EXHIBIT 4.1
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FORM OF
PROVIDENT EQUIPMENT LEASE TRUST 0000-X,
Xxxxxx
XXX
XXXXXXX XXXX XXXXXXXXX, NATIONAL ASSOCIATION,
Indenture Trustee
INDENTURE
Dated as of September 1, 1998
$[ ] of [ ]% Class A-1 Lease-Backed Notes
$[ ] of [ ]% Class A-2 Lease-Backed Notes
$[ ] of [ ]% Class A-3 Lease-Backed Notes
$[ ] of [ ]% Class A-4 Lease-Backed Notes
$[ ] of [ ]% Class B Lease-Backed Notes
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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
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.......................3
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..........................................6
SECTION 1.7. Effect of Headings and Table of Contents...............................7
SECTION 1.8. Successors and Assigns.................................................7
SECTION 1.9. GOVERNING LAW..........................................................7
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.....................................................8
SECTION 2.2. Execution, Authentication, Delivery, and Dating.......................10
SECTION 2.3. Transfer and Exchange.................................................10
SECTION 2.4. Mutilated, Destroyed, Lost and Stolen Notes...........................11
SECTION 2.5. Book-Entry Registration of Class A Notes and Class B
Notes.................................................................12
SECTION 2.6. Notice to Clearing Agency.............................................13
SECTION 2.7. Definitive Class A Notes and Definitive Class B Notes.................14
SECTION 2.8. Payment of Interest and Principal; Rights Preserved...................15
SECTION 2.9. Persons Deemed Owners.................................................15
SECTION 2.10. Cancellation..........................................................15
SECTION 2.11. Noteholder Lists......................................................16
SECTION 2.12. Treasury Securities...................................................16
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1
ARTICLE 3.
ACCOUNTS; INVESTMENT OF MONEYS;
COLLECTION AND APPLICATION OF MONEYS; REPORTS
SECTION 3.1. Trust Accounts; Investments by Indenture Trustee......................17
SECTION 3.2. Collection of Moneys..................................................18
SECTION 3.3. Collection Account; Payments..........................................18
SECTION 3.4. Reports by Indenture Trustee; Notices of Certain Payments.............19
SECTION 3.5. Indenture Trustee May Rely on Certain Information from
Servicer..............................................................20
ARTICLE 4.
RELEASE OF LEASES AND EQUIPMENT
SECTION 4.1. Release of Equipment..................................................20
SECTION 4.2. Release of Leases Upon Final Lease Payment............................21
SECTION 4.3. Execution of Documents................................................21
ARTICLE 5.
SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER
SECTION 5.1. Servicer Events of Default............................................21
SECTION 5.2. Substitute Servicer...................................................22
ARTICLE 6.
EVENTS OF DEFAULT; REMEDIES
SECTION 6.1. Events of Default.....................................................22
SECTION 6.2. Acceleration of Maturity; Rescission and Annulment....................23
SECTION 6.3. Remedies..............................................................24
SECTION 6.4. Indenture Trustee Shall File Proofs of Claim..........................25
SECTION 6.5. Indenture Trustee May Enforce Claims Without Possession
of Notes..............................................................26
SECTION 6.6. Application of Money Collected........................................26
SECTION 6.7. Limitation on Suits...................................................28
SECTION 6.8. Unconditional Right of Noteholders to Receive Principal and
Interest..............................................................28
SECTION 6.9. Restoration of Rights and Remedies....................................29
SECTION 6.10. Rights and Remedies Cumulative........................................29
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SECTION 6.11. Delay or Omission Not Waiver..........................................29
SECTION 6.12. Control by Noteholders................................................29
SECTION 6.13. Waiver of Events of Default...........................................30
SECTION 6.14. Undertaking for Costs.................................................30
SECTION 6.15. Waiver of Stay or Extension Laws......................................31
SECTION 6.16. Sale of Trust Estate..................................................31
ARTICLE 7.
THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities...................................33
SECTION 7.2. Notice of Defaults or Events of Default...............................34
SECTION 7.3. Certain Rights of Indenture Trustee...................................34
SECTION 7.4. Not Responsible for Recitals or Issuance of Notes.....................35
SECTION 7.5. May Hold Notes........................................................35
SECTION 7.6. Money Held in Trust...................................................36
SECTION 7.7. Compensation, Reimbursement, etc......................................36
SECTION 7.8. Corporate Indenture Trustee Required; Eligibility.....................36
SECTION 7.9. Resignation and Removal; Appointment of Successor.....................38
SECTION 7.10. Acceptance of Appointment by Successor................................39
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business..............................................................39
SECTION 7.12. Co-trustees and Separate Indenture Trustees...........................40
SECTION 7.13. Acceptance by Indenture Trustee.......................................41
SECTION 7.14. Preferential Collection of Claims Against Issuer......................41
SECTION 7.15. Reports by Indenture Trustee to Noteholders...........................42
SECTION 7.16. No Proceedings........................................................42
ARTICLE 8.
COVENANTS
SECTION 8.1. Payment of Principal and Interest.....................................42
SECTION 8.2. Maintenance of Office or Agency; Chief Executive
Office................................................................42
SECTION 8.3. Money for Payments to Noteholders to be Held in Trust.................43
SECTION 8.4. Corporate Existence; Merger; Consolidation, etc.......................44
SECTION 8.5. Protection of Trust Estate; Further Assurances........................46
SECTION 8.6. [Reserved]............................................................47
SECTION 8.7. Performance of Obligations; Pooling and Servicing
Agreement.............................................................47
SECTION 8.8. Negative Covenants....................................................47
SECTION 8.9. Notice of Events of Default...........................................49
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SECTION 8.10. Taxes.................................................................49
SECTION 8.11. Indemnification.......................................................49
SECTION 8.12. Commission Reports; Reports to Indenture Trustee; Reports
to Noteholders........................................................49
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders...........................................................50
SECTION 9.2. Supplemental Indentures with Consent of Noteholders...................51
SECTION 9.3. Execution of Supplemental Indentures..................................52
SECTION 9.4. Effect of Supplemental Indentures.....................................52
SECTION 9.5. Reference in Notes to Supplemental Indentures.........................52
SECTION 9.6. Compliance with Trust Indenture Act...................................53
ARTICLE 10.
SATISFACTION AND DISCHARGE
SECTION 10.1. Satisfaction and Discharge of Indenture...............................53
SECTION 10.2. Application of Trust Money............................................54
ARTICLE 11.
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls..........................................54
SECTION 11.2. Communication by Noteholders with Other Noteholders...................55
SECTION 11.3. Officers' Certificate and Opinion of Counsel as to Conditions
Precedent.............................................................55
SECTION 11.4. Statements Required in Certificate or Opinion.........................55
SECTION 11.5. Nonpetition...........................................................56
SCHEDULES
SCHEDULE 1 Leases
EXHIBITS
EXHIBIT A Forms of Notes and Form of Indenture Trustee's
Certificate of Authentication
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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, a Delaware business trust (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 $________ in aggregate
principal amount of its Lease-Backed Notes, Series 1998-A, consisting of
$___________ aggregate principal amount of ___% Class A-1 Lease-Backed Notes
(the "Class A-1 Notes"), $_______ aggregate principal amount of _____% Class A-2
Lease-Backed Notes (the "Class A-2 Notes"), $_______ aggregate principal amount
of ___% Class A-3 Lease-Backed Notes (the "Class A-3 Notes"), $_______ aggregate
principal amount of ____% Class A-4 Lease-Backed Notes (the "Class A-4 Notes",
together with the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes,
the "Class A Notes") and $________ aggregate principal amount of ____% 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:
(a) all Leases, 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 Lease at or before the commencement of the 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.
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.
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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.
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
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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).
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
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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 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.
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(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 Administration (Number for telecopy: ( )
______________), 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 Indenture Trustee, Attention: (Number for telecopy: ( )
__________) 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, at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxx 00000, Attention: [ ] (Number for telecopy: ( ) ____________, or
at any other address previously furnished in writing to Indenture
Trustee and Issuer by Servicer.
(d) if to the Rating Agencies: to [Name of Rating Agencies]
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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.
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.
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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.
ARTICLE 2.
THE NOTES
SECTION 2.1. General Provisions.
(a) The Notes shall consist of $_____________ principal amount of Class
A-1 Notes, $_____________ principal amount of Class A-2 Notes, $__________
principal amount of Class A-3 Notes, $_____________ principal amount of Class
A-4 Notes and $_____________ principal amount of Class B Notes, and the forms
thereof and of Indenture Trustee's certificate of authentication shall be in
substantially the forms set forth in Exhibit A hereto, with such appropriate
insertions,
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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 $_____________, 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 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.
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(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 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.
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(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 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
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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.
(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.
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(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 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
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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.
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.
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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 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
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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 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
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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 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.
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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.
(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 one or more Eligible Investments. 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 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.
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(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;
(ii) to make Interest Payments on the Class B Notes;
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(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:
(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 A-1
Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B
Notes, respectively, and with respect to the Notes held by each
Noteholder;
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(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 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 is or are incorrect, or (ii) unless there is a manifest error in
any such information.
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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 Sections 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 [March 1], 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 66 2/3% 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 66 2/3%
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
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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;
(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 66 2/3% 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
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immediately due and payable together with all accrued and unpaid interest
thereon, 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 66 2/3% 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
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for advice. Indenture Trustee shall then take such action as so directed by the
Holders of Notes evidencing at least 66 2/3% of the then Outstanding Notes.
(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 66 2/3% 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,
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disbursements and advances of Indenture Trustee, its agents and
counsel) and of the Noteholders allowed in such judicial proceeding,
and
(ii) collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator, or
other similar official in any such judicial proceeding is hereby authorized by
each Noteholder to make such payments to 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);
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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;
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.
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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:
(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 66 2/3% of the then Outstanding Principal Amount of
the Notes;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb, or prejudice the rights of any other
Noteholders, or to obtain or to seek to obtain priority or preference over any
other Noteholders or to enforce any right under this 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
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to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Noteholder.
SECTION 6.9. 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 66 2/3% of the then
Outstanding Principal Amount of the Notes shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
Indenture Trustee or
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exercising any trust or power conferred on Indenture Trustee. Notwithstanding
the foregoing,
(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 66 2/3% 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
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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 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
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at least 66 2/3% 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
(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,
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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.
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;
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(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 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
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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;
(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.
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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.
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 "[___]" or its equivalent from each of the Rating Agencies.
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
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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, 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.
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(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, Issuer, with the consent of the Holders of Notes evidencing at least
66 2/3% 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
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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.
(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
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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
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
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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.
(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 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.
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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.
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
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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 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 business trust under the laws of the State of Delaware, and will
obtain and preserve its qualification to do business as a foreign entity in each
jurisdiction in which such
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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:
(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
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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 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;
-47-
(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 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
-48-
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 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
-49-
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).
(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
-50-
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 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 Issuers 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
-51-
(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.
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.
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(a) With the consent of the Holders of Notes evidencing not less than
66 2/3% 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 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.
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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 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
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(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 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.
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(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.
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
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(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.
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.
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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: _________________________________
Name: _________________________________
Title: _________________________________
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as Indenture Trustee
By: _________________________________
Name: _________________________________
Title: _________________________________
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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
[_______]% CLASS A-1 LEASE-BACKED NOTE
CUSIP NO. ____________
No. R- $_____________
PROVIDENT EQUIPMENT LEASE TRUST 1998-A, a business trust duly organized
and existing under the laws of Delaware (herein called the "Trust", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ___________________________________ Dollars ($_____________),
payable in monthly installments beginning on [ ], 1998, in accordance with the
Indenture. Interest will accrue on the unpaid principal hereof from the date of
issuance, at the rate of [ ] per annum, until the full amount of principal
hereof is otherwise paid or made available for payment and shall be computed on
the basis of a year of 360 days and the actual number of days in the period
since the last Payment Date or with respect to the [ ] 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
A-1
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.
The Stated Maturity of the Class A-1 Notes is [ ], 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 "[ %] Class A-1 Lease-Backed Notes (herein called
the "Class A-1 Notes") limited in aggregate principal amount of $_____________,
issued under the Indenture, dated as of September , 1998 (herein called the
"Indenture"), between Issuer and [ ] 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
66 2/3% 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 [ ], 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: , 199
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
By: _____________________________________
Authorized Officer
Attest:
------------------
Indenture Trustee's Certificate of Authentication
This is one of the Class A-1 Notes referred to in the within mentioned
Indenture.
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, 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
[ % ] CLASS A-2 LEASE-BACKED NOTE
CUSIP NO. __________________
No. R- $_____________
PROVIDENT EQUIPMENT LEASE TRUST 1998-A, a business trust duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of __________________________ Dollars ($_____________), payable in
monthly installments beginning on [ ], in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of [ %] per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of 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 [ ], 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 "[ %] Class A-2 Lease-Backed Notes" (herein
called the "Class A-2 Notes") limited in aggregate principal amount of
$_____________, issued under the Indenture, dated as of September ____, 1998
(herein called the "Indenture"), between Issuer and [ ] 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 [ %] in aggregate principal
amount of the Class A Notes and the Trust'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 the Holder of this Class A-2 Note shall be
conclusive and binding upon
A-8
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 ___________________, 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: , 199
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
{SEAL} By: ______________________________________
Authorized Officer
Attest:
____________________________
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
[ % ] CLASS A-3 LEASE-BACKED NOTE
CUSIP NO. __________________
No. R- $_____________
PROVIDENT EQUIPMENT LEASE TRUST 1998-A, a business trust duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of __________________________ Dollars ($_____________), payable in
monthly installments beginning on [ ], in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of [ %] per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of 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 [ ], 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 "[ %] Class A-3 Lease-Backed Notes" (herein
called the "Class A-3 Notes") limited in aggregate principal amount of
$_____________, 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 [ %] in aggregate principal
amount of the Class A Notes and the Trust'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 the Holder of this Class A-3 Note shall be
conclusive and binding upon
A-14
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 ___________________, 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: , 199
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
{SEAL} By: ______________________________________
Authorized Officer
Attest:
--------------------
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
[ % ] CLASS A-4 LEASE-BACKED NOTE
CUSIP NO. __________________
No. R- $_____________
PROVIDENT EQUIPMENT LEASE TRUST 1998-A, a business trust duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of __________________________ Dollars ($_____________), payable in
monthly installments beginning on [ ], in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of [ %] per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of 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 [ ], 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 "[ %] Class A-4 Lease-Backed Notes" (herein
called the "Class A-4 Notes") limited in aggregate principal amount of
$_____________, 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 [ %] in aggregate principal
amount of the Class A Notes and the Trust'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 the Holder of this Class A-4 Note shall be
conclusive and binding upon
A-20
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 ___________________, 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.
A-21
The Indenture and this Class A-4 Note shall be deemed to be contracts
made under the laws of the State of New York and shall for all purposes be
governed by, and construed in accordance with, the laws of the State of New
York.
A-22
IN WITNESS WHEREOF, Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: , 199
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
{SEAL} By: ______________________________________
Authorized Officer
Attest:
_______________________
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
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{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
[ %] CLASS B LEASE-BACKED NOTE
CUSIP No. ___________________
No. R- $_____________
PROVIDENT EQUIPMENT LEASE TRUST 1998-A, a business trust duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ____________________ Dollars ($_____________), payable in
monthly installments beginning on [ ], 1998, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of [ %] per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of 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 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 [ ], 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 "[ ]% Class B Lease-Backed Notes" (herein called the
"Class B Notes"), limited in aggregate principal amount of $_____________,
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.
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
66 2/3% in aggregate principal amount of the Trust's _____% Class A Lease-Backed
Notes (the "Class A Notes") and 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 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
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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 ____________________, 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.
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.
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IN WITNESS WHEREOF, Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ______________, 199
PROVIDENT EQUIPMENT LEASE TRUST
1998-A
{SEAL} By: _____________________________________
Authorized Officer
Attest:
________________________
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
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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.
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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.
"Authorized Officer" means, with respect to Issuer, any officer of
Indenture Trustee who is authorized to act for Indenture 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 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
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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 ILC of Leases to the extent Transferor or ILC 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, the Certificate Depository Agreement and the Depository Agreement.
"Benefit Plan" is defined in Section 3.4 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.
"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.
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"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 or 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) [_______]% 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 Payment Date plus the amount on deposit in the Reserve Account
after giving effect to withdrawals to be made on such Payment Date.
"Certificate of Trust" means the Certificate of Trust substantially in
the form of Exhibit B to the Trust Agreement to be filed for Trust pursuant to
Section 3810(a) of the Trust Statute.
"Certificate Owner" means each Holder of a Definitive Trust
Certificate.
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"Certificate Percentage" means [_______]%.
"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 Rate" means ____%.
"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 [______]% Lease-Backed Certificates
issued in the original principal amount of [$___________].
"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 [_____%].
"Class A Principal Payment" means (a) while the Class A-1 Notes are
outstanding, (i) on all Payment Dates prior to the [Month/Year] 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 Leases as of the related Determination Date, and (ii) on the
[Month/Year] 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.
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"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 [____]%.
"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 [_____]% Class A-1 Lease-Backed Notes
issued in the original principal amount of [$_____________].
"Class A-2 Note Interest Rate" means, the rate at which interest
accrues on the Class A-2 Notes, which rate with respect to each Due Period shall
be at a rate per annum equal to [___%].
"Class A-2 Note Owner" means, with respect to a Book-Entry Class A-2
Note, the Person who is the beneficial owner of such Book-Entry Class A-2 Note,
as reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency) and, with
respect to a Definitive Class A-2 Note, a Holder of a Definitive Class A-2 Note.
"Class A-2 Noteholder" means the Holder of a Class A-2 Note.
"Class A-2 Notes" means Issuer's [_____]% Class A-2 Lease-Backed Notes
issued in the original principal amount of [$____________].
"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 [___%].
"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
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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 [_____]% Class A-3 Lease-Backed Notes
issued in the original principal amount of [$____________].
"Class A-4 Note Interest Rate" means, the rate at which interest
accrues on the Class A-4 Notes, which rate with respect to each Due Period shall
be at a rate per annum equal to [___%].
"Class A-4 Note Owner" means, with respect to a Book-Entry Class A-4
Note, the Person who is the beneficial owner of such Book-Entry Class A-4 Note,
as reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency) and, with
respect to a Definitive Class A-4 Note, a Holder of a Definitive Class A-4 Note.
"Class A-4 Noteholder" means the Holder of a Class A-4 Note.
"Class A-4 Notes" means Issuer's [_____]% Class A-4 Lease-Backed Notes
issued in the original principal amount of [$____________].
"Class B Floor" means, with respect to each Payment Date (the "subject
Payment Date"), an amount equal to the total of (a) [___]% of the initial
Discounted Present Value of the Leases as of the Cut-Off Date, plus (b) the
Cumulative Loss Amount with respect to 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 [___%] per annum.
"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.
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"Class B Noteholder" means a Holder of a Class B Note.
"Class B Notes" means Issuer's [_____]% Class B Lease-Backed Notes
issued in the original principal amount of [$_____________].
"Class B Percentage" means [_____]%.
"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 __, 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.
"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
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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
[________________], 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 [
], Wilmington, Delaware [ ], Attention: [ ]; 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 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.
"Cut-Off Date" means the close of business on August 31, 1998.
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"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 Lessee has not paid all Lease
Payments then due.
"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.
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"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,
[_______]%, 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
delinquent amounts and Third Party 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 on or
prior to the Record Date for the related Due Period to the extent such payments
relate to Lease Payments due and payable by the Lessees with respect to the
related Due Period and any prior Due Period.
"Discounted Present Value of the 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
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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 Provident Bank or 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) (i) demand deposits, time deposits or certificates of deposit of
The Provident Bank and (ii) 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 in the
case of clause (ii), at the time of the investment or contractual 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);
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(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 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.
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"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 a Discounted Present Value 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.
"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 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 the date hereof, between Issuer
and Indenture Trustee, as the same may be amended and supplemented from time to
time.
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"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.
"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.
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"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.
"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 Payment
Date, the percentage equivalent of a fraction (a) the numerator of which is the
Discounted Present Value of the 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
Payment Date, the percentage equivalent of a fraction (a) the numerator of which
is the aggregate amount of Servicer Residual Realizations collected during the
related Due Period and (b) the denominator of which is equal to the aggregate
Servicer
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Booked Residual Values with respect to the Leases for which Servicer Residual
Realizations have been collected in respect of such related Due Period.
"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.
"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.
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"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.
"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
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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 Indenture
Trustee.
"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.
"Placement Agent Agreement" means the Placement Agent Agreement,
among Issuer, ILC, and Xxxxxx Brothers Inc.
"Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement dated as of the date hereof between Issuer, Transferor and Servicer,
as the same may be amended or modified from time to time in accordance with the
provisions hereof and thereof.
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"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 [Name of Indenture Trustee] prime lending 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 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).
"Contribution Agreement" means the Contribution Agreement dated as
September 1, 1998, between Transferor and ILC, as the same may be amended and
supplemented from time to time.
"Rating Agency" means [Name of each Rating Agency].
"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.
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"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.
"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 $[ ] which equals [ ]%
of the Discounted Present Value of the Leases as of the Cut-Off Date.
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"Residual Event" means the occurrence of one or more of the following:
(a) ILC is no longer the Servicer, (b) with respect to the [month/year] Due
Period and each Due Period thereafter, the Three-Month Servicer Realization
Percentage calculated on any Determination Date is less than [___]%; or (c) with
respect to the [month/year] Due Period and each Due Period thereafter, the
Three-Month Delinquency Percentage is greater than [__]%; provided, that the
Residual Event referred to in clause (b) may be cured if the Three-Month
Servicer Realization Percentage is greater than or equal to [___]% for three
consecutive months thereafter and the Residual Event referenced in clause (c)
may be cured if the Three-Month Delinquency Percentage for any Due Period
thereafter is less than or equal to [___]%.
"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.
"Responsible Officer" means with respect to Indenture Trustee, any
person regularly engaged in the administration or supervision of corporate trust
accounts (including, in the case of the original Indenture Trustee hereunder,
any officer in its Corporate Trust Office) and also, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"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 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.
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"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 Values" 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.
"Servicer Residual Realizations" means the aggregate cash flows
realized by ILC from the sale (including pursuant to a Lessee's purchase option)
or releasing of any Equipment following the termination of the related 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.
"Securities Act" the Securities Act of 1933.
"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 [month/year] Payment Date with respect to the Class A-1 Notes and
the [month/year] Payment Date for the Class A-2 Notes, Class A-3 Notes, Class
A-4 Notes and Class B Notes.
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"Stated Maturity of the Notes" means [month/year] Payment Date for the
Class A-1 Notes; the Certificates Payment Date for the Class A-2 Notes, Class
A-3 Notes, Class A-4 Notes, Class B Notes and 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 or a Lease default) 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 Delinquency Percentage" means, with respect to any Payment
Date, the percentage equivalent of fraction, (a) the numerator of which is the
sum of the Monthly Delinquency Percentage for such Payment Date and the two
immediately preceding Payment Dates and (b) the denominator of which is three.
"Three-Month Servicer Realization Percentage" means, with respect to
any Payment Date, the percentage equivalent of a fraction, (a) the numerator of
which is the sum of the Monthly Servicer Realization Percentage for such Payment
Date and the two immediately preceding Payment Dates 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.
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"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.
"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
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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.
"Trust Statute" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code ss. 3801 et seq., as the same may be amended from time to time.
"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 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
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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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