture Trustee
in writing that it elects to terminate the book-entry system with respect
to the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes
and/or the Class B Notes through the Clearing Agency or (c) after the
occurrence of a Servicer Event of Default, Class A-1 Note Owners, Class A-2
Note Owners, Class A-3 Note Owners, Class A-4 Note Owners and Class B Note
Owners, with respect to the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes and Class B Notes evidencing not less than a
majority of the aggregate unpaid Outstanding Principal Amount of the Class
A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B
Notes, respectively, advise Indenture Trustee and the Clearing Agency
through the Clearing Agency Participants in writing that the continuation
of a book-entry system with respect to the Class A-1 Notes, Class A-2
Notes, Class A-3 Notes, Class A-4 Notes or the Class B Notes, respectively,
through the Clearing Agency is no longer in the best interests of the Class
A-1 Note Owners, Class A-2 Note Owners, Class A-3 Note Owners, Class A-4
Note Owners or Class B Note Owners, as the case may be, Indenture Trustee
shall notify all Class A-1 Note Owners, Class A-2 Note Owners, Class A-3
Note Owners, Class A-4 Note Owners and Class B Note Owners with respect to
the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and
Class B Notes, respectively, through the Clearing Agency, of the occurrence
of any such event and of the availability of Definitive Class A-1 Notes,
Definitive Class A-2 Notes, Definitive Class A-3 Notes, Definitive Class
A-4 Notes and Definitive Class B Notes to Class A-1 Note Owners, Class A-2
Note Owners, Class A-3 Note Owners, Class A-4 Note Owners and Class B Note
Owners, respectively, requesting the same. Upon surrender to Indenture
Trustee of the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes
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or Class B Notes, as the case may be, by the Clearing Agency, accompanied
by registration instructions from the Clearing Agency for registration,
Issuer shall execute and Indenture Trustee shall authenticate and deliver
the Definitive Class A-1 Notes, Definitive Class A-2 Notes, Definitive
Class A-3 Notes, Definitive Class A-4 Notes or Definitive Class B Notes, as
the case may be. Neither Manager nor 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-1 Notes, Definitive Class A-2 Notes, Definitive Class
A-3 Notes, Definitive Class A-4 Notes or Definitive Class B Notes, as the
case may be, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by Indenture Trustee, to the extent applicable with respect to
such Definitive Class A-1 Notes, Definitive Class A-2 Notes, Definitive
Class A-3 Notes, Definitive Class A-4 Notes or Definitive Class B Notes,
respectively, and Indenture Trustee shall recognize the Holders of the
Definitive Class A-1 Notes as Class A-1 Noteholders, Holders of the
Definitive Class A-2 Notes as Class A-2 Noteholders, Holders of the
Definitive Class A-3 Notes as Class A-3 Noteholders, Holders of the
Definitive Class A-4 Notes as Class A-4 Noteholders and/or the Holders of
the Definitive Class B Notes as Class B Noteholders hereunder.
SECTION 2.8. Payment of Interest and Principal; Rights Preserved.
----------------------------------------------------
(a) Any installment of interest or principal, payable on any Note
that is punctually paid or duly provided for by Issuer on the applicable
Payment Date shall be paid to the Person in whose name such Note was
registered at the close of business on the Record Date for such Payment
Date by wire transfer of federal funds to the account and number specified
in the Note Register on such Record Date for such Person or, if no such
account or number is so specified, then by check mailed to such Person's
address as it appears in the Note Register on such Record Date.
(b) All reductions in the principal amount of a Note effected by
payments of installments of principal made on any Payment Date shall be
binding upon all Holders of such Note and of any Note issued upon the
registration of transfer thereof or in exchange therefore or in lieu
thereof, whether or not such payment is noted on such Note. All payments on
the Notes shall be paid without any requirement of presentment but each
Holder of any Note shall be deemed to agree, by its acceptance of the same,
upon at least ten (10) days notice from Indenture Trustee to surrender such
Note at the Corporate Trust Office against payment of the final installment
of principal of such Note.
SECTION 2.9. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer,
Issuer, Indenture Trustee, and any agent of Issuer or Indenture Trustee may
treat the
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Noteholder as the owner of such Note for the purpose of receiving payment
of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither Issuer,
Indenture Trustee, nor any agent of Issuer or Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.10. Cancellation.
-------------
All Notes surrendered for registration of transfer or exchange or
following final payment shall, if surrendered to any Person other than
Indenture Trustee, be delivered to Indenture Trustee and shall be promptly
cancelled by it. Issuer may at any time deliver to Indenture Trustee for
cancellation any Notes previously authenticated and delivered hereunder
which Issuer may have acquired in any manner whatsoever, and all Notes so
delivered shall be promptly cancelled by 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 held by Indenture Trustee may be disposed of in the
normal course of its business or as directed by an Issuer Order.
SECTION 2.11. Noteholder Lists.
-----------------
Indenture Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names
and addresses of Noteholders and shall otherwise comply with Section 312(a)
of the Trust Indenture Act. In the event Indenture Trustee no longer serves
as the Note Registrar, Issuer (or any other obligor upon the Notes) shall
furnish to Indenture Trustee at least five Business Days before each
interest payment date (and in all events in intervals of not more than 6
months) and at such other times as Indenture Trustee may request in writing
a list in such form and as of such date as Indenture Trustee may reasonably
require of the names and addresses of Noteholders, and Issuer shall
otherwise comply with Section 312(a) of the Trust Indenture Act. Three or
more Holders or one or more Holders of the Notes evidencing at least 25% of
the Outstanding Principal Amount of the Notes may, by written request to
Indenture Trustee, obtain access to the list of all Holders maintained by
Indenture Trustee for the purpose of communicating with other Holders with
respect to their rights under the Indenture or under the Notes. Indenture
Trustee may elect not to afford the requesting Holders access to the list
of Holders if it agrees to mail the desired communication or proxy, on
behalf of and at the expense of the requesting Holders, to all Holders.
SECTION 2.12. Treasury Securities.
--------------------
In determining whether the Noteholders of the required Outstanding
Principal Amount of the Notes have concurred in any direction, waiver or
consent, Notes owned by Issuer, Transferor, ILC, any other obligor upon the
Notes or an Affiliate of Transferor shall be considered as though not
outstanding, except that for the
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purposes of determining whether Indenture Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which a
Responsible Officer knows are so owned shall be so disregarded.
ARTICLE 3.
ACCOUNTS; INVESTMENT OF MONEYS;
COLLECTION AND APPLICATION OF MONEYS; REPORTS
SECTION 3.1. Trust Accounts; Investments by Indenture Trustee.
-------------------------------------------------
(a) On or before the Issuance Date, Issuer shall cause Servicer to
establish in the name of Indenture Trustee for the benefit of the
Noteholders and the Certificateholders, to the extent of their interests
therein as provided in this Indenture, the Pooling and Servicing Agreement
and the Trust Agreement, the Trust Accounts as provided in Section 6.1 of
the Pooling and Servicing Agreement.
(b) Indenture Trustee shall not have any right of set-off with
respect to any Trust Account or any investment therein. So long as no Event
of Default shall have occurred and be continuing, all or a portion of the
amounts in the Trust Account shall be invested and reinvested by the
Indenture Trustee pursuant to an Issuer Order or Servicer Order in one or
more Eligible Investments in accordance with Section 6.1 of the Pooling and
Servicing Agreement.
(c) If either (i) Issuer or Servicer, as the case may be, shall
have failed to give investment directions to Indenture Trustee by 9:30
a.m., New York City time on any Business Day on which there may be
uninvested cash or (ii) an Event of Default shall be continuing, Indenture
Trustee shall promptly invest and reinvest the funds then in the Trust
Accounts to the fullest extent practicable in the investment described in
clause (d) of the definition of Eligible Investment. All investments made
by Indenture Trustee shall mature no later than the maturity date therefore
permitted by Section 3.1(d) unless Indenture Trustee shall have received
written confirmation from each Rating Agency, that the liquidation of such
Eligible Investments prior to their respective maturity dates has satisfied
the Rating Agency Condition.
(d) No investment of any amount held in any Trust Account shall
mature later than the Business Day immediately preceding the Payment Date
which is scheduled to occur immediately following the date of investment.
All income or other gains (net of losses) from the investment of moneys
deposited in the Trust Accounts shall be deposited by Indenture Trustee in
such account immediately upon receipt.
(e) If any amounts are needed for disbursement from any Trust
Account and sufficient uninvested funds are not collected and available
therein to make such
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disbursement, in the absence of an Issuer Order or Servicer Order for the
liquidation of investments held therein in an amount sufficient to provide
the required funds, Indenture Trustee shall select and cause to be sold or
otherwise converted to cash a sufficient amount of the investments in such
accounts.
(f) Indenture Trustee shall not in any way be held liable by
reason of any insufficiency in the Collection Account, the Reserve Account,
or the Residual Account resulting from losses on investments made in
accordance with the provisions of this Section 3.1 and Section 6.1 of the
Pooling and Servicing Agreement (but the institution serving as Indenture
Trustee shall at all times remain liable for its own debt obligations, if
any, constituting part of such investments). Indenture Trustee shall not be
liable for any investment made by it in accordance with this Section 3.1
and Section 6.1 of the Pooling and Servicing Agreement on the grounds that
it could have made a more favorable investment or a more favorable
selection for sale of an investment.
SECTION 3.2. Collection of Moneys.
---------------------
Indenture Trustee shall from time to time, in accordance with
instructions of Servicer, withdraw from the Collection Account and pay as
instructed by the Servicer any amounts in the Collection Account which
Servicer advises Indenture Trustee are Other Lease Payments or otherwise
not part of the Trust Estate. Prior to such payment, Indenture Trustee
shall have rights to and an interest in such amounts to the extent (but
only to the extent) it is determined that such amounts actually constitute
Transaction Payment Amounts.
SECTION 3.3. Collection Account; Payments.
-----------------------------
(a) Not later than the Required Deposit Date, Available Funds will
be deposited into the Collection Account as provided in Section 6.2 (c) of
the Pooling and Servicing Agreement. On or before each Payment Date,
Available Funds will be transferred to the Note Distribution Account as
provided in Section 6.3 of the Pooling and Servicing Agreement.
(b) Unless the Notes have been declared due and payable pursuant
to Section 6.2 and moneys collected by Indenture Trustee are being applied
in accordance with Section 6.6, Available Funds on deposit in the Note
Distribution Account shall be distributed on each Payment Date to the
extent of amount due and unpaid on the Notes in the following amounts and
in following order of priority:
(i) concurrently: (A) to make Interest Payments on the
Class A-1 Notes, (B) to make Interest Payments on the Class A-2
Notes, (C) to make Interest Payments on the Class A-3 Notes and
(D) to make Interest Payments on the Class A-4 Notes;
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(ii) to make Interest Payments on the Class B Notes;
(iii) to make the Class A Principal Payment (i) to the
Class A-1 Noteholders only, until the Outstanding Principal Amount
of the Class A-1 Notes is reduced to zero, then (ii) to the Class
A-2 Noteholders only, until the Outstanding Principal Amount of
the Class A-2 Notes is reduced to zero, then (iii) to the Class
A-3 Noteholders only, until the Outstanding Principal Amount of
the Class A-3 Notes is reduced to zero, then (iv) to the Class A-4
Noteholders only, until the Outstanding Principal Amount of the
Class A-4 Notes is reduced to zero;
(iv) to pay the Class B Principal Payment to the Class B
Noteholders; and
(v) to pay the Additional Principal, if any, as an
additional reduction of principal, first to the Class A
Noteholders receiving the Class A Principal Payment as provided in
clause (iii) until the Outstanding Principal Amount of the Class A
Notes has been reduced to zero, second to the Class B Noteholders
as an additional reduction of principal until the Outstanding
Principal Amount of the Class B Notes has been reduced to zero.
SECTION 3.4. Reports by Indenture Trustee; Notices of Certain
Payments.
---------
(a) Indenture Trustee shall within two Business Days after the
request of Issuer, Servicer or any Noteholder, deliver to the requesting
person a written report setting forth the amounts on deposit in the
Collection Account, the Reserve Account, and the Residual Account and
identifying the investments included therein.
(b) Within five Business Days following each Payment Date or as
promptly as possible thereafter but in no event later than two Business
Days following the receipt of the Monthly Status Report from Servicer
pursuant to Section 4.8 of the Pooling and Servicing Agreement, Indenture
Trustee shall mail to Transferor, each Rating Agency and Servicer and make
available to each Noteholder the following information as provided in the
Monthly Status Report:
(i) the principal amount of all Outstanding Class A-1
Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class
B Notes, respectively, and of the Outstanding Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B
Notes respectively, held by each Noteholder on the Record Date
with respect to such Payment Date;
(ii) the amount of Interest Payments and payments in
reduction of principal paid on such Payment Date with respect to
all Class X-0 Xxxxx,
-00-
Xxxxx X-0 Notes, Class A-3 Notes, Class A-4 Notes and Class B
Notes, respectively, and with respect to the Notes held by each
Noteholder;
(iii) the amount of the Servicing Fee and unreimbursed
Servicer Advances paid on such Payment Date pursuant to Section
6.3(b)(i) of the Pooling and Servicing Agreement;
(iv) the Available Residual Amount and the Utilized
Residual Amounts as of the date of the most recent Monthly Status
Report delivered pursuant to Section 4.8 of the Pooling and
Servicing Agreement;
(v) the amounts, if any, paid to Servicer or Transferor
pursuant to Section 6.3(b)(xi) of the Pooling and Servicing
Agreement; and
(vi) the amount on deposit in the Collection Account, the
Reserve Account and the Residual Account, in each case after
giving effect to all of the withdrawals and applications or
transfers required on or before such Payment Date pursuant to
Sections 3.2 and 3.3
With each report of Indenture Trustee furnished pursuant to this
Section 3.4(b) following any Payment Date, Indenture Trustee shall enclose
a copy of the Servicing Report and the report required to be furnished to
Indenture Trustee by Servicer following such Payment Date pursuant to
Section 4.8 of the Pooling and Servicing Agreement or, if such reports have
not been received, a statement to such effect.
SECTION 3.5. Indenture Trustee May Rely on Certain Information
from Servicer.
Pursuant to the Pooling and Servicing Agreement and Section 3.2
hereof, Servicer is required to furnish to Indenture Trustee from time to
time certain information and make various calculations which are relevant
to the performance of Indenture Trustee's duties in Article Three and in
Article Four of this Indenture. Indenture Trustee shall be entitled to rely
in good faith on such information or calculations, and any information or
calculations provided in any other report or document delivered to
Indenture Trustee in accordance with the requirements of the Basic
Documents, in the performance of its duties hereunder (i) unless and until
a Responsible Officer of Indenture Trustee has actual knowledge, or is
advised by any Noteholder (either in writing or orally with prompt written
or telecopied confirmation), that such information or calculations or
reports is or are incorrect, or (ii) unless there is a manifest error in
any such information or reports. Additionally, Indenture Trustee shall have
no obligation to recalculate or independently verify any information in any
report referred to in the preceding sentence.
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ARTICLE 4.
RELEASE OF COLLATERAL
SECTION 4.1. Release of Collateral.
----------------------
(a) Except as otherwise provided below in this Article IV, the
Indenture Trustee shall release property from the Lien of this Indenture
only upon receipt of an Issuer Request accompanied by an Officers'
Certificate, an Opinion of Counsel and Independent Certificates in
accordance with Trust Indenture Act ss.ss.314(c) and 314(d)(l), or an
Opinion of Counsel in lieu of such Independent Certificates to the effect
that the Trust Indenture Act does not require any such Independent
Certificates.
(b) Subject to the satisfaction of the provisions of Sections 4.2
and 4.4, Indenture Trustee shall release Equipment from the Lien of the
Indenture upon the occurrence of any of the following events: (a) the sale
of such Equipment pursuant to Section 3.3(b) of the Pooling and Servicing
Agreement (unless retained by Issuer for re-leasing), (b) the expiration of
the related Lease upon the payment of the final Lease Payment due and
payable under such Lease and the deposit of any Residual Realization in
respect thereof subject to the Residual Amount Cap, (c) the repurchase of
the related Lease in accordance with the provisions of Section 4 of the
Pooling and Servicing Agreement and upon the substitution of a Substitute
Lease in accordance with the provisions of Section 9 of the Pooling and
Servicing Agreement. The proceeds of any such sale, repurchase or releasing
shall be deposited in the Collection Account for disposition under this
Indenture.
SECTION 4.2. Release of Leases Upon Final Lease Payment.
-------------------------------------------
Subject to the satisfaction of the provisions of Section 4.4, if
Indenture Trustee shall have received notice (either in writing or orally
with prompt written or telecopied confirmation) from Servicer that
Indenture Trustee has received from amounts paid by the Lessee, from the
Lease Repurchase Amount or from the proceeds of the Equipment subject to
any Lease (i) the final Lease Payment due and payable under such Lease and
the deposit of any Residual Realization in respect thereof, (ii) a
Termination Payment in respect of such Lease, and the deposit of any
Residual Realization in respect thereof, (iii) a Casualty Payment under
such Lease (and, following such final Lease Payment, Casualty Payment or
Termination Payment, no further payments on or in respect of such Lease are
or will be due and payable), or (iv) the full amount of any Non-Performing
Lease Pay-Through Amount with respect to such Lease, such Lease shall be
released from the lien of this Indenture.
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SECTION 4.3. Execution of Documents.
-----------------------
Indenture Trustee shall promptly execute and deliver such
documents, including without limitation partial releases and termination
statements (which shall be furnished to Indenture Trustee by the Servicer),
and take such other actions as Issuer, by Issuer Request, may reasonably
request (including the return of any Lease which has been released) to
fully effectuate the release from this Indenture of any Lease and interests
in the related Equipment required to be so released pursuant to Sections
4.1 or 4.2.
SECTION 4.4. Officer's Certificates.
-----------------------
The Issuer may, without compliance with the requirements of
Section 4.1(a): (A) take all of the actions described in Sections 4.1(b)
and 4.2; (B) collect, liquidate, sell or otherwise dispose of Leases and
Equipment as and to the extent permitted or required by the Pooling and
Servicing Agreement and (B) make cash payments out of the Trust Accounts as
and to the extent permitted or required by the Pooling and Servicing
Agreement, this Indenture and the Trust Agreement so long as the Manager,
on behalf of the Issuer, shall deliver to the Indenture Trustee every six
months, commencing April 30, 1999, an Officers' Certificate of the Issuer
stating that all such dispositions of Granted Assets that occurred since
the execution of the previous such Officers' Certificate (or for the first
such Officers' Certificate, since the Closing Date) were in the ordinary
course of the Issuer's business and that the proceeds thereof were applied
in accordance with the Pooling and Servicing Agreement, this Indenture and
the Trust Agreement.
ARTICLE 5.
SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER
SECTION 5.1. Servicer Events of Default.
---------------------------
If a Servicer Event of Default shall have occurred and be
continuing, Indenture Trustee shall, upon the written request of the
Holders of Notes evidencing at least 662/3% of the then Outstanding
Principal Amount of the Notes, give notice in writing to Servicer of the
termination of all of the rights and obligations of Servicer under the
Pooling and Servicing Agreement. On and after the giving of such written
notice, all rights and obligations of Servicer under the Pooling and
Servicing Agreement, including, Servicer's right thereunder to receive the
Servicing Fee and the Supplemental Servicing Fee, shall pass to, be vested
in, and be assumed by Indenture Trustee, and Indenture Trustee shall be
authorized to, and shall, execute and deliver, on behalf of Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and to do or accomplish all other acts or things necessary or appropriate
to effect the purposes of such termination and of such
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passing, vesting, and assumption; provided that in performing the duties of
Servicer under the Pooling and Servicing Agreement Indenture Trustee shall
at all times be deemed to be acting as Indenture Trustee hereunder and
shall be entitled to the full benefit of all the protections, benefits,
immunities and indemnities provided in this Indenture for or with respect
to Indenture Trustee, including those set forth in Article Seven.
SECTION 5.2. Substitute Servicer.
--------------------
Notwithstanding the provisions of Section 5.1, Indenture Trustee
may, if it shall be unwilling to continue to act as the successor to
Servicer in accordance with Section 5.1, or shall, if it is unable to
continue to so act or is so instructed in writing by the Holders of Notes
evidencing at least 662/3% of the then Outstanding Principal Amount of the
Notes, appoint a successor to Servicer in accordance with the provisions of
Section 8.3 of the Pooling and Servicing Agreement.
ARTICLE 6.
EVENTS OF DEFAULT; REMEDIES
SECTION 6.1. Events of Default.
------------------
"Event of Default," wherever used herein, means any one of the
following (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(a) default in making of Principal Payments or Interest Payments
when such become due and payable;
(b) default in the performance, or breach, of any covenant of
Issuer in this Indenture, and continuance of such default or breach for a
period of 30 days after the earliest of (i) any officer of Issuer first
acquiring knowledge thereof, (ii) Indenture Trustee's giving written notice
thereof to Issuer or (iii) the Holders of Notes evidencing at least 25% of
the then Outstanding Principal Amount of the Notes giving written notice
thereof to Issuer and Indenture Trustee;
(c) if any representation or warranty of Issuer made in this
Indenture or any other writing provided to the Holders of the Notes shall
prove to be incorrect in any material respect as of the time when the same
shall have been made; and continuance of such default or breach for a
period of 30 days after the earliest of (i) any officer of Issuer first
acquiring knowledge thereof, (ii) Indenture Trustee's giving written notice
thereof to Issuer or (iii) the Holders of Notes evidencing at least 25%
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of the then Outstanding Principal Amount of the Notes giving written notice
thereof to Issuer and Indenture Trustee;
(d) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of Issuer in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization, or other similar law or (ii) a decree or order
adjudging Issuer a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment, or composition of
or in respect of Issuer under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator, or other similar official of Issuer or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by Issuer of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of Issuer in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by it
of a petition or answer or consent seeking reorganization or relief under
any applicable federal or state law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator, or similar official
of Issuer or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or Issuer's failure to pay
its debts generally as they become due, or the taking of corporate action
by Issuer in furtherance of any such action.
SECTION 6.2. Acceleration of Maturity; Rescission and Annulment.
---------------------------------------------------
(a) If an Event of Default of the kind specified in Section 6.1(d)
or Section 6.1(e) occurs, the unpaid principal amount of the Notes shall
automatically become due and payable at par together with all accrued and
unpaid interest thereon, without presentment, demand, protest or notice of
any kind, all of which are hereby waived by Issuer. If an Event of Default
(other than an Event of Default of the kind described in Section 6.1(d) and
Section 6.1(e)) occurs and is continuing, then and in every such case
Indenture Trustee may and shall, if so directed by the Holders of Notes
evidencing at least 662/3% of the then Outstanding Principal Amount of
Notes, declare the unpaid principal amount of all the Notes to be due and
payable immediately, by a notice in writing to Issuer (and to Indenture
Trustee if given by Noteholders), and upon any such declaration such
principal amount shall become immediately due and payable together with all
accrued and unpaid interest thereon,
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without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by Issuer.
(b) At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by Indenture Trustee as hereinafter in this Article provided, the
Holders of Notes evidencing at least 662/3% of the then Outstanding
Principal Amount of Notes, by written notice to Issuer and Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(i) Issuer has paid or deposited with Indenture Trustee
a sum sufficient to pay:
(A) all Principal Payments on any Notes which
have become due otherwise than by such declaration of
acceleration and interest thereon from the date when the
same first became due until the date of payment or
deposit at the appropriate Note Interest Rate,
(B) all Interest Payments due with respect to
any Notes and, to the extent that payment of such
interest is lawful, interest upon overdue interest from
the date when the same first became due until the date of
payment or deposit at a rate per annum equal to the
appropriate Note Interest Rates, and
(C) all sums paid or advanced by Indenture
Trustee hereunder and the reasonable compensation,
expenses, disbursements, and advances of Indenture
Trustee, its agents and counsel; and
(ii) all Events of Default, other than the non-payment of
the Outstanding Principal Amount of the Notes which has become due
solely by such declaration of acceleration, have been cured or
waived as provided in Section 6.13.
No such rescission shall affect any subsequent Event of Default or impair
any right consequent thereon.
SECTION 6.3. Remedies.
---------
(a) If an Event of Default occurs and is continuing of which a
Responsible Officer has actual knowledge, Indenture Trustee shall
immediately give notice to each Noteholder as set forth in Section 7.2 and
shall solicit the Noteholders for advice. Indenture Trustee shall then take
such action as so directed by the Holders of Notes evidencing at least
662/3% of the then Outstanding Notes.
12312134.1 100298 1317C 98438757
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(b) Following any acceleration of the Notes, Indenture Trustee
shall have all of the rights, powers and remedies with respect to the Trust
Estate as are available to secured parties under the UCC or other
applicable law. Such rights, powers and remedies may be exercised by
Indenture Trustee in its own name as trustee of an express trust.
(c) If an Event of Default specified in Section 6.1(a) occurs and
is continuing, Indenture Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against Issuer for the whole
amount of principal and interest remaining unpaid.
(d) In exercising its rights and obligations under this Section
6.3, Indenture Trustee may sell the Trust Estate; provided that if the
Event of Default involves other than non-payment for five days or more of
principal or interest on the Notes, Indenture Trustee may not sell the
Trust Estate unless: (A) all the Noteholders 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) Indenture Trustee determines that
the 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 Indenture
Trustee obtains the consent of Holders of Notes evidencing at least 662/3%
of the Outstanding Principal Amount of the Notes.
SECTION 6.4. Indenture Trustee Shall File Proofs of Claim.
---------------------------------------------
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition, or other judicial proceeding relative to Issuer or any other
obligor upon the Notes or the other obligations secured hereby or relating
to the property of Issuer or of such other obligor or their creditors,
Indenture Trustee (irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether Indenture Trustee shall have made any demand on
Issuer for the payment of overdue principal or interest or any such other
obligation) shall by intervention in such proceeding or otherwise,
(i) file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Notes
and any other obligation secured hereby and to file such other
papers or documents as may be necessary or advisable in order to
have the claims of Indenture Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of
Indenture Trustee, its agents and counsel) and of the Noteholders
allowed in such judicial proceeding, and
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(ii) collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator,
or other similar official in any such judicial proceeding is hereby
authorized by each Noteholder to make such payments to Indenture Trustee
and, in the event that Indenture Trustee shall consent to the making of
such payments directly to the Noteholders to pay to Indenture Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of Indenture Trustee, its agents and counsel, and any other
amounts due Indenture Trustee under Section 7.7.
(b) Nothing herein contained shall be deemed to authorize
Indenture Trustee to authorize or consent to or accept or adopt on behalf
of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding.
SECTION 6.5. 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 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 Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of Indenture Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Notes in respect of which such judgment has been recovered.
SECTION 6.6. Application of Money Collected.
-------------------------------
Any money collected by Indenture Trustee pursuant to this Article,
and any moneys that may then be held or thereafter received by Indenture
Trustee shall be applied in the following order, at the date or dates fixed
by Indenture Trustee and, in case of the distribution of the entire amount
due on account of principal or interest, upon presentation of the Notes and
surrender thereof:
first: to the payment of all costs and expenses of collection
incurred by Indenture Trustee and the Noteholders (including the
reasonable fees and expenses of any counsel to Indenture Trustee and
the Noteholders);
second: if the person then acting as Servicer under the
Pooling and Servicing Agreement is not ILC or an Affiliate of ILC, to
the payment of all Servicer's Fees then due to such person;
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third: first, pro-rata to the payment of all accrued and
unpaid interest on the Outstanding Principal Amount of the Class
A-1 Notes, the Outstanding Principal Amount of the Class A-2
Notes, the Outstanding Principal Amount of the Class A-3 Notes,
and the Outstanding Principal Amount of the Class A-4 Notes,
respectively, to the date of payment thereof, including (to the
extent permitted by applicable law) interest on any overdue
installment of interest and principal from the maturity of such
installment to the date of payment thereof at the rate per annum
equal to the Class A-1 Note Interest Rate, Class A-2 Note Interest
Rate, Class A-3 Note Interest Rate and Class A-4 Note Interest
Rate, respectively, second, to the payment of all accrued and
unpaid interest on the Outstanding Principal Amount of the Class B
Notes to the date of payment thereof, including (to the extent
permitted by applicable law) interest on any overdue installment
of interest and principal from the maturity of such installment to
the date of payment thereof at the rate per annum equal to the
Class B Note Interest Rate, third, to the payment of all accrued
and unpaid interest on the Certificate Balance to the date of
payment thereof, including (to the extent permitted by applicable
law) interest on any overdue installment of interest and principal
from the maturity of such installment to the date of payment
thereof at the rate per annum equal to the Certificate Rate,
fourth, to the payment of the Outstanding Principal Amount of the
Class A-1 Notes, fifth, to the payment of the Outstanding
Principal Amount of the Class A-2 Notes, Class A-3 Notes and Class
A-4 Notes, pro rata, sixth, to the payment of the Outstanding
Principal Amount of the Class B Notes, and seventh, to the payment
of the Certificate Balance; provided, that the Noteholders may
allocate such payments for interest, principal and premium at
their own discretion, except that no such allocation shall affect
the allocation of such amounts or future payments received by any
other Noteholder;
fourth: to the payment of amounts then due Indenture Trustee
hereunder and the Trustee under the Trust Agreement;
fifth: if the person then acting as Servicer is ILC or an
Affiliate of ILC, to the payment of all Servicer's Fees then due to
such Person; and
sixth: to the payment of the remainder, if any, to Transferor
or any other Person legally entitled thereto.
SECTION 6.7. Limitation on Suits.
--------------------
None of the Noteholders shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
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(i) such Noteholder has previously given written notice
to Indenture Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the then
Outstanding Principal Amount of the Notes shall have made written
request to Indenture Trustee to institute proceedings in respect
of such Event of Default in its own name as Indenture Trustee
hereunder;
(iii) such Noteholder or Noteholders have offered to
Indenture Trustee adequate indemnity against the costs, expenses
and liabilities to be incurred in compliance with such request;
(iv) Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(v) so long as any of the Notes remain Outstanding, no
direction inconsistent with such written request has been given to
Indenture Trustee during such 60-day period by the Holders of
Notes evidencing at least 662/3% of the then Outstanding Principal
Amount of the Notes;
it being understood and intended that no one or more Noteholders shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb, or prejudice the rights of
any other Noteholders, or to obtain or to seek to obtain priority or
preference over any other Noteholders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Noteholders. Nothing in this Section 6.7 shall
be construed as limiting the rights of otherwise qualified Noteholders to
petition a court for the removal of a Indenture Trustee pursuant to Section
7.9(h) hereof.
SECTION 6.8. Unconditional Right of Noteholders to Receive
Principal and Interest.
-----------------------
Notwithstanding any other provision in this Indenture, other than
the provisions hereof limiting the right to recover amounts due on the
Notes to recoveries from the property of Trust Estate, the Holder of any
Note shall have the absolute and unconditional right to receive payment of
the principal of and interest on such Note on the Maturities for such
payments, including the Stated Maturity, and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Noteholder.
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SECTION 6.9. Restoration of Rights and Remedies.
-----------------------------------
If 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 Indenture Trustee or to such Noteholder, then and
in every such case, subject to any determination in such proceeding,
Issuer, Indenture Trustee and the Noteholders shall be restored severally
and respectively to their former positions hereunder and thereafter all
rights and remedies of Indenture Trustee and the Noteholders continue as
though no such proceeding had been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
-------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost, or stolen Notes in Section 2.4(f),
no right or remedy herein conferred upon or reserved to 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 6.11. Delay or Omission Not Waiver.
-----------------------------
No delay or omission of Indenture Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by
Indenture Trustee or by the Noteholders, as the case may be.
SECTION 6.12. Control by Noteholders.
-----------------------
Except as may otherwise be provided in this Indenture, until such
time as the conditions specified in Sections 10.1(a)(i) and (ii) have been
satisfied in full, the Holders of Notes evidencing at least 662/3% of the
then Outstanding Principal Amount of the Notes shall have the right to
direct the time, method and place of conducting any proceeding for any
remedy available to Indenture Trustee or exercising any trust or power
conferred on Indenture Trustee. Notwithstanding the foregoing,
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(i) no such direction shall be in conflict with any rule of
law or with this Indenture;
(ii) Indenture Trustee shall not be required to follow
any such direction which Indenture Trustee reasonably believes
might result in any personal liability on the part of Indenture
Trustee for which Indenture Trustee is not adequately indemnified;
and
(iii) Indenture Trustee may take any other action deemed
proper by Indenture Trustee which is not inconsistent with any
such direction; provided that Indenture Trustee shall give notice
of any such action to each Noteholder.
SECTION 6.13. Waiver of Events of Default.
----------------------------
(a) The Holders of Notes evidencing at least 662/3% of the then
Outstanding Principal Amount of the Notes may, by one or more instruments
in writing, waive any Event of Default hereunder and its consequences,
except a continuing Event of Default:
(i) in respect of the payment of the principal of or
premium or interest on any Note (which may only be waived by the
Holder of such Note), or
(ii) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Note affected (which
only may be waived by the Holders of all Outstanding Notes
affected).
(b) A copy of each waiver pursuant to Section 6.13(a) shall be
furnished by Issuer to Indenture Trustee. Upon any such waiver, such Event
of Default shall cease to exist and shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent
thereon.
SECTION 6.14. Undertaking for Costs.
----------------------
All parties to this Indenture agree (and each Holder of any Note
by its acceptance thereof shall be deemed to have agreed) that any court
may in its discretion require, in any suit for the enforcement of any right
or remedy under this Indenture, or in any suit against 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
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litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by Indenture Trustee,
to any suit instituted by any Noteholder, or group of Noteholders, holding
in the aggregate more than 10% of the then Outstanding Principal Amount of
the Notes, or to any suit instituted by any Noteholder for the enforcement
of the payment of the principal of or interest on any Note on or after the
Maturities for such payments, including the Stated Maturity as applicable.
SECTION 6.15. Waiver of Stay or Extension Laws.
---------------------------------
Issuer covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and 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 Indenture Trustee, but
will suffer and permit the execution of every such power as though no such
law had been enacted.
SECTION 6.16. Sale of Trust Estate.
---------------------
(a) The power to effect any sale of any portion of the Trust
Estate pursuant to Section 6.3 shall not be exhausted by any one or more
sales as to any portion of the Trust Estate remaining unsold, but shall
continue unimpaired until the entire Trust Estate shall have been sold or
all amounts payable on the Notes shall have been paid. Indenture Trustee
may from time to time, upon directions in accordance with Section 6.12,
postpone any public sale by public announcement made at the time and place
of such sale. For any public sale of the Trust Estate, Indenture Trustee
shall have provided each Noteholder with notice of such sale at least two
weeks in advance of such sale which notice shall specify the date, time and
location of such sale.
(b) To the extent permitted by applicable law, Indenture Trustee
shall not in any private sale sell to a third party the Trust Estate, or
any portion thereof unless,
(i) until such time as the conditions specified in
Sections 10.1(a)(i) and (ii) have been satisfied in full, the
Holders of Notes evidencing at least 662/3% of the then
Outstanding Principal Amount of each Class of the Notes voting
separately consent to or direct Indenture Trustee in writing to
make such sale; or
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(ii) the proceeds of such sale would be not less than the
sum of all amounts due to Indenture Trustee hereunder and the
entire unpaid principal amount of the Notes and interest due or to
become due thereon in accordance with Section 6.6 on the Payment
Date next succeeding the date of such sale.
The foregoing provisions shall not preclude or limit the ability of
Indenture Trustee to purchase all or any portion of the Trust Estate at a
private sale.
(c) In connection with a sale of all or any portion of Trust
Estate:
(i) any one or more Noteholders may bid for and purchase
the property offered for sale, and upon compliance with the terms
of sale may hold, retain, and possess and dispose of such
property, without further accountability, and any Noteholder may,
in paying the purchase money therefore, deliver in lieu of cash
any Outstanding Notes or claims for interest thereon for credit in
the amount that shall, upon distribution of the net proceeds of
such sale, be payable thereon, and the Notes, in case the amounts
so payable thereon shall be less than the amount due thereon,
shall be returned to the Noteholders after being appropriately
stamped to show such partial payment;
(ii) Indenture Trustee shall execute and deliver an
appropriate instrument of conveyance transferring its interest in
any portion of Trust Estate in connection with a sale thereof;
(iii) Indenture Trustee is hereby irrevocably appointed
the agent and attorney-in-fact of Issuer to transfer and convey
its interest in any portion of the Trust Estate in connection with
a sale thereof, and to take all action necessary to effect such
sale; and
(iv) no purchaser or transferee at such a sale shall be
bound to ascertain Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application
of any moneys.
(d) The method, manner, time, place and terms of any sale of all
or any portion of the Trust Estate shall be commercially reasonable.
(e) The provisions of this Section 6.16 shall not be construed to
restrict the ability of Indenture Trustee to exercise any rights and powers
against Issuer or the Trust Estate that are vested in Indenture Trustee by
this Indenture, including, without limitation, the power of Indenture
Trustee to proceed against the collateral subject to the lien of this
Indenture and to institute judicial proceedings for the collection of any
deficiency remaining thereafter.
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ARTICLE 7.
THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default known to
Indenture Trustee,
(i) Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against Indenture Trustee; and
(ii) in the absence of bad faith on its part, 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 Indenture Trustee and
conforming to the requirements of this Indenture; but in the case
of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to Indenture Trustee,
Indenture Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing to
the actual knowledge of a Responsible Officer of Indenture Trustee,
Indenture Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
Indenture Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it
shall be proved, subject to Section 7.3(f), that Indenture Trustee
was negligent in ascertaining the pertinent facts;
(iii) Indenture Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Noteholders in accordance
with Section 6.12 relating to the
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time, method, and place of conducting any proceeding for any
remedy available to Indenture Trustee, or exercising any trust or
power conferred upon Indenture Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require
Indenture Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to Indenture Trustee shall be subject to the
provisions of this Section.
SECTION 7.2. Notice of Defaults or Events of Default.
----------------------------------------
Within two Business Days after a Responsible Officer obtaining
knowledge of the occurrence of any Default or Event of Default hereunder,
Indenture Trustee shall transmit, by certified mail return receipt
requested, hand delivery or overnight courier, to all Noteholders, as their
names and addresses appear in the Note Register, Servicer, Transferor, and
the Rating Agencies notice of such Default or Event of Default hereunder
known to Indenture Trustee, unless such Default or Event of Default shall
have been cured or waived.
SECTION 7.3. Certain Rights of Indenture Trustee.
------------------------------------
Subject to the provisions of Section 7.1:
(a) Indenture Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
note, debenture, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any action
of Issuer may be sufficiently evidenced by an Issuer Order;
(c) whenever in the administration of this Indenture Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, Indenture Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
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(d) Indenture Trustee may consult with counsel as to legal matters
and the written advice of any such counsel selected by Indenture Trustee
with due care shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) Indenture Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to Indenture Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
note, debenture, other evidence of indebtedness, or other paper or
document, but Indenture Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and,
if Indenture Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of Issuer, personally or by agent or attorney; and
(g) 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 and Indenture Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 7.4. Not Responsible for Recitals or Issuance of Notes.
--------------------------------------------------
The recitals contained herein and in the Notes, except Indenture
Trustee's certificates of authentication, shall be taken as the statements
of Issuer, and Indenture Trustee assumes no responsibility for their
correctness. Indenture Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Notes. Indenture Trustee shall
not be accountable for the use or application by Issuer of the proceeds of
the Notes.
SECTION 7.5. May Hold Notes.
---------------
Indenture Trustee, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with Issuer
with the same rights it would have if it were not Indenture Trustee.
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SECTION 7.6. Money Held in Trust.
--------------------
Money and investments held by Indenture Trustee shall be held in
trust in one or more trust accounts hereunder, but need not be segregated
from other funds except to the extent required by law.
SECTION 7.7. [Reserved.]
SECTION 7.8. Corporate Indenture Trustee Required; Eligibility.
--------------------------------------------------
There shall at all times be an Indenture Trustee hereunder which
shall (a) be a corporation organized and doing business under the laws of
the United States of America, any state thereof or the District of
Columbia, authorized under such laws to exercise corporate trust powers;
(b) have a combined capital and surplus of at least $100,000,000; (c) be
subject to supervision or examination by federal or state authority; and
(d) at the time of appointment, shall have long-term debt obligations (or,
if Indenture Trustee does not have outstanding long-term debt obligations
and is a subsidiary of a holding company, which holding company shall have
long-term obligations) having a credit rating of at least "Baa3" from
Xxxxx'x and "BBB-" from Fitch IBCA.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time Indenture Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
This Indenture shall always have a Indenture Trustee who satisfies
the requirements of Section 310(a)(1) of Trust Indenture Act. Indenture
Trustee is subject to the provisions of Section 310(b) of Trust Indenture
Act regarding disqualification of a trustee upon acquiring any conflicting
interest.
If a default occurs under this Indenture, and Indenture Trustee is
deemed to have a conflicting interest as a result of acting as trustee for
both the Class A Notes and the Class B Notes, a successor Indenture Trustee
shall be appointed for one or both of such Classes, so that there will be
separate Indenture Trustees for the Class A Notes and the Class B Notes. No
such event shall alter the voting rights of the Class A Noteholders or
Class B Noteholders under this Indenture. However, so long as any amounts
remain unpaid with respect to the Class A Notes, only Indenture Trustee for
the Class A Noteholders will have the right to exercise remedies under this
Indenture (but subject to the express provisions of Section 6.2 and to the
right of the Class B Noteholders to receive their share of any proceeds of
enforcement,
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subject to the subordination of the Class B Notes to the Class A Notes as
described herein). Upon repayment of the Class A Notes in full, all rights
to exercise remedies under the Indenture will transfer to Indenture Trustee
for the Class B Notes.
In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes, the Issuer, retiring Indenture
Trustee and successor Indenture Trustee with respect to such Class of Notes
shall execute and deliver an indenture supplemental hereto wherein each
successor Indenture Trustee shall accept such appointment and which (i)
shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, successor Indenture Trustee all
the rights, powers, trusts and duties of retiring Indenture Trustee with
respect to the Notes of the Class to which the appointment of such
successor Indenture Trustee relates, (ii) if retiring Indenture Trustee is
not retiring with respect to all Classes of Notes, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of retiring Indenture Trustee with
respect to the Notes of each Class as to which retiring Indenture Trustee
is not retiring shall continue to be vested in retiring Indenture Trustee,
and (iii) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Indenture Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such
Indenture Trustees as co-trustees of the same trust and that each such
Indenture Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such
Indenture Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Indenture Trustee
shall become effective to the extent provided therein.
SECTION 7.9. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Indenture Trustee under Section 7.10.
(b) Indenture Trustee may resign at any time by giving written
notice thereof to Issuer and by mailing notice of resignation by
first-class mail, postage prepaid, to Noteholders at their addresses
appearing on the Note Register.
(c) Indenture Trustee may be removed at any time by Act of the
Holders of Notes evidencing not less than a majority of the then
Outstanding Principal Amount of the Notes, delivered to Indenture Trustee
and Issuer.
(d) If Indenture Trustee shall resign, be removed, or become
incapable of acting, or if a vacancy shall occur in the office of Indenture
Trustee for any cause,
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Issuer, with the consent of the Holders of Notes evidencing at least 662/3%
of the Outstanding Principal Amount of the Notes, by an act of Issuer,
shall promptly appoint a successor Indenture Trustee.
(e) If no successor Indenture Trustee shall have been so appointed
by Issuer or the Noteholders as hereinbefore provided and accepted
appointment in the manner hereinafter provided within 30 days after any
such resignation or removal, existence of incapability, or occurrence of
such vacancy, Indenture Trustee or any Noteholder may petition any court of
competent jurisdiction for the appointment of a successor Indenture
Trustee.
(f) Issuer shall give notice of each resignation and each removal
of Indenture Trustee and each appointment of a successor Indenture Trustee
by mailing written notice of such event by first-class mail, postage
prepaid, to all Noteholders, as their names and addresses appear in the
Note Register and each Rating Agency. Each notice shall include the name of
the successor Indenture Trustee and the address of its Corporate Trust
Office.
(g) Issuer may remove Indenture Trustee if Indenture Trustee fails
to comply with Section 7.8 of this Indenture.
(h) If Indenture Trustee after written request by any Noteholder
who has been a Noteholder for at least six months fails to comply with
Section 310(b) of the Trust Indenture Act, such Noteholder may petition any
court of competent jurisdiction, for the removal of Indenture Trustee and
the appointment of a successor Indenture Trustee.
SECTION 7.10. Acceptance of Appointment by Successor.
---------------------------------------
(a) Every successor Indenture Trustee appointed hereunder shall
execute, acknowledge and deliver to Issuer and to the retiring Indenture
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Indenture Trustee shall become
effective and such successor Indenture Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Indenture Trustee; but, on request of Issuer or
the successor Indenture Trustee, such retiring Indenture Trustee shall,
upon payment of its charges and expenses, execute and deliver an instrument
transferring to such successor Indenture Trustee all the rights, powers and
trusts of the retiring Indenture Trustee and shall duly assign, transfer
and deliver to such successor Indenture Trustee all property and money held
by such retiring Indenture Trustee hereunder. Upon request of any such
successor Indenture Trustee, Issuer shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor
Indenture Trustee all such rights, powers and trusts.
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(b) No successor Indenture Trustee shall accept its appointment
unless at the time of such acceptance such successor Indenture Trustee
shall be qualified and eligible under this Article.
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business.
---------
Any Person into which Indenture Trustee may be merged or converted
or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which Indenture Trustee shall be a
party, or any Person succeeding to all or substantially all the corporate
trust business of Indenture Trustee, shall be the successor of Indenture
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper
or any further act on the part of any of the parties hereto. In case any
Notes shall have been authenticated, but not delivered, by Indenture
Trustee then in office, any successor by merger, conversion, or
consolidation to such authenticating Indenture Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect
as if such successor Indenture Trustee had itself authenticated such Notes.
Indenture Trustee shall provide prompt written notice to each Rating Agency
of any event referenced in this Section 7.11.
SECTION 7.12. Co-trustees and Separate Indenture Trustees.
--------------------------------------------
(a) At any time or times, if Issuer, Indenture Trustee or any
Noteholder determines that it is necessary for the purpose of meeting the
legal requirements of any jurisdiction in which any of Trust Estate may at
the time be located, Issuer and Indenture Trustee shall have power to
appoint, and, upon the written request of Indenture Trustee or the Holders
of Notes evidencing at least a majority of the then Outstanding Principal
Amount of the Notes, Issuer shall for such purpose join with Indenture
Trustee in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint one or more Persons approved by
Indenture Trustee either to act as co-trustee, jointly with Indenture
Trustee, of all or any part of such Trust Estate, or to act as separate
trustee of any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this
Section. If Issuer does not join in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default has
occurred and is continuing, Indenture Trustee, or the Holders of Notes
evidencing a majority of the then Outstanding Principal Amount of the
Notes, alone shall have power to make such appointment.
(b) Should any written instrument from Issuer be required by any
co-trustee or separate trustee so appointed for more fully confirming to
such
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co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by Issuer.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms:
(i) The Notes shall be authenticated and delivered and
all rights, powers, duties, and obligations hereunder in respect
of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, Indenture
Trustee hereunder, shall be exercised, solely by Indenture
Trustee.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon Indenture Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by Indenture Trustee or by
Indenture Trustee and such co-trustee or separate trustee jointly,
as shall be provided in the instrument appointing such co-trustee
or separate trustee, except to the extent that, under any law of
any jurisdiction in which any particular act is to be performed,
Indenture Trustee shall be incompetent or unqualified to perform
such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or
separate trustee.
(iii) Indenture Trustee at any time, by an instrument in
writing executed by it, with the concurrence of Issuer evidenced
by a Trust Order, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section, and,
in case an Event of Default has occurred and is continuing,
Indenture Trustee shall have power to accept the resignation of,
or remove, any such co-trustee or separate trustee without the
concurrence of Issuer. Upon the written request of Indenture
Trustee, Issuer shall join with Indenture Trustee in the
execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in
this Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of Indenture
Trustee or any other such trustee hereunder and Indenture Trustee
shall not be personally liable by reason of any act or omission of
any co-trustee or other such separate trustee hereunder selected
by Indenture Trustee with due care or appointed in accordance with
directions to Indenture Trustee pursuant to Section 6.12.
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(v) Any Act of Noteholders delivered to Indenture Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 7.13. Acceptance by Indenture Trustee.
--------------------------------
Indenture Trustee hereby acknowledges the conveyance of the
Granted Assets and the receipt of the Leases and the other Granted Assets
granted by Issuer hereunder and declares that Indenture Trustee, through a
custodian, will hold such Leases and other Granted Assets conveyed by
Issuer in trust, for the use and benefit of all Noteholders subject to the
terms and provisions hereof.
SECTION 7.14. Preferential Collection of Claims Against Issuer.
-------------------------------------------------
Indenture Trustee is subject to Trust Indenture Act Section
311(a), excluding any creditor relationship listed in Trust Indenture Act
Section 311(b). A Indenture Trustee who has resigned or been removed shall
be subject to Trust Indenture Act Section 311(a) to the extent indicated
therein.
SECTION 7.15. Reports by Indenture Trustee to Noteholders.
--------------------------------------------
To the extent required by the Trust Indenture Act, within 60 days
after each May 15, following the date of this Indenture, Indenture Trustee
shall mail to Noteholders a brief report dated as of such reporting date
that complies with Trust Indenture Act Section 313(a), if such a report is
required pursuant to Trust Indenture Act Section 313(a), except with
respect to Section 313(a)(6) of the Trust Indenture Act and transactions
described in Section 4.4. Indenture Trustee also shall comply with Trust
Indenture Act Section 313(b). Indenture Trustee shall also transmit by mail
all reports as required by Trust Indenture Act Section 313(c).
A copy of each such report required under Trust Indenture Act
Section 313 shall, at the time of such transmission to Noteholders be filed
with the Commission and with each stock exchange or other market system on
which the Notes are listed. Issuer or any other obligor upon the Notes
shall notify Indenture Trustee if the Notes become listed on any stock
exchange or market trading system.
SECTION 7.16. No Proceedings.
---------------
Indenture Trustee hereby agrees that it will not, with respect to
its fees and expenses, directly or indirectly institute, or cause to be
instituted, against Issuer or Transferor any proceeding of the type
referred to in Section 6.1(e) or (f) so long as there shall not have
elapsed one year plus one day since the latest maturing Notes have been
paid in full in cash.
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ARTICLE 8.
COVENANTS
SECTION 8.1. Payment of Principal and Interest.
----------------------------------
Issuer will duly and punctually pay the principal of and interest
on the Notes in accordance with the terms of the Notes and this Indenture.
SECTION 8.2. Maintenance of Office or Agency; Chief Executive
Office.
-------
Issuer will maintain at the Corporate Trust Office an
office or agency where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon Issuer in
respect of the Notes and this Indenture may be served. Issuer hereby
appoints Indenture Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
SECTION 8.3. Money for Payments to Noteholders to be Held in
Trust.
-------
(a) All payments of amounts due and payable with respect to any
Notes that are to be made from amounts withdrawn from the Collection
Account pursuant to Section 3.3(b) or Section 6.6 shall be made on behalf
of Issuer by Indenture Trustee, and no amounts so withdrawn from the
Collection Account for payments of Notes shall be paid over to Issuer under
any circumstances except as provided in this Section 8.3 or in Section
3.3(b) or Section 6.6.
(b) In making payments hereunder, Indenture Trustee will:
(i) allocate all sums received for payment to the
Noteholders on each Payment Date among such Noteholders, first to
the Class A Noteholders on a pro rata basis and then to the Class
B Noteholders on a pro rata basis basis in accordance with the
information known to Indenture Trustee;
(ii) hold all sums held by it for the payment of amounts
due with respect to the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and pay such
sums to such Persons as herein provided; and
(iii) comply with all requirements of the Internal
Revenue Code of 1986, as amended (or any successor statutes), and
all regulations thereunder, with respect to the withholding from
any payments made by it on
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any Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in
connection therewith.
Whenever Issuer shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on any Notes,
deposit with a Paying Agent a sum sufficient to pay the principal or
interest so becoming due, such sum to be held in trust for the benefit of
the Noteholders entitled to such principal or interest, and (unless such
Paying Agent is Indenture Trustee) Issuer will promptly notify Indenture
Trustee of its action or failure so to act.
Issuer will cause each Paying Agent other than Indenture Trustee
to execute and deliver to Indenture Trustee an instrument in which such
Paying Agent shall agree with Indenture Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and
(2) give Indenture Trustee notice of any default by
Issuer (or any other obligor upon the Securities) in the making of
any payment of principal or interest.
(c) Except as required by applicable law, any money held by Indenture
Trustee in trust for the payment of any amount due with respect to any Note
and remaining unclaimed for three years after such amount has become due
and payable to the Noteholder shall be discharged from such trust and,
subject to applicable escheat laws, paid to Issuer upon request; and such
Noteholder shall thereafter, as an unsecured general creditor, look only to
Issuer for payment thereof (but only to the extent of the amounts so paid
to the Trust), and all liability of Indenture Trustee with respect to such
trust money shall thereupon cease.
SECTION 8.4. Corporate Existence; Merger; Consolidation, etc.
------------------------------------------------
(a) Issuer will keep in full effect its existence, rights and
franchises as a trust under the laws of the State of New York, and will
obtain and preserve its qualification to do business as a foreign entity in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes or any
of the Leases.
(b) Issuer shall not consolidate or merge with or into any other
Person, unless:
-45-
(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 Indenture Trustee, in form
satisfactory to 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 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) Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to Indenture Trustee) to
the effect that such transaction will not have any material
adverse tax consequence to Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) Issuer shall have delivered to Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such consolidation or merger and such supplemental indenture
comply with this Article VIII and that all conditions precedent
herein provided for relating to such transaction have been
complied with (including any filing required by the Exchange Act).
(c) Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person,
unless:
(i) the Person that acquires by conveyance or transfer
the properties and assets of 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 Indenture
Trustee, in form satisfactory to 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 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
-46-
rights of Holders of the Notes, (D) unless otherwise provided in
such supplemental indenture, expressly agrees to indemnify, defend
and hold harmless 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) Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to Indenture Trustee) to
the effect that such transaction will not have any material
adverse tax consequence to Issuer, any Noteholder or any
Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) Issuer shall have delivered to Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply
with this Article 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 8.5. Protection of Trust Estate; Further Assurances.
-----------------------------------------------
Issuer will from time to time execute and deliver all such
supplements and amendments hereto and all such Financing Statements,
continuation statements, instruments of further assurance, and other
instruments, and will take such other action as may be necessary or
advisable to:
(i) Grant more effectively all or any portion of Trust
Estate;
(ii) maintain or preserve the Lien of this Indenture or
carry out more effectively the purposes hereof;
(iii) publish notice of, or protect the validity of, any
Grant made or to be made by this Indenture and perfect the
security interest contemplated hereby in favor of Indenture
Trustee in each of the Leases, in the Equipment
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and all other property included in Trust Estate; provided, that
Issuer shall not be required to file Financing Statements with
respect to the interests in the Equipment in addition to those
contemplated by Section 4.3(d) of the Pooling and Servicing
Agreement;
(iv) enforce or cause Servicer to enforce any of the Leases; or
(v) preserve and defend title to the Leases (including
the right to receive all payments due or to become due
thereunder), the interests in the Equipment, or other property
included in Trust Estate and preserve and defend the rights of
Indenture Trustee and the Noteholders in such Leases (including
the right to receive all payments due or to become due
thereunder), interests in the Equipment and other property against
the claims of all Persons and parties.
Issuer, upon Issuer's failure to do so, hereby designates Indenture Trustee
its agent and attorney-in-fact to execute any Financing Statement or
continuation statement required pursuant to this Section 8.5; provided,
that such designation shall not be deemed to create a duty in Indenture
Trustee to monitor the compliance of Issuer with the foregoing covenants;
and provided, further, that the duty of Indenture Trustee to execute any
instrument required pursuant to this Section 8.5 shall arise only if a
Responsible Officer of Indenture Trustee has actual knowledge of any
failure of Issuer to comply with the provisions of this Section 8.5.
SECTION 8.6. [Reserved].
-----------
SECTION 8.7. Performance of Obligations; Pooling and Servicing
Agreement.
----------
(a) Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the Notes and the
Trust Agreement.
(b) Issuer will not take any action or permit any action to be
taken by others which would release any Person from any of such Person's
covenants or obligations under any Lease or any other instrument included
in Trust Estate, or which would result in the amendment, hypothecation,
subordination, termination, or discharge of, or impair the validity or
effectiveness of, any Lease or such other instrument, except as expressly
provided in this Indenture or the Pooling and Servicing Agreement.
(c) If any Authorized Officer shall have knowledge of the
occurrence of a default under the Pooling and Servicing Agreement, Issuer
shall promptly notify Indenture Trustee and the Noteholders thereof, and
shall specify in such notice the action, if any, Issuers taking in respect
of such default. Except as otherwise
-48-
provided therein, Issuer may not waive any default under or amend the
Pooling and Servicing Agreement.
SECTION 8.8. Negative Covenants.
-------------------
Issuer will not:
(a) sell, transfer, exchange or otherwise dispose of any portion
of the Trust Estate except as expressly permitted by this Indenture, the
Pooling and Servicing Agreement, and the Trust Agreement;
(b) claim any credit on, or make any deduction from, the principal
of, or interest on, any of the Notes by reason of the payment of any taxes
levied or assessed upon any portion of the Trust Estate;
(c) engage in any business or activity other than in connection
with, or relating to the ownership of, the Leases and the interests in the
Equipment, the issuance of the Notes, and the specific transactions
contemplated hereby;
(d) become liable for, issue, incur, assume, or allow to remain
outstanding any indebtedness, or guaranty any indebtedness of any Person,
other than the Notes, except as contemplated by this Indenture, the
registration statement filed with respect to the Class A Notes and Class B
Notes (and any registration statement for similar securities), and the
Pooling and Servicing Agreement;
(e) seek dissolution or liquidation in whole or in part or
reorganization of its business or affairs;
(f) (i) permit the validity or effectiveness of this Indenture or
any Grant hereby to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or permit
any Person to be released from any covenants or obligations under this
Indenture, except as may be expressly permitted hereby, (ii) permit any
lien, charge, security interest, mortgage or other encumbrance to be
created on or to extend to or otherwise arise upon or burden Trust Estate
or any part thereof or any interest therein or the proceeds thereof other
than the lien of this Indenture, or (iii) subject to Section 3.1(c) of the
Pooling and Servicing Agreement, permit the lien of this Indenture not to
constitute a valid first priority security interest in Trust Estate; or
(g) Issuer shall not make any expenditure (by long-term or
operating lease or otherwise) for capital assets (either realty or
personalty).
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(h) So long as any Notes are Outstanding, Issuer shall not remove
the Manager without cause unless the Rating Agency Condition shall have
been satisfied in connection with such removal.
(i) 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 Trustee or any
owner of a beneficial interest in Issuer or otherwise with respect to any
ownership or equity interest or security in or of Issuer or to Servicer or
Manager, (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 Issuer may make, or cause to be made, distributions to Servicer,
Trustee, Noteholders, Certificateholders and Manager as contemplated by,
and to the extent funds are available for such purpose under, the Pooling
and Servicing Agreement. 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 8.9. Notice of Events of Default.
----------------------------
Issuer shall give the Indenture Trustee and the Rating Agencies
prompt written notice of each Event of Default hereunder, each default on
the part of Servicer or Transferor of its obligations under the Pooling and
Servicing Agreement and each default on the part of ILC of its obligations
under the Contribution Agreement.
SECTION 8.10. Taxes.
------
Issuer shall pay all taxes when due and payable or levied against
its assets, properties or income, including any property that is part of
Trust Estate.
SECTION 8.11. Indemnification.
----------------
Issuer agrees to indemnify and hold harmless Indenture Trustee and
each Noteholder (each an "Indemnified Party") against any and all
liabilities, losses, damages, penalties, costs and expenses (including
costs of defense and legal fees and expenses) which may be incurred or
suffered by such Indemnified Party without negligence or willful misconduct
on its part as a result of claims, actions, suits or judgments asserted or
imposed against it and arising out of the transactions contemplated hereby
or by the Pooling and Servicing Agreement, including without limitation,
any claims resulting from any use, operation, maintenance, repair, storage
or transportation of any item of Equipment, whether or not in Issuer's
possession or under its control, and any tort claims and any fines or
penalties arising from any violation of the laws or regulations of the
United States or any state or local
-50-
government or governmental authority; provided that, all amounts payable
pursuant to this Section 8.11 shall be fully subordinated to amounts
payable under the Notes, shall be without recourse to Issuer except to the
extent that all amounts otherwise due and payable under the terms of this
Indenture have been fully paid and shall not, to the extent that such
amounts are unpaid, constitute a claim against Issuer except to the extent
that all amounts otherwise due and payable under the terms of this
Indenture have been fully paid.
SECTION 8.12. Commission Reports; Reports to Indenture Trustee;
Reports to Noteholders.
-----------------------
Issuer shall:
(a) file with Indenture Trustee, within 15 days after Issuer is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports which Issuer may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act (or copies of such portions thereof as may be
prescribed by rules and regulations of the Commission); or, if Issuers not
required to file with the Commission information, documents or reports
pursuant to either Section 13 or Section 15(d) of the Exchange Act, then
Issuer will file with Indenture Trustee and with the Commission, in
accordance with rules and regulations prescribed by the Commission, such of
the supplementary and periodic information, documents and reports required
pursuant to Section 13 of the Exchange Act in respect of a security listed
and registered on a national securities exchange as may be prescribed in
such rules and regulations;
(b) file with Indenture Trustee and the Commission, in accordance
with the rules and regulations prescribed by the Commission, such
additional information, documents and reports with respect to compliance by
Issuer with the conditions and covenants provided for in this Indenture as
may be required by such rules and regulations, including, in the case of
annual reports, if required by such rules and regulations, certificates or
opinions of independent public accountants, conforming to the requirements
of Sections 11.3 and 11.4 hereof, as to compliance with conditions or
covenants, compliance with which is subject to verification by accountants;
and
(c) furnish to Indenture Trustee for distribution to the
Noteholders, as the names and addresses of such Noteholders appear in the
Note Register, in the manner and to the extent provided in Section 7.15
hereof, such summaries of any information, documents and reports required
to be filed with Indenture Trustee pursuant to the provisions of
Subsections (a) and (b) of this Section 8.12 as may be required to be
provided to such Noteholders by the rules and regulations of the Commission
under the provisions of the Trust Indenture Act.
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ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders.
------------
(a) Without the consent of any Noteholders, Issuer, by a Trust
Order, and Indenture Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to
Indenture Trustee, for any of the following purposes:
(i) to add to the covenants of Issuer for the benefit of the
Noteholders, or to surrender any right or power herein conferred upon
the Trust;
(ii) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein; or
(iii) to correct or amplify the description of any
property at any time subject to the lien of this Indenture, or to
better assure, convey and confirm unto Indenture Trustee any
property subject or required to be subjected to the lien of this
Indenture;
provided such action pursuant to this Section 9.1(a) shall not adversely
affect the interests of the Noteholders in any respect. Additionally,
Issuer, by Trust Order, and Indenture Trustee, without the consent of any
Noteholders, may execute a Supplemental Indenture to conform the Indenture
to the description thereof and of the Notes and Certificates contained in
the Prospectus.
(b) Indenture Trustee shall promptly deliver to each Noteholder
and each Rating Agency a copy of any supplemental indenture entered into
pursuant to Section 9.1(a).
SECTION 9.2. Supplemental Indentures with Consent of
Noteholders.
------------
(a) With the consent of the Holders of Notes evidencing not less
than 662/3% of the then Outstanding Principal Amount of the Notes and by
Act of said Noteholders delivered to Issuer and Indenture Trustee, Issuer,
by a Trust Order, and Indenture Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of
-52-
the Noteholders under this Indenture; provided, that no supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby,
(i) change the Stated Maturity of any Note or the
Principal Payments or Interest Payments due or to become due on
any Payment Date with respect to any Note, or change the priority
of payment thereof as set forth herein, or reduce the principal
amount thereof or the Note Interest Rate thereon, or change the
place of payment where, or the coin or currency in which, any Note
or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Maturity thereof;
(ii) reduce the percentage of the Outstanding Principal
Amount of the Notes the consent of whose Noteholders is required
for any such supplemental indenture, for any waiver of compliance
with provisions of this Indenture or Events of Default and their
consequences, or for any Act of Noteholders;
(iii) modify any of the provisions of this Section or
Section 6.13 except to increase any percentage or fraction set
forth therein or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby;
(iv) modify or alter the provisions of the proviso to the
definition of the term "Outstanding"; or
(v) permit the creation of any lien ranking prior to or
on a parity with the lien of this Indenture with respect to any
part of Trust Estate or, except as provided in Sections 4.1 or
4.2, terminate the lien of this Indenture on any property at any
time subject hereto or deprive any Noteholder of the security
afforded by the lien of this Indenture.
(b) Indenture Trustee shall promptly deliver to each Noteholder
and each Rating Agency a copy of any supplemental indenture entered into
pursuant to Section 9.2(a).
SECTION 9.3. Execution of Supplemental Indentures.
-------------------------------------
In executing any supplemental indenture (a) pursuant to Section
9.1 or (b) pursuant to Section 9.2 without the consent of each Holder of
the Notes to the execution of the same, Indenture Trustee shall be entitled
to receive, and (subject to Section 7.1) 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.
Indenture Trustee may, but shall not be obligated to, enter into any
-53-
supplemental indenture which affects Indenture Trustee's own rights,
duties, projections, or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
-----------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes, and every Noteholder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5. Reference in Notes to Supplemental Indentures.
----------------------------------------------
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by Indenture Trustee, bear a notation in form approved by Indenture Trustee
as to any matter provided for in such supplemental indenture. If Issuer
shall so determine, new Notes so modified as to conform, in the opinion of
Indenture Trustee and Issuer, to any such supplemental indenture may be
prepared and executed by Issuer and authenticated and delivered by
Indenture Trustee in exchange for Outstanding Notes.
SECTION 9.6. Compliance with Trust Indenture Act.
------------------------------------
Every amendment, supplement or waiver to this Indenture or the
Notes shall comply with the Trust Indenture Act as then in effect.
ARTICLE 10.
SATISFACTION AND DISCHARGE
SECTION 10.1. Satisfaction and Discharge of Indenture.
----------------------------------------
(a) This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Notes
herein expressly provided for), and Indenture Trustee, on demand of and at
the expense of Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(i) 100 days shall have elapsed since either
(A) all Notes theretofore authenticated and
delivered (other than (1) Notes which have been
destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.4 and (2) Notes for whose
payment money has theretofore been deposited in
-54-
trust or segregated and held in trust by Issuer and
thereafter repaid to Issuer or discharged from such
trust, as provided in Section 8.3(c)) have been delivered
to Indenture Trustee for cancellation; or
(B) the final installments of principal on all
such Notes not theretofore delivered to Indenture Trustee
for cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Stated Maturity, as applicable, within one year,
and Issuer has irrevocably deposited or caused to be
deposited with Indenture Trustee as trust funds in trust
for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore
delivered to Indenture Trustee for cancellation, for
principal and interest to the date of such deposit (in
the case of Notes which have become due and payable) or
to the Stated Maturity thereof;
(ii) Issuer has paid or caused to be paid all other sums
payable hereunder by Issuer for the benefit of the Noteholders;
and
(iii) Issuer has delivered to Indenture Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
At such time, Indenture Trustee shall deliver to Issuer or, upon Issuer
Order, its assignee, all cash, securities and other property held by it as
part of Trust Estate other than funds deposited with Indenture Trustee
pursuant to Section 10.1(a)(i)(B), for the payment and discharge of the
Notes.
(b) Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of Issuer to Indenture Trustee under Sections
7.7 and 8.11, and, if money shall have been deposited with Indenture
Trustee pursuant to Section 10.1(a)(i)(B), the obligations of Indenture
Trustee under Section 10.2 and Section 8.3(c) shall survive.
(c) Indenture Trustee shall provide prompt written notice to each
Rating Agency of any satisfaction and discharge of this Indenture pursuant
to this Article 10.
-55-
SECTION 10.2. Application of Trust Money.
Subject to the provisions of Section 8.3(c), all money deposited
with Indenture Trustee pursuant to Sections 10.1 and 8.3 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment to the Persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with
Indenture Trustee.
ARTICLE 11.
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls.
-----------------------------
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by operation of Trust Indenture Act Section 318(a),
the duties imposed by Section 318(a) shall control.
SECTION 11.2. Communication by Noteholders with Other
Noteholders.
------------
Noteholders may communicate, pursuant to Trust Indenture Act
Section 312(b), with other Noteholders with respect to their rights under
this Indenture or the Notes. Issuer, Indenture Trustee, the Note Registrar
and all other parties shall have the protection of Trust Indenture Act
Section 312(c).
SECTION 11.3. Officers' Certificate and Opinion of Counsel as to
Conditions Precedent.
----------------------
Upon any request or application by Issuer (or any other obligor
upon the Notes) to Indenture Trustee to take any action under this
Indenture, Issuer (or such other Obligor) shall furnish to Indenture
Trustee:
(a) an Officers' Certificate (which shall include the
statements set forth in Section 11.4) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(b) an Opinion of Counsel (which shall include the
statements set forth in Section 11.4) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have
been complied with.
-56-
SECTION 11.4. Statements Required in Certificate or Opinion.
----------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
SECTION 11.5. Nonpetition.
------------
Indenture Trustee shall not petition or otherwise invoke the
process of any Governmental Authority for the purpose of commencing or
sustaining a case against Issuer or Transferor under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of
Issuer or Transferor any substantial part of its respective property, or
ordering the winding up or liquidation of the affairs of Issuer or
Transferor.
SECTION 11.6. ERISA Matters. Each Holder and Note Owner, by
acceptance of a Note, or, in the case of a Note Owner, a beneficial
interest in the Note, shall be deemed to represent and warrant that either
(a) it is not acquiring the Note with the plan assets of a plan described
in Section 4975(e)(1) of the Code, or any entity whose underlying assets
include plan assets by reason of a plan's investment in the entity (each, a
"Benefit Plan"); or (b) the acquisition and holding of the Note will not
give rise to a nonexempt prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code.
SECTION 11.7. Lessees. Indenture Trustee acknowledges and agrees
that so long no default shall have occurred under any Lease that (a) the
related Lessee shall not be named as a defendant, in any foreclosure or
other proceeding which may be instituted by Indenture Trustee relating to
such Lease or related Equipment and (b) Indenture Trustee shall not
interfere with the right of the related Lessee to have quiet and peaceful
use of the related Equipment during the term of the Lease.
-57-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and witnessed, all as of the day and year first above written.
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its
individual capacity, but solely as Trustee of the
Provident Equipment Lease Trust 1998-A
By: /s/ Xxxxx X. Xxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Indenture Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice-President
Indenture
-58-
EXHIBIT A
{FORM OF CLASS A-1 NOTE}
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
5.28 % CLASS A-1 LEASE-BACKED NOTE
CUSIP XX. 00000X XX 0
Xx. X-0 $73,303,000
PROVIDENT EQUIPMENT LEASE TRUST 1998-A (herein called the "Trust",
which term includes any successor Person under the Indenture referred to
herein), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of SEVENTY THREE MILLION THREE
HUNDRED THREE THOUSAND DOLLAR ($73,303,000), payable in monthly
installments beginning on November 25, 1998, in accordance with the
Indenture. Interest will accrue on the unpaid principal hereof from the
date of issuance, at the rate of 5.28% per annum, until the full amount of
principal hereof is otherwise paid or made available for payment and shall
be computed on the basis of a year of 360 days and the actual number of
days in the period since the last Payment Date or with respect to the
November, 1998 Payment Date, since the Issuance Date.
Principal and interest on this Class A-1 Note shall be paid on the
25th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing November 25, 1998, either by check to
the registered address of the Holder of this Class A-1 Note as of the
relevant Record Date or by wire transfer to an account at a bank in the
United States as the Holder shall specify, as provided more fully in the
Indenture; provided, that the final payment of principal and interest in
respect of the Notes shall be payable to the Holder of this Note only upon
presentation and surrender of this Note at the Corporate Trust Office of
Indenture
A-1
Trustee or at the principal office of any Paying Agent appointed pursuant
to the Indenture.
The Stated Maturity of the Class A-1 Notes is the October, 1999
Payment Date, on which date the Outstanding Principal Amount of the Class
A-1 Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed
by Indenture Trustee referred to on the reverse hereof by manual signature,
this Class A-1 Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Class A-1 Note is one of a duly authorized issue of Class A
Notes of Issuer designated as its "5.28% Class A-1 Lease-Backed Notes
(herein called the "Class A-1 Notes") limited in aggregate principal amount
of $73,303,000, issued under the Indenture, dated as of September 1, 1998
(herein called the "Indenture"), between Issuer and Norwest Bank Minnesota,
National Association, as Indenture Trustee (herein called the "Indenture
Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of Issuer, Indenture Trustee and
the Holders and of the terms upon which the Class A-1 Notes are
authenticated and delivered. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings set forth in Appendix
X of the Indenture.
This Class A-1 Note will be secured by the pledge to Indenture
Trustee of the Trust Estate.
If an Event of Default under the Indenture has been declared by
Indenture Trustee, the principal of all the Class A-1 Notes (but not less
than all the Class A-1 Notes) may be declared due and payable in the manner
and with the effect provided in the Indenture. Notice of such declaration
will be given by mail to Holders, as their names and addresses appear in
the Note Register, as provided in the Indenture. Upon payment of such
principal amount together with all accrued interest, the obligations of
Issuer with respect to the payment of principal and interest on this Class
A-1 Note shall terminate.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of Issuer and the rights of the Holders under the Indenture at
any time by Issuer and Indenture Trustee with the consent of the Holders of
Notes evidencing at least 662/3% in aggregate principal amount of the Class
A Notes and the Issuer's Class B Lease-Backed Notes (the "Class B Notes")
at the time Outstanding. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate
A-2
principal amount of the Class A Notes and the Class B Notes at the time
Outstanding, on behalf of all the Holders, to waive compliance by Issuer
with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
Holder of this Class A-1 Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-1 Note and of any Class
A-1 Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Class A-1 Note or any Class A-1 Note.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class A-1 Note is registrable in
the Note Register, upon surrender of this Class A-1 Note for registration
of transfer at the office or agency of Indenture Trustee in Minneapolis,
Minnesota, and at any other office or agency maintained by Issuer for that
purpose, duly endorsed by, or accompanied by a written instrument of
transfer in the form satisfactory to the Note Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Class A-1 Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
Each Holder and Note Owner, by acceptance of a Class A-1 Note, or,
in the case of a Note Owner, a beneficial interest in the Class A-1 Note,
shall be deemed to represent and warrant that either (a) it is not
acquiring the Class A-1 Note with the plan assets of an "employee benefit
plan" as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA, or
a "plan" as defined in Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") (each such entity a "Benefit Plan"); or (b) the
acquisition and holding of the Class A-1 Note will not give rise to a
nonexempt prohibited transaction under Section 406(a) of ERISA or Section
4975 of the Code.
The Class A-1 Notes are issuable only in registered form without
coupons in minimum denominations of $1,000. As provided in the Indenture
and subject to certain limitations therein set forth, Class A-1 Notes are
exchangeable for a like aggregate principal amount of Class A-1 Notes of a
different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Issuer, Indenture Trustee and any agent of Issuer or Indenture
Trustee may treat the Person in whose name this Class A-1 Note is
registered as the owner hereof for all purposes, whether or not this Class
A-1 Note may be overdue, and neither
A-3
Issuer, Indenture Trustee nor any such agent shall be affected by notice to
the contrary.
The Indenture and this Class A-1 Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the
State of New York.
A-4
IN WITNESS WHEREOF, Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: September 30, 1998
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its individual
capacity, but solely as Trustee of the Provident
Equipment Lease Trust 1998-A
By: _____________________________________
Authorized Officer
Indenture Trustee's Certificate of Authentication
This is one of the Class A-1 Notes referred to in the within
mentioned Indenture.
ORWEST BANK MINNESOTA, NATIONAL
SSOCIATION, as Indenture Trustee
By: _____________________________________
Authorized Signatory
A-5
ASSIGNMENT FORM
If you the Holder want to assign this Class A-1 Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class A-1 Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint ____________________, agent to transfer this Class
A-1 Note on the books of Issuer. The agent may substitute another to act
for him.
Dated: __________________ Signed:_______________________________________
----------------------------------------------
(sign exactly as the name appears on the other
side of this Class A-1 Note)
Signature Guarantee_____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes
fully negotiable, similar to a check endorsed in blank. Therefore, to
safeguard a signed Class A-1 Note, it is recommended that you fill in the
name of the new owner in the "Assignee" blank. Alternatively, instead of
using this Assignment Form, you may sign a separate "power of attorney"
form and then mail the unsigned Class A-1 Note and the signed "power of
attorney" in separate envelopes. For added protection, use certified or
registered mail for a Class A-1 Note.
A-6
{FORM OF CLASS A-2 NOTE}
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
5.78% CLASS A-2 LEASE-BACKED NOTE
CUSIP XX. 00000X XX 0
Xx. X-0 $19,242,000
PROVIDENT EQUIPMENT LEASE TRUST 1998-A (herein called the
"Issuer", which term includes any successor Person under the Indenture
referred to herein), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of NINETEEN MILLION TWO
HUNDRED FORTY TWO THOUSAND DOLLARS ($19,242,000), payable in monthly
installments beginning on November 25, 1998 in accordance with the
Indenture. Interest will accrue on the unpaid principal hereof from the
date of issuance, at the rate of 5.78% per annum, until the full amount of
principal hereof is otherwise paid or made available for payment and shall
be computed on the basis of twelve 30-day months and a year of 360 days.
Principal and interest on this Class A-2 Note shall be paid on the
25th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing November 25, 1998, either by check to
the registered address of the Holder of this Class A-2 Note as of the
relevant Record Date or by wire transfer to an account at a bank in the
United States as the Holder shall specify, as provided more fully in the
Indenture; provided, that the final payment of principal and interest in
respect of the Notes shall be payable to the Holder of this Note only upon
presentation and surrender of this Note at the Corporate Trust Office of
Indenture Trustee or at the principal office of any Paying Agent appointed
pursuant to the Indenture.
A-7
The Stated Maturity of the Class A-2 Notes is the April, 2006
Payment Date, on which date the Outstanding Principal Amount of the Class
A-2 Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed
by Indenture Trustee referred to on the reverse hereof by manual signature,
this Class A-2 Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Class A-2 Note is one of a duly authorized issue of Class A-2
Notes of Issuer designated as its "5.78% Class A-2 Lease-Backed Notes"
(herein called the "Class A-2 Notes") limited in aggregate principal amount
of $19,242,000, issued under the Indenture, dated as of September 1, 1998
(herein called the "Indenture"), between Issuer and Norwest Bank Minnesota,
National Association, as Indenture Trustee (herein called the "Indenture
Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of Issuer, Indenture Trustee and
the Holders and of the terms upon which the Class A-2 Notes are
authenticated and delivered. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings set forth in Appendix
X of the Indenture.
This Class A-2 Note will be secured by the pledge to Indenture
Trustee of the Trust Estate.
If an Event of Default under the Indenture has been declared by
Indenture Trustee, the principal of all the Class A-2 Notes (but not less
than all the Class A-2 Notes) may be declared due and payable in the manner
and with the effect provided in the Indenture. Notice of such declaration
will be given by mail to Holders, as their names and addresses appear in
the Note Register, as provided in the Indenture. Upon payment of such
principal amount together with all accrued interest, the obligations of
Issuer with respect to the payment of principal and interest on this Class
A-2 Note shall terminate.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of Issuer and the rights of the Holders under the Indenture at
any time by Issuer and Indenture Trustee with the consent of the Holders of
662/3% in aggregate principal amount of the Class A Notes and the Issuer's
Class B Lease-Backed Notes (the "Class B Notes") at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Class A Notes and the
Class B Notes at the time Outstanding, on behalf of all the Holders, to
waive compliance by Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by
A-8
the Holder of this Class A-2 Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-2 Note and of any Class
A-2 Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Class A-2 Note or any Class A-2 Note.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class A-2 Note is registrable in
the Note Register, upon surrender of this Class A-2 Note for registration
of transfer at the office or agency of Indenture Trustee in Minneapolis,
Minnesota, and at any other office or agency maintained by Issuer for that
purpose, duly endorsed by, or accompanied by a written instrument of
transfer in the form satisfactory to the Note Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Class A-2 Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
Each Holder and Note Owner, by acceptance of a Class A-2 Note, or,
in the case of a Note Owner, a beneficial interest in the Class A-2 Note,
shall be deemed to represent and warrant that either (a) it is not
acquiring the Class A-2 Note with the plan assets of an "employee benefit
plan" as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA, or
a "plan" as defined in Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") (each such entity a "Benefit Plan"); or (b) the
acquisition and holding of the Class A-2 Note will not give rise to a
nonexempt prohibited transaction under Section 406(a) of ERISA or Section
4975 of the Code.
The Class A-2 Notes are issuable only in registered form without
coupons in minimum denominations of $1,000. As provided in the Indenture
and subject to certain limitations therein set forth, Class A-2 Notes are
exchangeable for a like aggregate principal amount of Class A-2 Notes of a
different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Issuer, Indenture Trustee and any agent of Issuer or Indenture
Trustee may treat the Person in whose name this Class A-2 Note is
registered as the owner hereof for all purposes, whether or not this Class
A-2 Note may be overdue, and neither Issuer, Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
A-9
The Indenture and this Class A-2 Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the
State of New York.
A-10
IN WITNESS WHEREOF, Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: September 30, 1998
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its individual
capacity, but solely as Trustee of the Provident
Equipment Lease Trust 1998-A
By: ______________________________________
Authorized Officer
Indenture Trustee's Certificate of Authentication
This is one of the Class A-2 Notes referred to in the within
mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Indenture Trustee
By: ______________________________________
Authorized Signatory
A-11
ASSIGNMENT FORM
If you the Holder want to assign this Class A-2 Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class A-2 Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint ___________________, agent to transfer this Class
A-2 Note on the books of Issuer. The agent may substitute another to act
for him.
Dated: _____________________ Signed:_______________________
___________________________________________
(sign exactly as the name appears on the
other side of this Class A-2 Note)
Signature Guarantee_____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes
fully negotiable, similar to a check endorsed in blank. Therefore, to
safeguard a signed Class A Note, it is recommended that you fill in the
name of the new owner in the "Assignee" blank. Alternatively, instead of
using this Assignment Form, you may sign a separate "power of attorney"
form and then mail the unsigned Class A Note and the signed "power of
attorney" in separate envelopes. For added protection, use certified or
registered mail for a Class A-2 Note.
A-12
{FORM OF CLASS A-3 NOTE}
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
5.60 % CLASS A-3 LEASE-BACKED NOTE
CUSIP XX. 00000X XX 0
Xx. X-0 $90,935,000
PROVIDENT EQUIPMENT LEASE TRUST 1998-A (herein called the
"Issuer", which term includes any successor Person under the Indenture
referred to herein), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of NINETY MILLION NINE
HUNDRED THIRTY FIVE THOUSAND DOLLARS ($90,935,000), payable in monthly
installments beginning on November 25, 1998, in accordance with the
Indenture. Interest will accrue on the unpaid principal hereof from the
date of issuance, at the rate of 5.60% per annum, until the full amount of
principal hereof is otherwise paid or made available for payment and shall
be computed on the basis of twelve 30-day months and a year of 360 days.
Principal and interest on this Class A-3 Note shall be paid on the
25th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing November 25, 1998, either by check to
the registered address of the Holder of this Class A-3 Note as of the
relevant Record Date or by wire transfer to an account at a bank in the
United States as the Holder shall specify, as provided more fully in the
Indenture; provided, that the final payment of principal and interest in
respect of the Notes shall be payable to the Holder of this Note only upon
presentation and surrender of this Note at the Corporate Trust Office of
Indenture Trustee or at the principal office of any Paying Agent appointed
pursuant to the Indenture.
A-13
The Stated Maturity of the Class A-3 Notes is the April, 2006
Payment Date, on which date the Outstanding Principal Amount of the Class
A-3 Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed
by Indenture Trustee referred to on the reverse hereof by manual signature,
this Class A-3 Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Class A-3 Note is one of a duly authorized issue of Class A-3
Notes of Issuer designated as its "5.60% Class A-3 Lease-Backed Notes"
(herein called the "Class A-3 Notes") limited in aggregate principal amount
of $90,935,000, issued under the Indenture, dated as of September 1, 1998
(herein called the "Indenture"), between Issuer and Norwest Bank Minnesota,
National Association, as Indenture Trustee (herein called the "Indenture
Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of Issuer, Indenture Trustee and
the Holders and of the terms upon which the Class A-3 Notes are
authenticated and delivered. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings set forth in Appendix
X of the Indenture.
This Class A-3 Note will be secured by the pledge to Indenture
Trustee of the Trust Estate.
If an Event of Default under the Indenture has been declared by
Indenture Trustee, the principal of all the Class A-3 Notes (but not less
than all the Class A-3 Notes) may be declared due and payable in the manner
and with the effect provided in the Indenture. Notice of such declaration
will be given by mail to Holders, as their names and addresses appear in
the Note Register, as provided in the Indenture. Upon payment of such
principal amount together with all accrued interest, the obligations of
Issuer with respect to the payment of principal and interest on this Class
A-3 Note shall terminate.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of Issuer and the rights of the Holders under the Indenture at
any time by Issuer and Indenture Trustee with the consent of the Holders of
662/3% in aggregate principal amount of the Class A Notes and the Issuer's
Class B Lease-Backed Notes (the "Class B Notes") at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Class A Notes and the
Class B Notes at the time Outstanding, on behalf of all the Holders, to
waive compliance by Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by
A-14
the Holder of this Class A-3 Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-3 Note and of any Class
A-3 Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Class A-3 Note or any Class A-3 Note.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class A-3 Note is registrable in
the Note Register, upon surrender of this Class A-3 Note for registration
of transfer at the office or agency of Indenture Trustee in Minneapolis,
Minnesota, and at any other office or agency maintained by Issuer for that
purpose, duly endorsed by, or accompanied by a written instrument of
transfer in the form satisfactory to the Note Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Class A-3 Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
Each Holder and Note Owner, by acceptance of a Class A-3 Note, or,
in the case of a Note Owner, a beneficial interest in the Class A-3 Note,
shall be deemed to represent and warrant that either (a) it is not
acquiring the Class A-3 Note with the plan assets of an "employee benefit
plan" as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA, or
a "plan" as defined in Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") (each such entity a "Benefit Plan"); or (b) the
acquisition and holding of the Class A-3 Note will not give rise to a
nonexempt prohibited transaction under Section 406(a) of ERISA or Section
4975 of the Code.
The Class A-3 Notes are issuable only in registered form without
coupons in minimum denominations of $1,000. As provided in the Indenture
and subject to certain limitations therein set forth, Class A-3 Notes are
exchangeable for a like aggregate principal amount of Class A-3 Notes of a
different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Issuer, Indenture Trustee and any agent of Issuer or Indenture
Trustee may treat the Person in whose name this Class A-3 Note is
registered as the owner hereof for all purposes, whether or not this Class
A-3 Note may be overdue, and neither Issuer, Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
A-15
The Indenture and this Class A-3 Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the
State of New York.
A-16
IN WITNESS WHEREOF, Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: September 30, 1998
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its individual
capacity, but solely as Trustee of the Provident
Equipment Lease Trust 1998-A
By: ______________________________________
Authorized Officer
Indenture Trustee's Certificate of Authentication
This is one of the Class A-3 Notes referred to in the within
mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Indenture Trustee
By: ______________________________________
Authorized Signatory
A-17
ASSIGNMENT FORM
If you the Holder want to assign this Class A-3 Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class A-3 Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint ___________________, agent to transfer this Class
A-3 Note on the books of Issuer. The agent may substitute another to act
for him.
Dated: _____________________ Signed:_______________________
__________________________________________
(sign exactly as the name appears on the
other side of this Class A-3 Note)
Signature Guarantee_____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes
fully negotiable, similar to a check endorsed in blank. Therefore, to
safeguard a signed Class A Note, it is recommended that you fill in the
name of the new owner in the "Assignee" blank. Alternatively, instead of
using this Assignment Form, you may sign a separate "power of attorney"
form and then mail the unsigned Class A Note and the signed "power of
attorney" in separate envelopes. For added protection, use certified or
registered mail for a Class A-3 Note
A-18
{FORM OF CLASS A-4 NOTE}
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
5.75% CLASS A-4 LEASE-BACKED NOTE
CUSIP XX. 00000X XX 0
Xx. X-0 $18,576,000
PROVIDENT EQUIPMENT LEASE TRUST 1998-A (herein called the
"Issuer", which term includes any successor Person under the Indenture
referred to herein), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of EIGHTEEN MILLION FIVE
HUNDRED SEVENTY SIX THOUSAND DOLLARS ($18,576,000), payable in monthly
installments beginning on November 25, 1998, in accordance with the
Indenture. Interest will accrue on the unpaid principal hereof from the
date of issuance, at the rate of 5.75% per annum, until the full amount of
principal hereof is otherwise paid or made available for payment and shall
be computed on the basis of twelve 30-day months and a year of 360 days.
Principal and interest on this Class A-4 Note shall be paid on the
25th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing November 25, 1998, either by check to
the registered address of the Holder of this Class A-4 Note as of the
relevant Record Date or by wire transfer to an account at a bank in the
United States as the Holder shall specify, as provided more fully in the
Indenture; provided, that the final payment of principal and interest in
respect of the Notes shall be payable to the Holder of this Note only upon
presentation and surrender of this Note at the Corporate Trust Office of
Indenture Trustee or at the principal office of any Paying Agent appointed
pursuant to the Indenture.
A-19
The Stated Maturity of the Class A-4 Notes is the April, 2006
Payment Date, on which date the Outstanding Principal Amount of the Class
A-4 Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed
by Indenture Trustee referred to on the reverse hereof by manual signature,
this Class A-4 Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
This Class A-4 Note is one of a duly authorized issue of Class A-4
Notes of Issuer designated as its "5.75% Class A-4 Lease-Backed Notes"
(herein called the "Class A-4 Notes") limited in aggregate principal amount
of $18,576,000, issued under the Indenture, dated as of September 1, 1998
(herein called the "Indenture"), between Issuer and Norwest Bank Minnesota,
National Association, as Indenture Trustee (herein called the "Indenture
Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of Issuer, Indenture Trustee and
the Holders and of the terms upon which the Class A-4 Notes are
authenticated and delivered. Unless otherwise defined herein, all
capitalized terms used herein shall have the meanings set forth in Appendix
X of the Indenture.
This Class A-4 Note will be secured by the pledge to Indenture
Trustee of the Trust Estate.
If an Event of Default under the Indenture has been declared by
Indenture Trustee, the principal of all the Class A-4 Notes (but not less
than all the Class A-4 Notes) may be declared due and payable in the manner
and with the effect provided in the Indenture. Notice of such declaration
will be given by mail to Holders, as their names and addresses appear in
the Note Register, as provided in the Indenture. Upon payment of such
principal amount together with all accrued interest, the obligations of
Issuer with respect to the payment of principal and interest on this Class
A-4 Note shall terminate.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of Issuer and the rights of the Holders under the Indenture at
any time by Issuer and Indenture Trustee with the consent of the Holders of
662/3% in aggregate principal amount of the Class A Notes and the Issuer's
Class B Lease-Backed Notes (the "Class B Notes") at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Class A Notes and the
Class B Notes at the time Outstanding, on behalf of all the Holders, to
waive compliance by Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by
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the Holder of this Class A-4 Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Class A-4 Note and of any Class
A-4 Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Class A-4 Note or any Class A-4 Note.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class A-4 Note is registrable in
the Note Register, upon surrender of this Class A-4 Note for registration
of transfer at the office or agency of Indenture Trustee in Minneapolis,
Minnesota, and at any other office or agency maintained by Issuer for that
purpose, duly endorsed by, or accompanied by a written instrument of
transfer in the form satisfactory to the Note Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Class A-4 Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
Each Holder and Note Owner, by acceptance of a Class A-4 Note, or,
in the case of a Note Owner, a beneficial interest in the Class A-4 Note,
shall be deemed to represent and warrant that either (a) it is not
acquiring the Class A-4 Note with the plan assets of an "employee benefit
plan" as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA, or
a "plan" as defined in Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") (each such entity a "Benefit Plan"); or (b) the
acquisition and holding of the Class A-4 Note will not give rise to a
nonexempt prohibited transaction under Section 406(a) of ERISA or Section
4975 of the Code.
The Class A-4 Notes are issuable only in registered form without
coupons in minimum denominations of $1,000. As provided in the Indenture
and subject to certain limitations therein set forth, Class A-4 Notes are
exchangeable for a like aggregate principal amount of Class A-4 Notes of a
different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Issuer, Indenture Trustee and any agent of Issuer or Indenture
Trustee may treat the Person in whose name this Class A-4 Note is
registered as the owner hereof for all purposes, whether or not this Class
A-4 Note may be overdue, and neither Issuer, Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
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The Indenture and this Class A-4 Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the
State of New York.
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IN WITNESS WHEREOF, Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: September 30, 1998
ROVIDENT EQUIPMENT LEASE TRUST
998-A
By: FIRST UNION TRUST COMPANY,
ATIONAL ASSOCIATION, not in its individual
apacity, but solely as Trustee of the Provident
quipment Lease Trust 1998-A
By: ______________________________________
Authorized Officer
Indenture Trustee's Certificate of Authentication
This is one of the Class A-4 Notes referred to in the within
mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Indenture Trustee
By: ______________________________________
Authorized Signatory
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ASSIGNMENT FORM
If you the Holder want to assign this Class A-4 Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class A-4 Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint ___________________, agent to transfer this Class
A-4 Note on the books of Issuer. The agent may substitute another to act
for him.
Dated: _____________________ Signed:______________________
------------------------------------------
(sign exactly as the name appears on the
other side of this Class A-4 Note)
Signature Guarantee_____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes
fully negotiable, similar to a check endorsed in blank. Therefore, to
safeguard a signed Class A Note, it is recommended that you fill in the
name of the new owner in the "Assignee" blank. Alternatively, instead of
using this Assignment Form, you may sign a separate "power of attorney"
form and then mail the unsigned Class A Note and the signed "power of
attorney" in separate envelopes. For added protection, use certified or
registered mail for a Class A-4 Note
A-24
{FORM OF CLASS B NOTE}
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PROVIDENT EQUIPMENT LEASE TRUST 1998-A
6.20% CLASS B LEASE-BACKED NOTE
CUSIP Xx. 00000X XX 0
Xx. X-0 $7,687,000
PROVIDENT EQUIPMENT LEASE TRUST 1998-A (herein called the
"Issuer", which term includes any successor Person under the Indenture
referred to herein), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of SEVEN MILLION SIX HUNDRED
EIGHTY SEVEN THOUSAND DOLLARS ($7,687,000), payable in monthly installments
beginning on November 25, 1998, in accordance with the Indenture. Interest
will accrue on the unpaid principal hereof from the date of issuance, at
the rate of 6.20% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the
basis of twelve 30-day months and a year of 360 days.
Principal and interest on this Class B Note shall be paid on the
25th day of each month (or, if such day is not a Business Day, the next
succeeding Business Day), commencing November 25, 1998, either by check to
the registered address of the Holder of this Class B Note as of the
relevant Record Date or by wire transfer to an account at a bank in the
United States as the Holder shall specify, as provided more fully in the
Indenture; provided, that the final payment of principal and interest in
respect of the Class B Notes during the Principal Amortization Period shall
be payable to the Holder of this Class B Note only upon presentation and
surrender of this Class B Note at the Corporate Trust Office of Indenture
Trustee or at the principal office of any Paying Agent appointed pursuant
to the Indenture.
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The Stated Maturity of the Class B Notes is the April, 2006
Payment Date, on which date the Outstanding Principal Amount of the Class B
Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed
by Indenture Trustee referred to on the reverse hereof by manual signature,
this Class B Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
This Class B Note is one of a duly authorized issue of Class B
Notes of Issuer designated as its "6.20% Class B Lease-Backed Notes"
(herein called the "Class B Notes"), limited in aggregate principal amount
of $7,687,000, issued under the Indenture, dated as of September 1, 1998
(herein called the "Indenture"), between Issuer and Norwest Bank Minnesota,
National Association, as Indenture Trustee (herein called the "Indenture
Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of Issuer, Indenture Trustee and
the Holders and of the terms upon which the Class B Notes are authenticated
and delivered. Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings set forth in Appendix X of the Indenture.
This Class B Note will be secured by the pledge to Indenture
Trustee of the Trust Estate.
If an Event of Default under the Indenture has been declared by
Indenture Trustee, the principal of all the Class B Notes (but not less
than all the Class B Notes) may be declared due and payable in the manner
and with the effect provided in the Indenture. Notice of such declaration
will be given by mail to Holders, as their names and addresses appear in
the Note Register, as provided in the Indenture. Upon payment of such
principal amount together with all accrued interest, the obligations of
Issuer with respect to the payment of principal and interest on this Class
B Note shall terminate.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of Issuer and the rights of the Holders under the Indenture at
any time by Issuer and Indenture Trustee with the consent of the Holders of
Notes evidencing at least 662/3% in aggregate principal amount of the
Issuer's 662/3% Class A Lease-Backed Notes (the "Class A Notes") and Class
B Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal
amount of the Class A Notes and the Class B Notes at the time Outstanding,
on behalf of all the Holders, to waive compliance by Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture
and their
A-26
consequences. Any such consent or waiver by the Holder of this Class B Note
shall be conclusive and binding upon such Holder and upon all future
Holders of this Class B Note and of any Class B Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Class B
Note or any Class B Note.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Class B Note is registrable in the
Note Register, upon surrender of this Class B Note for registration of
transfer at the office or agency of Indenture Trustee in Minneapolis,
Minnesota, and at any other office or agency maintained by Issuer for that
purpose, duly endorsed by, or accompanied by a written instrument of
transfer in the form satisfactory to the Note Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Class B Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
Each Holder and Note Owner, by acceptance of a Class B Note, or,
in the case of a Note Owner, a beneficial interest in the Class B Note,
shall be deemed to represent and warrant that either (a) it is not
acquiring the Class B Note with the plan assets of an "employee benefit
plan" as defined in Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), which is subject to Title I of ERISA, or
a "plan" as defined in Section 4975 of the Internal Revenue Code of 1986,
as amended (the "Code") (each such entity a "Benefit Plan"); or (b) the
acquisition and holding of the Class B Note will not give rise to a
nonexempt prohibited transaction under Section 406(a) of ERISA or Section
4975 of the Code.
The Class B Notes are issuable only in registered form without
coupons in minimum denominations of $1,000. As provided in the Indenture
and subject to certain limitations therein set forth, Class B Notes are
exchangeable for a like aggregate principal amount of Class B Notes of a
different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Issuer, Indenture Trustee and any agent of Issuer or Indenture
Trustee may treat the Person in whose name this Class B Note is registered
as the owner hereof for all purposes, whether or not this Class B Note may
be overdue, and neither Issuer, Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
12312134.1 100298 1317C 98438757
A-27
The Indenture and this Class B Note shall be deemed to be
contracts made under the laws of the State of New York and shall for all
purposes be governed by, and construed in accordance with, the laws of the
State of New York.
IN WITNESS WHEREOF, Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: September 30, 1998
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
By: FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, not in its individual
capacity, but solely as Trustee of the Provident
Equipment Lease Trust 1998-A
By:_______________________________________
Authorized Officer
Indenture Trustee's Certificate of Authentication
This is one of the Class B Notes referred to in the within
mentioned Indenture.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Indenture Trustee
By: _____________________________________
Authorized Signatory
A-28
ASSIGNMENT FORM
If you the Holder want to assign this Class B Note, fill in the
form below and have your signature guaranteed:
I or we assign and transfer this Class B Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint ___________________________, agent to transfer this
Class B Note on the books of Issuer. The agent may substitute another to
act for him.
Dated: _____________________ Signed:______________________
(signed exactly as the name
appears on the other side
of this Class B Note)
Signature Guarantee____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes
fully negotiable, similar to a check endorsed in blank. Therefore, to
safeguard a signed Class B Note, it is recommended that you fill in the
name of the new owner in the "Assignee" blank. Alternatively, instead of
using this Assignment Form, you may sign a separate "power of attorney"
form and then mail the unsigned Class B Note and the signed "power of
attorney" in separate envelopes. For added protection, use certified or
registered mail for a Class B Note.
A-29
APPENDIX X
DEFINITIONS
SECTION 1.1 Defined Terms. The following terms have the meanings
set forth below for all purposes of the Basic Documents, and the
definitions of such terms are applicable to the singular as well as to the
plural forms of such terms and to the masculine as well as to the feminine
and neuter genders of such terms.
"Act" is defined in Section 1.4 of the Indenture.
"Additional Principal" means with respect to each Payment Date, an
amount equal to (a) the difference between (i) the Discounted Present Value
of the Performing Leases as of the Determination Date for the preceding
Payment Date and (ii) the Discounted Present Value of the Performing Leases
as of the related Determination Date, less (b) the Class A Principal
Payment, the Class B Principal Payment and the Certificate Principal
Payment to be paid on such Payment Date.
"Affiliate" means, with respect to any specified Person, any other
Person which directly or indirectly controls, or is controlled by, or is
under common control with, such specified Person. The term "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.
"Agreement" means the Indenture, Trust Agreement, Pooling and
Servicing Agreement, or Management Agreement, as applicable, as the same
may be amended and supplemented from time to time.
"Annualized Monthly Default Percentage" means, with respect to any
Due Period, twelve times the percentage equivalent of a fraction (a) the
numerator of which is the Discounted Present Value of all Leases that
became Non-Performing Leases during such Due Period, calculated as of the
related Determination Date, and (b) the denominator of which is the
Discounted Present Value of all Leases, calculated as of the Determination
Date immediately preceding the related Determination Date.
"Authorized Officer" means, with respect to Issuer, any officer of
Trustee who is authorized to act for Trustee in matters relating to the
Trust and, so long as the Management Agreement is in effect, any Vice
President or more senior officer of Manager who is authorized to act for
Manager in matters relating to Issuer and to be acted upon by Manager
pursuant to the Management Agreement and who is
A-30
identified on the list of Authorized Officers delivered by Manager to
Indenture Trustee on the Closing Date (in each case as such list may be
modified or supplemented from time to time thereafter). With respect to ILC
or Servicer, any officer of ILC or Servicer, as the case may be, who is
authorized to act for Servicer or ILC as the case may be.
"Available Funds" means, with respect to any Payment Date, the
amount on deposit in the Collection Account with respect to the immediately
preceding Due Period received on or prior to the Record Date for such Due
Period, including (a) Lease Payments due during the immediately preceding
Due Period (net of any Third Party Amounts), (b) Residual Realizations up
to the Residual Amount Cap; (c) recoveries from Non-Performing Leases (net
of amounts retained by Servicer in accordance with the Pooling and
Servicing Agreement); (d) proceeds from repurchases by Transferor or
Servicer of Leases to the extent Transferor has not substituted Substitute
Leases for such Leases; (e) proceeds from the investment of funds (other
than Security Deposit Earnings) in the Collection Account, the Residual
Account and the Reserve Account; (f) Casualty Payments; (g) Servicer
Advances; (h) Termination Payments; and (i) funds, if any, on deposit in
the Reserve Account and/or the Residual Account, to the extent provided in
the Pooling and Servicing Agreement.
"Available Funds Shortfall" is defined in Section 6.4(b) of the
Pooling and Servicing Agreement.
"Available Reserve Amount" means the amount on deposit in the Reserve
Account.
"Available Residual Amount" means the excess of (a) the Residual
Amount Cap over (b) the Utilized Residual Amount.
"Basic Documents" means the Contribution Agreement, the Pooling and
Servicing Agreement, the Indenture, the Trust Agreement, the Management
Agreement and the Depository Agreement.
"Benefit Plan" is defined in Section 3.12 of the Trust Agreement.
"Book-Entry Class A-1 Notes" means beneficial interests in the
Class A-1 Notes, the ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 2.5 of the
Indenture.
"Book-Entry Class A-2 Notes" means beneficial interests in the
Class A-2 Notes, the ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 2.5 of the
Indenture.
A-31
"Book-Entry Class A-3 Notes" means beneficial interests in the
Class A-3 Notes, the ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 2.5 of the
Indenture.
"Book-Entry Class A-4 Notes" means beneficial interests in the
Class A-4 Notes, the ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 2.5 of the
Indenture.
"Book-Entry Class B Notes" means beneficial interests in the Class
B Notes, the ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 2.5 of the Indenture.
"Booked Residual Value" means the estimated residual value of the
Equipment recorded on the books of Transferor.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banking institutions in the cities in which
the Corporate Trust Office of Indenture Trustee or Trustee or the Servicer
are located are authorized or obligated by law or executive order to remain
closed.
"Casualty Payment" means any payment pursuant to a Lease on
account of the loss, theft, condemnation, governmental taking, destruction,
or damage beyond repair of any item of Equipment subject thereto which
results, in accordance with the terms of the Lease, in a reduction in the
number or amount of any future Lease Payments due thereunder or in the
termination of the Lessee's obligation to make future Lease Payments
thereunder.
"Cede & Co." means the initial registered holder of the Class A
Notes and the Class B Notes, acting as nominee of The Depository Trust.
"Certificated Security" has the meaning assigned thereto in
Section 8- 102(a)(4) of Article 8 of the UCC.
"Certificate Balance" means the aggregate principal amount of the
Certificates outstanding at any time.
"Certificate Distribution Account" is defined in Section 5.1 of the
Trust Agreement.
"Certificate Floor" means, with respect to each Payment Date, an
amount equal to the total of (a) 1.50% of the initial Discounted Present
Value of the Leases as of the Cut-Off Date, plus (b) the Cumulative Loss
Amount with respect to such Payment Date, minus (c) the sum of the
Overcollateralization Amount as of such
A-32
Payment Date plus the amount on deposit in the Reserve Account after giving
effect to withdrawals to be made on such Payment Date.
"Certificate Owner" means each Holder of a Definitive Trust
Certificate.
"Certificate Percentage" means 4.5030%.
"Certificate Principal Payment" means (a) while the Class A-1
Notes are outstanding, zero and (b) after the Outstanding Principal Amount
on the Class A-1 Notes has been reduced to zero, the amount necessary to
reduce the Certificate Balance to the greater of the Certificate Target
Investor Principal Amount and the Certificate Floor.
"Certificate Purchase Agreement" means the Agreement, among
Issuer, ILC, and Xxxxxx Brothers Inc.
"Certificate Rate" means 6.73%.
"Certificate Register" and "Certificate Registrar" means the
register mentioned and the registrar appointed pursuant to Section 3.4 of
the Trust Agreement.
"Certificate Target Investor Principal Amount" means, with respect
to each Payment Date, an amount equal to the product of (a) the Certificate
Percentage and (b) the Discounted Present Value of the Performing Leases as
of the related Determination Date.
"Certificateholder" means a Person in whose name a Trust Certificate is
registered.
"Certificates" means Issuer's 6.73% Lease-Backed Certificates
issued in the original principal amount of $6,589,000.
"Class A Notes" means Issuer's Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes.
"Class A Percentage" means 87.9918%.
"Class A Principal Payment" means (a) while the Class A-1 Notes
are outstanding, (i) on all Payment Dates prior to the October, 1998
Payment Date, the lesser of (1) the amount necessary to reduce the
Outstanding Principal Amount on the Class A-1 Notes to zero and (2) the
difference between (A) the Discounted Present Value of the Performing
Leases as of the Determination Date for the preceding Payment Date and (B)
the Discounted Present Value of the Performing
A-33
Leases as of the related Determination Date, and (ii) on the October, 1998
Payment Date and thereafter until the Class A-1 Notes have been paid in
full, the entire Outstanding Principal Amount on the Class A-1 Notes, and
(b) after the Class A-1 Notes have been paid in full, the amount necessary
to reduce the aggregate Outstanding Principal Amount on the Class A Notes
to the Class A Target Investor Principal Amount.
"Class A Target Investor Principal Amount" means, with respect to
each Payment Date, an amount equal to the product of (a) the Class A
Percentage and (b) the Discounted Present Value of the Performing Leases as
of the related Determination Date.
"Class A-1 Note Interest Rate" means the rate at which interest
accrues on the Class A-1 Notes, which rate with respect to each Due Period
shall be at a rate per annum equal to 5.28%.
"Class A-1 Note Owner" means with respect to a Book-Entry Class
A-1 Note, the Person who is the beneficial owner of such Book-Entry Class
A-1 Note, as reflected on the books of the Clearing Agency, or on the books
of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency) and with respect to a Definitive Class A-1 Note, a Holder of a
Definitive Class A-1 Note.
"Class A-1 Noteholder" means each Holder of a Class A-1 Note.
"Class A-1 Notes" means Issuer's 5.28% Class A-1 Lease-Backed
Notes issued in the original principal amount of $73,303,000.
"Class A-2 Note Interest Rate" means, the rate at which interest
accrues on the Class A-2 Notes, which rate with respect to each Due Period
shall be at a rate per annum equal to 5.78%.
"Class A-2 Note Owner" means, with respect to a Book-Entry Class
A-2 Note, the Person who is the beneficial owner of such Book-Entry Class
A-2 Note, as reflected on the books of the Clearing Agency, or on the books
of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency) and, with respect to a Definitive Class A-2 Note, a Holder of a
Definitive Class A-2 Note.
"Class A-2 Noteholder" means the Holder of a Class A-2 Note.
"Class A-2 Notes" means Issuer's 5.78% Class A-2 Lease-Backed
Notes issued in the original principal amount of $19,242,000.
A-34
"Class A-3 Note Interest Rate" means, the rate at which interest
accrues on the Class A-3 Notes, which rate with respect to each Due Period
shall be at a rate per annum equal to 5.60%.
"Class A-3 Note Owner" means, with respect to a Book-Entry Class
A-3 Note, the Person who is the beneficial owner of such Book-Entry Class
A-3 Note, as reflected on the books of the Clearing Agency, or on the books
of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency) and, with respect to a Definitive Class A-3 Note, a Holder of a
Definitive Class A-3 Note.
"Class A-3 Noteholder" means the Holder of a Class A-3 Note.
"Class A-3 Notes" means Issuer's 5.60% Class A-3 Lease-Backed
Notes issued in the original principal amount of $90,935,000.
"Class A-4 Note Interest Rate" means, the rate at which interest
accrues on the Class A-4 Notes, which rate with respect to each Due Period
shall be at a rate per annum equal to 5.75%.
"Class A-4 Note Owner" means, with respect to a Book-Entry Class
A-4 Note, the Person who is the beneficial owner of such Book-Entry Class
A-4 Note, as reflected on the books of the Clearing Agency, or on the books
of a Person maintaining an account with such Clearing Agency (directly or
as an indirect participant, in accordance with the rules of such Clearing
Agency) and, with respect to a Definitive Class A-4 Note, a Holder of a
Definitive Class A-4 Note.
"Class A-4 Noteholder" means the Holder of a Class A-4 Note.
"Class A-4 Notes" means Issuer's 5.75% Class A-4 Lease-Backed
Notes issued in the original principal amount of $18,576,000.
"Class B Floor" means, with respect to each Payment Date (the
"subject Payment Date"), an amount equal to the total of (a) 2.5% of the
initial Discounted Present Value of the Leases as of the Cut-Off Date, plus
(b) the Cumulative Loss Amount with respect to the subject Payment Date,
minus (c) the sum of the Certificate Balance as of the preceding Payment
Date after giving effect to all payments made on such Payment Date plus the
Overcollateralization Amount as of the subject Payment Date plus the amount
on deposit in the Reserve Account after giving effect to any withdrawals to
be made on the related Payment Date.
"Class B Note Interest Rate" means the rate at which interest
accrues on the Class B Notes, which rate shall be 6.20% per annum.
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"Class B Note Owner" means with respect to a Book-Entry Class B
Note, the Person who is the beneficial owner of such Book-Entry Class B
Note, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly or as
an indirect participant, in accordance with the rules of such Clearing
Agency) and, with respect to a Definitive Class B Note, a Holder of a Class
B Note.
"Class B Noteholder" means a Holder of a Class B Note.
"Class B Notes" means Issuer's 6.20% Class B Lease-Backed Notes
issued in the original principal amount of $7,687,000.
"Class B Percentage" means 5.2534%.
"Class B Principal Payment" means (a) while the Class A-1 Notes
are outstanding, zero and (b) after the Outstanding Principal Amount on the
Class A-1 Notes has been reduced to zero, the amount necessary to reduce
the Outstanding Principal Amount of the Class B Notes to the greater of the
Class B Target Investor Principal Amount and the Class B Floor.
"Class B Target Investor Principal Amount" means with respect to
each Payment Date, an amount equal to the product of (a) the Class B
Percentage and (b) the Discounted Present Value of the Performing Leases as
of the related Determination Date.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"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.
"Closing Date" means September 30, 1998.
"Code" means the Internal Revenue Code of 1986.
"Collection Account" means the account designated as such,
established and maintained pursuant to Section 6.1(a) of the Pooling and
Servicing Agreement.
"Commission" means the Securities and Exchange Commission.
"Contributed Equipment" are defined in Section 2.3 of the Contribution
Agreement.
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"Contribution Agreement" means the Contribution Agreement dated as
of September 1, 1998, between Transferor and ILC, as the same may be
amended, supplemented or otherwise modified from time to time.
"Control" means with respect to any Federal Book Entry Security,
Indenture Trustee shall have obtained control if:
(i) Indenture Trustee is a participant in the book
entry system maintained by the Federal Reserve Bank that is acting
as fiscal agent for the issuer of such Federal Book Entry
Security, and such Federal Reserve Bank has indicated by book
entry that such Federal Book Entry Security has been credited to
Indenture Trustee's securities account in such book entry system;
or
(ii) (a) Indenture Trustee (1) is registered on the
records of a Securities Intermediary as the person having a
Securities Entitlement in respect of such Federal Book Entry
Security against such Securities Intermediary; or (2) has obtained
the agreement, in writing, of the Securities Intermediary for such
Securities Entitlement that such Securities Intermediary will
comply with Entitlement Orders of Indenture Trustee without
further consent of any other Person; and (b) the Securities
Intermediary is a participant in the book entry system maintained
by the Federal Reserve Bank that is acting as fiscal agent for the
issuer of such Federal Book Entry Security; and (c) such Federal
Reserve Bank has indicated by book entry that such Federal Book
Entry Security has been credited to the Securities Intermediary's
Securities Account in such book entry system.
"Corporate Trust Office" means, with respect to Indenture Trustee,
the principal corporate trust office of Indenture Trustee located at Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, or at such
other address as Indenture Trustee may designate from time to time by
notice to Noteholders, Issuer and ILC, and with respect to Trustee means,
the principal corporate trust office of Trustee located at One Xxxxxx
Xxxxxx, 0xx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration; or at such other address as Trustee may
designate from time to time by notice to the Certificateholders and
Depositor, or the principal corporate trust office of any successor Trustee
(the address of which the successor Trustee will notify the
Certificateholders and Depositor).
"Cumulative Loss Amount" means, with respect to each Payment Date
(the "subject Payment Date"), an amount equal to the excess, if any, of (a)
the difference of (i) the sum of the Outstanding Principal Amount of the
Notes and the Certificate Balance as of the immediately preceding Payment
Date after giving effect to all
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payments made on such Payment Date, minus (ii) the lesser of (A) the
Discounted Present Value of the Performing Leases as of the Determination
Date relating to the immediately preceding Payment Date minus the
Discounted Present Value of the Performing Leases as of the Determination
Date related to the subject Payment Date and (B) Available Funds for the
subject Payment Date (including any funds withdrawn from the Reserve
Account or the Residual Account as a result of an Available Funds
Shortfall) remaining after the payment of amounts owing to Servicer and in
respect of interest on the Notes and Certificates on the subject Payment
Date over (b) the Discounted Present Value of Performing Leases as of the
Determination Date related to the subject Payment Date.
"Cumulative Net Loss Ratio" means, with respect to any Due Period,
the percentage equivalent of a fraction (a) the numerator of which is the
aggregate of net losses on the Leases from the Cut-Off Date through the
last day of such Due Period and (b) the denominator of which is the
Discounted Present Value of the Leases as of the Cut-Off Date.
"Cut-Off Date" means the close of business on August 31, 1998.
"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-1 Note" means a definitive, fully registered
Class A-1 Note issued pursuant to Section 2.7 of the Indenture.
"Definitive Class A-2 Note" means a definitive, fully registered
Class A-2 Note issued pursuant to Section 2.7 of the Indenture.
"Definitive Class A-3 Note" means a definitive, fully registered
Class A-3 Note issued pursuant to Section 2.7 of the Indenture.
"Definitive Class A-4 Note" means a definitive, fully registered
Class A-4 Note issued pursuant to Section 2.7 of the Indenture.
"Definitive Class B Note" means a definitive, fully registered
Class B Note issued pursuant to Section 2.7 of the Indenture.
"Definitive Trust Certificate" is defined in Section 3.11 of the Trust
Agreement.
"Delinquent Lease" means, as of any Determination Date, any Lease
(other than a Lease which became a Non-Performing Lease prior to such
Determination Date) with respect to which the Servicer has determined the
Lessee is 31 days or more delinquent with respect to any Lease Payments
then due.
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"Delivery" when used with respect to Trust Account Property means:
(a) with respect to a Certificated Security, transfer
of such Certificated Security to Indenture Trustee or its nominee
or custodian by physical delivery to Indenture Trustee or its
nominee or custodian, endorsed to, or registered in the name of,
Indenture Trustee or its nominee or custodian or endorsed in
blank; and
(b) with respect to any such Trust Account Property
that constitutes an Uncertificated Security (including any
investments in money market mutual funds, but excluding any
Federal Book Entry Security), (A) registration of Indenture
Trustee as the registered owner by the issuer, or (B) satisfaction
of the requirements for obtaining "control" pursuant to Section
8-106(c)(2) of Article 8 of the UCC.
"Depositor" means Transferor in its capacity as Depositor under the
Trust Agreement.
"Depository Agreement" means the letter of representations,
between Issuer, Indenture Trustee and the Depository Trust Company, as
Clearing Agency.
"Determination Date" means with respect to any Payment Date, the
third day immediately preceding such Payment Date, or if such day is not a
Business Day, the first Business Day preceding such day.
"Discount Rate" means, with respect to any Determination Date,
6.54584%, which equals the sum of (a) the weighted-average interest rate of
the Class A Notes (utilizing the Class A-4 Note Interest Rate), Class B
Note Interest Rate and the Certificate Rate on the Closing Date and (b) the
Servicing Fee rate of 0.75% per annum.
"Discounted Present Value of the Leases" means, with respect to
any Lease as of the Cut-Off Date or any date thereafter, an amount equal to
the net present value of all Lease Payments (including Payaheads but
excluding Third Party Amounts and, after the Closing Date, delinquent
amounts) to become due thereunder following the Cut-Off Date or the Due
Period preceding the following Payment Date, as the case may be (determined
by discounting on a monthly basis (assuming a calendar year consisting of
twelve 30-day months), at a rate equal to the Discount Rate, each such
Lease Payment from the Payment Date following such Lease Payment to such
date). In determining the Discounted Present Value of the Leases on any
Determination Date or with respect to a Payment Date, the future remaining
Lease Payments will be calculated after giving effect to any payments
received during the related Due Period to the extent such payments relate
to Lease Payments
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due and payable by the Lessees with respect to the related Due Period and
any prior Due Period.
"Discounted Present Value of the Performing Leases" means the
Discounted Present Value of the Leases, reduced by the Discounted Present
Value of the Leases that are Non-Performing Leases.
"Due Period" means with respect to any Payment Date and the
Determination Date with respect thereto, the calendar month prior to the
month in which such Payment Date and Determination Date occur; provided,
that the initial Due Period shall be the period from the Closing Date
through the calendar month prior to the month in which such Payment Date
and Determination Date occur.
"Eligible Account" means either (a) a segregated account
maintained with an Eligible Institution or any other segregated account,
the deposit of funds into which has been approved by the Rating Agencies or
(b) a segregated trust account maintained in the corporate trust department
of a depository institution organized under the laws of the United States
of America or any of the states thereof, the District of Columbia, or any
domestic branch of a foreign bank, in any case having corporate trust
powers and acting as trustee for funds deposited in such account, so long
as any of the securities of such depository institution have a credit
rating from each Rating Agency in one of its generic rating categories
which signifies investment grade.
"Eligible Institution" means either (a) the corporate trust
department of the Indenture Trustee or the Trustee, as applicable, or (b) a
depository institution organized under the laws of the United States of
America or any of the states thereof, the District of Columbia, or any
domestic branch of a foreign bank, (i) which has either (A) a long-term
unsecured debt rating or certificate of deposit rating acceptable to the
Rating Agencies or (B) a short-term unsecured debt rating or certificate of
deposit rating acceptable to the Rating Agencies and (ii) whose deposits
are insured by the FDIC.
"Eligible Investments" means any one or more of the following
obligations or securities:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the laws of
the United States of America or any State (or any domestic branch of a
foreign bank) and subject to supervision and examination by Federal or
State banking or depository institution authorities; provided, however,
that at the time of the investment or contractual
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commitment to invest therein, the commercial paper or other short-term
senior unsecured debt obligations (other than such obligations the rating
of which is based on the credit of a Person other than such depository
institution or trust company) thereof shall have a credit rating from each
of the Rating Agencies in the highest investment category granted thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of the Rating
Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each of
the Rating Agencies in the highest investment category granted thereby
(including funds for which Indenture Trustee, Trustee, Transferor or any of
their respective Affiliates is investment manager or advisor);
(e) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b);
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed as to timely payment by, the
United States of America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit of the United
States of America, in either case entered into with a depository
institution or trust company (acting as principal) described in clause (b);
and
(g) any other investment permitted by each of the Rating Agencies
as set forth in writing delivered to the Indenture Trustee; provided, that
investments described in clauses (d) and (g) shall be made only so long as
making such investments will not require the Issuer to register as an
investment company under the Investment Company Act of 1940, as amended.
"Eligible Lease" means a Lease that, on the effective date of the
substitution of such Lease, satisfies the representations and warranties
set forth in Section 3.4 of the Contribution Agreement and the requirements
of Section 4.3 of the Contribution Agreement or Section 5.4 of the Pooling
and Servicing Agreement, as applicable.
"Entitlement Order" has the meaning assigned thereto in Section
8-102(a)(8) of Article 8 of the UCC.
"Equipment" means each item of personal property, together with
any replacement parts, additions, and repairs thereto, any replacements
thereof, and any accessories incorporated therein and/or affixed thereto,
subject to a Lease or, following expiration or termination of the Lease to
which the same was previously
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subject, remaining subject to the lien of the Indenture in accordance with the
provisions hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Event of Default" is defined in Section 6.1 of the Indenture.
"Exchange Act" means the Securities Exchange Act of 1934.
"Expenses" is defined in Section 8.2 of the Trust Agreement.
"Federal Book Entry Security" means an obligation (i) issued by
the U.S. Treasury, the Federal Home Loan Mortgage Corporation or the
Federal National Mortgage Association, or any other direct obligation of,
or obligation fully guaranteed as to timely payment or principal and
interest by, the United States of America, that is a book-entry security
held through the Federal Reserve System pursuant to Federal book entry
regulations, and (ii) the perfection of a security interest in which is
governed pursuant to federal regulations by Article 8 of the UCC.
"Filing Requirements" means Financing Statements necessary to
perfect the ownership interest of the Transferor and Issuer and the
perfected security interest of Indenture Trustee in the Leases and as of
the Closing Date and as of June 1 and December 1 of every year following
the Closing Date, in Equipment (i) subject to Leases having an original
equipment cost of at least 75% of the aggregate Discounted Present Value of
the Leases and (ii) relating to not less than 75% of the Booked Residual
Value of such Equipment.
"Financing Statement" means a statement filed pursuant to the UCC
which evidences a perfected security or ownership interest in an asset.
"Fitch IBCA" means Fitch IBCA, Inc.
"Governmental Authority" means any court or federal or state
regulatory body, administrative agency or other tribunal or other
governmental instrumentality.
"Grant" means to grant, bargain, convey, assign, transfer,
mortgage, pledge, create and grant a security interest in and right of
set-off against, deposit, set over and confirm. The Grant of the Trust
Estate effected by the Indenture shall include all rights, powers, and
options (but none of the obligations) of Issuer with respect thereto,
including the immediate and continuing right to claim for, collect,
receive, and give receipts for Lease Payments in respect of the Leases and
all other moneys payable thereunder, to give and receive notices and other
communications, to make waivers or other agreements, to exercise all rights
and options, to bring judicial proceedings in the name of Issuer or
otherwise, and generally to do and receive
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anything that Issuer may be entitled to do or receive thereunder or with
respect thereto.
"Granted Assets" means the assets referred to in the Granting Clause
of the Indenture.
"Holder" as used in the Indenture and Pooling and Servicing
Agreement, means each Noteholder and each Certificateholder, and as used in
the Trust Agreement, means a Certificateholder.
"ILC" means Information Leasing Corporation, an Ohio corporation.
"Indemnified Party" with respect to the Indenture and Pooling and
Servicing Agreement is defined in Section 4.3 of the Indenture, with
respect to the Contribution Agreement, is defined in Section 4.1 of the
Contribution Agreement, and with respect to the Trust Agreement is defined
in Section 8.2 of the Trust Agreement.
"Indenture" means the Indenture, dated as of September 1, 1998,
between Issuer and Indenture Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Indenture Trustee" means the Person acting as Indenture Trustee
under the Indenture, its successors in interest and any successor trustee
under the Indenture.
"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 Transferor 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 Transferor or any Affiliate of any of the foregoing Persons
and (c) is not connected with the Issuer, any such other obligor, the
Transferor 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 11.4
of the Indenture, made by an Independent appraiser or other expert
appointed by an Issuer Order and approved by the Indenture Trustee in the
exercise of reasonable care, and such opinion or certificate shall state
that the signer has read the definition of "Independent" in the Indenture
and that the signer is Independent within the meaning thereof.
"Initial Certificate Balance" means the amount specified as the
Initial Certificate Balance in a letter of instruction from Depositor to
Trustee.
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"Initial Payment Date" means November 25, 1998.
"Interest Payments" is defined in Section 2.1(c) of the Indenture.
"Issuer" means Provident Equipment Lease Trust 1998-A.
"Issuer Order" or "Issuer Request" means a written order or
request delivered to Indenture Trustee and signed in the name of Issuer by
an Authorized Officer.
"Lease" means, at any time, each separate lease agreement and each
lease schedule or supplement (and each master lease agreement insofar as
the same relates to any such schedule or supplement) described in Schedule
1 of the Contribution Agreement, as the same may be amended or modified
from time to time in accordance with the provisions thereof unless and
until released from the lien of the Indenture.
"Lease Files" is defined in Section 3.2 of the Pooling and Servicing
Agreement.
"Lease Payment" means each periodic installment of rent payable by
a Lessee under a Lease. The following shall not be deemed to be "Lease
Payments": (a) prepayments of rent required pursuant to the terms of a
Lease, at or before the commencement of the Lease; (b) payments (other than
Payaheads) collected on or before the Cut-Off Date, (c) Payaheads, until
such time as such Payaheads are released from the Collection Account in
accordance with Section 6.5 of the Pooling and Servicing Agreement, (d)
Third Party Amounts and (e) any security deposit, unless and until such
security deposit is permitted to be treated as a payment on a Lease in
accordance with the terms of such Lease.
"Lease Repurchase Amount" means at any date with respect to any
Lease, an amount equal to the Discounted Present Value of the Lease as of
the next following Payment Date plus any amounts previously due and unpaid.
"Lessee" means each lessee under a Lease.
"Lien" means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind other than tax liens, mechanics liens, and any
liens that attach to a Lease by operation of law.
"Management Agreement" means the Management Agreement, dated as of
the date hereof, among Manager, Issuer and Indenture Trustee.
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"Management Fee" means the fee payable to the Manager pursuant to
Section 3 of the Management Agreement.
"Manager" means Information Leasing Corporation, a Delaware
corporation, or any successor Manager under the Management Agreement.
"Maturity" means with respect to any installment of principal of
or interest on any Note, the date on which such installment is due and
payable as therein or herein provided, whether at the Stated Maturity, by
declaration of acceleration, or otherwise.
"Monthly Delinquency Percentage" means, with respect to any Due
Period, the percentage equivalent of a fraction (a) the numerator of which
is the Discounted Present Value of the Leases which are Delinquent Leases
determined as of the related Determination Date and (b) the denominator of
which is the Discounted Present Value of the Performing Leases as of the
related Determination Date.
"Monthly Servicer Realization Percentage" means, with respect to
any Due Period, the percentage equivalent of a fraction (a) the numerator
of which is the aggregate amount of Servicer Residual Realizations
collected during such Due Period and (b) the denominator of which is equal
to the aggregate Servicer Booked Residual Values with respect to the Leases
for which Servicer Residual Realizations have been collected in respect of
such Due Period.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Nominal Buy-Out Lease" means each Lease identified on Schedule 1
of the Agreement as having an estimated residual value of $0 or $1 in the
column under the heading "RESIDUAL".
"Non-Performing Lease" means, as of any Determination Date, any
Lease with respect to which at any time following the Cut-Off Date or
related Pooling Date, as the case may be, either (a) a Lease Payment, or
any portion thereof, was determined by Servicer to be more than 90 days
overdue as of the last day of the Due Period with respect to such
Determination Date, unless on or before such Determination Date such Lease
Payment (or portion thereof) has been paid or (b) Servicer has accelerated
the remaining payments or has determined such Lease to be uncollectible in
accordance with Servicer's customary practices prior to the last day of the
Due Period with respect to such Determination Date.
"Non-Performing Lease Payments" means any payment made with
respect to a Non-Performing Lease in an amount equal to all or part of any
specific Lease Payment due with respect to such Non-Performing Lease.
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"Non-Performing Lease Pay-Through Amount" means with respect to
any Lease with respect to which a Lease Payment is made or due, an amount
equal to the Discounted Present Value of such Lease as of the Payment Date
immediately following the first Determination Date on which such Lease was
a Non-Performing Lease.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 6.1(a) of the Pooling and
Servicing Agreement.
"Note Interest Rate" means the Class A-1 Note Interest Rate, the
Class A-2 Note Interest Rate, the Class A-3 Note Interest Rate, the Class
A-4 Note Interest Rate or the Class B Note Interest Rate, as the case may
be.
"Note Owner" means a Class A-1 Note Owner, Class A-2 Note Owner,
Class A-3 Note Owner, Class A-4 Note Owner or Class B Note Owner, as the
case may be.
"Note Register" is defined in Section 2.3 of the Indenture.
"Noteholder" means at any time, any Holder of a Note.
"Notes" means the Class A Notes and Class B Notes issued pursuant
to the Indenture and all notes issued in exchange therefor pursuant to the
Indenture.
"Officers' Certificate" means (i) with respect to Transferor or
Servicer, a certificate delivered to Trustee and signed by the Chairman,
the President, or a Vice President, and by another Vice President, the
Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary
of Transferor or Servicer, as the case may be, who is not the same person
as the other officer signing such certificate and (ii) a certificate
delivered to Indenture Trustee and signed by the Chairman, the President,
or a Vice President of Manager, and by another Vice President, the
Treasurer, and Assistant Treasurer, the Secretary, or an Assistant
Secretary of Manager who is not the same Person as the other officer
signing such certificate.
"Opinion of Counsel" means a written opinion, which shall be
satisfactory in form and substance to Indenture Trustee, of counsel who
may, except as otherwise expressly provided in this Indenture, be inside or
outside counsel for Issuer or Manager and who shall be satisfactory to
Indenture Trustee.
"Other Lease Payments" means all payments on or in respect of
leases which are not Lease Payments, Casualty Payments, Termination
Payments or Residual Realizations.
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"Outstanding" means with respect to the Notes, as of any date of
determination, all Notes theretofore authenticated and delivered under this
Indenture except:
(a) Notes theretofore canceled by
Indenture Trustee or delivered to Indenture Trustee for cancellation;
(b) Notes or portions thereof for
whose payment money in the necessary amount has been theretofore
irrevocably deposited with Indenture Trustee in trust for the
holders of such Notes; and
(c) Notes in exchange for or in lieu
of which other Notes have been authenticated and delivered
pursuant to this Indenture unless proof satisfactory to Indenture
Trustee is presented that any such Notes are held by a Person in
whose hands the Note is a valid obligation;
provided, that in determining whether the holders of the requisite
percentage of the Outstanding Principal Amount of the Notes have given any
request, demand, authorization, direction, notice, consent, or waiver
hereunder, Notes owned by Transferor, ILC or any Affiliate of ILC shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, or waiver, only
Notes that a Responsible Officer of Indenture Trustee actually knows to be
so owned shall be so disregarded.
"Outstanding Principal Amount" means the aggregate unpaid
principal amount of the Notes at any time.
"Overcollateralization Amount" means, with respect to each Payment
Date, an amount equal to (a) the Discounted Present Value of the Performing
Leases as of the related Determination Date minus (b) the Outstanding
Principal Amount of the Notes and the Certificate Balance (after giving
effect to payments of principal (other than Additional Principal) on such
Payment Date); provided, that such amount will never be less than zero.
"Payaheads" means Lease Payments received prior to their
respective Due Periods that do not constitute full prepayments or partial
prepayments in accordance with Servicer's customary practices.
"Paying Agent" means each agent of Issuer appointed for the
purpose of making payments on the Notes or Certificates, as applicable,
including
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"Payment Date" means the 25th day of each month, or if such day is
not a Business Day, the next succeeding Business Day, commencing on the
Initial Payment Date, and ending on the latest Stated Maturity.
"Pension Plan" is defined in Section 3.13 of the Contribution
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or
government or any agency or political subdivision thereof.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement dated as of September 1, 1998, among Issuer, Transferor and
Servicer, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the provisions hereof and thereof.
"Predecessor Lease" for purposes of the Pooling and Servicing
Agreement, is defined in Section 5.4(a) of the Pooling and Servicing
Agreement, and for purposes of the Contribution Agreement, is defined in
Section 4.3(a) of the Contribution Agreement.
"Predecessor Notes" 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 2.4 of the Indenture in
lieu of a lost, destroyed or stolen Note (or a mutilated Note surrendered
to Indenture Trustee) shall be deemed to evidence the same debt as the
lost, destroyed or stolen Note (or a mutilated Note surrendered to
Indenture Trustee).
"Prime Rate" means the prime lending rate of the Person that is
the Indenture Trustee at the time of the calculation of such rate.
"Principal Payments" is defined in Section 2.1(b) of the Indenture.
"Private Placement Memorandum" means the final Private Placement
Memorandum used in connection with the private offering of the
Certificates.
"Prohibited Transaction" means any transaction described in
Section 406 of ERISA which is not exempt by reason of Section 408 of ERISA
or the transitional rules set forth in Section 414(c) of ERISA and any
transaction described in Section
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4975(c) of the Code which is not exempt by reason of Section 4975(c)(2) or
Section 4975(d) of the Code, or the transitional rules of Section 2003(c)
of ERISA.
"Prospectus" means the form of final prospectus to be used in
connection with the public offering of the Notes as filed with the
Securities and Exchange Commission pursuant to Rule 424(b).
"Rating Agency" means each of Moody's and Fitch IBCA.
"Rating Agency Condition" means, with respect to any action, that
each Rating Agency shall have been given 10 days prior notice thereof and
that each of the Rating Agencies shall have notified Transferor that such
action will not result in a reduction or withdrawal of the then current
rating of any Class of the Notes.
"Record Date" means with respect to any Payment Date, the close of
business on the last day of the calendar month immediately preceding such
Payment Date.
"Registration Statement" means the registration statement (File No.
333-58909) filed with the Securities and Exchange Commission for the
registration of the Notes.
"Related Person" means any Person (whether or not incorporated)
which is under common control with Transferor within the meaning of Section
414(c) of the Internal Revenue Code of 1986, as amended, or of Section
4001(b) of ERISA.
"Reportable Event" means any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder, a withdrawal from a Pension
Plan described in Section 4063 of ERISA, or a cessation of operations
described in Section 4062(e) of ERISA.
"Required Deposit Date" means, as to any funds or item required to
be deposited into the Collection Account, the date falling two Business
Days after Servicer's receipt of such funds or item, provided that at any
time when (a) ILC is Servicer, (b) there exists no Servicer Event of
Default and (c) any other condition to making deposits less frequently than
daily as may be specified by the Rating Agencies is satisfied, the Business
Day preceding the applicable Payment Date shall be the "Required Deposit
Date."
"Required Payment" is defined in Section 6.4(b) of the Pooling and
Servicing Agreement.
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"Required Reserve Amount" means the lesser of (a) 1.0% of the
Discounted Present Value of the Leases as of the Cut-Off Date and (b) the
Outstanding Principal Amount of the Notes and the Certificate Balance.
"Reserve Account" means the account or accounts by that name
established and maintained by Indenture Trustee pursuant to Section 6.1(a)
of the Pooling and Servicing Agreement.
"Residual Account" means the account or accounts by that name
established and maintained by Indenture Trustee pursuant to Section 6.1(a)
of the Pooling and Servicing Agreement.
"Residual Amount Cap" means an amount equal to $10,981,342.04
which equals 5.0% of the Discounted Present Value of the Leases as of the
Cut-Off Date.
"Residual Event" means the occurrence of one or more of the
following: (a) ILC is no longer the Servicer, (b) with respect to the
December, 1998 Due Period and each Due Period thereafter, the Three-Month
Servicer Realization Percentage calculated on any Determination Date is
less than 100%, (c) with respect to the December, 1998 Due Period and each
Due Period thereafter, the Three-Month Delinquency Percentage is greater
than 8.0% (d) with respect to the December, 1998 Due Period and each Due
Period thereafter, the Three-Month Default Percentage is greater than 2.0%
or (e) the Cumulative Net Loss Ratio is greater than (i) 2.0%, for any Due
Period occurring on or before the August, 1999 Due Period, (ii) 3.0%, for
any Due Period occurring after the August, 1999 Due Period and on or before
the August, 2000 Due Period and (iii) 4.0%, for any Due Period occurring
after the August, 2000 Due Period; provided, that (i) the Residual Event
referred to in clause (b) may be cured if the Three-Month Servicer
Realization Percentage is greater than or equal to 100% for three
consecutive Due Periods thereafter, (ii) the Residual Event referred to in
clause (c) may be cured if the Three-Month Delinquency Percentage for any
Due Period thereafter is less than or equal to 7.0%, (iii) the Residual
Event referred to in clause (d) may be cured if the Three-Month Default
Percentage for any Due Period thereafter is less than or equal to 2.0% and
(iv) the Residual Event referred to in clause (e) may be cured if the
Cumulative Net Loss Ratio for any Due Period thereafter is less than or
equal to the ratio specified in clause (e) for such Due Period.
"Residual Realizations" means the net cash flows realized by and
allocable to ILC from the sale (including pursuant to a Lessee's purchase
option) or reletting of any Equipment following the scheduled termination
of the related Lease. Amounts received in respect of Non-Performing Leases
shall only be included as Residual Realizations to the extent such amounts
exceed the related Non-Performing Lease Pay-Through Amount.
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"Responsible Officer" means with respect to Indenture Trustee or
Trustee, any person regularly engaged in the administration or supervision
of corporate trust accounts (including, in the case of either of the
original Indenture Trustee or original Trustee hereunder, any officer in
its Corporate Trust Office) and also, with respect to a particular
corporate trust matter, any other officer of such entity to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Securities Account" has the meaning assigned thereto in Section
8-501(a) of Article 8 of the UCC.
"Securities Act" the Securities Act of 1933.
"Securities Entitlement" has the meaning assigned thereto in
Section 8- 102(a)(17) of Article 8 of the UCC.
"Securities Intermediary" is defined in Section 8-102(a)(14) of
Article 8 of the UCC.
"Security Deposit Earnings" are defined in Section 6.1(b) of the
Pooling and Servicing Agreement.
"Seller Assets" are defined in Section 2.1 of the Contribution
Agreement.
"Servicer" means ILC and any successor Servicer appointed pursuant
to the terms of the Pooling and Servicing Agreement and, to the extent that
it at any time is performing the functions of Servicer, Indenture Trustee.
"Servicer Advance" means a payment by Servicer pursuant to Section
5.1 of the Pooling and Servicing Agreement.
"Servicer Booked Residual Value" means the estimated residual
value of the Equipment recorded on the books of ILC.
"Servicer Event of Default" is defined in Section 9.1 of the Pooling
and Servicing Agreement.
"Servicer Order" means a written order or request delivered to
Indenture Trustee and signed in the name of Servicer by an Authorized
Officer.
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"Servicer Residual Realizations" means the aggregate cash flows
realized by ILC from the sale (including pursuant to a Lessee's purchase
option) or lease of any Equipment or extension of the related Lease
following the termination of such Lease.
"Servicer's Certificate" means an Officers' Certificate of
Servicer delivered pursuant to Section 4.8 of the Pooling and Servicing
Agreement, substantially in the form of Exhibit C to the Pooling and
Servicing Agreement.
"Servicing Fee" means the fee payable to Servicer for services
rendered during the respective Due Period, determined pursuant to Section
4.6 of the Pooling and Servicing Agreement.
"Servicing Report" is defined in Section 4.8(b) of the Pooling and
Servicing Agreement.
"Servicing Standard" is defined in Section 4.1 of the Pooling and
Servicing Agreement.
"Stated Maturity" means the date on which the entire remaining
unpaid Outstanding Principal Amount of each class of Notes is due and
payable, which date is the October, 1999 Payment Date with respect to the
Class A-1 Notes and the April, 2006 Payment Date for the Class A-2 Notes,
Class A-3 Notes, Class A-4 Notes, Class B Notes and the Certificates.
"Substitute Lease" for purposes of the Pooling and Servicing
Agreement, is defined in Section 5.4(a) of the Pooling and Servicing
Agreement, and for purposes of the Contribution Agreement, is defined in
Section 4.3(a) of the Contribution Agreement.
"Supplemental Servicing Fee" is defined in Section 4.6(d) of the
Pooling and Servicing Agreement.
"Termination Payment" means a payment payable by a Lessee under a
Lease upon the early termination, in full or in part, of such Lease (but
not on account of a Casualty) which may be agreed upon by Servicer, acting
in the name of Issuer, and the Lessee in accordance with the provisions of
Section 4.5 of the Pooling and Servicing Agreement.
"Third Party Amounts" means supplemental or additional Payments
required by the terms of a Lease with respect to taxes, insurance,
maintenance, or other specific charges, including charges included in an
invoice but payable to vendors.
"Three-Month Default Percentage" means, with respect to any Due Period,
the percentage equivalent of a fraction, (a) the numerator of which is the sum
of the
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Annualized Monthly Default Percentage for such Due Period and the two
immediately preceding Due Periods and (b) the denominator of which is
three.
"Three-Month Delinquency Percentage" means, with respect to any
Due Period, the percentage equivalent of a fraction, (a) the numerator of
which is the sum of the Monthly Delinquency Percentage for such Due Period
and the two immediately preceding Due Periods and (b) the denominator of
which is three.
"Three-Month Servicer Realization Percentage" means, with respect
to any Due Period, the percentage equivalent of a fraction, (a) the
numerator of which is the sum of the Monthly Servicer Realization
Percentage for such Due Period and the two immediately preceding Due
Periods and (b) the denominator of which is three.
"Transaction Payment Amount" means for each Required Deposit Date,
the amount of all Lease Payments, Non-Performing Lease Payments, Casualty
Payments, Termination Payments and other payments on or in respect of a
Lease received by Servicer excluding Payaheads and deposited in the
Collection Account pursuant to Section 6.2(c) of the Pooling and Servicing
Agreement and reported by Servicer for such Required Deposit Date in
accordance with Section 4.8 of the Pooling and Servicing Agreement.
"Transfer Date" means the Business Day immediately preceding any
Payment Date.
"Transfer Taxes" are defined in Section 3.20 of the Contribution
Agreement.
"Transferor" means Provident Lease Receivables Corporation, a
Delaware corporation, and its successors in interest to the extent
permitted hereunder.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the trust established by the Trust Agreement.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the
form of deposit accounts, Physical Property, book-entry securities,
uncertificated securities or otherwise), and all proceeds of the foregoing.
"Trust Accounts" is defined in Section 6.1(b) of the Pooling and
Servicing Agreement.
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"Trust Agreement" means the Trust Agreement dated as of the date
hereof, between Transferor and Trustee, as the same may be amended and
supplemented from time to time.
"Trust Certificate" means a certificate evidencing the beneficial
interest of a Certificateholder in Trust, substantially in the form
attached as Exhibit A to the Trust Agreement.
"Trustee" means the Person acting as Trustee under the Trust
Agreement, its successors in interest and any successor trustee under the
Trust Agreement.
"Trust Estate" means all money, instruments and other property
subject to or intended to be subject to the lien of the Indenture including
all proceeds thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect on the date on which the Indenture is qualified under Trust
Indenture Act, except as provided in Section 9.6 of the Indenture.
"Trust Officer" means, in the case of Indenture Trustee, any
officer within the Corporate Trust Office of Indenture Trustee, including
any Vice President, Assistant Vice President, Secretary, Assistant
Secretary or any other officer of 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 and, with respect to Trustee, any
officer in the Corporate Trust Administration Department of Trustee with
direct responsibility for the administration of the Trust Agreement and the
Basic Documents on behalf of Trustee.
"Uncertificated Security" has the meaning assigned thereto in
Section 8- 102(a)(18) of Article 8 of the UCC.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code as in effect in the relevant jurisdiction, as amended from
time to time.
"Underwriting Agreement" means the Underwriting Agreement, among
Transferor, ILC and Xxxxxx Brothers Inc.
"Utilized Residual Amount" means on any day of determination, the
sum of (a) the total Residual Realizations applied to make payments of
amounts owing Servicer, Noteholders and Certificateholders (including any
such amounts withdrawn from the Reserve Account and the Residual Account,
but not including any amounts paid to Issuer under Section 6.3 of the
Pooling and Servicing Agreement the amount
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on deposit in the Reserve Account and the Residual Account on such date
allocable to Residual Realizations.
"Warranty Lease" means a Lease subject to repurchase by ILC as a
result of a breach of a representation or warranty in accordance with the
provisions of Section 5.2 of the Pooling and Servicing Agreement.
SECTION 1.2 Other Interpretive Provisions. All terms defined in
this Appendix X shall have the defined meanings when used in any Basic
Document or any certificate or other document delivered pursuant to any
Basic Document unless otherwise defined therein. For purposes of the Basic
Documents, and all certificates and other documents delivered in connection
with the Basic Documents, unless the context otherwise requires: (a)
accounting terms not otherwise defined in any Basic Document, and
accounting terms partly defined in any Basic Document to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles; (b) terms defined in Article 9 of the UCC
as in effect in the State of New York and not otherwise defined in the
Basic Documents are used in the Basic Documents as defined in that Article;
(c) any reference to each Rating Agency shall only apply to any specific
rating agency if such rating agency is then rating any outstanding Notes
and/or Certificates, as applicable; (d) references to any amount as on
deposit or outstanding on any particular date means such amount at the
close of business on such day; (e) the words "hereof," "herein" and
"hereunder" and words of similar import refer to this in any Basic Document
(or any certificate or other document in which they are used) as a whole
and not to any particular provision of such Basic Document (or such
certificate or document); (f) references in any Basic Document to any
Section, Schedule or Exhibit are references to Sections, Schedules and
Exhibits in such Basic Document (or the certificate or other document in
which the reference is made), and references to any paragraph, subsection,
clause or other subdivision within any Section or definition refer to such
paragraph, subsection, clause or other subdivision of such Section or
definition; (g) the term "including" means "including without limitation";
(h) references to any law or regulation refer to that law or regulation as
amended from time to time and include any successor law or regulation; and
(i) references to any Person include that Person's successors and assigns.
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