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FIDELITY EQUIPMENT LEASE TRUST 1999-1
as Issuer,
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
not in its individual capacity but solely in its capacity
as Indenture Trustee
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INDENTURE
Dated as of June 2, 1999
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$56,955,084 Receivable-Backed Notes, Class A-1
$27,949,428 Receivable-Backed Notes, Class A-2
$20,880,822 Receivable-Backed Notes, Class A-3
$33,961,804 Receivable-Backed Notes, Class A-4
$9,749,800 Receivable-Backed Notes, Class B
$4,874,900 Receivable-Backed Notes, Class C
$4,468,658 Receivable-Backed Notes, Class D
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.....................................................2
Section 1.02 Rules of Construction...........................................8
ARTICLE TWO
THE NOTES
Section 2.01 Form............................................................9
Section 2.02 Execution, Authentication and Delivery.........................11
Section 2.03 Temporary Notes................................................11
Section 2.04 Registration; Registration of Transfer and Exchange............12
Section 2.05 Mutilated, Destroyed, Lost or Stolen Notes.....................13
Section 2.06 Persons Deemed Owner...........................................14
Section 2.07 Payment of Principal and Interest; Defaulted Interest..........14
Section 2.08 Cancellation...................................................15
Section 2.09 Book-Entry Notes...............................................16
Section 2.10 Notices to Depository..........................................20
Section 2.11 Definitive Notes...............................................21
Section 2.12 Release of Collateral..........................................21
Section 2.13 Tax Treatment..................................................21
Section 2.14 Noteholder Direction...........................................21
Section 2.15 Additional Restrictions on the Class D Notes...................22
Section 2.16 Listing Restrictions...........................................22
ARTICLE THREE
COVENANTS
Section 3.01 Payment of Principal and Interest..............................23
Section 3.02 Maintenance of Office or Agency................................23
Section 3.03 Money for Payments to be Held in Trust.........................23
Section 3.04 Existence......................................................25
Section 3.05 Protection of Collateral.......................................25
Section 3.06 Opinions as to Collateral......................................26
Section 3.07 Performance of Obligations; Servicing of Contracts.............26
Section 3.08 Negative Covenants.............................................27
Section 3.09 Issuer May Consolidate, etc. Only on Certain Terms.............28
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Section 3.10 Successor or Transferee........................................29
Section 3.11 No Other Business..............................................30
Section 3.12 No Borrowing...................................................30
Section 3.13 Notice of Events of Default....................................30
Section 3.14 Further Instruments and Acts...................................30
Section 3.15 Compliance with Laws...........................................30
Section 3.16 Amendments of the Sale and Servicing Agreement
and the Trust Agreement.......................................30
Section 3.17 Removal of Administrator.......................................30
Section 3.18 Representations and Warranties of Issuer.......................30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture........................31
Section 4.02 Application of Trust Money.....................................32
Section 4.03 Repayment of Moneys Held by Paying Agent.......................33
ARTICLE FIVE
REMEDIES
Section 5.01 Events of Default..............................................33
Section 5.02 Rights Upon Event of Default...................................34
Section 5.03 Collection of Indebtedness and Suits for Enforcement
by Indenture Trustee; Authority of Indenture Trustee..........34
Section 5.04 Remedies.......................................................37
Section 5.05 Optional Preservation of the Contracts.........................37
Section 5.06 Priorities.....................................................38
Section 5.07 Limitation of Suits............................................38
Section 5.08 Unconditional Rights of Noteholders to Receive
Principal and Interest........................................39
Section 5.09 Restoration of Rights and Remedies.............................39
Section 5.10 Rights and Remedies Cumulative.................................39
Section 5.11 Delay or Omission Not a Waiver.................................39
Section 5.12 Control by Noteholders.........................................39
Section 5.13 Waiver of Past Defaults........................................40
Section 5.14 Undertaking for Costs..........................................40
Section 5.15 Waiver of Stay or Extension Laws...............................40
Section 5.16 Action on Notes................................................41
Section 5.17 Performance and Enforcement of Certain Obligations.............41
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ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01 Duties of Indenture Trustee....................................41
Section 6.02 Rights of Indenture Trustee....................................43
Section 6.03 Individual Rights of Indenture Trustee.........................44
Section 6.04 Indenture Trustee's Disclaimer.................................44
Section 6.05 Notice of Defaults.............................................44
Section 6.06 Reports by Indenture Trustee to Holders........................45
Section 6.07 Compensation and Indemnity.....................................45
Section 6.08 Replacement of Indenture Trustee...............................45
Section 6.09 Successor Indenture Trustee by Merger..........................47
Section 6.10 Appointment of Co-Indenture Trustee
or Separate Indenture Trustee.................................47
Section 6.11 Eligibility....................................................48
Section 6.12 [Reserved].....................................................49
Section 6.13 Representations and Warranties of Indenture Trustee............49
ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01 Issuer to Furnish Indenture Trustee Names
and Addresses of Noteholders..................................49
Section 7.02 Preservation of Information: Communication to Noteholders......50
Section 7.03 Reports by Indenture Trustee...................................50
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money............................................50
Section 8.02 Trust Accounts.................................................50
Section 8.03 General Provisions Regarding Accounts..........................53
Section 8.04 Release of Collateral..........................................53
Section 8.05 Opinion of Counsel.............................................54
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Noteholders.........54
Section 9.02 Supplemental Indentures With Consent of Noteholders............55
Section 9.03 Execution of Supplemental Indentures...........................56
Section 9.04 Effect of Supplemental Indenture...............................56
Section 9.05 Reference in Notes to Supplemental Indentures..................56
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ARTICLE TEN
REDEMPTION OF NOTES
Section 10.01 Redemption.....................................................57
Section 10.02 Form of Redemption Notice......................................57
Section 10.03 Notes Payable on Redemption Date...............................57
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions, etc......................58
Section 11.02 Form of Documents Delivered to Indenture Trustee...............58
Section 11.03 Acts of Noteholders............................................59
Section 11.04 Notices........................................................60
Section 11.05 Notices to Noteholders; Waiver.................................60
Section 11.06 Alternate Payment and Notice Provisions........................61
Section 11.07 Effect of Headings and Table of Contents.......................61
Section 11.08 Successors and Assigns.........................................61
Section 11.09 Separability...................................................61
Section 11.10 Benefits of Indenture..........................................61
Section 11.11 Legal Holidays.................................................61
Section 11.12 Governing Law..................................................61
Section 11.13 Counterparts...................................................61
Section 11.14 Recording of Indenture.........................................61
Section 11.15 Trust Obligation...............................................62
Section 11.16 No Petition....................................................62
Section 11.17 Inspection.....................................................62
Section 11.18 No Substantive Review of Compliance Documents..................62
EXHIBITS
Exhibit A -- Form of Sale and Servicing Agreement....................A-1
Exhibit B-1 -- Form of Class A-1 Note................................B-1-1
Exhibit B-2 -- Form of Class A-2 Note................................B-2-1
Exhibit B-3 -- Form of Class A-3 Note................................B-3-1
Exhibit B-4 -- Form of Class A-4 Note................................B-4-1
Exhibit C -- Form of Class B Note....................................C-1
Exhibit D -- Form of Class C Note....................................D-1
Exhibit E -- Form of Class D Note....................................E-1
Exhibit F -- Form of Note Assignment.................................F-1
Exhibit G -- Form of Note Depository Agreement.......................G-1
Annex A -- Form of Investor's Letter
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INDENTURE
This Indenture, dated as of June 2, 1999 (this "Indenture"), is between
Fidelity Equipment Lease Trust 1999-1, a Delaware business trust (the "Issuer")
and ▇▇▇▇▇▇ Trust and Savings Bank in its capacity as indenture trustee (the
"Indenture Trustee") and not in its individual capacity.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Issuer's 5.155%
Receivable-Backed Notes, Class A-1 (the "Class A-1 Notes"), 5.860%
Receivable-Backed Notes, Class A-2 (the "Class A-2 Notes"), 6.090%
Receivable-Backed Notes, Class A-3 (the "Class A-3 Notes"), 6.300%
Receivable-Backed Notes, Class A-4 (the "Class A-4 Notes"), 6.590%
Receivable-Backed Notes, Class B (the "Class B Notes"), 7.860% Receivable-Backed
Notes, Class C (the "Class C Notes"), and 6.180% Receivable-Backed Notes, Class
D (the "Class D Notes" and, together with the Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes, Class A-4 Notes, Class B Notes and Class C Notes, the "Notes"):
GRANTING CLAUSE
The Issuer hereby grants, transfers, assigns and otherwise conveys to
the Indenture Trustee on the Closing Date, on behalf of and for the benefit of
the Holders of the Notes, without recourse, all of the Issuer's right, title and
interest in, to and under the Contract Assets as may be held from time to time
by the Issuer (as each such defined term is defined in Section 1.01)
(collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction and all other
sums owing by the Issuer hereunder or under any other Transaction Document, and
to secure compliance with the provisions of this Indenture, all as provided in
this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of
the Notes, acknowledges such Grant, accepts the trust under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Holders of the Notes may be adequately and effectively
protected.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
(a) Except as otherwise specified herein or as the context may
otherwise require, the following terms have the respective meanings set forth
below for all purposes of this Indenture.
"Act" has the meaning assigned in Section 11.03(a).
"Administration Agreement" means the Administration Agreement, dated as
of the date hereof, among the Administrator, the Issuer, the Trust Depositor and
the Indenture Trustee.
"Administrator" means Fidelity Leasing, Inc. or any successor
Administrator under the Administration Agreement.
"Applicable Procedures" has the meaning assigned in Section
2.09(h)(ii).
"Authorized Officer" means, with respect to the Issuer, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer and who is identified on the list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter) and, so
long as the Administration Agreement is in effect, any Vice President or more
senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Issuer and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter).
"Book-Entry Notes" has the meaning assigned in Section 2.01(c).
"Business Day" means any day other than a Saturday, Sunday or other day
on which banking institutions in the city of Philadelphia, Pennsylvania,
Chicago, Illinois, Charlotte, North Carolina, or New York, New York are
authorized or obligated by law, executive order or governmental decree to be
closed.
"Certificate of Trust" means the Certificate of Trust of the Issuer
substantially in the form of Exhibit A to the Trust Agreement.
"Class" means all Notes whose form is identical except for variation in
denomination, principal amount or owner.
"Class D Purchaser" has the meaning assigned in Section 2.15.
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"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Collateral" means the Collateral Granted to the Indenture Trustee
under the Granting Clause of this Indenture, including all proceeds thereof.
"Collateral Custodian" shall mean ▇▇▇▇▇▇ Trust and Savings Bank, as
collateral custodian, or any successor thereto.
"Contract Assets" has the meaning assigned in Section 2.01 of the Sale
and Servicing Agreement.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered which office at date of the execution of this Agreement is located
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Indenture Trust Administration; or at such other address as the Indenture
Trustee may designate from time to time by notice to the Noteholders and the
Issuer, or the principal corporate trust office of any successor Indenture
Trustee (the address of which the successor Indenture Trustee will notify the
Noteholders and the Issuer).
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning assigned in Section 2.01(d).
"Depository": The Depository Trust Company, or any successor Depository
hereafter named. The nominee of the initial Depository for purposes of
registering those Notes that are to be Book-Entry Notes, is Cede & Co. The
Depository shall at all times be a "clearing corporation" as defined in Section
8-102(3) of the Uniform Commercial Code of the State of New York and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act.
"DTC" means The Depository Trust Company, and its successors.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended.
"Event of Default" has the meaning assigned in Section 5.01.
"Exchange Act" means The Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Senior Vice President, the Secretary or the
Treasurer of such corporation; and with respect to any partnership, any general
partner thereof.
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"General Partner" means each Certificateholder obligated to pay the
expenses of the Issuer pursuant to Section 2.07 of the Trust Agreement.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create and ▇▇▇▇▇ ▇ ▇▇▇▇ upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to this Indenture. A Grant of the Collateral or of any other agreement
or instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral 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
Proceedings in the name of the granting party or otherwise and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder" or "Noteholder" or "Note Owner" means, with respect to a Book-
Entry Note, the Person who is the owner of such Book-Entry Note, as reflected on
the books of the Clearing Agency, or on the books of a Person maintaining an
account with such Clearing Agency (directly as a Clearing Agency participant or
as an indirect participant, in each case in accordance with the rules of such
Clearing Agency) and with respect to a Definitive Note the Person in whose name
a Note is registered on the Note Register.
"IAI Notes" has the meaning assigned in Section 2.01(d).
"Indenture Securities" means the Notes.
"Indenture Trustee" means ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee under this Indenture, or any successor Indenture Trustee under this
Indenture.
"Indenture Trustee Documents" has the meaning assigned in Section 6.13.
"Independent" means, when used with respect to any specified Person,
such a Person who (i) is in fact independent of the Issuer, the Trust Depositor,
the Seller, the Servicer and any of their respective Affiliates, (ii) is not a
director, officer or employee of any Affiliate of the Issuer other than an
Affiliate organized as a special purpose corporation or similar entity, the
Trust Depositor, the Seller or the Servicer, (iii) is not a person related to
any officer or director of the Issuer, the Trustee Depositor, the Seller or the
Servicer or any of their respective Affiliates, (iv) is not a holder (directly
or indirectly) of more than 10% of any voting securities of the Issuer, the
Trust Depositor, the Seller or the Servicer or any of their respective
Affiliates, and (v) is not connected with the Issuer, the Trustee Depositor, the
Seller or the Servicer 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 11.01, 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 this Indenture and that the signer is Independent within the
meaning thereof.
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"Institutional Accredited Investor" means an institutional "accredited
investor" as defined in Rule 501(a)(1), (2), (3), or (7) of Regulation D under
the Securities Act.
"Issuer Documents" has the meaning assigned in Section 3.18(a).
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Note Depository Agreement" means the agreement dated as of the Closing
Date, among the Issuer, the Administrator the Indenture Trustee and DTC, as the
initial Clearing Agency, relating to the Notes, substantially in the form of
Exhibit F hereto.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.04.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, and delivered to,
the Indenture Trustee. Unless otherwise specified, any reference in this
Indenture to an Officer's Certificate shall be to an Officer's Certificate of
any Authorized Officer of the Issuer.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be employees of
or counsel to the Issuer and who shall be satisfactory to the Indenture Trustee
and which shall comply with any applicable requirements of Section 11.01, and
shall be addressed to and in form and substance satisfactory to the Indenture
Trustee.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(i) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee
or any Paying Agent in trust for the Holders of such Notes (provided,
however, that if such Notes are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision for such
notice, satisfactory to the Indenture Trustee, has been made); and
(iii) Notes in exchange for or in lieu of other Notes which have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Indenture Trustee is presented that any such Notes are
held by a bona fide purchaser;
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provided, however, that in determining whether the Holders of the requisite
Outstanding Amount have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or under any other Transaction Document,
Notes owned by the Issuer, any other obligor upon the Notes, the Trust
Depositor, either Seller or any of their respective Affiliates shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
that the Indenture Trustee actually knows to be so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, the Trust
Depositor, either Seller or any of their respective Affiliates.
"Outstanding Amount" means the aggregate principal amount of all Notes
of one Class or of all Classes, as the case may be, Outstanding at the date of
determination.
"Owner Trustee" means First Union Trust Company, National Association,
not in its individual capacity but solely as Owner Trustee under the Trust
Agreement, or any successor trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.11 and is authorized by the Issuer to make the distributions from the Note
Distribution Account, including payment of principal of or interest on the Notes
on behalf of the Issuer.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Qualified Institutional Buyer" means a "qualified institutional buyer"
as defined in Rule 144A of the Securities Act.
"Rating Agency" means Standard and Poor's, a division of the McGraw
Hill Companies, Inc. ("S&P") and Duff & ▇▇▇▇▇▇ Credit Rating Co. ("DCR").
"Rating Agency Condition" means as to any action, that such action
would not result in the downgrade, qualification or withdrawal of the rating
then assigned by S&P or DCR to any Class of Notes.
"Redemption Date" means in the case of a redemption of the Notes
pursuant to Section 10.01(a) or a payment to Noteholders pursuant to Section
10.01(b), the Distribution Date specified by the Servicer or the Issuer pursuant
to Section 10.01(a) or 10.01(b), as the case may be.
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"Redemption Price" means (i) in the case of a redemption of the Notes
pursuant to Section 10.01(a), an amount equal to (x) the unpaid principal amount
of the Notes redeemed plus (y) accrued and unpaid interest thereon at the
weighted average of the Interest Rate for each Class of Notes being so redeemed
to but excluding the Redemption Date, (ii) in the case of a payment made to
Noteholders pursuant to Section 10.01(b), the amount on deposit in the Note
Distribution Account, but not in excess of the amount specified in clause (i)
above.
"Registered Holder" means the Person in whose name a Note is registered
on the Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office (or any successor group of the
Indenture Trustee), including any managing director, vice president, assistant
vice president, secretary, assistant secretary, vice president or any other
officer of the Indenture Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Required Holders" means (i) prior to the payment in full of the Class
A Notes outstanding, Class A-1 Noteholders, Class A-2 Noteholders, Class A-3
Noteholders and/or Class A-4 Noteholders evidencing more than 66 2/3% of the
aggregate Principal Amount of all Class A Notes outstanding (ii) from and after
the payment in full of the Class A Notes outstanding, Class B Noteholders
evidencing more than 66 2/3% of the aggregate Principal Amount of all Class B
Notes outstanding, (iii) from and after the payment in full of the Class B Notes
outstanding, Class C Noteholders evidencing more than 66 2/3% of the aggregate
Principal Amount of all Class C Notes outstanding, or (iv) from and after the
payment in full of the Class C Notes outstanding, Class D Noteholders evidencing
more than 66 2/3% of the aggregate Principal Amount of all Class D Notes
outstanding.
"Restricted Securities" has the meaning assigned in Section
2.01(e)(ii).
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of the date hereof, among the Issuer, the Trust Depositor, the
Collateral Custodian, the Back-Up Servicer, the Indenture Trustee and the
Servicer, substantially in the form of Exhibit A hereto.
"Securities Act" means The Securities Act of 1933, as amended.
"State" means any one of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, or the
District of Columbia or any of its territories.
"Targeted Holder" means any holder of a right to receive interest or
principal with respect to the Class D Notes or other interests in the Trust
(other than interests with respect to which an opinion is rendered that such
interest will be treated as debt for federal income tax purposes) and any holder
of a right to receive any amount in respect of the Certificate; provided, that
any Person holding more than one interest each of which would cause such Person
to be a Targeted Holder shall be treated as a single Targeted Holder.
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"Termination Date" means the date on which the Indenture Trustee shall
have received payment and performance of all amounts and obligations which the
Issuer may owe to or on behalf of the Indenture Trustee for the benefit of the
Noteholders under this Indenture or the Notes.
"Transfer" has the meaning assigned in Section 2.15(c).
"Trust Agreement" means the Trust Agreement, dated as of the date
hereof, between the Trust Depositor and the Owner Trustee.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
"U.S. Person" means a citizen or resident of the United States, a
corporation, or partnership (unless, in the case of a partnership, Treasury
regulations are adopted that provide otherwise) created or organized in or under
the laws of the United States, any state thereof or the District of Columbia,
including an entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source, or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
(b) Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Sale and Servicing Agreement.
Section 1.02 Rules of Construction. Unless the context otherwise
requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in
effect from time to time;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and words in the plural
include the singular.
(vi) any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means
such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns; and
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(vii) the words "hereof," "herein" and "hereunder" and words of similar
import when used in this Indenture shall refer to this Indenture as a whole
and not to any particular provision of this Indenture; Section, subsection
and Schedule references contained in this Indenture are references to
Sections, subsections and Schedules in or to this Indenture unless
otherwise specified.
ARTICLE TWO
THE NOTES
Section 2.01 Form.
(a) The Notes, in each case together with the Indenture Trustee's
certificate of authentication, shall be in substantially the forms set forth as
Exhibits to this Indenture with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may, consistently herewith,
be determined by the officers executing such Notes, as evidenced by their
execution of the Notes. Any portion of the text of any Note may be set forth on
the reverse thereof, with an appropriate reference thereto on the face of the
Note.
(b) The Definitive Notes shall be printed, typewritten, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Notes may be listed, all as determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
(c) Notes of any Class offered to Qualified Institutional Buyers shall
be issued in the form of a single global security (a "Book-Entry Note") in
definitive, fully registered form, without interest coupons, substantially in
the form of the Notes of such Class, and with such applicable legends as are set
forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, C and D hereof. Each such Book-Entry Note
shall initially be registered in the name of Cede & Co., as nominee of the
Depository, and deposited with the Indenture Trustee, at its Corporate Trust
Office, as custodian for the Depository, duly executed by the Issuer and
authenticated by the Indenture Trustee as hereinafter provided. The aggregate
initial principal amount of each Book-Entry Note may from time to time be
increased or decreased by adjustments made on the records of the Indenture
Trustee, as custodian for the Depository, as provided in Section 2.09(h).
(d) Notes sold to an Institutional Accredited Investor (the "IAI
Notes") and not in reliance on Rule 144A shall be issued in definitive, fully
registered form ("Definitive Notes"), without interest coupons, substantially in
the form of the Notes of such Class, and with such applicable legends as are set
forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇, ▇ and E hereof. IAI Notes shall be
delivered to such Institutional Accredited Investor(s) only upon the execution
and delivery to the Placement Agent, the Issuer and the Indenture Trustee of a
letter, substantially in the form of the letter attached as Annex A to this
Indenture. IAI Notes may not be exchanged for interests in a Book-Entry Note
except as provided in Section 2.09(g) and 2.09(h) hereof.
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(e) (i) Each Restricted Security shall bear the following legend:
"THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER
ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES OR
ANY FOREIGN SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE,
AGREES FOR THE BENEFIT OF THE INDENTURE TRUSTEE THAT THIS NOTE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH
THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR
THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER,
WITHIN THE MEANING OF RULE 144A ("QUALIFIED INSTITUTIONAL BUYER"),
PURCHASING FOR ITS OWN ACCOUNT OR A QUALIFIED INSTITUTIONAL BUYER
PURCHASING FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, WHOM THE
HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE, OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING THEREOF IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR PURSUANT
TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT, IN THE CASE OF TRANSFERS PURSUANT TO THIS CLAUSE (3), TO (A)
THE RECEIPT BY THE NOTE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM
PROVIDED IN ANNEX A TO THE INDENTURE AND (B) IF REQUESTED BY THE NOTE
REGISTRAR, THE RECEIPT BY THE NOTE REGISTRAR OF SUCH CERTIFICATES, LEGAL
OPINIONS AND OTHER EVIDENCE ACCEPTABLE TO THE NOTE REGISTRAR THAT SUCH
REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS."
(ii) During the period beginning on the Closing Date and ending on the
date two years from the Closing Date, all Notes, and all Notes issued upon
registration of transfer of, or in exchange for, or in lieu of, such Notes,
shall be deemed "Restricted Securities" and shall be subject to the
restrictions on transfer provided in the applicable legend set forth in
Section 2.01(e)(i); provided, however, that the term "Restricted
Securities" shall not include (a) Notes which are issued upon transfer of,
or in exchange for, Notes that are not Restricted Securities or (b) Notes
as to which restrictions on transfer have been terminated in accordance
with Section 2.09. All Restricted Securities shall bear the applicable
legend set forth pursuant to Section 2.01(e). Notes that are not Restricted
Securities shall not bear such legend.
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(f) Each Note shall be dated the date of its authentication. The terms
of the Notes set forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, C, D and E hereto are
part of the terms of this Indenture.
(g) The "Depository" for the Notes to be authenticated and delivered in
the form of a Book-Entry Note upon original issuance shall be The Depository
Trust Company.
Section 2.02 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile. Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall, upon receipt of an Issuer Order,
authenticate and deliver for original issue (i) Class A-1 Notes in an aggregate
principal amount of $56,955,084, (ii) Class A-2 Notes in an aggregate principal
amount of $27,949,428, (iii) Class A-3 Notes in an aggregate principal amount of
$20,880,883, (iv) Class A-4 Notes in an aggregate principal amount of
$33,961,804, (v) Class B Notes in an aggregate principal amount of $9,749,800,
(vi) Class C Notes in an aggregate principal amount of $4,874,900 and (vii)
Class D Notes in an aggregate principal amount of $4,468,658. The aggregate
principal amount of such Classes of Notes Outstanding at any time may not exceed
such respective amounts, except as otherwise provided in Section 2.05.
Each Note shall be dated the date of its authentication. The Class A
Notes, the Class B Notes and the Class C Notes shall be issuable as registered
Notes in the minimum denomination of $250,000 and in integral multiples of
$1,000 in excess thereof, except that one Note of each Class may be issued in an
integral multiple of less than $1,000 in excess thereof. The Class D Notes shall
be issuable as registered Notes in the minimum denomination of $500,000 and in
integral multiples of $1,000 in excess thereof, except that one Note of such
Class may be issued in an integral multiple of less than $1,000 in excess
thereof.
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 by
the Indenture Trustee by the manual signature of one of its authorized
signatories, and such certificate upon any Note shall be conclusive evidence,
and the only evidence, that such Note has been duly authenticated and delivered
hereunder.
Section 2.03 Temporary Notes. Pending the preparation of Book-Entry
Notes or Definitive Notes, the Issuer may execute, and upon receipt of an Issuer
Order the Indenture Trustee shall authenticate and deliver, temporary Notes that
are printed, lithographed, typewritten, mimeographed or otherwise produced, of
the tenor of the definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
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If temporary Notes are issued, the Issuer will cause Book-Entry Notes
or Definitive Notes to be prepared without unreasonable delay. After the
preparation of Book-Entry Notes or Definitive Notes, the temporary Notes shall
be exchangeable for Book-Entry Notes or Definitive Notes upon surrender of the
temporary Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.02, without charge to the Holder. Upon surrender for
cancellation of any one or more Notes, the Issuer shall execute and the
Indenture Trustee shall authenticate and deliver in exchange therefor a like
tenor and principal amount of definitive Notes of authorized denominations.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Book-Entry Notes or Definitive Notes.
Section 2.04 Registration; Registration of Transfer and Exchange.
(a) The Issuer shall cause to be kept a register (the "Note Register")
in which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and the registration of transfers of
Notes. The Indenture Trustee shall be "Note Registrar" for the purpose of
registering Notes and transfers of Notes as herein provided. Upon any
resignation of any Note Registrar, the Issuer shall promptly appoint a successor
or, if it elects not to make such an appointment, assume the duties of Note
Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar, the Issuer will give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Holders of the Notes and
the principal amounts and the amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.02, the Issuer
shall execute, and the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes of the same Class in any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of
the same Class in any authorized denominations, of a like aggregate amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Issuer shall execute, and the
Indenture Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, the Notes which the Noteholder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
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Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in substantially the form set forth as Exhibit F or in a form
satisfactory to the Indenture Trustee duly executed by, the Holder thereof or
such Holder's attorney duly authorized in writing, with such signature
guaranteed by a commercial bank or trust company located, or having a
correspondent located in the city in which the Corporate Trust Office is
located, or by a member firm of a national securities exchange, and such other
documents as the Indenture Trustee may require.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Notes, but the Issuer or the Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes, other than exchanges pursuant to Section 2.03 not involving
any transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make and the Note Registrar need not register transfers
or exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
Neither the Indenture Trustee nor the Registrar shall have any
responsibility to monitor or restrict the transfer of beneficial ownership in
any Note an interest in which is transferable through the facilities of the
Depository.
(b) Notwithstanding any other provision of this Indenture, no transfer
of the Class D Notes shall be made or shall be valid or effective hereunder
unless such transfer is made in a transaction which does not require
registration or qualification under the Securities Act or qualification under
any state securities or "Blue Sky" laws. In addition, neither the Indenture
Trustee nor the Note Registrar shall effect the registration of any transfer of
the Class D Notes if, following such transfer, there would be more than 99
Targeted Holders; provided, however, that the Indenture Trustee and the Note
Registrar shall incur no liability for determining compliance with such
requirement or compliance with any rules of aggregation under applicable law.
For all purposes hereunder, the Indenture Trustee and the Note Registrar shall
be entitled to rely upon its list of Registered Holders.
Section 2.05 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by them to hold the Issuer and the Indenture
Trustee harmless, then, in the absence of notice to the Issuer, the Note
Registrar or the Indenture Trustee that such Note has been acquired by a bona
fide purchaser, the Issuer shall execute and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note of the same Class;
provided, however, that if any such destroyed, lost or stolen Note, but not a
mutilated Note, shall have become or within seven days shall be due and payable,
or shall have been called for redemption, instead of issuing a replacement Note,
the Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to
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the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer, and the Indenture Trustee shall be entitled to
recover such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person to whom
such replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the
Issuer or the Indenture Trustee may require the payment by the Holder of such
Note of a sum sufficient to cover any tax or other governmental charge that may
be imposed in relation thereto and any other reasonable expenses (including the
fees and expenses of the Indenture Trustee or the Note Registrar) connected
therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost of stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 2.06 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee, and any
of their respective agents may treat the Person in whose name any Note is
registered in the Note Registrar (as of the day of determination) as the owner
of such Note for the purpose of receiving payments of principal and interest, if
any, on such Note and for all other purposes whatsoever, whether or not such
Note be overdue, and none of the Issuer, the Indenture Trustee nor any of their
respective agents shall be affected by notice to the contrary.
Section 2.07 Payment of Principal and Interest; Defaulted Interest.
(a) Each Class of Notes shall accrue interest at the related Interest
Rate, and such interest shall be payable on each Distribution Date as specified
therein, subject to Section 3.01. Any installment of interest or principal, if
any, payable on any Note which is punctually paid or duly provided for by the
Issuer on the applicable Distribution Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered on the Record
Date, by wire transfer in immediately available funds to the account designated
by such nominee and except for the final installment of principal payable with
respect to such Note on a Distribution Date or on the related Final Distribution
Date, as the case may be (and except for the Redemption Price for any Note
called for redemption pursuant to Section 10.01(a)), which shall be payable as
provided below. The funds represented by any such checks returned undelivered
shall be held in accordance with Section 3.03.
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(b) The principal of each Note shall be payable on each Distribution
Date to the extent provided in the form of the related Note set forth as an
Exhibit hereto. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on the
date on which an Event of Default shall have occurred and be continuing unless
the Required Holders have waived such Event of Default in the manner provided in
Section 5.02. All principal payments on each Class of Notes shall be made pro
rata to the Noteholders of such Class entitled thereto. The Indenture Trustee
shall notify the Person in whose name a Note is registered at the close of
business on the Record Date preceding the Distribution Date on which the Issuer
expects that the final installment of principal of and interest on such Note
will be paid. Such Notice shall be mailed within five Business Days of receipt
of notice of termination of the Trust pursuant to Section 9.01(c) of the Trust
Agreement and shall specify that such final installment will be payable only
upon presentation and surrender of such Note and shall specify the place where
such Note may be presented and surrendered for payment of such installment,
provided the Issuer provides the Indenture Trustee with timely written notice of
such expected final payment. Notices in connection with redemptions of Notes
shall be mailed to Noteholders as provided in Section 10.02.
(c) If the Issuer defaults in a payment of interest on the Notes, the
Issuer shall pay defaulted interest (plus interest on such defaulted interest to
the extent lawful) at the applicable Interest Rate in any lawful manner. The
Issuer may pay such defaulted interest to the Persons who are Noteholders on a
subsequent special record date, which date shall be at least five Business Days
prior to the related payment date. The Issuer shall fix or cause to be fixed any
such special record date and payment date, and, at least 15 days before any such
special record date, the Issuer shall mail to the Indenture Trustee and each
Noteholder a notice that states the special record date, the payment date and
the amount of defaulted interest to be paid.
(d) All payments to be made by the Issuer under this Indenture shall be
made only from the income and proceeds from the Collateral and only to the
extent that the Issuer shall have sufficient income or proceeds from the Trust
Assets to enable the Issuer to make payments in accordance with the terms
hereof. The Indenture Trustee is not personally liable for any amounts paid by
the Issuer under this Indenture.
Section 2.08 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly canceled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Notes may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time unless the Issuer shall direct by an Issuer Order that they
be destroyed or returned to it; provided that such Issuer Order is timely and
the Notes have not been previously disposed of by the Indenture Trustee.
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Section 2.09 Book-Entry Notes.
(a) The Notes, other than the Class D Notes, upon original issuance,
will be issued in the form of a typewritten Note or Notes representing the
Book-Entry Notes, to be delivered to DTC, the initial Depository, by, or on
behalf of, the Issuer. Such Notes shall initially be registered on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Noteholder will receive a Definitive Note representing such Noteholder's
interest in such Note, except as provided in Section 2.11. Unless and until
definitive, fully registered Notes (the "Definitive Notes") have been issued to
Noteholders pursuant to Section 2.11:
(i) the provisions of this Section shall be in full force and effect;
(ii) the Note Registrar and the Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture (including
the payment of principal of and interest on the Notes and the giving of
instructions or directions hereunder) as the sole Holder of the Notes, and
shall have no obligation to the Noteholders;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of this Indenture, the provisions of this Section
shall control;
(iv) the rights of Noteholders shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Noteholders and the Clearing Agency and/or the
Clearing Agency Participants. Pursuant to the Note Depository Agreement,
unless and until Definitive Notes are issued pursuant to Section 2.11, the
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of and interest
on the Notes to such Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Noteholders evidencing a specified
percentage of the Outstanding Amount, the Clearing Agency shall be deemed
to represent such percentage only to the extent that it has received
instructions to such effect from Noteholders and/or Clearing Agency
Participants owning or representing, respectively, such required percentage
of the beneficial interest in the Notes and has delivered such instructions
to the Indenture Trustee.
(b) Notwithstanding any other provisions of this Indenture or the
Notes, a Book-Entry Note shall not be exchanged in whole or in part for a Note
registered in the name of any Person other than the Depository or one or more
nominees thereof, provided, that a Book-Entry Note may be exchanged for Notes
registered in the names of any Person designated by the Depository in the event
of the occurrence of any of the events specified in Section 2.11 as provided
therein.
(c) Notes issued in exchange for a Book-Entry Note or any portion
thereof shall be issued as Definitive Notes, shall have an aggregate initial
principal amount equal to that of such Book-Entry Note or portion thereof to be
so exchanged, shall be registered in such names and be in such authorized
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denominations as the Depository shall designate and shall bear the applicable
legends provided for herein. Any Book-Entry Note to be exchanged in whole shall
be surrendered by the Depository to the Indenture Trustee. With respect to any
Book-Entry Note to be exchanged in part, either such Book-Entry Note shall be so
surrendered for exchange or, if the Indenture Trustee is acting as custodian for
the Depository or its nominee with respect to such Book-Entry Note, the initial
principal amount thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Indenture Trustee. Upon any such surrender or adjustment, the
Indenture Trustee shall authenticate and deliver the Note issuable on such
exchange to or upon the order of the Depository or an authorized representative
thereof. Any Note delivered in exchange for a Book-Entry Note or any portion
thereof shall bear the legend regarding transfer restrictions applicable to the
Book-Entry Note set forth in the form of Note.
(d) Subject to the provisions of Section 2.01, the registered Holder
may grant proxies and otherwise authorize any person, including Clearing Agency
Participants and persons that may hold interests through Clearing Agency
Participants, to take any action which a Holder is entitled to take under this
Indenture or the Notes.
(e) In the event of the occurrence of any of the events specified in
Section 2.11, the Issuer will promptly make available to the Indenture Trustee a
reasonable supply of Definitive Notes.
(f) Neither any members of, or participants in, the Depository
("Clearing Agency Participants") nor any other Persons on whose behalf Clearing
Agency Participants may act shall have any rights under this Indenture with
respect to any Book-Entry Note registered in the name of the Depository or any
nominee thereof, or under any such Book-Entry Note, and the Depository or such
nominee, as the case may be, may be treated by the Issuer, the Indenture Trustee
and any agent of the Issuer or the Indenture Trustee as the absolute owner and
holder of such Book-Entry Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer, the Indenture Trustee or any
agent of the Issuer or the Indenture Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or such
nominee, as the case may be, or impair, as between the Depository, its Clearing
Agency Participants and any other Person on whose behalf a Clearing Agency
Participant may act, the operation of customary practices of such Persons
governing the exercise of the rights of a Holder of any Note. The Depository
must, at all times while it serves as such Depository, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
(g) Definitive Notes (other than Class D Notes) held by Holders other
than Institutional Accredited Investors may be transferred at the option of the
Holder thereof, at any time prior to the issuance of Definitive Notes in
exchange for a Book-Entry Note pursuant to Section 2.09(b) and in accordance
with Section 2.11, to the Depository for credit to the account of any Clearing
Agency Participant at any time after the issuance of the Notes. Thereafter, the
Depository or its nominee shall be the Holder of the portion of the Book-Entry
Note evidencing any Definitive Notes so transferred and the beneficial ownership
thereof and the transfer of such ownership interest shall be effected only
through records maintained by the Depository or its nominee.
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(h) Notwithstanding any other provision of this Indenture or the Notes,
transfers of a Book-Entry Note, in whole or in part, shall be made only in
accordance with this Section 2.09(h).
(i) Transfer of a Book-Entry Note. Unless and until it is exchanged in
whole or in part for the Definitive Notes represented thereby in accordance
with Section 2.11 of this Indenture, a Book-Entry Note representing all or
a portion of the Notes may not be transferred, except as a whole by the
Depository to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by
such Depository or any such nominee to a successor Depository or a nominee
of such successor Depository, and no such transfer to any such other Person
may be registered; provided that this clause (i) shall not prohibit any
transfer of a Note that is issued in exchange for a Book-Entry Note but is
not itself a Book-Entry Note. No transfer of a Note to any Person shall be
effective under this Indenture or the Notes unless and until such Note has
been registered in the name of such Person. Nothing in this Section shall
prohibit or render ineffective any transfer of a beneficial interest in a
Book-Entry Note effected in accordance with the other provisions of this
Section 2.09(h).
(ii) IAI Note to Book-Entry Note. If the Holder of an IAI Note (other
than a Class D Note) wishes at any time to transfer such Note to a Person
who wishes to take delivery thereof in the form of a beneficial interest in
a Book-Entry Note, such transfer may be effected, subject to the rules and
procedures of the Depository, to the extent applicable (the "Applicable
Procedures"), only in accordance with this clause (ii). Upon receipt by the
Indenture Trustee, as Registrar at the Corporate Trust Office, of (A) the
IAI Note to be transferred with appropriate bond powers, (B) written
instructions given in accordance with the Applicable Procedures from a
Clearing Agency Participant directing the Indenture Trustee to credit or
cause to be credited to another specified Clearing Agency Participant's
account a beneficial interest in a Book-Entry Note in an initial principal
amount equal to the initial principal amount of the IAI Note to be so
transferred, (C) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Clearing
Agency Participant to be credited with such beneficial interest, and (D) a
certificate in substantially the form set forth in Annex A, the Indenture
Trustee shall cancel such IAI Note, the Issuer shall execute, and the
Indenture Trustee shall authenticate and deliver a new Definitive Note for
the initial principal amount of the IAI Note not so transferred, registered
in the name of the Holder transferring such IAI Note or, if the remaining
initial principal amount of the IAI Note is transferred, the Holder's
transferee, and the Indenture Trustee shall instruct the Depository to
increase the initial principal amount of the Book-Entry Note by the initial
principal amount of the IAI Note so transferred, and to credit or cause to
be credited to the account of the Person specified in such instructions a
corresponding initial principal amount of the Book-Entry Note.
(iii) Other Exchanges. In the event that a Book-Entry Note or any
portion thereof is exchanged for Definitive Notes, such Definitive Notes
may in turn be exchanged (on transfer or otherwise) for Definitive Notes or
for beneficial interests in a Book-Entry Note (if any is then outstanding)
only in accordance with such procedures, which shall be substantially
consistent with the provisions of clauses (i) and (ii) above (including the
certification requirements intended to ensure that transfers of beneficial
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interests in a Book-Entry Note comply with Rule 144A or Rule 144 (if
available), as the case may be) and any Applicable Procedures, as may be
from time to time adopted by the Issuer and the Indenture Trustee.
(i) Whenever any IAI Note is presented or surrendered for registration
of transfer or for exchange for a Note registered in a name other than that of
the Holder, such IAI Note must be accompanied by a certificate in substantially
the form of Annex A, dated the date of such surrender and signed by the Holder
of such IAI Note, as to compliance with such restrictions on transfer. The
Indenture Trustee shall not be required to accept for such registration of
transfer or exchange any IAI Note not so accompanied by a properly completed
certificate.
(j) Every Restricted Security shall be subject to the restrictions on
transfer provided in the applicable legend required to be set forth on the face
of each Restricted Security pursuant to Section 2.01(e)(i), and the Holder of
each Restricted Security, by such Holder's acceptance thereof, agrees to be
bound by such restrictions on transfer. The restrictions imposed by Section
2.01(e) and this Section 2.09 upon the transferability of any particular
Restricted Security shall cease and terminate when such Restricted Security has
been sold pursuant to an effective registration statement under the Securities
Act or transferred pursuant to Rule 144 under the Securities Act (or any
successor provision thereto), unless the Holder thereof is an affiliate of the
Issuer within the meaning of Rule 144 (or such successor provision). Any
Restricted Security as to which such restrictions on transfer shall have expired
in accordance with their terms or shall have terminated may, upon surrender of
such Restricted Security for exchange to the Registrar in accordance with the
provisions of this Section 2.09 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer pursuant to
Rule 144 (or any successor provision), by an Opinion of Counsel reasonably
acceptable to the Issuer and the Indenture Trustee, addressed to the Issuer and
the Indenture Trustee and in form acceptable to the Issuer and the Indenture
Trustee, to the effect that the transfer of such Restricted Security has been
made in compliance with Rule 144 (or any such successor provision) and that such
restrictions on transfer are no longer applicable), be exchanged for a new Note,
of like tenor and aggregate initial principal amount, which shall not bear the
restrictive legend required by Section 2.01(e). The Indenture Trustee and the
Issuer (unless the Holder thereof is an affiliate of the Issuer within the
meaning of Rule 144 (or such successor provision)) shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
aforementioned Opinion of Counsel.
As used in Section 2.09(i) and in this Section 2.09(j), the term
"transfer" encompasses any sale, pledge, transfer or other disposition of any
Restricted Security.
(k) If at any time the Depository notifies the Issuer that it is
unwilling or unable to continue as Depository or if at any time the Depository
shall no longer be eligible under Section 2.11, the Issuer or the Administrator
on its behalf shall appoint a successor Depository. If a successor Depository is
not appointed by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such ineligibility, the Issuer will execute, and the
Indenture Trustee, upon receipt of an Issuer Order for the authentication and
delivery of individual Notes, will authenticate and deliver, individual Notes in
physical, certificated form in an aggregate initial
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principal amount equal to the initial principal amount of a Book-Entry Note or
Book-Entry Notes representing Notes in exchange for such Book-Entry Note or
Book-Entry Notes.
(i) The Issuer may at any time and in its sole discretion determine
that individual Notes issued in the form of one or more Book-Entry Notes
shall in whole or in part no longer be represented by such Book-Entry Note
or Book-Entry Notes and may require the Depository to submit any Book-Entry
Note held by it for transfer pursuant to subsection (iii) hereof. In such
event, or if an Event of Default has occurred and is continuing, the Issuer
will execute, and the Indenture Trustee, upon receipt of an Issuer Order
for the authentication and delivery of individual Notes, will authenticate
and deliver, individual Notes in physical, certificated form in an
aggregate initial principal amount equal to the initial principal amount of
the Book-Entry Note or Book-Entry Notes to be exchanged therefor. In the
event the Issuer fails to execute such individual Notes, the Issuer hereby
irrevocably appoints the Indenture Trustee as its lawful attorney-in-fact,
coupled with an interest, to do so.
(ii) The Depository may surrender a Book-Entry Note, in exchange in
whole or in part for individual Notes on such terms as are acceptable to
the Issuer and such Depository. Thereupon, the Issuer shall execute, and
the Indenture Trustee shall authenticate and deliver, without service
charge,
to each Person specified by such Depository a new individual Note
or Notes in physical, certificated form of any authorized
denomination as requested by such Person in aggregate initial
principal amount equal to and in exchange for such Person's
beneficial interest in the Book-Entry Note; and
to such Depository a new Book-Entry Note in a denomination equal
to the difference, if any, between the initial principal amount
of the surrendered Book-Entry Note and the aggregate initial
principal amount of individual Notes delivered to Holders
thereof.
(iii) Upon the exchange of a Book-Entry Note for individual Notes, such
Book-Entry Note shall be canceled by the Indenture Trustee. Individual
Notes issued in exchange for a Book-Entry Note pursuant to this Section
shall be registered in such names and in such authorized denominations as
the Depository for such Book-Entry Note, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Indenture
Trustee in writing. The Indenture Trustee and the Issuer shall not have any
liability for the accuracy of the instructions received from the
Depository. The Indenture Trustee shall deliver such Notes to the Persons
in whose names such Notes are so registered.
Section 2.10 Notices to Depository. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Noteholders pursuant to Section
2.11, the Indenture Trustee shall give all such notices and communications
specified herein to be given to Noteholders of the Notes to the Depository, and
shall have no obligation to the Noteholders.
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Section 2.11 Definitive Notes. The Class D Notes shall be initially
issued in the form of Definitive Notes. With respect to the other Classes of
Notes, if (i)(A) the Administrator advises the Indenture Trustee in writing that
the Depository is no longer willing or able to properly discharge its
responsibilities as described in the Note Depository Agreement, and (B) the
Administrator or the Indenture Trustee is unable to locate a qualified
successor, (ii) the Administrator at its option advises the Indenture Trustee in
writing that it elects to terminate the book-entry system through the
Depository, or (iii) after the occurrence of an Event of Default, the
Noteholders representing not less than 66 2/3% of the Outstanding Amount of such
Class of Notes advises the Indenture Trustee and the Depository through the
Clearing Agency Participants in writing that the continuation of a book-entry
system through the Depository is no longer in the best interests of the related
Noteholders, then the Indenture Trustee shall notify all Noteholders of the
related Class of Notes, through the Depository, of the occurrence of any such
event and of the availability of Definitive Notes of the related Class of Notes
to Noteholders requesting the same. Upon surrender to the Indenture Trustee of
the Note or Notes representing the Book-Entry Notes by the Depository,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Depository. None of the Issuer, the Note Registrar or the
Indenture Trustee shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Notes of a Class, the Indenture
Trustee shall recognize the Noteholders of the Definitive Notes as Noteholders
hereunder.
The Indenture Trustee shall not be liable if the Administrator or the
Indenture Trustee is unable to locate a qualified successor Depository. The
Definitive Notes shall be typewritten, printed, lithographed or engraved or
produced by any combination of these methods (with or without steel engraved
borders), all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
Section 2.12 Release of Collateral. Subject to Section 11.01 and the
terms of the Transaction Documents, the Indenture Trustee shall release property
from the lien of this Indenture only (a) upon the payment of all Scheduled
Payments under the Contract relating to such property and (b) upon receipt of an
Issuer Request accompanied by an Officer's Certificate.
Section 2.13 Tax Treatment. The Issuer and the purchasers of the Notes
intend, and will take all actions consistent with the intention, that the Notes
be treated as indebtedness which is solely secured by the assets of the Trust
for all federal, state, local, and foreign income and franchise tax purposes and
that, pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii) as in effect
for periods after January 1, 1997, the Trust be disregarded as a separate entity
from the Trust Depositor for federal income tax purposes. The Issuer, by
entering into this Indenture, and each Noteholder, by its acceptance of its Note
agrees to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness.
Section 2.14 Noteholder Direction. Notwithstanding anything to the
contrary contained in this Indenture, provided the Indenture Trustee has sent
out notices to Noteholders in accordance with this Indenture, the Indenture
Trustee may act as directed by a majority of the outstanding Noteholders
responding in writing to the request contained in such notice; provided,
however, that Noteholders representing at least 66-2/3% of the outstanding
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principal balance of the Notes as of the time such notice is sent to Noteholders
must have responded to such notice from the Indenture Trustee. In addition, the
Indenture Trustee shall not have any liability to any Noteholder or Note Owner
with respect to any action taken pursuant to such notice if the Noteholder or
Note Owner does not respond to such notice within the time period set forth in
such notice.
Section 2.15 Additional Restrictions on the Class D Notes. Each
purchaser of Class D Notes (a "Class D Purchaser") from the Trust Depositor and
the Placement Agent, by acceptance thereof, will be required to provide a
certificate representing to and agreeing with the Trust Depositor, the Servicer
and the Placement Agent as indicated on Annex A hereto, including without
limitation:
(a) The Class D Purchaser is a U.S. Person and the sole legal and
beneficial owner of the Class D Note.
(b) The Class D Purchaser is not and will not become a partnership,
Subchapter S corporation or grantor trust for United States federal income tax
purposes or, if it is or becomes such an entity, less than 50 percent of the
aggregate value of the assets of such entity are and at all times will be
attributable to interests in the Issuer.
(c) The Class D Purchaser understands that no subsequent sale or
transfer (each such act, a "Transfer") of a Class D Note is permitted unless (i)
such Transfer is of a Class D Note with a denomination of at least $500,000 and
(ii) the Trust Depositor and the Servicer each consent in writing to the
proposed Transfer, which consent shall be granted unless either the Trust
Depositor or the Servicer, acting pursuant to advice of counsel, determines that
such Transfer would create a material risk that the Trust would be classified
for federal or any applicable state tax purposes as an association or publicly
traded partnership taxable as a corporation; provided, that an attempted
Transfer that would cause the number of Targeted Holders to exceed one hundred
shall be void.
Class D Notes shall be delivered to such Class D Purchaser only upon
the execution and delivery to the Placement Agent, the Issuer and the Indenture
Trustee of a letter, substantially in the form of the letter attached as Annex A
to this Indenture. Any purported Transfer of any Class D Note in contravention
of the restrictions and conditions in Annex A hereto (including any violation of
the representation in paragraph (b) above by an investor who continues to hold a
Class D Note occurring any time after the Transfer in which it acquired such
Class D Note) shall be null and void and the purported transferee shall not be
recognized by the Trust or any other person as a Class D Noteholder for any
purpose.
Section 2.16 Listing Restrictions. Neither the Issuer nor the Owner
Trustee acting on behalf of the Issuer will (i) list or cause the Class D Notes
to be listed or traded on an established securities market (within the meaning
of Treasury Regulation Section 1.7704-1(b)), or (ii) cooperate in, or
facilitate, the establishment of such a market.
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ARTICLE THREE
COVENANTS
Section 3.01 Payment of Principal and Interest. The Issuer will duly
and punctually pay the principal of and interest, if any, on the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting the
foregoing, subject to Section 8.02(c), the Issuer and the Indenture Trustee will
cause to be deposited in the Note Distribution Account amounts allocated
pursuant to Section 7.05 of the Sale and Servicing Agreement and cause to be
distributed all such amounts therein (i) for the benefit of the Class A-1 Notes,
to the Class A-1 Noteholders, (ii) for the benefit of the Class A-2 Notes, to
the Class A-2 Noteholders, (iii) for the benefit of the Class A-3 Notes, to the
Class A-3 Noteholders, (iv) for the benefit of the Class A-4 Notes, to the Class
A-4 Noteholders, (v) for the benefit of the Class B Notes, to the Class B
Noteholders, (vi) for the benefit of the Class C Notes, to the Class C
Noteholders, and (vii) for the benefit of the Class D Notes, to the Class D
Noteholders. Amounts properly withheld under the Code by any Person from a
payment to any Noteholder of interest and/or principal shall be considered as
having been paid by the Issuer to such Noteholder for all purposes of this
Indenture.
Section 3.02 Maintenance of Office or Agency. The Issuer will maintain
in Chicago, Illinois or New York, New York, an office or agency where Notes may
be surrendered for registration of transfer or exchange, and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer hereby initially designates the Corporate Trust Office as
such office, and appoints the Indenture Trustee to serve as its agent for the
foregoing purposes. The Issuer will give prompt written notice to the Indenture
Trustee of the location, and of any change in the location, of any such office
or agency. If at any time the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the address thereof,
such surrenders, notices and demands may be made or served at the Corporate
Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent
to receive all such surrenders, notices and demands.
Section 3.03 Money for Payments to be Held in Trust. As provided in
Section 8.02, all payments of amounts due and payable with respect to any Notes
that are to be made from amounts withdrawn from the Collection Account and the
Note Distribution Account pursuant to Section 8.02 shall be made on behalf of
the Issuer by the Indenture Trustee or by another Paying Agent, and no amounts
so withdrawn from the Collection Account and the Note Distribution Account for
payments of Notes shall be paid over to the Issuer except as provided in this
Section.
On or before the Business Day immediately preceding each Distribution
Date and Redemption Date, the Issuer shall deposit or cause to be deposited in
the Note Distribution Account an aggregate sum sufficient to pay the amounts
then becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto and (unless the Paying Agent is the Indenture Trustee) shall
promptly notify the Indenture Trustee in writing of its action or failure to so
act.
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The Issuer will cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee written notice of any default by the
Issuer (or any other obligor upon the Notes) in the making of any payment
required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and upon receipt of an Issuer Request shall be deposited by the Indenture
Trustee in the Collection Account; and the Holder of such Note shall thereafter,
as an unsecured general creditor, look only to the Issuer for payment thereof,
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that if such money or
any portion thereof had been previously deposited by the Issuer with the
Indenture Trustee for the payment of principal or interest on the Notes, and
provided, further, that the Indenture Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Issuer cause to
be published once, in a newspaper published in the English language, customarily
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published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to or for the
account of the Issuer. The Indenture Trustee may also adopt and employ, at the
expense of the Issuer, any other reasonable means of notification of such
repayment (including, but not limited to, mailing notice of such repayment to
Holders whose Notes have been called but not have not been surrendered for
redemption or whose right to or interest in moneys due and payable but not
claimed is determinable from the records of the Indenture Trustee or of any
Paying Agent, at the last address of record for each such Holder).
Section 3.04 Existence. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the State
of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other state or of the United States, in which
case the Issuer will keep in full effect its existence, rights and franchises
under the laws of such other jurisdiction) and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Indenture, the Notes, the Collateral and each other instrument or agreement
included in the Collateral.
Section 3.05 Protection of Collateral. The Issuer intends the security
interest Granted pursuant to this Indenture in favor of the Indenture Trustee on
behalf of the Noteholders to be prior to all other liens in respect of the
Collateral, and the Issuer shall take all actions necessary to obtain and
maintain, for the benefit of the Indenture Trustee on behalf of the Noteholders,
a first lien on and a first priority, perfected security interest in the
Collateral. The Issuer (or the Owner Trustee on its behalf) 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, all as prepared by the Servicer and delivered to the
Issuer, and will take such other action necessary or advisable to:
(i) Grant more effectively all or any portion of the Collateral;
(ii) maintain or preserve the lien and security interest (and the
priority thereof) created by this Indenture or carry out more effectively
the purposes hereof;
(iii) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(iv) enforce any of the Collateral;
(v) preserve and defend title to the Collateral and the rights of the
Indenture Trustee and the Noteholders in such Collateral against the claims
of all persons and parties; and
(vi) pay all taxes or assessments levied or assessed upon the
Collateral when due.
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The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute all financing statements, continuation statements or
other instruments required to be executed pursuant to this Section.
Section 3.06 Opinions as to Collateral.
(a) Upon the execution and delivery of this Indenture, the Issuer shall
furnish to the Rating Agencies and the Indenture Trustee an Opinion of Counsel
to the effect that, in the opinion of such counsel, either (i) all financing
statements and continuation statements have been executed and filed that are
necessary to create and continue the Indenture Trustee's first priority
perfected security interest in the collateral for the benefit of the
Noteholders, and reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (ii) no such action
shall be necessary to perfect such security interest; and
(b) Within 90 days after the beginning of each calendar year beginning
with the first calendar year beginning more than three months after the Initial
Cutoff Date, the Issuer shall furnish to the Rating Agencies and the Indenture
Trustee an Opinion of Counsel, dated as of a date during such 90-day period, to
the effect that, in the opinion of such counsel, either (i) all financing
statements and continuation statements have been executed and filed that are
necessary to create and continue the Indenture Trustee's first priority
perfected security interest in the Collateral for the benefit of the Noteholders
and reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (ii) no such action shall be
necessary to perfect such security interest.
Section 3.07 Performance of Obligations; Servicing of Contracts.
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any such Person's material covenants or obligations under any instrument or
agreement included in the Collateral or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in the Transaction Documents or such other instrument or
agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties and obligations under this Indenture, and any performance
of such duties by a Person identified to the Indenture Trustee in an Officer's
Certificate shall be deemed to be action taken by the Issuer. The Indenture
Trustee shall not be responsible for the action or inaction of the Servicer or
the Administrator. Initially, the Issuer has contracted with the Servicer and
the Administrator to assist the Issuer in performing its duties under this
Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Transaction
Documents and in the instruments and agreements included in the Collateral,
including but not limited to filing or causing to be filed all UCC financing
statements and continuation statements required to be filed by the terms of this
Indenture and the Sale and Servicing Agreement in accordance with and within the
time periods provided for herein and therein. Except as otherwise expressly
provided therein, the Issuer shall not waive, amend, modify, supplement or
terminate any Transaction Document or any provision thereof without the consent
of the Indenture Trustee or the Required Holders.
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(d) If the Issuer shall have knowledge of the occurrence of a Servicer
Default, the Issuer shall promptly notify the Indenture Trustee and each Rating
Agency in writing thereof. Upon any termination of the Servicer's rights and
powers pursuant to the Sale and Servicing Agreement, the Issuer shall promptly
notify the Indenture Trustee in writing. As soon as a Successor Servicer is
appointed, the Issuer shall notify the Indenture Trustee and the Rating Agencies
of such appointment, specifying in such notice the name and address of such
Successor Servicer.
(e) The Issuer agrees that it will not waive timely performance or
observance by the Servicer, the Administrator or the Seller of their respective
duties under the Transaction Documents if the effect thereof would adversely
affect the Holders of the Notes.
Section 3.08 Negative Covenants. Until the Termination Date, the Issuer
shall not:
(i) except as expressly permitted by the Transaction Documents, sell,
transfer, exchange or otherwise dispose of any of the properties or assets
of the Issuer, including those included in the Collateral, unless directed
to do so by the Indenture Trustee;
(ii) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code or applicable state law) or
assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Collateral; or
(iii) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien created by this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person
to be released from any covenant; or obligations with respect to the Notes
under this Indenture except as may be expressly permitted hereby, (B)
permit any lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture) to be created on
or extend to or otherwise arise upon or burden the Collateral or any part
thereof or any interest therein or the proceeds thereof (other than
Permitted Liens), (C) permit the lien created by this Indenture not to
constitute a valid first priority (other than with respect to any such tax,
mechanics' or other lien) security interest in the Collateral, or (D)
amend, modify or fail to comply with the provisions of the Transaction
Documents without the prior written consent of the Indenture Trustee,
except where the Transaction Documents allow for amendment or modification
without the consent or approval of the Indenture Trustee; or
(iv) dissolve or liquidate in whole or in part.
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Section 3.09 Issuer May Consolidate, etc. Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger shall be a Person organized and existing under the
laws of the United States or any State and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Indenture
Trustee, in form and substance satisfactory to the Indenture Trustee, the
due and punctual payment of the principal of and interest on all Notes and
the performance or observance of every agreement and covenant of this
Indenture and each other Transaction Document on the part of the Issuer to
be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall
be delivered to and shall be satisfactory to the Indenture Trustee to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel (which shall describe the
actions taken as required by clause (v) above or that no such actions will
be taken) each stating that such consolidation or merger and such
supplemental indenture comply with this Article Three and that all
conditions precedent herein provided for relating to such transaction have
been complied with; and
(vii) the Person (if other than the Issuer) formed by or surviving such
consolidation or merger has a net worth, immediately after such
consolidation or merger, that is (A) greater than zero and (B) not less
than the net worth of the Issuer immediately prior to giving effect to such
consolidation or merger.
(b) The Issuer shall not convey or transfer all or substantially all of
its properties or assets, including those included in the Collateral, to any
Person (except as expressly permitted by the Transaction Documents), unless:
(i) the Person that acquires by conveyance or transfer the properties
and assets of the Issuer shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States or any State,
(B) expressly assume, by an indenture supplemental hereto, executed and
delivered to the Indenture Trustee, in form and substance satisfactory to
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the Indenture Trustee, the due and punctual payment of the principal of and
interest on all Notes and the performance or observance of every agreement
and covenant of this Indenture and each other Transaction Document on the
part of the Issuer to be performed or observed, all as provided herein, (C)
expressly agree by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and
subordinate to the rights of Holders of the Notes and (D) unless otherwise
provided in such supplemental indenture, expressly agree to indemnify,
defend and hold harmless the Issuer against and from any loss, liability or
expense arising under or related to this Indenture and the Notes;
(ii) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel which shall
be delivered to and shall be satisfactory to the Indenture Trustee to the
effect that such transaction will not have any material adverse tax
consequence to the Trust, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken;
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel (which shall describe the
actions taken as required by clause (v) above or that no such actions will
be taken) each stating that such conveyance or transfer and such
supplemental indenture comply with this Article Three and that all
conditions precedent herein provided for relating to such transaction have
been complied with (including any filings required by Exchange Act); and
(vii) the Issuer has a net worth, immediately after such conveyance or
transfer, that is (A) greater than zero and (B) not less than the net worth
of the Issuer immediately prior to giving effect to such conveyance or
transfer.
Section 3.10 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.09(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with same
effect as if such Person has been named as the Issuer herein.
(b) Upon a conveyance or transfer of all or substantially all the
assets or properties of the Issuer which complies with Section 3.09(b), the
Issuer will be released from every covenant and agreement of this Indenture to
be observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery of written notice to the Indenture Trustee stating
that the Issuer is to be so released.
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(c) The Person that acquires by conveyance or transfer the properties
and assets of the Issuer shall succeed to, and be substituted for, may exercise
every right and power of, and shall assume every obligation of, the Issuer under
this Indenture with same effect as if such Person has been named as the Issuer
herein.
Section 3.11 No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Contracts in the manner contemplated by this Indenture and the other Transaction
Documents and activities incidental thereto.
Section 3.12 No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
Indebtedness except for (i) the Notes and (ii) any other Indebtedness permitted
by or arising under the other Transaction Documents. The proceeds of the Notes
and the Certificate shall be used exclusively to fund the Issuer's purchase of
the Contracts and the other assets specified in the Sale and Servicing
Agreement, to fund the Reserve Fund, the Pre-Funding Account and the Capitalized
Interest Account and to pay the transactional expenses of the Issuer.
Section 3.13 Notice of Events of Default. The Issuer agrees to give the
Indenture Trustee and each Rating Agency prompt written notice of each Event of
Default hereunder and a Servicer Default under the Sale and Servicing Agreement.
Section 3.14 Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
Section 3.15 Compliance with Laws. The Issuer shall comply with the
requirements of all applicable laws, the non-compliance with which would,
individually or in the aggregate, materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes, this Indenture or any
other Transaction Document.
Section 3.16 Amendments of the Sale and Servicing Agreement and the
Trust Agreement. The Issuer shall not agree to any amendment to Section 11.01 of
the Trust Agreement, Section 5.04 of the Transfer and Sale Agreement or Section
13.01 of the Sale and Servicing Agreement to eliminate the requirements
thereunder that the Indenture Trustee or the Holders of the Notes, consent to
amendments thereto as provided therein.
Section 3.17 Removal of Administrator. So long as any Notes are issued
and outstanding, the Issuer shall not remove the Administrator without cause
unless the Rating Agency Condition shall have been satisfied in connection with
such removal.
Section 3.18 Representations and Warranties of Issuer. The Issuer
represents and warrants as follows:
(a) Power and Authority. It has full power, authority and legal right
to execute, deliver and perform its obligations as Issuer under this Indenture
and the Notes (the foregoing documents, the "Issuer Documents").
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(b) Due Authorization. The execution and delivery of the Issuer
Documents and the consummation of the transactions provided for therein have
been duly authorized by all necessary action on its part.
(c) No Conflict. The execution and delivery of the Issuer Documents,
the performance of the transactions contemplated thereby and the fulfillment of
the terms thereof will not conflict with, result in any breach of any of the
materials terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under, any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Issuer is a party or
by which it or any of its property is bound.
(d) No Violation. The execution and delivery of the Issuer Documents,
the performance of the transactions contemplated thereby and the fulfillment of
the terms thereof will not conflict with or violate, in any material respect,
any Requirements of Law applicable to the Issuer.
(e) All Consents Required. All approvals, authorizations, consents,
orders or other actions of Governmental Authority required in connection with
the execution and delivery of the Transaction Documents, the performance of the
transactions contemplated thereby and the fulfillment of the terms thereof have
been obtained.
(f) Location. The Issuer has its chief executive office and place of
business (as such terms are used in Article 9 of the UCC) in Wilmington,
Delaware. The Issuer agrees that it will not change the location of such office
to a location outside of Wilmington, Delaware, without at least 30 days prior
written notice to the Seller, the Servicer, the Indenture Trustee and the Rating
Agencies.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.01, 3.03, 3.04, 3.05,
3.07, 3.08, 3.10, 3.12, 3.13, 3.15 and 3.16, (v) the rights, obligations and
immunities of the Indenture Trustee hereunder (including the rights of the
Indenture Trustee under Section 6.07 and the obligations of the Indenture
Trustee under Section 4.02) and (vi) the rights of Noteholders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, and the Indenture Trustee, on demand of and at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when
(A) either
(1) all Notes theretofore authenticated and delivered (other than (i)
Notes that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.05 and (ii) Notes
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for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust, as provided in Section 3.03) have
been delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at the applicable Maturity Date within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of notice
of redemption by the Indenture Trustee in the name, and at the expense, of
the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Indenture Trustee
cash or direct obligations of or obligations guaranteed by the United
States (which will mature prior to the date such amounts are payable), in
trust in an Eligible Deposit Account (which shall be the Collection Account
or Note Distribution Account) for such purpose, in an amount sufficient to
pay and discharge the entire indebtedness on such Note not theretofore
delivered to the Indenture Trustee for cancellation when due to the final
scheduled Distribution Date (if Notes shall have been called for redemption
pursuant to Section 10.01(a)), as the case may be;
(B) the Issuer has paid or performed or caused to be paid or performed all
amounts and obligations which the Issuer may owe to or on behalf of the
Indenture Trustee for the benefit of the Noteholders under this
Indenture or the Notes; and
(C) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate and an Opinion of Counsel and (if required by the Indenture
Trustee) an Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of Section 11.01
and, subject to Section 11.02, stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with and the Rating Agency Condition has
been satisfied.
Section 4.02 Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Section 4.01 shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent, as the Indenture Trustee
may determine, to the Holders of the particular Notes for the payment or
redemption of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest; but such
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moneys need not be segregated from other funds except to the extent required
herein or in the Sale and Servicing Agreement or required by law.
Section 4.03 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.03 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
ARTICLE FIVE
REMEDIES
Section 5.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) failure to pay on each Distribution Date the full amount of accrued
interest on any Note;
(b) failure to pay the then outstanding principal amount of any Note,
if any, on its related Maturity Date;
(c) failure on the part of the Servicer to make any payment or deposit
required under the Sale and Servicing Agreement within three Business Days after
the date the payment or deposit is required to be made, or (ii) failure on the
part of the Servicer, the Seller, the Trust Depositor, the Owner Trustee or the
Trust to observe or perform any other covenants or agreements of such entity set
forth in the Transfer and Sale Agreement, the Sale and Servicing Agreement or
the Indenture, which failure has a material adverse effect on the Noteholders
and which continues unremedied for a period of 60 days after written notice
(provided that no such cure period shall apply to the Seller's failure to accept
the reassignment of any Ineligible Contract, and further provided, only a five
(5) day cure period will apply to the Seller's, the Owner Trustee's or the
Indenture Trustee's covenant not to grant a security interest in or otherwise
intentionally create a lien on the Contracts);
(d) any representation or warranty made by the Indenture Trustee, the
Owner Trustee or the Trust Depositor in the Sale and Servicing Agreement or the
Indenture or any information required to be given by the Seller or the Trust
Depositor to the Indenture Trustee to identify the Contracts proves to have been
incorrect in any material respect when made and continues to be incorrect in any
material respect for a period of 60 days after written notice and as a result of
which the interests of the Noteholders are materially and adversely affected;
provided, however, that an Event of Default shall not be deemed to occur
thereunder if the Seller has repurchased the related Contracts through the Trust
Depositor during such period in accordance with the provisions of the Sale and
Servicing Agreement;
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(e) the occurrence of an Insolvency Event relating to the Servicer, the
Seller, the Trust Depositor or the Trust; or
(f) the Trust becomes an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
Section 5.02 Rights Upon Event of Default.
If an Event of Default referred to in subparagraph (e) of Section 5.01
has occurred, the unpaid principal of the Notes, together with interest accrued
but unpaid thereon, and all other amounts due to the Noteholders under the
Indenture, shall immediately and without further act become due and payable.
In the case of any event described in clause (a), (b), (c) (d) or (f)
above, an Event of Default with respect to the Notes will be deemed to have
occurred provided such Event of Default may be waived if the Required Holders
provide written notice to the Trust Depositor, Indenture Trustee and the
Servicer of such waiver. In the event the Indenture Trustee has actual knowledge
of an Event of Default, it shall give written notice thereof to the Trust
Depositor, the Seller, the Servicer, the Owner Trustee and the Rating Agencies.
If an Insolvency Event relating to the Trust Depositor occurs, pursuant
to the Trust Agreement and the Sale and Servicing Agreement, on the day of such
Insolvency Event, the Trust Depositor shall promptly give written notice to the
Indenture Trustee of the Insolvency Event, and the Indenture Trustee shall,
unless notified to the contrary by the Required Holders, promptly act pursuant
to and in accordance with the terms thereof to sell, dispose of or otherwise
liquidate the Collateral in a commercially reasonable manner and on commercially
reasonable terms. The proceeds from any such sale, disposition or liquidation of
Contracts shall be deposited in the Collection Account and allocated as
described in the Sale and Servicing Agreement and herein.
Promptly following its receipt of notice hereunder or under any other
Transaction Document of any Event of Default, the Indenture Trustee shall send a
copy thereof to the Issuer and each Rating Agency.
Section 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee; Authority of Indenture Trustee.
(a) The Issuer covenants that if the Notes are accelerated following
the occurrence of an Event of Default, the Issuer will, upon demand of the
Indenture Trustee pay to it, for the benefit of the Holders of the Notes, the
whole amount then due and payable on such Notes for principal and interest, with
interest, with interest upon the overdue principal, and, to the extent payment
at such rate of interest shall be legally enforceable, upon overdue installments
of interest, at the applicable Interest Rate and in addition thereto such
further amount as shall be sufficient to cover costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and counsel.
(b) The Indenture Trustee, following the occurrence of an Event of
Default, shall have full right, power and authority to take, or defer from
taking, any and all acts with respect to the administration, maintenance or
disposition of the Collateral, including the exercise of any of the remedies
specified in Sections 5.03 and 5.04.
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(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may in its discretion (except as provided in Section 5.03(d)), proceed
to protect and enforce its rights and the rights of the Noteholders, by such
appropriate Proceedings as the Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
(d) Notwithstanding anything to the contrary contained in this
Indenture if an Event of Default shall have occurred and be continuing, if the
Issuer fails to perform its obligations under Section 5.03(a) when and as due,
the Indenture Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Noteholders by such appropriate proceedings as the
Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for specific performance of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Indenture
Trustee by this Indenture or by law, provided that the Indenture Trustee shall
only be entitled to take any such actions to the extent such actions (i) are
taken only to enforce the Issuer's obligations to redeem the principal amount of
Notes, and (ii) are taken only against the Collateral, any investments therein
and any proceeds thereof.
(e) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Collateral, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
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(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official
in any such Proceeding is hereby authorized by each of such Noteholders to
make payments to the Indenture Trustee, and, in the event that the
Indenture Trustee shall consent to the making of payments directly to such
Noteholders, to pay to the Indenture Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances
made, by the Indenture Trustee and each predecessor Indenture Trustee
except as a result of negligence or bad faith.
(f) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
compensation affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(g) All rights of action and of asserting claims under this Indenture
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(h) In any Proceedings brought by the Indenture Trustee (including any
Proceedings involving the interpretation of any provision of this Indenture),
the Indenture Trustee shall be held to represent all of the Holders of the
Notes, and it shall not be necessary to make any Noteholder a party to any such
proceedings.
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Section 5.04 Remedies. If an Event of Default shall have occurred and
be continuing the Indenture Trustee (subject to Section 5.05) may, and shall if
so directed by the Required Holders in writing:
(i) institute Proceedings in its own name and as or on behalf of a
trustee of an express trust for the collection of all amounts then payable
on the Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect from
the Issuer and any other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Collateral;
(iii) exercise any remedies of a secured party under the UCC and any
other remedy available to the Indenture Trustee and take any other
appropriate action to protect and enforce the rights and remedies of the
Indenture Trustee on behalf of the Noteholders and the Required Holders
under this Indenture or the Notes; and
(iv) direct the Owner Trustee to sell the Collateral or any portion
thereof or rights or interest therein, at one or more public or private
sales called and conducted in any manner permitted by law;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Collateral following an Event of Default, other than an Event
of Default described in Section 5.01(e), unless (A) the Holders of 100% of
the Principal Amount of the Notes consent thereto, (B) the proceeds of such
sale or liquidation distributable to the Noteholders are sufficient to
discharge in full all amounts then due and unpaid upon such Notes for
principal and interest or (C) the Indenture Trustee determines that the
Collateral will not continue to provide sufficient funds for the payment of
principal of and interest on the Notes as they would have become due if the
Notes had not been declared due and payable, and the Indenture Trustee
provides prior written notice to each Rating Agency and obtains the consent
of the Required Holders. In determining such sufficiency or insufficiency
with respect to clauses (B) and (C), the Indenture Trustee may, but need
not, obtain and conclusively rely upon an opinion of an Independent
investment banking or accounting firm or national reputation as to the
feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose. Notwithstanding the foregoing provisions of
this Section 5.04, upon the occurrence of an event of Default described in
Section 5.01(e), caused solely from an event described in such subparagraph
occurring with respect to the Trust Depositor, the related Contracts of the
Trust will be liquidated by the Indenture Trustee and the Trust will be
terminated 90 days after the date of such Insolvency Event, unless, before
the end of such 90 day period, the related Trustee shall have received
written instructions from the Required Holders to the effect that each such
Required Holders disapprove of the liquidation of such Contracts and
termination of such Trust.
Section 5.05 Optional Preservation of the Contracts. Following an Event
of Default and if such Event of Default has not been rescinded and annulled, and
except as otherwise provided above, the Indenture Trustee may, but need not,
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elect to maintain possession of the Collateral. In determining whether to
maintain possession of the Collateral, the Indenture Trustee may, but need not,
at the expense of the Issuer, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Collateral
for such purpose.
Section 5.06 Priorities.
(a) If the Indenture Trustee collects any money or property pursuant to
this Article Five, it shall pay out the money or property in accordance with
Section 8.02(c).
(b) At least 15 days prior to the calendar day immediately preceding
each Distribution Date (or, with respect to any Definitive Note, the last
calendar day of the month preceding the month in which such Distribution Date
occurs), the Issuer shall mail to each Noteholder and the Indenture Trustee a
notice that states the record date, the payment date and the amount to be paid.
Section 5.07 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Holder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(ii) the Holders of not less than 25% of the Outstanding Amount of the
Notes have made written request to the Indenture Trustee to institute such
Proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
(iii) such Holder or Holders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such
Proceedings; and
(v) no direction inconsistent with such written request has been given
to the Indenture Trustee during such 60-day period by the Holders of a
majority of the Outstanding Amount of the Notes, voting together as a
single class.
It is understood and intended that no one or more Holders of Notes shall have
any right in any manner whatsoever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
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Section 5.08 Unconditional Rights of Noteholders to Receive Principal
and Interest. Notwithstanding any other provisions in the Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest on such Note on or after the
respective due dates thereof expressed in such Note or in this Indenture (or, in
the case of redemption, on or after the Redemption Date) and to institute suit
for the enforcement of any such payment, and such right shall not be impaired
without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholders has instituted any Proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Indenture Trustee
and the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default of Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five or by
law to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
Section 5.12 Control by Noteholders. The Required Holders shall have
the right to direct the time, method and place of conducting any Proceeding for
any remedy available to the Indenture Trustee with respect to the Notes or
exercising any trust or power conferred on the Indenture Trustee; provided that:
(i) such direction shall not be in conflict with any rule of law or
with any other provision of this Indenture;
(ii) subject to the terms of Section 5.04, any direction to the
Indenture Trustee to sell or liquidate the Collateral shall be by the
Holders of Notes representing not less than 100% of the Outstanding Amount
of the Notes;
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(iii) if the conditions set forth in Section 5.05 have been satisfied
and the Indenture Trustee elects to retain the Collateral pursuant to such
Section, then any direction to the Indenture Trustee by Holders of Notes
representing less than 100% of the Outstanding Amount of the Notes to sell
or liquidate the Collateral shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Section 6.01, the Indenture Trustee need not take any action that it
determines might involve it in liability or might materially and adversely
affect the rights of any Noteholders not consenting to such action.
Section 5.13 Waiver of Past Defaults. In the case of any waiver of an
Event of Default, the Issuer, the Indenture Trustee and the Holders of the Notes
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereto. Upon any such waiver, such Event of Default
shall cease to exist and be deemed to have been cured and not to have occurred,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereto.
Section 5.14 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, 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 (i) any suit instituted by the
Indenture Trustee, (ii) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (iii) any suit instituted by any Noteholder
for the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
Section 5.15 Waiver of Stay or Extension Laws. The 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, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantages of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Indenture Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
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Section 5.16 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any of
the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.06.
Section 5.17 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance and
observance by the Trust Depositor and the Servicer, as applicable, of each of
their obligations to the Issuer under or in connection with the Sale and
Servicing Agreement in accordance with the terms thereof, and to exercise any
and all rights, remedies, powers and privileges lawfully available to the Issuer
under or in connection with the Sale and Servicing Agreement to the extent and
in the manner directed by the Indenture Trustee, including the transmission of
notices of default on the part of the Trust Depositor or the Servicer thereunder
and the institution of legal or administrative actions or proceedings to compel
or secure performance by the Trust Depositor or the Servicer of each of their
obligations under the Sale and Servicing Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing, including facsimile) of the Required Holders shall, exercise all
rights, remedies, powers, privileges and claims of the Issuer against the Trust
Depositor or the Servicer under or in connection with the Sale and Servicing
Agreement, including the right or power to take any action to compel or secure
performance or observance by the Trust Depositor or the Servicer of each of its
obligations to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension or waiver under the Sale and Servicing Agreement,
and any right of the Issuer to take such action shall be suspended.
ARTICLE SIX
THE INDENTURE TRUSTEE
Section 6.01 Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing of which a
Responsible Officer has actual knowledge, the Indenture Trustee shall exercise
the rights and powers vested in it by this Indenture and in the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of such person's own affairs.
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(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Indenture Trustee and conforming to the requirements of this Indenture;
however, the Indenture Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture and the other Transaction Documents to which the Indenture
Trustee is a party.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of Section 6.01(b);
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.12.
(d) Every provision of this Indenture that in any way relates to the
Indenture Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Indenture Trustee shall not be liable for interest on any money
received by it.
(f) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayments
of such funds or indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
(h) The Indenture Trustee shall have no discretionary duties other than
performing those ministerial acts set forth above necessary to accomplish the
purpose of the Trust as set forth in this Indenture.
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(i) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this section.
Section 6.02 Rights of Indenture Trustee.
(a) The Indenture Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Indenture Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require an Officer's Certificate (with respect to factual matters) or an Opinion
of Counsel, as applicable. The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on the Officer's
Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel selected by it in due care with respect to legal matters
relating to this Indenture and the Notes shall be full and complete
authorization and protection from liability in respect to any action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The Indenture Trustee shall be under no obligation to institute,
conduct or defend any litigation under this Indenture or in relation to this
Indenture, at the request, order or direction of any of the Holders of Notes,
pursuant to the provisions of this Indenture, unless such Holders of Notes shall
have offered to the Indenture Trustee security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities that may be
incurred therein or thereby; provided, however, that the Indenture Trustee
shall, upon the occurrence of an Event of Default (that has not been cured),
exercise the rights and powers vested in it by this Indenture in a manner
consistent with Section 6.01.
(g) The Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond or
other paper or document, unless so requested by the Holders of Notes evidencing
not less than 25% of the Outstanding Amount of the Notes; provided, however,
that if the payment within a reasonable time to the Indenture Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Indenture Trustee, not reasonably
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assured to the Indenture Trustee by the security afforded to it by the terms of
this Indenture or the Sale and Servicing Agreement, the Indenture Trustee may
require indemnity reasonably satisfactory to it against such cost, expense or
liability as a condition to so proceeding; the reasonable expense of every such
examination shall be paid by the Person making such request, or, if paid by the
Indenture Trustee, shall be reimbursed by the Person making such request upon
demand.
(h) The Indenture Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Indenture. (i) The
Indenture Trustee shall not be charged with knowledge of any Default or Event of
Default unless either
(i) a Responsible Officer of the Indenture Trustee shall have actual
knowledge or (ii) the Indenture Trustee shall have received written notice
thereof from the Issuer or a Holder.
(j) The Indenture Trustee shall have no duty to monitor the performance
of the Issuer nor shall it have any liability (in its capacity as Indenture
Trustee) in connection with the malfeasance or nonfeasance by the Issuer. The
Indenture Trustee shall have no liability in connection with compliance by the
Issuer with statutory or regulatory requirements related to the Collateral. The
Indenture Trustee shall not make or be deemed to have made any representations
or warranties with respect to the Collateral or adequacy thereof or the validity
or sufficiency of any assignment of the Collateral to the Indenture Trustee.
(k) The Indenture Trustee shall have no duty or obligation, implied or
otherwise, to (i) attend any meeting of the Issuer's management or membership,
(ii) inspect the accounts or books and records of the Issuer, (iii) otherwise
insure that the Holders of the Notes remain informed about the business of the
Issuer or (iv) furnish to the Holders of the Notes any information from the
Issuer by the Indenture Trustee, except as otherwise explicitly set forth in
this Indenture.
Section 6.03 Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Indenture Trustee is required to comply with Section 6.11.
Section 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture, the Collateral or the Notes, it shall not be
accountable for the Issuer's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Issuer in this Indenture or in any
document issued in connection with the sale of the Notes or in the Notes other
than the Indenture Trustee's certificate of authentication.
Section 6.05 Notice of Defaults. If a Default occurs and is continuing
and if it is actually known to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail to the Rating Agencies and each Noteholder
notice of the Default within 90 days after obtaining knowledge of the occurrence
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thereof. Except in the case of a Default in payment of principal of or interest
on any Note (including payments pursuant to the redemption of such Notes), the
Indenture Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Noteholders.
Section 6.06 Reports by Indenture Trustee to Holders. On or before
January 31 of each calendar year, commencing in the year 2000, the Indenture
Trustee shall deliver to each Noteholder such information, including without
limitation, IRS Form 1099, as may be required to enable such Holder to prepare
its federal and state income tax returns; provided, the Servicer has provided
the Indenture Trustee with any such required information in a timely manner.
Section 6.07 Compensation and Indemnity. The Issuer shall pay or shall
cause the Administrator or Servicer to pay the Indenture Trustee from time to
time reasonable compensation for its services. The Indenture Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall or shall cause the Administrator or Servicer to
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Issuer shall indemnify or shall
cause the Administrator or Servicer to indemnify the Indenture Trustee against
any and all loss, liability or expense (including attorneys' fees and expenses)
incurred by it in connection with the administration of this Trust and the
performance of its duties hereunder and under the Transaction Documents to which
it is a party. The Indenture Trustee shall notify the Administrator or Servicer
promptly of any claim for which it may seek indemnity. Failure by the Indenture
Trustee to so notify the Issuer shall not relieve the Issuer or the
Administrator of its obligations hereunder. The Issuer shall defend or cause the
Administrator or Servicer to defend any such claim, and the Indenture Trustee
may have separate counsel and the Issuer shall pay or shall cause the
Administrator or Servicer to pay the fees and expenses of such counsel. Neither
the Issuer, the Administrator nor the Servicer need reimburse any expense or
indemnify against any loss, liability or expense incurred by the Indenture
Trustee through the Indenture Trustee's own willful misconduct, negligence or
bad faith or breach by the Indenture Trustee of any of its obligations
hereunder. The parties hereto agree and acknowledge that, notwithstanding
anything to the contrary, all payments required to be made pursuant to this
Section 6.07 shall not be made from Trust Assets.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.01(e) with respect to the Issuer, the expenses are intended to constitute
expenses of administration under Title 11 of the United States Code or any other
applicable federal or state bankruptcy, insolvency or similar law.
Section 6.08 Replacement of Indenture Trustee. The Indenture Trustee
may resign at any time by so notifying the Issuer and the Servicer. The Issuer
may remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
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(ii) a court having jurisdiction in the premises in respect of the
Indenture Trustee in an involuntary case or proceeding under federal or
state banking or bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar
law, shall have entered a decree or order granting relief or appointing a
receiver, liquidator, assignee, custodian, trustee, conservator,
sequestrator (or similar official) for the Indenture Trustee or for any
substantial part of the Indenture Trustee's property, or ordering the
winding-up or liquidation of the Indenture Trustee's affairs, provided any
such decree or order shall have continued unstayed and in effect for a
period of 30 consecutive days;
(iii) the Indenture Trustee commences a voluntary case under any
federal or state banking or bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
conservator, sequestrator or other similar official for the Indenture
Trustee or for any substantial part of the Indenture Trustee's property, or
makes any assignment for the benefit of creditors or fails generally to pay
its debts as such debts become due or takes any corporate action in
furtherance of any of the foregoing; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
Upon the removal or resignation of the Indenture Trustee, the Servicer
shall promptly appoint a successor Indenture Trustee by written notice to the
resigning Indenture Trustee and the successor Indenture Trustee. Any such
appointment shall be subject to the satisfaction of the Rating Agency Condition
with respect thereto.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer and the
Servicer. Thereupon the resignation or removal of the retiring Indenture Trustee
shall become effective, and the successor Indenture Trustee shall have all the
rights, powers and duties of the Indenture Trustee under this Indenture. The
Issuer or the successor Indenture Trustee shall mail a notice of its succession
to Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Holders of a majority in Outstanding Amount
of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Any resignation or removal of the Indenture Trustee and appointment of
a successor Indenture Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Indenture Trustee pursuant to this Section and payment of all fees and expenses
owed to the outgoing Indenture Trustee. Notwithstanding the replacement of the
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Indenture Trustee pursuant to this Section, the retiring Indenture Trustee shall
be entitled to payment or reimbursement of such amounts as such Person is
entitled pursuant to Section 6.07.
Section 6.09 Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee; provided, that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide each Rating
Agency prompt notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor Indenture Trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
Section 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provision of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Collateral may at the time be located, the Indenture Trustee and
the Administrator acting jointly shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as a co-Indenture
Trustee or co-Indenture Trustees, jointly with the Indenture Trustee, or
separate Indenture Trustee or separate Indenture Trustees, of all or any part of
the Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Noteholders, such title to the Collateral, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee and the Administrator
may consider necessary or desirable. If the Administrator shall not have joined
in such appointment within 15 days after the receipt by it of a request so to
do, the Indenture Trustee alone shall have the power to make such appointment.
No co-Indenture Trustee or separate Indenture Trustee hereunder shall be
required to meet the terms of eligibility of a successor Indenture Trustee under
Section 6.11 and no notice to Noteholders of the appointment of any co-Indenture
Trustee or separate Indenture Trustee shall be required under Section 6.08.
(b) Every separate Indenture Trustee and co-Indenture Trustee shall, to
the extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate Indenture Trustee
or co-Indenture Trustee jointly (it being understood that such separate
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Indenture Trustee or co-Indenture Trustee is not authorized to act
separately without the Indenture Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Collateral or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate Indenture Trustee or
co-Indenture Trustee, but solely at the direction of the Indenture Trustee;
(ii) no Indenture Trustee hereunder shall be personally liable by
reason of any act or omission of any other Indenture Trustee hereunder
selected by it in due care; and
(iii) the Indenture Trustee and the Administrator may at any time
accept the resignation of or remove any separate Indenture Trustee or
co-Indenture Trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate Indenture
Trustees and co-Indenture Trustees, as effectively as if given to each of them.
Every instrument appointing any separate Indenture Trustee or co-Indenture
Trustee shall refer to this Agreement and the conditions of this Article. Each
separate Indenture Trustee and co-Indenture Trustee, upon its acceptance of the
trusts conferred, shall be vested with the estates or property specified in its
instrument of co-appointment, either jointly with the Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of this
Indenture, specifically including every provision of this Indenture relating to
the conduct of, affecting the liability of or affording protection to, the
Indenture Trustee. Every such instrument shall be filed with the Indenture
Trustee and a copy thereof given to the Administrator.
(d) Any separate Indenture Trustee or co-Indenture Trustee may at any
time constitute the Indenture Trustee, its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do any lawful act
under or in respect of this Agreement on its behalf and in its name. If any
separate Indenture Trustee or co-Indenture Trustee shall die, become incapable
of acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Indenture Trustee, to
the extent permitted by law, without the appointment of a new or successor
Indenture Trustee. Notwithstanding anything to the contrary in this Indenture,
the appointment of any separate Indenture Trustee or co-Indenture Trustee shall
not relieve the Indenture Trustee of its obligations and duties under this
Indenture.
Section 6.11 Eligibility. The Indenture Trustee hereunder shall at all
times be a financial institution organized and doing business under the laws of
the United States of America or any state, authorized under such laws to
exercise corporate trust powers, and shall have a combined capital and surplus
of at least $50,000,000 or shall be a member of a bank holding system the
aggregate combined capital and surplus of which is $50,000,000 and subject to
supervision or examination by federal or state authority. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of a supervising or examining authority, then for the purposes of
this Section 6.11, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Indenture Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.11, the Indenture Trustee shall resign immediately in the manner and with the
effect specified in Section 6.08.
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Section 6.12 [Reserved].
Section 6.13 Representations and Warranties of Indenture Trustee. The
Indenture Trustee in its individual capacity and as Indenture Trustee represents
and warrants as follows:
(a) Organization and Corporate Power. It is a duly organized and
validly existing Illinois banking corporation in good standing under the laws of
each jurisdiction where its business so requires. It has full corporate power,
authority and legal right to execute, deliver and perform its obligations as
Indenture Trustee under this Indenture and the Sale and Servicing Agreement (the
foregoing documents, the "Indenture Trustee Documents") and to authenticate the
Notes.
(b) Due Authorization. The execution and delivery of the Indenture
Trustee Documents, the consummation of the transactions provided for therein and
the authentication of the Notes have been duly authorized by all necessary
corporate action on its part, either in its individual capacity or as Indenture
Trustee, as the case may be.
(c) No Violation. The execution and delivery of the Indenture Trustee
Documents, the performance of the transactions contemplated thereby and the
fulfillment of the terms thereof (including the authentication of the Notes),
will not conflict with or violate, in any material respect, the Indenture
Trustee's charter or by-laws.
(d) Validity, Etc. Each Indenture Trustee Document constitutes a legal,
valid and binding obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its terms, except as such enforceability
may be limited by Insolvency Laws and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at law or
in equity) or by an implied covenant of good faith and fair dealing.
ARTICLE SEVEN
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01 Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (i) not more than five days after the earlier of (a) each Record Date
and (b) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Noteholders as of such Record Date and (ii) at such other times as the Indenture
Trustee may request in writing, within 30 days after receipt by the Issuer of
any such request, a list of similar form and content as of a date not more than
ten days prior to the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
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Section 7.02 Preservation of Information: Communication to Noteholders.
The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Noteholders contained in the most
recent list furnished to the Indenture Trustee as provided in Section 7.01 and
the names and addresses of Noteholders received by the Indenture Trustee in its
capacity as Note Registrar. The Indenture Trustee may destroy any list furnished
to it as provided in such Section 7.01 upon receipt of a new list so furnished.
Section 7.03 Reports by Indenture Trustee. On each Distribution Date,
the Indenture Trustee shall forward (or cause to be forwarded) to each
Noteholder a copy of each Monthly Report; provided, the Servicer has provided
the Indenture Trustee with such Monthly Report as required in Section 9.01 of
the Sale and Servicing Agreement.
ARTICLE EIGHT
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture and the Sale
and Servicing Agreement. The Indenture Trustee shall apply all such money
received by it as provided in this Indenture. Except as otherwise expressly
provided in this Indenture, if any default occurs in the making of any payment
or performance under any agreement or instrument that is part of the Collateral,
the Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Default or Event of Default under this Indenture and any right to proceed
thereafter as provided in Article Five.
Section 8.02 Trust Accounts.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee, for
the benefit of the Noteholders and the Certificateholder, the Collection
Account, the Note Distribution Account, the Reserve Fund, the Pre-Funding
Account and the Capitalized Interest Account as provided in Section 7.01 of the
Sale and Servicing Agreement.
(b) On or before each Distribution Date, all amounts required to be
disbursed to the Indenture Trustee with respect to the preceding Collection
Period pursuant to Section 7.05 of the Sale and Servicing Agreement will be
transferred from the Collection Account (and, if applicable, the Reserve Fund)
and deposited by the Indenture Trustee upon receipt to the Note Distribution
Account.
(c) On each Distribution Date, the Indenture Trustee shall distribute
all amounts on deposit in the Note Distribution Account to Noteholders in
respect of the Notes to the extent of amounts due and unpaid on the Notes for
principal and interest as follows and in the following order of priority:
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FIRST, so much of such installment or payment as shall be required to
pay in full the aggregate amount of interest then due on or in respect of
the Class A Notes shall be distributed to the Class A Noteholders ratably,
without priority of any one Class A Note over any other Class A Note, in
the proportion that the aggregate amount of all accrued but unpaid interest
to the date of distribution on each Class A Note bears to the aggregate
amount of all accrued but unpaid interest to the date of distribution on
all Class A Notes;
SECOND, so much of such installment or payment as shall be required to
pay in full the aggregate amount of interest then due on or in respect of
the Class B Notes shall be distributed to the Class B Noteholders ratably,
without priority of any one Class B Note over any other Class B Note, in
the proportion that the aggregate amount of all accrued but unpaid interest
to the date of distribution on each Class B Note bears to the aggregate
amount of all accrued but unpaid interest to the date of distribution on
all Class B Notes;
THIRD, so much of such installment or payment as shall be required to
pay in full the aggregate amount of interest then due on or in respect of
the Class C Notes shall be distributed to the Class C Noteholders ratably,
without priority of any one Class C Note over any other Class C Note, in
the proportion that the aggregate amount of all accrued but unpaid interest
to the date of distribution on each Class C Note bears to the aggregate
amount of all accrued but unpaid interest to the date of distribution on
all Class C Notes;
FOURTH, so much of such installment or payment as shall be required to
pay in full the aggregate amount of interest then due on or in respect of
the Class D Notes shall be distributed to the Class D Noteholders ratably,
without priority of any one Class D Note over any other Class D Note, in
the proportion that the aggregate amount of all accrued but unpaid interest
to the date of distribution on each Class D Note bears to the aggregate
amount of all accrued but unpaid interest to the date of distribution on
all Class D Notes;
FIFTH, the balance, if any, of such installment or payment remaining
thereafter shall be distributed ratably to the Class A-1 Noteholders to pay
in full the aggregate amount of the Class A-1 Principal Payment then due
pursuant to or in respect of the Class A-1 Notes, without priority of any
one Class A-1 Note over any other Class A-1 Note, in the proportion that
the aggregate unpaid principal amount of each Class A-1 Note bears to the
aggregate unpaid principal amount of all Class A-1 Notes;
SIXTH, the balance, if any, of such installment or payment remaining
thereafter shall be distributed ratably to the Class A-2 Noteholders to pay
in full the aggregate amount of the Class A-2 Principal Payment then due
pursuant to or in respect of the Class A-2 Notes, without priority of any
one Class A-2 Note over any other Class A-2 Note, in the proportion that
the aggregate unpaid principal amount of each Class A-2 Note bears to the
aggregate unpaid principal amount of all Class A-2 Notes;
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SEVENTH, the balance, if any, of such installment or payment remaining
thereafter shall be distributed ratably to the Class A-3 Noteholders to pay
in full the aggregate amount of the Class A-3 Principal Payment then due
pursuant to or in respect of the Class A-3 Notes, without priority of any
one Class A-3 Note over any other Class A-3 Note, in the proportion that
the aggregate unpaid principal amount of each Class A-3 Note bears to the
aggregate unpaid principal amount of all Class A-2 Notes;
EIGHTH, the balance, if any, of such installment or payment remaining
thereafter shall be distributed ratably to the Class A-4 Noteholders to pay
in full the aggregate amount of the Class A-4 Principal Payment then due
pursuant to or in respect of the Class A-4 Notes, without priority of any
one Class A-4 Note over any other Class A-4 Note, in the proportion that
the aggregate unpaid principal amount of each Class A-4 Note bears to the
aggregate unpaid principal amount of all Class A-4 Notes
NINTH, the balance, if any, of such installment or payment remaining
thereafter shall be distributed ratably to the Class B Noteholders to pay
in full the aggregate amount of the Class B Principal Payment then due
pursuant to or in respect of the Class B Notes, without priority of any one
Class B Note over any other Class B Note, in the proportion that the
aggregate unpaid principal amount of each Class B Note bears to the
aggregate unpaid principal amount of all Class B Notes;
TENTH, the balance, if any, of such installment or payment remaining
thereafter shall be distributed ratably to the Class C Noteholders to pay
in full the aggregate amount of the Class C Principal Payment then due
pursuant to or in respect of the Class C Notes, without priority of any one
Class C Note over any other Class C Note, in the proportion that the
aggregate unpaid principal amount of each Class C Note bears to the
aggregate unpaid principal amount of all Class C Notes;
ELEVENTH, the balance, if any, of such installment or payment remaining
thereafter shall be distributed ratably to the Class D Noteholders to pay
in full the aggregate amount of the Class D Principal Payment then due
pursuant to or in respect of the Class D Notes, without priority of any one
Class D Note over any other Class D Note, in the proportion that the
aggregate unpaid principal amount of each Class C Note bears to the
aggregate unpaid principal amount of all Class D Notes; and
TWELFTH, the aggregate amount of Additional Principal, if any, of such
installment or payment remaining thereafter shall be paid, to the Class A
Notes sequentially until the Principal Amount of the Class A Notes has been
reduced to zero, then to the Class B Notes until the Principal Amount of
the Class B Notes has been reduced to zero, then to the Class C Notes until
the Principal Amount of the Class C Notes has been reduced to zero, and
then to the Class D Notes until the Principal Amount of the Class D Notes
has been reduced to zero.
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Section 8.03 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Trust Accounts shall be
invested in accordance with the provisions of Section 7.03 of the Sale and
Servicing Agreement. Except as otherwise provided in Section 7.03 of the Sale
and Servicing Agreement, all income or other gain from investments of moneys
deposited in such Trust Accounts shall be deposited by the Indenture Trustee in
the Collection Account, and any loss resulting from such investments shall be
charged to the Servicer in accordance with Section 7.03 of the Sale and
Servicing Agreement. The Issuer will not direct the Indenture Trustee to make
any investment of any funds or to sell any investment held any of the Trust
Accounts unless the security interest granted and perfected in such account will
continue to be perfected in such investment or the proceeds of such sale, in
either case without any further action by any Person, and, in connection with
any direction to the Indenture Trustee to make any such investment or sale, if
requested by the Indenture Trustee, the Issuer shall deliver to the Indenture
Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such
effect.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in the Trust Accounts
resulting from any loss on any Eligible Investment included therein except for
losses attributable to the Indenture Trustee's failure to make payments on such
Eligible Investments issued by the Indenture Trustee, in its commercial capacity
as principal obligor and not as Indenture Trustee, in accordance with their
terms.
(c) If (i) the Issuer shall have failed to give investment directions
for any funds on deposit in the Trust Accounts to the Indenture Trustee by 11:00
a.m., New York City time (or such other time as may be agreed by the Issuer and
Indenture Trustee), on any Business Day or (ii) a Default or Event of Default
shall have occurred and be continuing with respect to the Notes but the Notes
shall not have been declared due and payable pursuant to Section 5.02 or (iii)
if such Notes shall have been declared due and payable following an Event of
Default, but amounts collected or receivable from the Collateral are being
applied in accordance with Section 5.05 as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Trust Accounts in one or more
Eligible Investments described in clause (vi) of the definition thereof in the
Sale and Servicing Agreement.
Section 8.04 Release of Collateral.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.07, the Indenture Trustee may, and when required by the provisions of this
Indenture or the Sale and Servicing Agreement shall, execute instruments to
release property from the lien of this Indenture, or convey the Indenture
Trustee's interest in the same, in a manner and under circumstances that are not
inconsistent with the provisions of this Indenture. No party relying upon an
instrument executed by the Indenture Trustee as provided in this Article shall
be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
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(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid, release any remaining portion of the Collateral that secured the
Notes from the lien of this Indenture and release to the Issuer or any other
Person entitled thereto any funds then on deposit in the Trust Accounts. The
Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.04(b) only upon receipt of an Issuer Request
accompanied by an Officer's Certificate and an Opinion of Counsel.
Section 8.05 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days notice when requested by the Issuer to take any action pursuant
to Section 8.04(a), accompanied by copies of any instruments involved, and the
Indenture Trustee shall also require, as a condition to such action, an Opinion
of Counsel, in form and substance satisfactory to the Indenture Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions for this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Collateral. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such
action.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Noteholders.
Without the consent of the Holders of any Notes and with prior written
notice to each Rating Agency, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, and the other parties hereto at any time from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien created by this Indenture, or to subject to the lien
created by this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another Person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to or
with the Indenture Trustee;
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(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture or the Transaction
Documents or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental indenture;
provided that such action shall not adversely affect the interests of the
Holders of the Notes; and
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor Indenture Trustee with respect to the Notes and to
add to or change any of the provisions of this Indenture as shall be
necessary to facilitate the administration of the trusts hereunder by more
than one Indenture Trustee, pursuant to the requirements of Article Six.
The Indenture Trustee is hereby authorized to join in the exemption of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
Section 9.02 Supplemental Indentures With Consent of Noteholders. At
any time and from time to time, when authorized by an Issuer Order and with
prior written notice to the Rating Agencies, the Issuer and the Indenture
Trustee, with the written consent of the Required Holders, may execute a
supplement to this Indenture for the purpose of adding provisions to, or
changing or eliminating provisions of, this Indenture (including any appendix or
schedule hereto); provided, however, that, without the consent of each
Noteholder under the Indenture, no such amendment, supplement, waiver or consent
shall
(i) reduce the amount or extend the time of payment of any amount owing
or payable under any Note or (except as provided in this Indenture)
increase or reduce the interest payable on any Note (except that only the
consent of the affected Noteholder shall be required for any decrease in an
amount of or the rate of interest payable on such Note or any extension for
the time of payment of any amount payable under such Note), or alter or
modify the provisions of the Sale and Servicing Agreement with respect to
the order of priorities in which distributions thereunder shall be made or
with respect to the amount or time of payment of any such distribution,
(ii) reduce, modify or amend any indemnities in favor of any Noteholder
or in favor of or to be paid by the Trust Depositor (except as consented to
by each Person adversely affected thereby),
(iii) make any Note payable in money other than U.S. dollars,
(iv) modify, amend or supplement the provisions of the Sale and
Servicing Agreement relating to amendments, waivers and supplements to the
Indenture, the Sale and Servicing Agreement or any other document, or
(v) modify the definition of "Required Holders" or the percentage of
Noteholders required to effect any modification of this Agreement.
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The Indenture Trustee may in its discretion determine whether or not
any Notes would be affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of the Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the parties hereto of any supplemental
indenture pursuant to this Section, the Indenture Trustee shall mail to the
Holders of the Notes to which such amendment or supplemental indenture relates a
notice setting forth in general terms the substance of such supplemental
indenture. Any failure of the Indenture Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 9.03 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Indenture Trustee shall be entitled to receive, and subject
to Sections 6.01 and 6.02 shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and all conditions precedent to the
execution of such supplemental indenture have been met. The Indenture Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
that affects the Indenture Trustee's own rights, duties, liabilities or
immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the parties hereto and the Holders of the Notes shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes. Notwithstanding the foregoing, no
supplemental indenture shall be effective unless prior written notice of the
execution of such supplemental indenture was delivered to each Rating Agency.
Section 9.05 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
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ARTICLE TEN
REDEMPTION OF NOTES
Section 10.01 Redemption.
(a) In the event that the Seller pursuant to Section 11.03 of the Sale
and Servicing Agreement purchases (through the Trust Depositor) the corpus of
the Trust, the Notes are subject to redemption in whole, but not in part, on the
Distribution Date on which such repurchase occurs, for a purchase price equal to
the outstanding principal, and accrued interest on the Notes. The Seller, the
Servicer or the Issuer shall furnish each Rating Agency notice of such
redemption. If the Notes are to be redeemed pursuant to this Section 10.01(a),
the Servicer or the Issuer shall furnish notice of such election to the
Indenture Trustee not later than 20 days prior to the Redemption Date and the
Issuer shall deposit with the Indenture Trustee in the Note Distribution Account
the Redemption Price of the Notes to be redeemed whereupon all such Notes shall
be due and payable on the Redemption Date upon the furnishing of a notice
complying with Section 10.02 to each Holder of the Notes.
(b) In the event that the assets of the Trust are sold pursuant to
Section 9.02 of the Trust Agreement and Section 5.02 of this Indenture, the
proceeds of such sale shall be distributed as provided in Section 5.06. If
amounts are to be paid to Noteholders pursuant to this Section 10.01(b), the
Servicer or the Issuer shall, to the extent practicable, furnish notice of such
event to the Indenture Trustee not later than 20 days prior to the Redemption
Date whereupon all such amounts shall be payable on the Redemption Date.
Section 10.02 Form of Redemption Notice. Notice of redemption under
section 10.01(a) shall be given by the Indenture Trustee by first-class mail,
postage prepaid, mailed not less than five days prior to the applicable
Redemption Date to each Holder of Notes, as of the close of business on the
Record Date preceding the applicable Redemption Date, at such Holder's address
appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for payment of
the Redemption Price (which shall be the office or agency of the Issuer to
be maintained as provided in Section 3.02).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Holder of any Note shall not impair or
affect the validity of the redemption of any other Note.
Section 10.03 Notes Payable on Redemption Date. The Notes or portions
thereof to be redeemed shall, following notice of redemption (if any) as
required by Section 10.02, on the Redemption Date become due and payable at the
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Redemption Price and (unless the Issuer shall default in the payment of the
Redemption Price) no interest shall accrue on the Redemption Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Redemption Price.
ARTICLE ELEVEN
MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions, etc. Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, and (ii) 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 application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion has
read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such signatory,
such condition or covenant has been complied with.
Section 11.02 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
Person as to other matters, and any such Person may certify or given an opinion
as to such matters in one or several documents.
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Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, the Seller or the Issuer, stating that the information with
respect to such factual matters is in the possession of the Servicer, the Seller
or the Issuer, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article Six.
Section 11.03 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing and shall be subject to Section 5.12 hereof; and
except as herein otherwise expressly provided such action shall become effective
when such instrument or instruments are delivered to the Indenture Trustee, and,
where it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Noteholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Indenture Trustee and
the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
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(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
Section 11.04 Notices. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows at the address specified in the Sale and
Servicing Agreement for such recipient.
Each party hereto may, by notice given in accordance herewith to each
of the other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 11.05 Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event of Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
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Section 11.06 Alternate Payment and Notice Provisions. Notwithstanding
any provisions of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer will furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee will cause payments to be made and
notices to be given in accordance with such agreements.
Section 11.07 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 11.08 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-Indenture Trustees and agents.
Section 11.09 Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 11.10 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Collateral, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 11.11 Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 11.12 Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS,
AND REMEDIES OF THE PARTIES UNDER THE AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 11.13 Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 11.14 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
-61-
Section 11.15 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, Owner Trustee or the
Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection herewith or therewith, against (i) the
Indenture Trustee or Owner Trustee in its individual capacity, (ii) any owner of
a beneficiary interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Indenture Trustee or the
Owner Trustee in its individual capacity, any holder of a beneficial interest in
the Issuer, Owner Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed (it being understood that the
Indenture Trustee and the Owner Trustee have no such obligations in their
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity. For all purposes of this Indenture, in
the performance of any duties or obligations of the Issuer hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles VI, VII and VIII of the Trust Agreement.
Section 11.16 No Petition. The parties hereto, by entering into this
Indenture, and each Noteholder, by accepting a Note or a beneficial interest in
a Note, hereby covenant and agree that prior to the date that is one year and
one day after the payment in full of all amounts owing in respect of all
outstanding Securities they will not at any time institute against the Issuer,
or join in any institution against the Issuer, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, this Indenture or any of the other
Transaction Documents.
Section 11.17 Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees and independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested, the Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information except to the extent disclosure may be required by law (and all
reasonable applications for confidential treatment are unavailing) and except to
the extent that the Indenture Trustee may reasonably determine that such
disclosure is consistent with its obligations hereunder.
Section 11.18 No Substantive Review of Compliance Documents. Other than
as specifically set forth in the Indenture, any reports, information or other
documents provided to the Indenture Trustee are for purposes only of enabling
the sending party to comply with its document delivery requirements hereunder
and such party's receipt of any such information shall not, in and of itself,
constitute constructive or actual notice to the Indenture Trustee of any
information contained therein or determinable from any information contained
therein, including the Issuer or the Servicer's compliance with any of its
covenants, representations or warranties hereunder.
-62-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and delivered as of the day and year first above written.
FIDELITY EQUIPMENT LEASE TRUST 1999-1
By: First Union Trust Company, National
Association, not in its individual capacity,
but solely as Owner Trustee
By:_________________________________________
Name:
Title:
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in
its individual capacity but solely as Indenture
Trustee
By:_________________________________________
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
On June ___, 1999 before me, _________________________________________,
personally appeared ____________________________,
[_] personally known to me, or
[_] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument, and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ties), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which such
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature__________________________ [Seal]
STATE OF )
) ss.:
COUNTY OF )
On June ___, 1999 before me, _________________________________________,
personally appeared ____________________________,
[_] personally known to me, or
[_] proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument, and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ties), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which such
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature__________________________ [Seal]
EXHIBIT A
FORM OF SALE AND SERVICING AGREEMENT
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-1 NOTE
[oBOOK-ENTRY ONLY: UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE NOTE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.o]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES OR ANY FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE
BENEFIT OF THE INDENTURE TRUSTEE THAT THIS NOTE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
("QUALIFIED INSTITUTIONAL BUYER"), PURCHASING FOR ITS OWN ACCOUNT OR A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
THEREOF IN RULE 501(a)(1), (2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT, IN
THE CASE OF TRANSFERS PURSUANT TO THIS CLAUSE (3), TO (A) THE RECEIPT BY THE
NOTE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN ANNEX A TO THE
INDENTURE AND (B) IF REQUESTED BY THE NOTE REGISTRAR, THE RECEIPT BY THE NOTE
REGISTRAR OF SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER EVIDENCE ACCEPTABLE TO
THE NOTE REGISTRAR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS.
B-1-1
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS NOTE ARE SUBJECT TO RESTRICTIONS AS
PROVIDED IN THE INDENTURE REFERRED TO BELOW.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION OF, THE ISSUER, THE
SERVICER, THE INDENTURE TRUSTEE OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES OR ANY OTHER PERSON. THIS NOTE IS NOT INSURED OR GUARANTEED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR ANY INSURER OR ANY OTHER PERSON. THIS NOTE IS NOT A SAVINGS
ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS NOTE WILL BE MADE IN
THE MANNER DESCRIBED IN THE INDENTURE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
FIDELITY EQUIPMENT LEASE TRUST 1999-1
5.155% RECEIVABLE-BACKED NOTES, CLASS A-1
No. ___ $56,955,084
CUSIP: 316136 AA 8
Fidelity Equipment Lease Trust 1999-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of Fifty-six million, nine hundred
fifty five thousand, eighty four and 00/100 Dollars ($56,955,084) payable on the
earlier of June 15, 2000 (the "Class A-1 Maturity Date") and the Redemption
Date, if any, pursuant to Section 10.01 of the Indenture referred to on the
reverse hereof.
This Class A-1 Note is transferable as provided in the
Indenture, subject to certain limitations therein contained, only upon the books
for registration and transfer kept by the Indenture Trustee, and only upon
surrender of this Class A-1 Note for transfer to the Indenture Trustee duly
endorsed by, or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Indenture Trustee duly executed by, the
registered Holder hereof or his attorney duly authorized in writing. No such
transfer shall be so permitted unless (i) such transfer is made in a transaction
which does not require registration under the Securities Act, and pursuant to an
effective registration or qualification under any State securities or "Blue Sky"
laws, or in a transaction which does not require such registration or
qualification and (ii) the Holder thereof delivers to the Indenture Trustee the
certification required under the Indenture with respect to the Securities Act,
and the Employee Retirement Income Security Act of 1974, as amended.
B-1-2
The Issuer will pay interest on this Note at the rate per
annum shown above on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in Section 3.01 of the Indenture. Interest on this
Note will accrue for each Distribution Date from the most recent Distribution
Date on which interest has been paid to but excluding such Distribution Date or,
if no interest has yet been paid, from the Closing Date. Interest will be
computed on the basis of a 360-day year and actual days elapsed. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
B-1-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by an Authorized Officer, as of the date
set forth below.
Date: June 2, 1999 FIDELITY EQUIPMENT LEASE TRUST 1999-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee
By: _______________________
Name:
Title:
B-1-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within- mentioned Indenture.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By: ______________________
Name:
Title:
B-1-5
[REVERSE OF CLASS A-1 NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.155% Receivable-Backed Notes, Class A-1 (the "Class
A-1 Notes"), all issued under an Indenture, dated as of June 2, 1999 (the
"Indenture"), between the Issuer and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class A-1 Notes are subject to all terms of the
Indenture. All terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture, as so supplemented or amended.
The Class A-1 Notes and the other Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture subject to the subordination of certain Classes of Notes under certain
circumstances as described in the Indenture and the Sale and Servicing
Agreement.
Principal of the Class A-1 Notes will be payable on the
earlier of the Class A-1 Maturity Date and the Redemption Date, if any, selected
pursuant to the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid,
on the date on which an Event of Default shall have occurred and be continuing,
unless the Required Holders waive such Event of Default in the manner provided
in the Indenture. All principal payments on the Class A-1 Notes shall be made
pro rata to the Class A-1 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date shall be made by wire transfer to the account to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such payment shall be made
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) affected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Distribution Date by notice mailed
within five days of such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes.
B-1-6
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-1 Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against the Trust Depositor or the Issuer, or join in any institution against
the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Issuer will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by
acceptance of a Note (and each Noteholder by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for the federal, state and local income,
single business and franchise tax purposes as indebtedness.
B-1-7
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer and with the consent of the Required Holders. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holders and upon all future
Noteholders and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-2 NOTE
[oBOOK-ENTRY ONLY: UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE NOTE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.o]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES OR ANY FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE
BENEFIT OF THE INDENTURE TRUSTEE THAT THIS NOTE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
("QUALIFIED INSTITUTIONAL BUYER"), PURCHASING FOR ITS OWN ACCOUNT OR A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
THEREOF IN RULE 501(a)(1), (2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT, IN
THE CASE OF TRANSFERS PURSUANT TO THIS CLAUSE (3), TO (A) THE RECEIPT BY THE
NOTE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN ANNEX A TO THE
INDENTURE AND (B) IF REQUESTED BY THE NOTE REGISTRAR, THE RECEIPT BY THE NOTE
REGISTRAR OF SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER EVIDENCE ACCEPTABLE TO
THE NOTE REGISTRAR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS.
B-2-1
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS NOTE ARE SUBJECT TO RESTRICTIONS AS
PROVIDED IN THE INDENTURE REFERRED TO BELOW.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION OF, THE ISSUER, THE
SERVICER, THE INDENTURE TRUSTEE OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES OR ANY OTHER PERSON. THIS NOTE IS NOT INSURED OR GUARANTEED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR ANY INSURER OR ANY OTHER PERSON. THIS NOTE IS NOT A SAVINGS
ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS NOTE WILL BE MADE IN
THE MANNER DESCRIBED IN THE INDENTURE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
FIDELITY EQUIPMENT LEASE TRUST 1999-1
5.860% RECEIVABLE-BACKED NOTES, CLASS A-2
No. ___ $27,949,428
CUSIP: 316136 AB 6
Fidelity Equipment Lease Trust 1999-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of Twenty-seven million, nine hundred
forty-nine thousand, four hundred twenty-eight and 00/100 Dollars ($27,949,428)
payable on the earlier of September 15, 2001 (the "Class A-2 Maturity Date") and
the Redemption Date, if any, pursuant to Section 10.01 of the Indenture referred
to on the reverse hereof.
This Class A-2 Note is transferable as provided in the
Indenture, subject to certain limitations therein contained, only upon the books
for registration and transfer kept by the Indenture Trustee, and only upon
surrender of this Class A-2 Note for transfer to the Indenture Trustee duly
endorsed by, or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Indenture Trustee duly executed by, the
registered Holder hereof or his attorney duly authorized in writing. No such
transfer shall be so permitted unless (i) such transfer is made in a transaction
which does not require registration under the Securities Act, and pursuant to an
effective registration or qualification under any State securities or "Blue Sky"
laws, or in a transaction which does not require such registration or
qualification and (ii) the Holder thereof delivers to the Indenture Trustee the
certification required under the Indenture with respect to the Securities Act,
and the Employee Retirement Income Security Act of 1974, as amended.
B-2-2
The Issuer will pay interest on this Note at the rate per
annum shown above on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in Section 3.01 of the Indenture. Interest on this
Note will accrue for each Distribution Date from the most recent Distribution
Date on which interest has been paid to but excluding such Distribution Date or,
if no interest has yet been paid, from the Closing Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
B-2-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by an Authorized Officer, as of the date
set forth below.
Date: June 2, 1999 FIDELITY EQUIPMENT LEASE TRUST 1999-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee
By: _______________________
Name:
Title:
B-2-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within- mentioned Indenture.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in
its individual capacity but solely as
Indenture Trustee
By: ______________________
Name:
Title:
B-2-5
[REVERSE OF CLASS A-2 NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 5.860% Receivable-Backed Notes, Class A-2 (the "Class
A-2 Notes"), all issued under an Indenture, dated as of June 2, 1999 (the
"Indenture"), between the Issuer and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class A-2 Notes are subject to all terms of the
Indenture. All terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture, as so supplemented or amended.
The Class A-2 Notes and the other Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture subject to the subordination of certain Classes of Notes under certain
circumstances as described in the Indenture and the Sale and Servicing
Agreement.
Principal of the Class A-2 Notes will be payable on the
earlier of the Class A-2 Maturity Date and the Redemption Date, if any, selected
pursuant to the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid,
on the date on which an Event of Default shall have occurred and be continuing,
unless the Required Holders waive such Event of Default in the manner provided
in the Indenture. All principal payments on the Class A-2 Notes shall be made
pro rata to the Class A-2 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date shall be made by wire transfer to the account to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such payment shall be made
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) affected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Distribution Date by notice mailed
within five days of such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes.
B-2-6
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-2 Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against the Trust Depositor or the Issuer, or join in any institution against
the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Issuer will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by
acceptance of a Note (and each Noteholder by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for the federal, state and local income,
single business and franchise tax purposes as indebtedness.
B-2-7
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer and with the consent of the Required Holders. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holders and upon all future
Noteholders and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-3 NOTE
[oBOOK-ENTRY ONLY: UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE NOTE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.o]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES OR ANY FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE
BENEFIT OF THE INDENTURE TRUSTEE THAT THIS NOTE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
("QUALIFIED INSTITUTIONAL BUYER"), PURCHASING FOR ITS OWN ACCOUNT OR A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
THEREOF IN RULE 501(a)(1), (2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT, IN
THE CASE OF TRANSFERS PURSUANT TO THIS CLAUSE (3), TO (A) THE RECEIPT BY THE
NOTE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN ANNEX A TO THE
INDENTURE AND (B) IF REQUESTED BY THE NOTE REGISTRAR, THE RECEIPT BY THE NOTE
REGISTRAR OF SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER EVIDENCE ACCEPTABLE TO
THE NOTE REGISTRAR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS.
B-3-1
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS NOTE ARE SUBJECT TO RESTRICTIONS AS
PROVIDED IN THE INDENTURE REFERRED TO BELOW.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION OF, THE ISSUER, THE
SERVICER, THE INDENTURE TRUSTEE OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES OR ANY OTHER PERSON. THIS NOTE IS NOT INSURED OR GUARANTEED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR ANY INSURER OR ANY OTHER PERSON. THIS NOTE IS NOT A SAVINGS
ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS NOTE WILL BE MADE IN
THE MANNER DESCRIBED IN THE INDENTURE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
FIDELITY EQUIPMENT LEASE TRUST 1999-1
6.090% RECEIVABLE-BACKED NOTES, CLASS A-3
No. ___ $20,880,822
CUSIP: 316136 AC 4
Fidelity Equipment Trust 1999-1, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of Twenty million, eight hundred eighty
thousand, eight hundred twenty-two and 00/100 Dollars ($20,880,822) payable on
the earlier of July 15, 2002 (the "Class A-3 Maturity Date") and the Redemption
Date, if any, pursuant to Section 10.01 of the Indenture referred to on the
reverse hereof.
This Class A-3 Note is transferable as provided in the
Indenture, subject to certain limitations therein contained, only upon the books
for registration and transfer kept by the Indenture Trustee, and only upon
surrender of this Class A-3 Note for transfer to the Indenture Trustee duly
endorsed by, or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Indenture Trustee duly executed by, the
registered Holder hereof or his attorney duly authorized in writing. No such
transfer shall be so permitted unless (i) such transfer is made in a transaction
which does not require registration under the Securities Act, and pursuant to an
effective registration or qualification under any State securities or "Blue Sky"
laws, or in a transaction which does not require such registration or
qualification and (ii) the Holder thereof delivers to the Indenture Trustee the
certification required under the Indenture with respect to the Securities Act,
and the Employee Retirement Income Security Act of 1974, as amended.
B-3-2
The Issuer will pay interest on this Note at the rate per
annum shown above on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in Section 3.01 of the Indenture. Interest on this
Note will accrue for each Distribution Date from the most recent Distribution
Date on which interest has been paid to but excluding such Distribution Date or,
if no interest has yet been paid, from the Closing Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
B-3-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by an Authorized Officer, as of the date
set forth below.
Date: June 2, 1999 FIDELITY EQUIPMENT LEASE TRUST 1999-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity,
but solely as Owner Trustee
By: _______________________
Name:
Title:
B-3-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within- mentioned Indenture.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By: ______________________
Name:
Title:
B-3-5
[REVERSE OF CLASS A-3 NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.090% Receivable-Backed Notes, Class A-3 (the "Class
A-3 Notes"), all issued under an Indenture, dated as of June 2, 1999 (the
"Indenture"), among the Issuer and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class A-3 Notes are subject to all terms of the
Indenture. All terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture, as so supplemented or amended.
The Class A-3 Notes and the other Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture subject to the subordination of certain Classes of Notes under certain
circumstances as described in the Indenture and the Sale and Servicing
Agreement.
Principal of the Class A-3 Notes will be payable on the
earlier of the Class A-3 Maturity Date and the Redemption Date, if any, selected
pursuant to the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid,
on the date on which an Event of Default shall have occurred and be continuing,
unless the Required Holders waive such Event of Default in the manner provided
in the Indenture. All principal payments on the Class A-3 Notes shall be made
pro rata to the Class A-3 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date shall be made by wire transfer to the account to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such payment shall be made
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) affected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Distribution Date by notice mailed
within five days of such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes.
B-3-6
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-3 Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against the Trust Depositor or the Issuer, or join in any institution against
the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Issuer will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by
acceptance of a Note (and each Noteholder by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for the federal, state and local income,
single business and franchise tax purposes as indebtedness.
B-3-7
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer and with the consent of the Required Holders. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holders and upon all future
Noteholders and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS A-4 NOTE
[oBOOK-ENTRY ONLY: UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE NOTE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.o]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES OR ANY FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE
BENEFIT OF THE INDENTURE TRUSTEE THAT THIS NOTE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
("QUALIFIED INSTITUTIONAL BUYER"), PURCHASING FOR ITS OWN ACCOUNT OR A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
THEREOF IN RULE 501(a)(1), (2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT, IN
THE CASE OF TRANSFERS PURSUANT TO THIS CLAUSE (3), TO (A) THE RECEIPT BY THE
NOTE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN ANNEX A TO THE
INDENTURE AND (B) IF REQUESTED BY THE NOTE REGISTRAR, THE RECEIPT BY THE NOTE
REGISTRAR OF SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER EVIDENCE ACCEPTABLE TO
THE NOTE REGISTRAR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS.
B-4-1
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS NOTE ARE SUBJECT TO RESTRICTIONS AS
PROVIDED IN THE INDENTURE REFERRED TO BELOW.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION OF, THE ISSUER, THE
SERVICER, THE INDENTURE TRUSTEE OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES OR ANY OTHER PERSON. THIS NOTE IS NOT INSURED OR GUARANTEED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR ANY INSURER OR ANY OTHER PERSON. THIS NOTE IS NOT A SAVINGS
ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS NOTE WILL BE MADE IN
THE MANNER DESCRIBED IN THE INDENTURE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
FIDELITY EQUIPMENT LEASE TRUST 1999-1
6.300% RECEIVABLE-BACKED NOTES, CLASS A-4
No. ___ $33,961,804
CUSIP: 316136 AD 2
Fidelity Equipment Lease Trust 1999-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of Thirty-three million, nine hundred
sixty-one thousand, eight hundred four and 00/100 Dollars ($33,961,804) payable
on the earlier of November 15, 2004 (the "Class A-4 Maturity Date") and the
Redemption Date, if any, pursuant to Section 10.01 of the Indenture referred to
on the reverse hereof.
This Class A-4 Note is transferable as provided in the
Indenture, subject to certain limitations therein contained, only upon the books
for registration and transfer kept by the Indenture Trustee, and only upon
surrender of this Class A-4 Note for transfer to the Indenture Trustee duly
endorsed by, or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Indenture Trustee duly executed by, the
registered Holder hereof or his attorney duly authorized in writing. No such
transfer shall be so permitted unless (i) such transfer is made in a transaction
which does not require registration under the Securities Act, and pursuant to an
effective registration or qualification under any State securities or "Blue Sky"
laws, or in a transaction which does not require such registration or
qualification and (ii) the Holder thereof delivers to the Indenture Trustee the
certification required under the Indenture with respect to the Securities Act,
and the Employee Retirement Income Security Act of 1974, as amended.
B-4-2
The Issuer will pay interest on this Note at the rate per
annum shown above on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in Section 3.01 of the Indenture. Interest on this
Note will accrue for each Distribution Date from the most recent Distribution
Date on which interest has been paid to but excluding such Distribution Date or,
if no interest has yet been paid, from the Closing Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
B-4-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by an Authorized Officer, as of the date
set forth below.
Date: June 2, 1999 FIDELITY EQUIPMENT LEASE TRUST 1999-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee
By: _______________________
Name:
Title:
B-4-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within- mentioned Indenture.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture
Trustee
By: ______________________
Name:
Title:
B-4-5
[REVERSE OF CLASS A-4 NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.300% Receivable-Backed Notes, Class A-4 (the "Class
A-4 Notes"), all issued under an Indenture, dated as of June 2, 1999 (the
"Indenture"), between the Issuer and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class A-4 Notes are subject to all terms of the
Indenture. All terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture, as so supplemented or amended.
The Class A-4 Notes and the other Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture subject to the subordination of certain Classes of Notes under certain
circumstances as described in the Indenture and the Sale and Servicing
Agreement.
Principal of the Class A-4 Notes will be payable on the
earlier of the Class A-4 Maturity Date and the Redemption Date, if any, selected
pursuant to the Indenture. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid,
on the date on which an Event of Default shall have occurred and be continuing,
unless the Required Holders waive such Event of Default in the manner provided
in the Indenture. All principal payments on the Class A-4 Notes shall be made
pro rata to the Class A-4 Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date shall be made by wire transfer to the account to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such payment shall be made
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) affected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Distribution Date by notice mailed
within five days of such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes.
B-4-6
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class A-4 Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against the Trust Depositor or the Issuer, or join in any institution against
the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Issuer will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by
acceptance of a Note (and each Noteholder by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for the federal, state and local income,
single business and franchise tax purposes as indebtedness.
B-4-7
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer and with the consent of the Required Holders. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holders and upon all future
Noteholders and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
B-4-8
EXHIBIT C
FORM OF CLASS B NOTE
[oBOOK-ENTRY ONLY: UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE NOTE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.o]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES OR ANY FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE
BENEFIT OF THE INDENTURE TRUSTEE THAT THIS NOTE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
("QUALIFIED INSTITUTIONAL BUYER"), PURCHASING FOR ITS OWN ACCOUNT OR A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
THEREOF IN RULE 501(a)(1), (2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT, IN
THE CASE OF TRANSFERS PURSUANT TO THIS CLAUSE (3), TO (A) THE RECEIPT BY THE
NOTE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN ANNEX A TO THE
INDENTURE AND (B) IF REQUESTED BY THE NOTE REGISTRAR, THE RECEIPT BY THE NOTE
REGISTRAR OF SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER EVIDENCE ACCEPTABLE TO
THE NOTE REGISTRAR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS.
C-1
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS NOTE ARE SUBJECT TO RESTRICTIONS AS
PROVIDED IN THE INDENTURE REFERRED TO BELOW.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION OF, THE ISSUER, THE
SERVICER, THE INDENTURE TRUSTEE OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES OR ANY OTHER PERSON. THIS NOTE IS NOT INSURED OR GUARANTEED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR ANY INSURER OR ANY OTHER PERSON. THIS NOTE IS NOT A SAVINGS
ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS NOTE WILL BE MADE IN
THE MANNER DESCRIBED IN THE INDENTURE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
FIDELITY EQUIPMENT LEASE TRUST 1999-1
6.590% RECEIVABLE-BACKED NOTES, CLASS B
No. ___ $9,749,800
CUSIP: 316136 AE 0
Fidelity Equipment Lease Trust 1999-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of Nine million, seven hundred
forty-nine thousand, eight hundred and 00/100 Dollars ($9,749,800) payable on
the earlier of February 15, 2006 (the "Class B Maturity Date") and the
Redemption Date, if any, pursuant to Section 10.01 of the Indenture referred to
on the reverse hereof.
This Class B Note is transferable as provided in the
Indenture, subject to certain limitations therein contained, only upon the books
for registration and transfer kept by the Indenture Trustee, and only upon
surrender of this Class B Note for transfer to the Indenture Trustee duly
endorsed by, or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Indenture Trustee duly executed by, the
registered Holder hereof or his attorney duly authorized in writing. No such
transfer shall be so permitted unless (i) such transfer is made in a transaction
which does not require registration under the Securities Act, and pursuant to an
effective registration or qualification under any State securities or "Blue Sky"
laws, or in a transaction which does not require such registration or
qualification and (ii) the Holder thereof delivers to the Indenture Trustee the
certification required under the Indenture with respect to the Securities Act,
and the Employee Retirement Income Security Act of 1974, as amended.
C-2
The Issuer will pay interest on this Note at the rate per
annum shown above on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in Section 3.01 of the Indenture. Interest on this
Note will accrue for each Distribution Date from the most recent Distribution
Date on which interest has been paid to but excluding such Distribution Date or,
if no interest has yet been paid, from the Closing Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
C-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by an Authorized Officer, as of the date
set forth below.
Date June 2, 1999 FIDELITY EQUIPMENT LEASE TRUST 1999-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner Trustee
By: _______________________
Name:
Title:
C-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within- mentioned Indenture.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in
its individual capacity but solely as
Indenture Trustee
By: ______________________
Name:
Title
C-5
[REVERSE OF CLASS B NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.590% Receivable-Backed Notes, Class B (the "Class B
Notes"), all issued under an Indenture, dated as of June 2, 1999 (the
"Indenture"), between the Issuer and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class B Notes are subject to all terms of the
Indenture. All terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture, as so supplemented or amended.
The Class B Notes and the other Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture subject to the subordination of certain Classes of Notes under certain
circumstances as described in the Indenture and the Sale and Servicing
Agreement.
Principal of the Class B Notes will be payable on the earlier
of the Class B Maturity Date and the Redemption Date, if any, selected pursuant
to the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on the
date on which an Event of Default shall have occurred and be continuing, unless
the Required Holders waive such Event of Default in the manner provided in the
Indenture. All principal payments on the Class B Notes shall be made pro rata to
the Class B Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date shall be made by wire transfer to the account to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such payment shall be made
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) affected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Distribution Date by notice mailed
within five days of such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes.
C-6
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class B Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against the Trust Depositor or the Issuer, or join in any institution against
the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Issuer will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by
acceptance of a Note (and each Noteholder by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for the federal, state and local income,
single business and franchise tax purposes as indebtedness.
C-7
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer and with the consent of the Required Holders. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holders and upon all future
Noteholders and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
C-8
EXHIBIT D
FORM OF CLASS C NOTE
[oBOOK-ENTRY ONLY: UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE NOTE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.o]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES OR ANY FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE
BENEFIT OF THE INDENTURE TRUSTEE THAT THIS NOTE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
("QUALIFIED INSTITUTIONAL BUYER"), PURCHASING FOR ITS OWN ACCOUNT OR A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
THEREOF IN RULE 501(a)(1), (2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT, IN
THE CASE OF TRANSFERS PURSUANT TO THIS CLAUSE (3), TO (A) THE RECEIPT BY THE
NOTE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN ANNEX A TO THE
INDENTURE AND (B) IF REQUESTED BY THE NOTE REGISTRAR, THE RECEIPT BY THE NOTE
REGISTRAR OF SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER EVIDENCE ACCEPTABLE TO
THE NOTE REGISTRAR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS.
E-1
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS NOTE ARE SUBJECT TO RESTRICTIONS AS
PROVIDED IN THE INDENTURE REFERRED TO BELOW.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION OF, THE ISSUER, THE
SERVICER, THE INDENTURE TRUSTEE OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES OR ANY OTHER PERSON. THIS NOTE IS NOT INSURED OR GUARANTEED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR ANY INSURER OR ANY OTHER PERSON. THIS NOTE IS NOT A SAVINGS
ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS NOTE WILL BE MADE IN
THE MANNER DESCRIBED IN THE INDENTURE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
FIDELITY EQUIPMENT LEASE TRUST 1999-1
7.860% RECEIVABLE-BACKED NOTES, CLASS C
No. ___ $4,874,900
CUSIP: 316136 AF 7
Fidelity Equipment Lease Trust 1999-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Cede & Co.,
or registered assigns, the principal sum of Four million, eight hundred
seventy-four thousand, nine hundred and 00/100 Dollars ($4,874,900) payable on
the earlier of August 15, 2006 (the "Class C Maturity Date") and the Redemption
Date, if any, pursuant to Section 10.01 of the Indenture referred to on the
reverse hereof.
This Class C Note is transferable as provided in the
Indenture, subject to certain limitations therein contained, only upon the books
for registration and transfer kept by the Indenture Trustee, and only upon
surrender of this Class C Note for transfer to the Indenture Trustee duly
endorsed by, or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Indenture Trustee duly executed by, the
registered Holder hereof or his attorney duly authorized in writing. No such
transfer shall be so permitted unless (i) such transfer is made in a transaction
which does not require registration under the Securities Act, and pursuant to an
effective registration or qualification under any State securities or "Blue Sky"
laws, or in a transaction which does not require such registration or
qualification and (ii) the Holder thereof delivers to the Indenture Trustee the
certification required under the Indenture with respect to the Securities Act,
and the Employee Retirement Income Security Act of 1974, as amended.
E-2
The Issuer will pay interest on this Note at the rate per
annum shown above on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in Section 3.01 of the Indenture. Interest on this
Note will accrue for each Distribution Date from the most recent Distribution
Date on which interest has been paid to but excluding such Distribution Date or,
if no interest has yet been paid, from the Closing Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
E-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by an Authorized Officer, as of the date
set forth below.
Date: June 2, 1999 FIDELITY EQUIPMENT LEASE TRUST 1999-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee
By: _______________________
Name:
Title:
E-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within- mentioned Indenture.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By: ______________________
Name:
Title:
E-5
[REVERSE OF CLASS C NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 7.860% Receivable-Backed Notes, Class C (the "Class C
Notes"), all issued under an Indenture, dated as of June 2, 1999 (the
"Indenture"), between the Issuer and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class C Notes are subject to all terms of the
Indenture. All terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture, as so supplemented or amended.
The Class C Notes and the other Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture subject to the subordination of certain Classes of Notes under certain
circumstances as described in the Indenture and the Sale and Servicing
Agreement.
Principal of the Class C Notes will be payable on the earlier
of the Class C Maturity Date and the Redemption Date, if any, selected pursuant
to the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on the
date on which an Event of Default shall have occurred and be continuing, unless
the Required Holders waive such Event of Default in the manner provided in the
Indenture. All principal payments on the Class C Notes shall be made pro rata to
the Class C Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date shall be made by wire transfer to the account to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such payment shall be made
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) affected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Distribution Date by notice mailed
within five days of such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes.
E-6
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class C Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against the Trust Depositor or the Issuer, or join in any institution against
the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Issuer will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by
acceptance of a Note (and each Noteholder by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for the federal, state and local income,
single business and franchise tax purposes as indebtedness.
E-7
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer and with the consent of the Required Holders. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holders and upon all future
Noteholders and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
E-8
EXHIBIT E
FORM OF CLASS D NOTE
EACH TRANSFEREE ACQUIRING THIS NOTE AND EACH OWNER OF A BENEFICIAL INTEREST IN
THIS NOTE ACQUIRING SUCH BENEFICIAL INTEREST (THE PROSPECTIVE TRANSFEREE AND THE
PROSPECTIVE OWNER OF A BENEFICIAL INTEREST, COLLECTIVELY, THE "PROSPECTIVE
HOLDER"), SHALL, UNLESS THE ISSUER AND THE SERVICER SHALL OTHERWISE CONSENT IN
WRITING, REPRESENT AND WARRANT, IN WRITING TO THE ISSUER, THE SERVICER, AND THE
INDENTURE TRUSTEE THAT THE PROSPECTIVE HOLDER IS NOT AN "EMPLOYEE BENEFIT PLAN"
WITHIN THE MEANING OF SECTION 3(3) OF ERISA THAT IS SUBJECT TO THE PROVISIONS OF
TITLE I OF ERISA OR A "PLAN" WITHIN THE MEANING OF SECTION 4975(E)(1) OF THE
CODE (ANY SUCH PLAN OR EMPLOYEE BENEFIT PLAN, A "BENEFIT PLAN"), AND THAT THE
PROSPECTIVE HOLDER IS NOT DIRECTLY OR INDIRECTLY PURCHASING THIS NOTE IN ANY
OTHER CAPACITY ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED FIDUCIARY OF, AS
TRUSTEE OF, IN ANY OTHER CAPACITY ON BEHALF OF OR WITH THE ASSETS OF, A BENEFIT
PLAN.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE
SECURITIES OR BLUE SKY LAW OF ANY STATE OF THE UNITED STATES OR ANY FOREIGN
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE
BENEFIT OF THE INDENTURE TRUSTEE THAT THIS NOTE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
("QUALIFIED INSTITUTIONAL BUYER"), PURCHASING FOR ITS OWN ACCOUNT OR A QUALIFIED
INSTITUTIONAL BUYER PURCHASING FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE, OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) PURSUANT
TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), (3) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
THEREOF IN RULE 501(a)(1), (2),(3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER OR PURSUANT TO ANY OTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT, IN
THE CASE OF TRANSFERS PURSUANT TO THIS CLAUSE (3), TO (A) THE RECEIPT BY THE
NOTE REGISTRAR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN ANNEX A TO THE
INDENTURE AND (B) IF REQUESTED BY THE NOTE REGISTRAR, THE RECEIPT BY THE NOTE
REGISTRAR OF SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER EVIDENCE ACCEPTABLE TO
THE NOTE REGISTRAR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS.
E-1
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS NOTE ARE SUBJECT TO RESTRICTIONS AS
PROVIDED IN THE INDENTURE REFERRED TO BELOW.
THIS NOTE DOES NOT REPRESENT AN INTEREST IN, OR OBLIGATION OF, THE ISSUER, THE
SERVICER, THE INDENTURE TRUSTEE OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES OR ANY OTHER PERSON. THIS NOTE IS NOT INSURED OR GUARANTEED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY OR ANY INSURER OR ANY OTHER PERSON. THIS NOTE IS NOT A SAVINGS
ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR
FUND OF THE UNITED STATES.
DISTRIBUTIONS IN REDUCTION OF THE PRINCIPAL BALANCE OF THIS NOTE WILL BE MADE IN
THE MANNER DESCRIBED IN THE INDENTURE. ACCORDINGLY, THE OUTSTANDING PRINCIPAL
BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
FIDELITY EQUIPMENT LEASE TRUST 1999-1
6.180% RECEIVABLE-BACKED NOTES, CLASS D
No. ___ $4,468,658
CUSIP: 316136 AG 5
Fidelity Equipment Lease Trust 1999-1, a business trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to Fidelity
Equipment Lease Depositor I, LLC, or registered assigns, the principal sum of
Four million, four hundred sixty eight thousand, six hundred fifty-eight and
00/100 Dollars ($4,468,658) payable on the earlier of April 15, 2008 (the "Class
D Maturity Date") and the Redemption Date, if any, pursuant to Section 10.01 of
the Indenture referred to on the reverse hereof.
This Class D Note is transferable as provided in the
Indenture, subject to certain limitations therein contained, only upon the books
for registration and transfer kept by the Indenture Trustee, and only upon
surrender of this Class D Note for transfer to the Indenture Trustee duly
endorsed by, or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Indenture Trustee duly executed by, the
registered Holder hereof or his attorney duly authorized in writing. No such
transfer shall be so permitted unless (i) such transfer is made in a transaction
which does not require registration under the Securities Act, and pursuant to an
effective registration or qualification under any State securities or "Blue Sky"
laws, or in a transaction which does not require such registration or
qualification and (ii) the Holder thereof delivers to the Indenture Trustee the
certification required under the Indenture with respect to the Securities Act,
and the Employee Retirement Income Security Act of 1974, as amended.
E-2
The Issuer will pay interest on this Note at the rate per
annum shown above on each Distribution Date until the principal of this Note is
paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Distribution Date (after giving effect to all
payments of principal made on the preceding Distribution Date), subject to
certain limitations contained in Section 3.01 of the Indenture. Interest on this
Note will accrue for each Distribution Date from the most recent Distribution
Date on which interest has been paid to but excluding such Distribution Date or,
if no interest has yet been paid, from the Closing Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Such principal
of and interest on this Note shall be paid in the manner specified on the
reverse hereof.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts. All payments made by the
Issuer with respect to this Note shall be applied first to interest due and
payable on this Note as provided above and then to the unpaid principal of this
Note.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth on the face of this Note.
Unless the certificate of authentication hereon has been
executed by the Indenture Trustee whose name appears below by manual signature,
this Note shall not be entitled to any benefit under the indenture referred to
on the reverse hereof, or be valid or obligatory for any purpose.
E-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be signed, manually or in facsimile, by an Authorized Officer, as of the date
set forth below.
Date: June 2, 1999 FIDELITY EQUIPMENT LEASE TRUST 1999-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Owner
Trustee
By: _______________________
Name:
Title:
E-4
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in
the within- mentioned Indenture.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, not in its
individual capacity but solely as Indenture Trustee
By: ______________________
Name:
Title:
E-5
[REVERSE OF CLASS D NOTE]
This Note is one of a duly authorized issue of Notes of the
Issuer, designated as its 6.180% Receivable-Backed Notes, Class D (the "Class D
Notes"), all issued under an Indenture, dated as of June 2, 1999 (the
"Indenture"), between the Issuer and ▇▇▇▇▇▇ Trust and Savings Bank, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class D Notes are subject to all terms of the
Indenture. All terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture, as so supplemented or amended.
The Class D Notes and the other Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture subject to the subordination of certain Classes of Notes under certain
circumstances as described in the Indenture and the Sale and Servicing
Agreement.
Principal of the Class D Notes will be payable on the earlier
of the Class D Maturity Date and the Redemption Date, if any, selected pursuant
to the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Notes shall be due and payable, if not previously paid, on the
date on which an Event of Default shall have occurred and be continuing, unless
the Required Holders waive such Event of Default in the manner provided in the
Indenture. All principal payments on the Class D Notes shall be made pro rata to
the Class D Noteholders entitled thereto.
Payments of interest on this Note due and payable on each
Distribution Date shall be made by wire transfer to the account to the Person
whose name appears as the Registered Holder of this Note (or one or more
Predecessor Notes) on the Note Register as of the close of business on each
Record Date, payments will be made by wire transfer in immediately available
funds to the account designated by such nominee. Such payment shall be made
without requiring that this Note be submitted for notation of payment. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) affected by any payments made on any Distribution Date shall be binding
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Distribution Date by notice mailed
within five days of such Distribution Date and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Corporate Trust Office of the Indenture Trustee or at the office of the
Indenture Trustee's agent appointed for such purposes.
E-6
As provided in the Indenture and subject to certain
limitations set forth therein, the transfer of this Note may be registered on
the Note Register upon surrender of this Note for registration of transfer at
the office or agency designated by the Issuer pursuant to the Indenture, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Indenture Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
eligible guarantor institution which is a participant in the Securities Transfer
Agent's Medallion Program (STAMP) or similar signature guarantee program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new program, and such other documents as the Indenture Trustee may require,
and thereupon one or more new Class D Notes of authorized denominations and in
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be charged for any registration of
transfer or exchange of this Note, but the transferor may be required to pay a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any such registration of transfer or exchange.
Each Noteholder by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that no recourse may be taken, directly
or indirectly, with respect to the obligations of the Issuer, the Owner Trustee
or the Indenture Trustee on the Notes or under the Indenture or any certificate
or other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder, by acceptance of a Note or a beneficial
interest in a Note covenants and agrees that by accepting the benefits of the
Indenture and such Note that such Noteholder will not at any time institute
against the Trust Depositor or the Issuer, or join in any institution against
the Trust Depositor or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is
issued with the intention that, for federal, state and local income, single
business and franchise tax purposes, the Notes will qualify as indebtedness
which is solely secured by the Collateral and that the Issuer will be
disregarded as a separate entity for federal income tax purposes pursuant to
Treasury Regulations Section 301.7701-3 (b)(1)(ii). Each Noteholder, by
acceptance of a Note (and each Noteholder by acceptance of a beneficial interest
in a Note), agrees to treat the Notes for the federal, state and local income,
single business and franchise tax purposes as indebtedness.
E-7
Prior to the due presentment for registration of transfer of
this Note, the Issuer and the Indenture Trustee and any agent of the Issuer and
the Indenture Trustee may treat the Person in whose name this Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Issuer and the rights of the Noteholders under the Indenture
at any time by the Issuer and with the consent of the Required Holders. The
Indenture also contains provisions permitting the Noteholders representing
specified percentages of the Outstanding Amount of the Notes, on behalf of the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Noteholder (or any one of more Predecessor
Notes) shall be conclusive and binding upon such Holders and upon all future
Noteholders and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Noteholders issued thereunder.
The Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations
therein set forth.
This Note and the Indenture shall be construed in accordance
with the laws of the State of New York, and the obligations, rights and remedies
of the parties hereunder and thereunder shall be determined in accordance with
such laws.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place, and rate, and in the coin or currency herein
prescribed.
E-8
EXHIBIT F
FORM OF NOTE ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
-------------------------------------
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------
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(Please print or type name and address, including postal zip code, of assignee)
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the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
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to transfer said Note on the books kept for registration thereof, with full
power of substitution in the premises.
Dated: _______________________
Signature Guaranteed:
--------------------------------------------- --------------------------------------------------
Signature must be guaranteed by an eligible Notice: The signature(s) on this assignment
guarantor institution which is a participant must correspond with the name(s) as it appears
in the Securities Transfer Medallion Program on the face of the within Note in every
(STAMP) or similar guarantee program. particular, without Agent's alteration
signature or enlargement or any change whatsoever.
__________________________________
(Authorized Officer)
F-1
EXHIBIT G
FORM OF NOTE DEPOSITORY AGREEMENT
[Standard Form DTC Letter of Representations]
G-1
ANNEX A
FORM OF INVESTOR'S LETTER
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Indenture Trust Administration
Re: Fidelity Equipment Lease Trust 1999-1,
Receivable-Backed Notes, Series 1999-1
Ladies and Gentlemen:
In connection with our proposed purchase of $____________
aggregate principal amount of ___% Class [A-1] [A-2] [A-3] [A-4] [B] [C] [D]
Receivable-Backed Notes, Series 1999-1, Due [_______] (the "Notes"), issued
pursuant to the Indenture, dated as of June 2, 1999 (the "Indenture"), between
Fidelity Equipment Lease Trust 1999-1 (the "Trust") and ▇▇▇▇▇▇ Trust and Savings
Bank, as Trustee, we represent and agree as follows:
[[For Institutional Accredited Investors only] 1. We are an
institutional "accredited investor" (an entity meeting the requirements of Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act of 1933, as
amended (the "Securities Act")) and have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Notes, and we and any accounts for which we are
acting are each able to bear the economic risk of our or its investment. We are
acquiring the Notes purchased by us for our own account or for one or more
accounts (each of which is an "institutional accredited investor") as to each of
which we exercise sole investment discretion.]
[[For Qualified Institutional Buyers only] 1. The Purchaser is
a "qualified institutional buyer" within the meaning of Rule 144A ("Rule 144A")
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
The Purchaser is aware that the transfer is being made in reliance on Rule 144A,
and the Purchaser has had the opportunity to obtain the information required to
be provided pursuant to paragraph (d)(4)(i) or Rule 144A.]
2. The Purchaser's intention is to acquire the Notes (a)
for investment for the Purchaser's own account or (b) for resale to (i)
"qualified institutional buyers" in transactions under Rule 144A, or (ii) to
institutional "accredited investors" meeting the requirements of Rule 501(a)(1),
(2), (3) or (7) of Regulation D promulgated under the Securities Act, pursuant
to any other exemption from the registration requirements of the Securities Act,
subject in the case of this clause (ii) to (a) the receipt by the Note Registrar
of a letter substantially in the form hereof, and (b) the receipt by the Note
Registrar of such other evidence acceptable to the Note Registrar that such
reoffer, resale, pledge or transfer is in compliance with the Securities Act and
other applicable laws. It understands that the Notes have not been registered
under the Securities Act, by reason of a specified exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the Purchaser's investment intent (or intent to
resell to only certain investors in certain exempted transactions) as expressed
herein.
3. The Purchaser acknowledges that the Notes (and any
Note issued on transfer or exchange thereof) have not been registered or
qualified under the Securities Act or the securities laws of any State or any
other jurisdiction, and that the Notes cannot be resold unless they are
registered or qualified thereunder or unless an exemption from such registration
or qualification is available.
4. The Purchaser has received and reviewed the Private
Placement Memorandum dated May 26, 1999, relating to the Notes (the "Private
Placement Memorandum") and the agreements and other materials referred to
therein and has had the opportunity to ask questions and receive answers
concerning the terms and conditions of the transactions contemplated by the
Private Placement Memorandum.
Annex A-1
5. The Purchaser will not sell or otherwise transfer any
portion of the Note, except in compliance with the Indenture.
6. Check one of the following:*
___ The Purchaser is a "U.S. Person" and it has attached hereto an
Internal Revenue Service ("IRS") Form W-9 (or successor form).
___ The Purchaser is not a "U.S. Person" and under applicable law in effect
on the date hereof, no taxes will be required to be withheld by the
Note Registrar (or its agent) with respect to distributions to be made
on the Note(s). The Purchaser has attached hereto either (i) a duly
executed IRS Form W-8 (or successor form), which identifies such
Purchaser as the beneficial owner of the Note(s) and states that such
Purchaser is not a U.S. Person or (ii) two duly executed copies of IRS
Form 4224 (or successor form), which identify such Purchaser as the
beneficial owner of the Note(s) and state that interest on the Note is,
or is expected to be, effectively connected with a U.S. trade or
business. The Purchaser agrees to provide to the Note Registrar updated
IRS Forms W-8 or IRS Forms 4224, as the case may be, any applicable
successor IRS forms, or such other certificates as the Note Registrar
may reasonably request, on or before the date that any such IRS form or
certification expires or becomes obsolete, or promptly after the
occurrence of any event requiring a change in the most recent IRS form
of certification furnished by it to the Note Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation, or partnership (unless, in the case of a partnership,
Treasury regulations are adopted that provide otherwise) created or organized in
or under the laws of the United States, any state thereof or the District of
Columbia, including an entity treated as a corporation or partnership for
federal income tax purposes, an estate whose income is subject to United States
federal income tax regardless of its source, or a trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust, and one or more such U.S. Persons have the authority to control all
substantial decisions of such trust (or, to the extent provided in applicable
Treasury regulations, certain trusts in existence on August 20, 1996 which are
eligible to elect to be treated as U.S. Persons).
7. The Purchaser represents and warrants that either:(i) it
is not purchasing the Notes with the assets of an employee benefit plan subject
to Section 406 of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code
of 1986, as amended, or (ii) part of the assets to be used to purchase the Notes
constitutes assets of any such plan and one or more exemptions from the
prohibited transaction rules of ERISA, including but not limited to Prohibited
Transaction Class Exemptions ("PTCE") ▇▇-▇▇, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ 95-60, PTCE 91-38,
and PTCE 96-23 applies such that use of such assets to acquire and hold the
Notes does not and will not constitute a non-exempt prohibited transaction for
purposes of ERISA.
8. The Purchaser will treat the Notes as indebtedness for tax
and U.S. GAAP purposes
[Paragraphs 9 through 15 apply for Purchasers of Class D
Notes only]
9. The Purchaser has neither acquired nor will it Transfer any
Class D Note it acquires (or any interest therein) or cause any Class D Note (or
any interest therein) to be marketed on or through an "established securities
market" within the meaning of Section 7704(b)(1) of the Internal Revenue Code of
1986, as amended (the "Code") and any Treasury regulation thereunder, including,
without limitation, an over-the-counter-market or an interdealer quotation
system that regularly disseminates firm buy or sell quotations. The Purchaser
understands that any transfer effected through an established securities market
shall be void.
10. The Purchaser is a U.S. Person and the sole legal and
beneficial owner of the Class D Note.
--------
*Each Purchaser must include one of the two alternative certifications.
Annex A-2
11. The Purchaser is not and will not become a partnership,
Subchapter S corporation or grantor trust for United States federal income tax
purposes or, if it is or becomes such an entity, less than 50 percent of the
aggregate value of the assets of such entity are and at all times will be
attributable to interests in the Trust.
12. The Purchaser understands that no subsequent Transfer of a
Class D Note is permitted unless (i) such Transfer is of a Class D Note with a
denomination of at least $500,000 and (ii) the Trust Depositor and the Servicer
each consent in writing to the proposed Transfer, which consent shall be granted
unless either the Trust Depositor or the Servicer, acting pursuant to advice of
counsel, determines that such Transfer would create a material risk that the
Trust would be classified for federal or any applicable state tax purposes as an
association or publicly traded partnership taxable as a corporation; provided,
that an attempted Transfer that would cause the number of Targeted Holders (as
defined in the Private Placement Memorandum) to exceed one hundred shall be
void.
13. The Purchaser understands that the opinion of tax counsel
to the Trust that the Trust is not a publicly traded partnership taxable as a
corporation is dependent in part on the accuracy of the representations in
paragraphs 8, 9, 10, 11 and 12 and that in addition to its being subject to
having its purchase rescinded, it will be liable for damages.
14. The Purchaser understands that any purported Transfer of
any Class D Note in contravention of the restrictions and conditions in the
paragraphs above (including any violation of the representation in paragraph 11
by an investor who continues to hold a Class D Note occurring any time after the
Transfer in which it acquired such Class D Note) shall be null and void and the
purported transferee shall not be recognized by the Trust or any other person as
a Class D Noteholder for any purpose.
15. The Purchaser further understands that, on any proposed
resale, pledge or Transfer of any Class D Notes, it will be required to furnish
to the Indenture Trustee and other appropriate parties as required, such
certification and other information as the Indenture Trustee or such other party
may reasonably require to confirm that the proposed sale complies with the
foregoing restrictions and with the restrictions and conditions of the Class D
Notes, and the Indenture pursuant to which the Class D Notes were issued and it
agrees that if it determines to Transfer any Class D Note, it will cause its
proposed transferee to provide the Trust Depositor, the Servicer, the Indenture
Trustee and the Owner Trustee with a letter substantially in the form of this
letter subject to the qualification set forth in the Private Placement
Memorandum related to paragraphs 1 and 3 hereof. The Purchaser further
understands that Class D Notes purchased by it will bear a legend to the
foregoing effect.
Terms used but not defined herein shall have the meanings
ascribed thereto in the Indenture.
Very truly yours,
[Purchaser]
By: ______________________________
Name:
Title:
Annex A-3
