EXHIBIT 4.1
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FORM OF
PROVIDENT EQUIPMENT LEASE TRUST 1998-A,
Issuer
AND
[NAME OF INDENTURE TRUSTEE],
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 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
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310(a)(1) Section 7.8
(a)(2) 7.8
(a)(3) 7.8
(a)(4) Not Applicable
(b) 7.8; 7.9; 6.7; 1.5; 1.6
(c) Not Applicable
311(a) 7.14
(b) 7.14
312(a) 2.11
(b) 11.2
(c) 11.2
313(a) 7.15
(b)(1) 7.15
(b)(2) 7.15
(c) 7.15; 1.6
(d) 7.15
314(a) 8.12; 8.9; 1.6
(b) Not Applicable
(c)(1) 11.3
(c)(2) 11.3
(c)(3) 11.1
(d) 11.1
(e) 11.4
(f) Not Applicable
315(a) 7.1(a)
(b) 7.2; 1.6
(c) 7.1(b)
(d) 7.1(c)
(e) 6.14
316(a)(last sentence) 2.12
(a)(1)(A) 6.12
(a)(1)(B) 6.13
(a)(2) Not Applicable
317(a)(1) 6.3(c)
(a)(2) 6.4
(b) 8.3(b)
318(a) 11.1
(c) 11.1
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions; Interpretive Provisions..........................3
SECTION 1.2. Compliance Certificates and Opinions..........................3
SECTION 1.3. Form of Documents Delivered to Indenture Trustee..............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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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 [NAME OF INDENTURE TRUSTEE], a [___________________], 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", together with the Class A-1
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
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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 Purchase Agreement, including the right of Issuer to cause Transferor
and ILC to repurchase Leases under the Pooling and Servicing Agreement and
Purchase 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.
SECTION 1.2. Compliance Certificates and Opinions.
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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 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
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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 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.
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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.
(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.
--------------------
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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 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, 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]
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,
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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.
--------------
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
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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, 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,
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.
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(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 and Class B Interest Rate, respectively, applied
to the then Outstanding Principal Amounts of the Class A-1 Notes, Class A-2
Notes and Class B Notes, respectively, on the preceding Payment Date. Interest
Payments will be made in accordance with Sections 3.3(b) and 6.6, as
applicable.
(d) All payments made with respect to any Note shall be made in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts and shall be applied
first to the interest then due and payable on such Notes, then to the
principal thereof, and finally to premium, if any.
(e) All Class A-1 Notes issued under this Indenture shall be in all
respects equally and ratably entitled to the benefits hereof without
preference, priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions
of this Indenture. Payments of principal and interest on the Class A-1 Notes
shall be made pro rata among all Outstanding Class A-1 Notes, without
preference or priority of any kind.
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(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) The Class B Notes shall be subordinated to the Class A Notes to
the extent set forth herein. All Class B Notes issued under this Indenture
shall be in all respects equally and ratably entitled to the benefits hereof
without preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Indenture. Payments of principal and interest on the Class
B Notes shall be made pro rata among all Outstanding Class B Notes, without
preference or priority of any kind.
SECTION 2.2. Execution, Authentication, Delivery, and Dating.
------------------------------------------------
(a) The Notes shall be manually executed on behalf of Issuer by any
of its Authorized Officers. The signature of any such Authorized Officer on
the Notes may be manual or facsimile.
(b) Any Note bearing the signature of an individual who was at the
time of execution thereof an Authorized Officer of Issuer shall bind Issuer,
notwithstanding that such individual ceases to hold such office prior to the
authentication and delivery of such Note or did not hold such office at the
date of such Note.
(c) No Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein,
executed by Indenture Trustee by manual signature, and such certificate upon
any Note shall be conclusive evidence, and the only evidence, that such Note
has been duly authenticated and delivered hereunder. Each Note shall be dated
the date of its authentication.
(d) The Notes may from time to time be executed by Issuer and
delivered to Indenture Trustee for authentication together with an Issuer
Request to Indenture Trustee directing the authentication and delivery of such
Notes and thereupon the same shall be authenticated and delivered by Indenture
Trustee in accordance with such Trust Request.
SECTION 2.3. Transfer and Exchange.
----------------------
(a) Issuer shall cause to be kept at the Corporate Trust Office a
register (the "Note Register") in which, subject to such reasonable
regulations as Indenture
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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 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
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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.
(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 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, and Class B Notes, respectively, (the "Book-Entry
Class A-1 Notes," "Book-Entry Class A-2 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, 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, or Class B Note Owner will receive
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a definitive note representing such Note Owner's interest in the Class A-1
Notes, Class A-2 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, 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, 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 or Class B Notes, as the case may be,
(including the making of distributions on the Class A-1 Notes, Class A-2
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, 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, 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, or Class B Noteholders is required under this
Agreement, unless
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and until Definitive Class A-1 Notes, Definitive Class A-2 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, and Class B Note
Owners in accordance with its applicable rules, regulations and procedures.
SECTION 2.7. Definitive Class A Notes and Definitive Class B
-----------------------------------------------
Notes.
------
If (a) (i) Manager advises Indenture Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities under the Depository Agreement with respect to the Class A-1
Notes, Class A-2 Notes, 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 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, and
Class B Note Owners, with respect to the Class A-1 Notes, Class A-2 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, 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, 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, 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, and Class B Note Owners with respect to
the Class A-1 Notes, Class A-2 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 and
Definitive Class B Notes to Class A-1 Notes Owners, Class A-2 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, 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, 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, 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,
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to the extent applicable with respect to such Definitive Class A-1 Notes,
Definitive Class A-2 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, 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 manner whatsoever, and all Notes so delivered
shall be promptly cancelled by
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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; and (B) to make Interest Payments on the Class A-2 Notes;
(ii) to make Interest Payments on the Class B Notes;
(iii) to make the Class A Principal Payment (i) to the Class
A-1 Noteholders only, until the Outstanding Principal Amount of the
Class A-1
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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;
(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-2 Noteholders
until the Outstanding Principal Amount of the Class A-2 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 and Class B Notes, respectively, and of the
Outstanding Class A-1 Notes, Class A-2, 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 and Class B Notes, respectively, and
with respect to the Notes held by each Noteholder;
(iii) the amount of the Servicing Fee and unreimbursed
Servicer Advances paid on such Payment Date pursuant to Section
6.3(b)(i) of the Pooling and Servicing Agreement;
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(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 and the Outstanding Principal Amount of the Class A-2 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 and Class A-2 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,
sixth, to the payment of the Outstanding Principal Amount of the
Class B Notes, and seventh, to the payment of the Certificate;
provided, that the Noteholders may allocate such payments for
interest, principal and premium at their own discretion, except that
no such allocation shall affect the allocation of such amounts or
future payments received by any other Noteholder;
fourth: to the payment of amounts then due Indenture Trustee
hereunder and the Trustee under the Trust Agreement;
fifth: if the person then acting as Servicer is ILC or an
Affiliate of ILC, to the payment of all Servicer's Fees then due to
such Person; and
sixth: to the payment of the remainder, if any, to
Transferor or any other Person legally entitled thereto.
SECTION 6.7. Limitation on Suits.
--------------------
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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 to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Noteholder.
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SECTION 6.9. Restoration of Rights and Remedies.
-----------------------------------
If Indenture Trustee or any Noteholder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to Indenture Trustee or to such Noteholder, then and in every such
case, subject to any determination in such proceeding, Issuer, Indenture
Trustee and the Noteholders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
Indenture Trustee and the Noteholders continue as though no such proceeding
had been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost, or stolen Notes in Section 2.4(f), no
right or remedy herein conferred upon or reserved to Indenture Trustee or to
the Noteholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 6.11. Delay or Omission Not Waiver.
-----------------------------
No delay or omission of Indenture Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to Indenture Trustee or to the Noteholders may be exercised
from time to time, and as often as may be deemed expedient, by Indenture
Trustee or by the Noteholders, as the case may be.
SECTION 6.12. Control by Noteholders.
-----------------------
Except as may otherwise be provided in this Indenture, until such
time as the conditions specified in Sections 10.1(a)(i) and (ii) have been
satisfied in full, the Holders of Notes evidencing at least 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 exercising any trust or power conferred on Indenture
Trustee. Notwithstanding the foregoing,
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(i) no such direction shall be in conflict with any rule of
law or with this Indenture;
(ii) Indenture Trustee shall not be required to follow any
such direction which Indenture Trustee reasonably believes might
result in any personal liability on the part of Indenture Trustee for
which Indenture Trustee is not adequately indemnified; and
(iii) Indenture Trustee may take any other action deemed
proper by Indenture Trustee which is not inconsistent with any such
direction; provided that Indenture Trustee shall give notice of any
such action to each Noteholder.
SECTION 6.13. Waiver of Events of Default.
----------------------------
(a) The Holders of Notes evidencing at least 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 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
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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 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
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(ii) the proceeds of such sale would be not less than the
sum of all amounts due to Indenture Trustee hereunder and the entire
unpaid principal amount of the Notes and interest due or to become
due thereon in accordance with Section 6.6 on the Payment Date next
succeeding the date of such sale.
The foregoing provisions shall not preclude or limit the ability of Indenture
Trustee to purchase all or any portion of the Trust Estate at a private sale.
(c) In connection with a sale of all or any portion of Trust Estate:
(i) any one or more Noteholders may bid for and purchase the
property offered for sale, and upon compliance with the terms of sale
may hold, retain, and possess and dispose of such property, without
further accountability, and any Noteholder may, in paying the
purchase money therefore, deliver in lieu of cash any Outstanding
Notes or claims for interest thereon for credit in the amount that
shall, upon distribution of the net proceeds of such sale, be payable
thereon, and the Notes, in case the amounts so payable thereon shall
be less than the amount due thereon, shall be returned to the
Noteholders after being appropriately stamped to show such partial
payment;
(ii) Indenture Trustee shall execute and deliver an
appropriate instrument of conveyance transferring its interest in any
portion of Trust Estate in connection with a sale thereof;
(iii) Indenture Trustee is hereby irrevocably appointed the
agent and attorney-in-fact of Issuer to transfer and convey its
interest in any portion of the Trust Estate in connection with a sale
thereof, and to take all action necessary to effect such sale; and
(iv) no purchaser or transferee at such a sale shall be
bound to ascertain Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of
any moneys.
(d) The method, manner, time, place and terms of any sale of all or
any portion of the Trust Estate shall be commercially reasonable.
(e) The provisions of this Section 6.16 shall not be construed to
restrict the ability of Indenture Trustee to exercise any rights and powers
against Issuer or the Trust Estate that are vested in Indenture Trustee by
this Indenture, including, without limitation, the power of Indenture Trustee
to proceed against the collateral subject to the lien of this Indenture and to
institute judicial proceedings for the collection of any deficiency remaining
thereafter.
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ARTICLE 7.
THE TRUSTEE
SECTION 7.1. Certain Duties and Responsibilities.
------------------------------------
(a) Except during the continuance of an Event of Default known to
Indenture Trustee,
(i) Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against Indenture Trustee; and
(ii) in the absence of bad faith on its part, Indenture
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions furnished to Indenture Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to Indenture Trustee, Indenture
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing to the
actual knowledge of a Responsible Officer of Indenture Trustee, Indenture
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve
Indenture Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the
effect of subsection (a) of this Section;
(ii) Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved, subject to Section 7.3(f), that Indenture Trustee was
negligent in ascertaining the pertinent facts;
(iii) Indenture Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Noteholders in accordance with
Section 6.12 relating to the
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time, method, and place of conducting any proceeding for any remedy
available to Indenture Trustee, or exercising any trust or power
conferred upon Indenture Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require Indenture
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to Indenture Trustee shall be subject to the provisions
of this Section.
SECTION 7.2. Notice of Defaults or Events of Default.
----------------------------------------
Within two Business Days after a Responsible Officer obtaining
knowledge of the occurrence of any Default or Event of Default hereunder,
Indenture Trustee shall transmit, by certified mail return receipt requested,
hand delivery or overnight courier, to all Noteholders, as their names and
addresses appear in the Note Register, Servicer, Transferor, and the Rating
Agencies notice of such Default or Event of Default hereunder known to
Indenture Trustee, unless such Default or Event of Default shall have been
cured or waived.
SECTION 7.3. Certain Rights of Indenture Trustee.
------------------------------------
Subject to the provisions of Section 7.1:
(a) Indenture Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, note,
debenture, other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed or presented by the proper party
or parties;
(b) any request or direction of Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any action of
Issuer may be sufficiently evidenced by an Issuer Order;
(c) whenever in the administration of this Indenture Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, Indenture Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
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(d) Indenture Trustee may consult with counsel as to legal matters
and the written advice of any such counsel selected by Indenture Trustee with
due care shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) Indenture Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Noteholders pursuant to this Indenture, unless such
Noteholders shall have offered to Indenture Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(f) Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, note,
debenture, other evidence of indebtedness, or other paper or document, but
Indenture Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if Indenture
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of Issuer,
personally or by agent or attorney; and
(g) Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and Indenture Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder.
SECTION 7.4. Not Responsible for Recitals or Issuance of Notes.
--------------------------------------------------
The recitals contained herein and in the Notes, except Indenture
Trustee's certificates of authentication, shall be taken as the statements of
Issuer, and Indenture Trustee assumes no responsibility for their correctness.
Indenture Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Notes. Indenture Trustee shall not be accountable
for the use or application by Issuer of the proceeds of the Notes.
SECTION 7.5. May Hold Notes.
---------------
Indenture Trustee, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with Issuer with
the same rights it would have if it were not Indenture Trustee.
SECTION 7.6. Money Held in Trust.
--------------------
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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 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
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herein). Upon repayment of the Class A Notes in full, all rights to exercise
remedies under the Indenture will transfer to Indenture Trustee for the Class
B Notes.
In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes, the Issuer, retiring Indenture
Trustee and successor Indenture Trustee with respect to such Class of Notes
shall execute and deliver an indenture supplemental hereto wherein each
successor Indenture Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, successor Indenture Trustee all the rights,
powers, trusts and duties of retiring Indenture Trustee with respect to the
Notes of the Class to which the appointment of such successor Indenture
Trustee relates, (ii) if retiring Indenture Trustee is not retiring with
respect to all Classes of Notes, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of retiring Indenture Trustee with respect to the Notes of each
Class as to which retiring Indenture Trustee is not retiring shall continue to
be vested in retiring Indenture Trustee, and (iii) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Indenture Trustees as co-trustees
of the same trust and that each such Indenture Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Indenture Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Indenture Trustee shall become effective to the extent
provided therein.
SECTION 7.9. Resignation and Removal; Appointment of Successor.
--------------------------------------------------
(a) No resignation or removal of Indenture Trustee and no appointment
of a successor Indenture Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Indenture
Trustee under Section 7.10.
(b) Indenture Trustee may resign at any time by giving written notice
thereof to Issuer and by mailing notice of resignation by first-class mail,
postage prepaid, to Noteholders at their addresses appearing on the Note
Register.
(c) Indenture Trustee may be removed at any time by Act of the
Holders of Notes evidencing not less than a majority of the then Outstanding
Principal Amount of the Notes, delivered to Indenture Trustee and Issuer.
(d) If Indenture Trustee shall resign, be removed, or become
incapable of acting, or if a vacancy shall occur in the office of Indenture
Trustee for any cause, Issuer, with the consent of the Holders of Notes
evidencing at least 66-2/3% of the
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Outstanding Principal Amount of the Notes, by an act of Issuer, shall promptly
appoint a successor Indenture Trustee.
(e) If no successor Indenture Trustee shall have been so appointed by
Issuer or the Noteholders as hereinbefore provided and accepted appointment in
the manner hereinafter provided within 30 days after any such resignation or
removal, existence of incapability, or occurrence of such vacancy, Indenture
Trustee or any Noteholder may petition any court of competent jurisdiction for
the appointment of a successor Indenture Trustee.
(f) Issuer shall give notice of each resignation and each removal of
Indenture Trustee and each appointment of a successor Indenture Trustee by
mailing written notice of such event by first-class mail, postage prepaid, to
all Noteholders, as their names and addresses appear in the Note Register and
each Rating Agency. Each notice shall include the name of the successor
Indenture Trustee and the address of its Corporate Trust Office.
(g) Issuer may remove Indenture Trustee if Indenture Trustee fails to
comply with Section 7.8 of this Indenture.
(h) If Indenture Trustee after written request by any Noteholder who
has been a Noteholder for at least six months fails to comply with Section
310(b) of the Trust Indenture Act, such Noteholder may petition any court of
competent jurisdiction, for the removal of Indenture Trustee and the
appointment of a successor Indenture Trustee.
SECTION 7.10. Acceptance of Appointment by Successor.
---------------------------------------
(a) Every successor Indenture Trustee appointed hereunder shall
execute, acknowledge and deliver to Issuer and to the retiring Indenture
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Indenture Trustee shall become
effective and such successor Indenture Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Indenture Trustee; but, on request of Issuer or the
successor Indenture Trustee, such retiring Indenture Trustee shall, upon
payment of its charges and expenses, execute and deliver an instrument
transferring to such successor Indenture Trustee all the rights, powers and
trusts of the retiring Indenture Trustee and shall duly assign, transfer and
deliver to such successor Indenture Trustee all property and money held by
such retiring Indenture Trustee hereunder. Upon request of any such successor
Indenture Trustee, Issuer shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Indenture Trustee
all such rights, powers and trusts.
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(b) No successor Indenture Trustee shall accept its appointment
unless at the time of such acceptance such successor Indenture Trustee shall
be qualified and eligible under this Article.
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
---------
Any Person into which Indenture Trustee may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which Indenture Trustee shall be a party, or
any Person succeeding to all or substantially all the corporate trust business
of Indenture Trustee, shall be the successor of Indenture Trustee hereunder,
provided such Person shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by Indenture Trustee then in office, any
successor by merger, conversion, or consolidation to such authenticating
Indenture Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Indenture Trustee had
itself authenticated such Notes. Indenture Trustee shall provide prompt
written notice to each Rating Agency of any event referenced in this Section
7.11.
SECTION 7.12. Co-trustees and Separate Indenture Trustees.
--------------------------------------------
(a) At any time or times, if Issuer, Indenture Trustee or any
Noteholder determines that it is necessary for the purpose of meeting the
legal requirements of any jurisdiction in which any of Trust Estate may at the
time be located, Issuer and Indenture Trustee shall have power to appoint,
and, upon the written request of Indenture Trustee or the Holders of Notes
evidencing at least a majority of the then Outstanding Principal Amount of the
Notes, Issuer shall for such purpose join with Indenture Trustee in the
execution, delivery, and performance of all instruments and agreements
necessary or proper to appoint one or more Persons approved by Indenture
Trustee either to act as co-trustee, jointly with Indenture Trustee, of all or
any part of such Trust Estate, or to act as separate trustee of any such
property, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If Issuer does not join in
such appointment within 15 days after the receipt by it of a request so to do,
or in case an Event of Default has occurred and is continuing, Indenture
Trustee, or the Holders of Notes evidencing a majority of the then Outstanding
Principal Amount of the Notes, alone shall have power to make such
appointment.
(b) Should any written instrument from Issuer be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
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co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and
delivered by Issuer.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms:
(i) The Notes shall be authenticated and delivered and all
rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, Indenture Trustee
hereunder, shall be exercised, solely by Indenture Trustee.
(ii) The rights, powers, duties, and obligations hereby
conferred or imposed upon Indenture Trustee in respect of any
property covered by such appointment shall be conferred or imposed
upon and exercised or performed by Indenture Trustee or by Indenture
Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate
trustee, except to the extent that, under any law of any jurisdiction
in which any particular act is to be performed, Indenture Trustee
shall be incompetent or unqualified to perform such act, in which
event such rights, powers, duties and obligations shall be exercised
and performed by such co-trustee or separate trustee.
(iii) Indenture Trustee at any time, by an instrument in
writing executed by it, with the concurrence of Issuer evidenced by a
Trust Order, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section, and, in case an
Event of Default has occurred and is continuing, Indenture Trustee
shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of Issuer.
Upon the written request of Indenture Trustee, Issuer shall join with
Indenture Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner
provided in this Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of Indenture
Trustee or any other such trustee hereunder and Indenture Trustee
shall not be personally liable by reason of any act or omission of
any co-trustee or other such separate trustee hereunder selected by
Indenture Trustee with due care or appointed in accordance with
directions to Indenture Trustee pursuant to Section 6.12.
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(v) Any Act of Noteholders delivered to Indenture Trustee
shall be deemed to have been delivered to each such co-trustee and
separate trustee.
SECTION 7.13. Acceptance by Indenture Trustee.
--------------------------------
Indenture Trustee hereby acknowledges the conveyance of the Granted
Assets and the receipt of the Leases and the other Granted Assets granted by
Issuer hereunder and declares that Indenture Trustee, through a custodian,
will hold such Leases and other Granted Assets conveyed by Issuer in trust,
for the use and benefit of all Noteholders subject to the terms and provisions
hereof.
SECTION 7.14. Preferential Collection of Claims Against Issuer.
-------------------------------------------------
Indenture Trustee is subject to Trust Indenture Act Section 311(a),
excluding any creditor relationship listed in Trust Indenture Act Section
311(b). A Indenture Trustee who has resigned or been removed shall be subject
to Trust Indenture Act Section 311(a) to the extent indicated therein.
SECTION 7.15. Reports by Indenture Trustee to Noteholders.
--------------------------------------------
To the extent required by the Trust Indenture Act, within 60 days
after each May 15, following the date of this Indenture, Indenture Trustee
shall mail to Noteholders a brief report dated as of such reporting date that
complies with Trust Indenture Act Section 313(a), if such a report is required
pursuant to Trust Indenture Act Section 313(a), except with respect Section
313(a)(6) of the Trust Indenture Act and transactions described in Section
4.4. Indenture Trustee also shall comply with Trust Indenture Act Section
313(b). Indenture Trustee shall also transmit by mail all reports as required
by Trust Indenture Act Section 313(c).
A copy of each such report required under Trust Indenture Act Section
313 shall, at the time of such transmission to Noteholders be filed with the
Commission and with each stock exchange or other market system on which the
Notes are listed. Issuer or any other obligor upon the Notes shall notify
Indenture Trustee if the Notes become listed on any stock exchange or market
trading system.
SECTION 7.16. No Proceedings.
---------------
Indenture Trustee hereby agrees that it will not, with respect to its
fees and expenses, directly or indirectly institute, or cause to be
instituted, against Issuer or Transferor any proceeding of the type referred
to in Section 6.1(e) or (f) so long as there shall not have elapsed one year
plus one day since the latest maturing Notes have been paid in full in cash.
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ARTICLE 8.
COVENANTS
SECTION 8.1. Payment of Principal and Interest.
----------------------------------
Issuer will duly and punctually pay the principal of and interest on
the Notes in accordance with the terms of the Notes and this Indenture.
SECTION 8.2. Maintenance of Office or Agency; Chief Executive
------------------------------------------------
Office.
------
Issuer will maintain at the Corporate Trust Office an office
or agency where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon Issuer in respect of the
Notes and this Indenture may be served. Issuer hereby appoints Indenture
Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
SECTION 8.3. Money for Payments to Noteholders to be Held in
-----------------------------------------------
Trust.
-----
(a) All payments of amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Collection Account
pursuant to Section 3.3(b) or Section 6.6 shall be made on behalf of Issuer by
Indenture Trustee, and no amounts so withdrawn from the Collection Account for
payments of Notes shall be paid over to Issuer under any circumstances except
as provided in this Section 8.3 or in Section 3.3(b) or Section 6.6.
(b) In making payments hereunder, Indenture Trustee will:
(i) allocate all sums received for payment to the
Noteholders on each Payment Date among such Noteholders, first to the
Class A Noteholders on a pro rata basis and then to the Class B
Noteholders on a pro rata basis basis in accordance with the
information known to Indenture Trustee;
(ii) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided; and
(iii) comply with all requirements of the Internal Revenue
Code of 1986, as amended (or any successor statutes), and all
regulations thereunder, with respect to the withholding from any
payments made by it on
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any Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in connection
therewith.
Whenever Issuer shall have one or more Paying Agents, it will, prior
to each due date of the principal of or interest on any Notes, deposit with a
Paying Agent a sum sufficient to pay the principal or interest so becoming
due, such sum to be held in trust for the benefit of the Noteholders entitled
to such principal or interest, and (unless such Paying Agent is Indenture
Trustee) Issuer will promptly notify Indenture Trustee of its action or
failure so to act.
Issuer will cause each Paying Agent other than Indenture Trustee to
execute and deliver to Indenture Trustee an instrument in which such Paying
Agent shall agree with Indenture Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and
(2) give Indenture Trustee notice of any default by Issuer
(or any other obligor upon the Securities) in the making of any
payment of principal or interest.
(c) Except as required by applicable law, any money held by Indenture Trustee
in trust for the payment of any amount due with respect to any Note and
remaining unclaimed for three years after such amount has become due and
payable to the Noteholder shall be discharged from such trust and, subject to
applicable escheat laws, paid to Issuer upon request; and such Noteholder
shall thereafter, as an unsecured general creditor, look only to Issuer for
payment thereof (but only to the extent of the amounts so paid to the Trust),
and all liability of Indenture Trustee with respect to such trust money shall
thereupon cease.
SECTION 8.4. Corporate Existence; Merger; Consolidation, etc.
------------------------------------------------
(a) Issuer will keep in full effect its existence, rights and
franchises as a 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 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:
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(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized
and existing under the laws of the United States of America or any
State and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to Indenture Trustee, in form
satisfactory to Indenture Trustee, the due and punctual payment of
the principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) Issuer shall have delivered to Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such consolidation or merger and such supplemental indenture comply
with this Article VIII and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
(c) Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of Issuer the conveyance or transfer of which
is hereby restricted shall: (A) be a United States citizen or a
Person organized and existing under the laws of the United States of
America or any State, (B) expressly assumes, by an indenture
supplemental hereto, executed and delivered to Indenture Trustee, in
form satisfactory to Indenture Trustee, the due and punctual payment
of the principal of and interest on all Notes and the performance or
observance of every agreement and covenant of this Indenture on the
part of Issuer to be performed or observed, all as provided herein,
(C) expressly agrees by means of such supplemental indenture that all
right, title and interest so conveyed or transferred shall be subject
and subordinate to the
-45-
rights of Holders of the Notes, (D) unless otherwise provided in such
supplemental indenture, expressly agrees to indemnify, defend and
hold harmless Issuer against and from any loss, liability or expense
arising under or related to this Indenture and the Notes and (E)
expressly agrees by means of such supplemental indenture that such
Person (or if a group of Persons, then one specified Person) shall
make all filings with the Commission (and any other appropriate
Person) required by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain the Lien and
security interest created by this Indenture shall have been taken;
and
(vi) Issuer shall have delivered to Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply
with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with (including
any filing required by the Exchange Act).
SECTION 8.5. Protection of Trust Estate; Further Assurances.
-----------------------------------------------
Issuer will from time to time execute and deliver all such
supplements and amendments hereto and all such Financing Statements,
continuation statements, instruments of further assurance, and other
instruments, and will take such other action as may be necessary or advisable
to:
(i) Grant more effectively all or any portion of Trust
Estate;
(ii) maintain or preserve the Lien of this Indenture or
carry out more effectively the purposes hereof;
(iii) publish notice of, or protect the validity of, any
Grant made or to be made by this Indenture and perfect the security
interest contemplated hereby in favor of Indenture Trustee in each of
the Leases, in the Equipment
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and all other property included in Trust Estate; provided, that
Issuer shall not be required to file Financing Statements with
respect to the interests in the Equipment in addition to those
contemplated by Section 4.3(d) of the Pooling and Servicing
Agreement;
(iv) enforce or cause Servicer to enforce any of the Leases;
or
(v) preserve and defend title to the Leases (including the
right to receive all payments due or to become due thereunder), the
interests in the Equipment, or other property included in Trust
Estate and preserve and defend the rights of Indenture Trustee and
the Noteholders in such Leases (including the right to receive all
payments due or to become due thereunder), interests in the Equipment
and other property against the claims of all Persons and parties.
Issuer, upon Issuer's failure to do so, hereby designates Indenture Trustee
its agent and attorney-in-fact to execute any Financing Statement or
continuation statement required pursuant to this Section 8.5; provided, that
such designation shall not be deemed to create a duty in Indenture Trustee to
monitor the compliance of Issuer with the foregoing covenants; and provided,
further, that the duty of Indenture Trustee to execute any instrument required
pursuant to this Section 8.5 shall arise only if a Responsible Officer of
Indenture Trustee has actual knowledge of any failure of Issuer to comply with
the provisions of this Section 8.5.
SECTION 8.6. [Reserved].
--------
SECTION 8.7. Performance of Obligations; Pooling and Servicing
-------------------------------------------------
Agreement.
----------
(a) Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Notes and the Trust Agreement.
(b) Issuer will not take any action or permit any action to be taken
by others which would release any Person from any of such Person's covenants
or obligations under any Lease or any other instrument included in Trust
Estate, or which would result in the amendment, hypothecation, subordination,
termination, or discharge of, or impair the validity or effectiveness of, any
Lease or such other instrument, except as expressly provided in this Indenture
or the Pooling and Servicing Agreement.
(c) If any Authorized Officer shall have knowledge of the occurrence
of a default under the Pooling and Servicing Agreement, Issuer shall promptly
notify Indenture Trustee and the Noteholders thereof, and shall specify in
such notice the action, if any, Issuers taking in respect of such default.
Except as otherwise
-47-
provided therein, Issuer may not waive any default under or amend the Pooling
and Servicing Agreement.
SECTION 8.8. Negative Covenants.
-------------------
Issuer will not:
(a) sell, transfer, exchange or otherwise dispose of any portion of
the Trust Estate except as expressly permitted by this Indenture, the Pooling
and Servicing Agreement, and the Trust Agreement;
(b) claim any credit on, or make any deduction from, the principal
of, or interest on, any of the Notes by reason of the payment of any taxes
levied or assessed upon any portion of the Trust Estate;
(c) engage in any business or activity other than in connection with,
or relating to the ownership of, the Leases and the interests in the
Equipment, the issuance of the Notes, and the specific transactions
contemplated hereby;
(d) become liable for, issue, incur, assume, or allow to remain
outstanding any indebtedness, or guaranty any indebtedness of any Person,
other than the Notes, except as contemplated by this Indenture, the
registration statement filed with respect to the Class A Notes and Class B
Notes (and any registration statement for similar securities), and the Pooling
and Servicing Agreement;
(e) seek dissolution or liquidation in whole or in part or
reorganization of its business or affairs;
(f) (i) permit the validity or effectiveness of this Indenture or any
Grant hereby to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations under this Indenture,
except as may be expressly permitted hereby, (ii) permit any lien, charge,
security interest, mortgage or other encumbrance to be created on or to extend
to or otherwise arise upon or burden Trust Estate or any part thereof or any
interest therein or the proceeds thereof other than the lien of this
Indenture, or (iii) subject to Section 3.1(c) of the Pooling and Servicing
Agreement, permit the lien of this Indenture not to constitute a valid first
priority security interest in Trust Estate; or
(g) Issuer shall not make any expenditure (by long-term or operating
lease or otherwise) for capital assets (either realty or personalty).
-48-
(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 Purchase Agreement.
SECTION 8.10. Taxes.
------
Issuer shall pay all taxes when due and payable or levied against its
assets, properties or income, including any property that is part of Trust
Estate.
SECTION 8.11. Indemnification.
----------------
Issuer agrees to indemnify and hold harmless Indenture Trustee and
each Noteholder (each an "Indemnified Party") against any and all liabilities,
losses, damages, penalties, costs and expenses (including costs of defense and
legal fees and expenses) which may be incurred or suffered by such Indemnified
Party without negligence or willful misconduct on its part as a result of
claims, actions, suits or judgments asserted or imposed against it and arising
out of the transactions contemplated hereby or by the Pooling and Servicing
Agreement, including without limitation, any claims resulting from any use,
operation, maintenance, repair, storage or transportation of any item of
Equipment, whether or not in Issuer's possession or under its control, and any
tort claims and any fines or penalties arising from any violation of the laws
or regulations of the United States or any state or local government or
governmental authority; provided that, all amounts payable pursuant
-49-
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
(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.
-50-
ARTICLE 9.
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of
------------------------------------------
Noteholders.
------------
(a) Without the consent of any Noteholders, Issuer, by a Trust Order,
and Indenture Trustee, at any time and from time to time, may enter into one
or more indentures supplemental hereto, in form satisfactory to Indenture
Trustee, for any of the following purposes:
(i) to add to the covenants of Issuer for the benefit of the
Noteholders, or to surrender any right or power herein conferred upon
the Trust;
(ii) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein; or
(iii) to correct or amplify the description of any property
at any time subject to the lien of this Indenture, or to better
assure, convey and confirm unto Indenture Trustee any property
subject or required to be subjected to the lien of this Indenture;
provided such action pursuant to this Section 9.1(a) shall not adversely
affect the interests of the Noteholders in any respect. Additionally, Issuer,
by Trust Order, and Indenture Trustee, without the consent of any Noteholders,
may execute a Supplemental Indenture to conform the Indenture to the
description thereof and of the Notes and Certificates contained in the
Prospectus.
(b) Indenture Trustee shall promptly deliver to each Noteholder and
each Rating Agency a copy of any supplemental indenture entered into pursuant
to Section 9.1(a).
SECTION 9.2. Supplemental Indentures with Consent of
---------------------------------------
Noteholders.
------------
(a) With the consent of the Holders of Notes evidencing not less than
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
-51-
the Noteholders under this Indenture; provided, that no supplemental indenture
shall, without the consent of the Holder of each Outstanding Note affected
thereby,
(i) change the Stated Maturity of any Note or the Principal
Payments or Interest Payments due or to become due on any Payment
Date with respect to any Note, or change the priority of payment
thereof as set forth herein, or reduce the principal amount thereof
or the Note Interest Rate thereon, or change the place of payment
where, or the coin or currency in which, any Note or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Maturity thereof;
(ii) reduce the percentage of the Outstanding Principal
Amount of the Notes the consent of whose Noteholders is required for
any such supplemental indenture, for any waiver of compliance with
provisions of this Indenture or Events of Default and their
consequences, or for any Act of Noteholders;
(iii) modify any of the provisions of this Section or
Section 6.13 except to increase any percentage or fraction set forth
therein or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of
each Outstanding Note affected thereby;
(iv) modify or alter the provisions of the proviso to the
definition of the term "Outstanding"; or
(v) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of
Trust Estate or, except as provided in Sections 4.1 or 4.2, terminate
the lien of this Indenture on any property at any time subject hereto
or deprive any Noteholder of the security afforded by the lien of
this Indenture.
(b) Indenture Trustee shall promptly deliver to each Noteholder and
each Rating Agency a copy of any supplemental indenture entered into pursuant
to Section 9.2(a).
SECTION 9.3. Execution of Supplemental Indentures.
-------------------------------------
In executing any supplemental indenture (a) pursuant to Section 9.1
or (b) pursuant to Section 9.2 without the consent of each Holder of the Notes
to the execution of the same, Indenture Trustee shall be entitled to receive,
and (subject to Section 7.1) shall be, fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. Indenture Trustee may, but shall
not be obligated to, enter into any
-52-
supplemental indenture which affects Indenture Trustee's own rights, duties,
projections, or immunities under this Indenture or otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
----------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes,
and every Noteholder of Notes theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 9.5. Reference in Notes to Supplemental Indentures.
----------------------------------------------
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
Indenture Trustee, bear a notation in form approved by Indenture Trustee as to
any matter provided for in such supplemental indenture. If Issuer shall so
determine, new Notes so modified as to conform, in the opinion of Indenture
Trustee and Issuer, to any such supplemental indenture may be prepared and
executed by Issuer and authenticated and delivered by Indenture Trustee in
exchange for Outstanding Notes.
SECTION 9.6. Compliance with Trust Indenture Act.
------------------------------------
Every amendment, supplement or waiver to this Indenture or the Notes
shall comply with the Trust Indenture Act as then in effect.
ARTICLE 10.
SATISFACTION AND DISCHARGE
SECTION 10.1. Satisfaction and Discharge of Indenture.
----------------------------------------
(a) This Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and Indenture Trustee, on demand of and at the
expense of Issuer, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(i) 100 days shall have elapsed since either
(A) all Notes theretofore authenticated and
delivered (other than (1) Notes which have been destroyed,
lost or stolen and which have been replaced or paid as
provided in Section 2.4 and (2) Notes for whose payment
money has theretofore been deposited in
-53-
trust or segregated and held in trust by Issuer and
thereafter repaid to Issuer or discharged from such trust,
as provided in Section 8.3(c)) have been delivered to
Indenture Trustee for cancellation; or
(B) the final installments of principal on all such
Notes not theretofore delivered to Indenture Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their
Stated Maturity, as applicable, within one year,
and Issuer has irrevocably deposited or caused to be
deposited with Indenture Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered
to Indenture Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of Notes
which have become due and payable) or to the Stated Maturity
thereof;
(ii) Issuer has paid or caused to be paid all other sums
payable hereunder by Issuer for the benefit of the Noteholders; and
(iii) Issuer has delivered to Indenture Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
At such time, Indenture Trustee shall deliver to Issuer or, upon Issuer Order,
its assignee, all cash, securities and other property held by it as part of
Trust Estate other than funds deposited with Indenture Trustee pursuant to
Section 10.1(a)(i)(B), for the payment and discharge of the Notes.
(b) Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of Issuer to Indenture Trustee under Sections 7.7 and 8.11,
and, if money shall have been deposited with Indenture Trustee pursuant to
Section 10.1(a)(i)(B), the obligations of Indenture Trustee under Section 10.2
and Section 8.3(c) shall survive.
(c) Indenture Trustee shall provide prompt written notice to each
Rating Agency of any satisfaction and discharge of this Indenture pursuant to
this Article 10.
SECTION 10.2. Application of Trust Money.
---------------------------
-54-
Subject to the provisions of Section 8.3(c), all money deposited with
Indenture Trustee pursuant to Sections 10.1 and 8.3 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment to the Persons entitled thereto, of the principal
and interest for whose payment such money has been deposited with Indenture
Trustee.
ARTICLE 11.
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls.
-----------------------------
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by operation of Trust Indenture Act Section 318(a),
the duties imposed by Section 318(a) shall control.
SECTION 11.2. Communication by Noteholders with Other
---------------------------------------
Noteholders.
------------
Noteholders may communicate, pursuant to Trust Indenture Act Section
312(b), with other Noteholders with respect to their rights under this
Indenture or the Notes. Issuer, Indenture Trustee, the Note Registrar and all
other parties shall have the protection of Trust Indenture Act Section 312(c).
SECTION 11.3. Officers' Certificate and Opinion of Counsel as to
--------------------------------------------------
Conditions Precedent.
--------------------
Upon any request or application by Issuer (or any other obligor upon
the Notes) to Indenture Trustee to take any action under this Indenture,
Issuer (or such other Obligor) shall furnish to Indenture Trustee:
(a) an Officers' Certificate (which shall include the
statements set forth in Section 11.4) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel (which shall include the
statements set forth in Section 11.4) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been
complied with.
SECTION 11.4. Statements Required in Certificate or Opinion.
----------------------------------------------
-55-
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.
-56-
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: [NAME OF TRUSTEE], not in its individual
capacity, but solely as Trustee of the Provident
Equipment Lease Trust 1998-A
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
[ ], as Indenture Trustee
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
-57-
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 [ ], 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.
[ ]
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 [ ], 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.
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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 A-2 Notes referred to in the within
mentioned Indenture.
[ ], as Indenture Trustee
By:
--------------------------------------
Authorized Signatory
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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 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 [ ], 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.
A-13
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 , 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 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
A-14
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.
A-15
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 B Notes referred to in the within mentioned
Indenture.
[ ], as Indenture Trustee
By:
--------------------------------------
Authorized Signatory
A-17
ASSIGNMENT FORM
If you the Holder want to assign this Class B Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class B Note to:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint ___________________________, agent to transfer this
Class B Note on the books of Issuer. The agent may substitute another to act
for him.
Dated: _____________________ Signed:__________________________
(signed exactly as the name
appears on the other side of this
Class B Note)
Signature Guarantee___________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class B Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class B Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
B Note.
A-18
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
A-19
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 Purchase 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 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
A-20
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.
"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 ____%.
A-21
"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 and Class A-2 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.
"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
A-22
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 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 Assets" are defined in Section 2.3 of the Purchase
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 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.
"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.
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"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-2 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 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
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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);
(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
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(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 Purchase Agreement and the requirements of Section
4.3 of the Purchase 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.
"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.
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"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 Purchase Agreement, is defined in Section 4.1 of the Purchase
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.
"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
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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 Purchase Agreement, as the same may be amended or modified from time to
time in accordance with the provisions thereof unless and until released from
the lien of the Indenture.
"Lease Files" is defined in Section 3.2 of the Pooling and Servicing
Agreement.
"Lease Payment" means each periodic installment of rent payable by a
Lessee under a Lease. The following shall not be deemed to be "Lease
Payments": (a) prepayments of rent required pursuant to the terms of a Lease,
at or before the commencement of the Lease; (b) payments (other than
Payaheads) collected on or before the Cut-Off Date, (c) Payaheads, until such
time as such Payaheads are released from the Collection Account in accordance
with Section 6.5 of the Pooling and Servicing Agreement, (d) Third Party
Amounts and (e) any security deposit, unless and until such security deposit
is permitted to be treated as a payment on a Lease in accordance with the
terms of such Lease.
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"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 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
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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 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, or
Class B Note Owner, as the case may be.
"Note Register" is defined in Section 2.3 of the Indenture.
"Noteholder" means at any time, any Holder of a Note.
"Notes" means the Class A Notes and Class B Notes issued pursuant to
the Indenture and all notes issued in exchange therefor pursuant to the
Indenture.
"Officers' Certificate" means (i) with respect to Transferor or
Servicer, a certificate delivered to Trustee and signed by the Chairman, the
President, or a Vice President, and by another Vice President, the Treasurer,
an Assistant Treasurer, the Secretary, or an Assistant Secretary of Transferor
or Servicer, as the case may be, who is not the same person as the other
officer signing such certificate and (ii) a certificate delivered to Indenture
Trustee and signed by the Chairman, the President, or a Vice President of
Manager, and by another Vice President, the Treasurer, and Assistant
Treasurer, the Secretary, or an Assistant Secretary of Manager who is not the
same Person as the other officer signing such certificate.
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"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 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
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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 Purchase 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 ▇▇▇▇▇▇ 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.
"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 Purchase Agreement, is defined in Section
4.3(a) of the Purchase 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
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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).
"Purchase Agreement" means the Purchase Agreement dated as of the
date hereof, between Transferor and ILC, as the same may be amended and
supplemented from time to time, which term shall also include, as the context
requires, the Liquidity Receivables Purchase Agreement.
"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.
"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.
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"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.
"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 [___]%.
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"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 Purchase Agreement.
"Servicer" means ILC and any successor Servicer appointed pursuant to
the terms of the Pooling and Servicing Agreement and, to the extent that it at
any time is performing the functions of Servicer, Indenture Trustee.
"Servicer Advance" means a payment by Servicer pursuant to Section
5.1 of the Pooling and Servicing Agreement.
"Servicer Booked Residual 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.
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"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 and Class B Notes.
"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 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 Purchase Agreement, is defined in Section
4.3(a) of the Purchase 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.
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"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.
"Transfer Taxes" are defined in Section 3.20 of the Purchase 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.
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"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 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 Section 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 ▇▇▇▇▇▇ Brothers Inc.
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"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 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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