7/7/99
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CHARTER EQUIPMENT LEASE 1999-1 LLC,
Issuer
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
and
CHARTER FINANCIAL, INC.,
Servicer
----------------------
FORM OF INDENTURE
Dated as of July 1, 1999
----------------------
$[ ] in aggregate principal amount of Lease-Backed
Notes, Series 1999-1, consisting of:
$[ ] of [ ]% Class A-1 Lease-Backed Notes
$[ ] of [ ]% Class A-2 Lease-Backed Notes
$[ ] of [ ]% Class A-3 Lease-Backed Notes
$[ ] of [ ]% Class A-4 Lease-Backed Notes
$[ ] of [ ]% Class B Lease-Backed Notes
$[ ] of [ ]% Class C Lease-Backed Notes
$[ ] of [ ]% Class D Lease-Backed Notes
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CHARTER EQUIPMENT LEASE 1999-1 LLC
Reconciliation and Tie between the Indenture
dated as of July 1, 1999 and the
Trust Indenture Act of 1939, as amended
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
ss. 310 (a)(1)............................ ss.7.08
(a)(2)............................ 7.08
(a)(3)............................ Not Applicable
(a)(4)............................ Not Applicable
(b)............................... 7.08; 7.09; 6.07; 1.05; 1.06
(c)............................... Not Applicable
311 (a)............................... 7.14
(b)............................... 7.14
312 (a)............................... 2.11
(b)............................... 11.02
(c)............................... 11.02
313 (a)............................... 7.15
(b)(1)............................ Not Applicable
(b)(2)............................ 7.15
(c)............................... 7.15; 1.06
(d)............................... 7.15
314 (a)............................... 8.06; 8.09; 1.06
(b)............................... Not Applicable
(c)(1)............................ 11.03
(c)(2)............................ 11.03
(c)(3)............................ 11.01
(d)............................... 11.01
(e)............................... 11.04
(f)............................... Not Applicable
315 (a)............................... 7.01(a)
(b)............................... 7.02; 1.06
(c)............................... 7.01(b)
(d)............................... 7.01(c)
(e)............................... 6.14
316 (a) (last sentence)............... 2.12
(a)(1)(A)......................... 6.12
(a)(1)(B)......................... 6.13
(a)(2)............................ Not Applicable
317 (a)(1)............................ 6.03(c)
(a)(2)............................ 6.04
(b)............................... 8.03(c)
318 (a)............................... 11.01, 11.02
(c)............................... 11.01
INDENTURE
This INDENTURE dated as of July 1, 1999, is between CHARTER EQUIPMENT LEASE
1999-1 LLC, a Delaware limited liability company (herein called the "Issuer"),
LASALLE BANK NATIONAL ASSOCIATION, a banking corporation organized under the
laws of the United States, as trustee (herein called the "Trustee"), and CHARTER
FINANCIAL, INC., as servicer (herein called the "Servicer" or "Charter").
RECITALS
The Issuer has duly authorized the issuance of $[ ] in aggregate principal
amount of its Lease-Backed Notes, consisting of $[_____________] aggregate
principal amount of [_______]% Class A-1 Lease-Backed Notes (the "Class A-1
Notes"), $[_____________] aggregate principal amount of [_______]% Class A-2
Lease-Backed Notes (the "Class A-2 Notes"), $[_____________] aggregate principal
amount of [_______]% Class A-3 Lease-Backed Notes (the "Class A-3 Notes"),
$[_____________] aggregate principal amount of [_______]% Class A-4 Lease-Backed
Notes (the "Class A-4 Notes", together with the Class A-1 Notes, Class A-2
Notes, and Class A-3 Notes, the "Class A Notes"), $[_______________] aggregate
principal amount of [_______]% Class B Lease-Backed Notes (the "Class B Notes"),
$[_____________] aggregate principal amount of [_______]% Class C Lease-Backed
Notes (the "Class C Notes"), $[_____________] aggregate principal amount of [ ]%
Class D Lease-Backed Notes (the "Class D Notes", together with the Class A
Notes, the Class B Notes and the Class C Notes, the "Notes") of substantially
the tenor hereinafter set forth, and to provide therefor the Issuer has duly
authorized the execution and delivery of this Indenture. The Class A Notes, the
Class B Notes, the Class C Notes and the Class D Notes shall be entitled to
payments of interest and principal as set forth herein.
All things necessary to make the Notes, when executed by the Issuer and
authenticated and delivered hereunder, the valid obligations of the Issuer, and
to make this Indenture a valid agreement of the Issuer, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the Holders thereof, it is mutually covenanted and agreed, for the benefit of
all Noteholders, as follows:
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee on the Issuance Date, for the
benefit and security of the Noteholders, all of the Issuer's right, title and
interest in and to (a) the Leases and all Lease Payments, Casualty Payments,
Lease Repurchase Amounts, Termination Payments and other amounts now due or
becoming due with respect thereto since the Cut-Off Date (other than any
prepayments of rent required pursuant to the terms of any Lease at or before the
commencement of the Lease and any payments due before the Cut-Off Date) and all
Additional Leases and Substitute Leases and all Lease Payments, Casualty
Payments, Lease Repurchase Amounts, Termination Payments and
other amounts due or becoming due with respect thereto since the respective
Transfer Date (other than any prepayments of rent required by the terms of any
Lease at or before the commencement of the Lease and any payments due before the
effective date of such addition or substitution), (b) all rights of the Issuer
to or under any guarantees of or collateral for the Lessee's obligations under
any Lease, (c) all interests of the Issuer in the Equipment at any time subject
to any Lease, including any security interest of Charter in the Equipment, (d)
all moneys from time to time held by the Trustee pursuant to Section 3.01(a)
hereof pending deposit in one of the accounts referred to therein, (e) all
moneys from time to time on deposit in any of the Trust Accounts, including all
investments and income from the investment of such moneys, (f) all rights of the
Issuer under the Seller Contribution and Sale Agreement, and (g) all proceeds of
the conversion, whether voluntary or involuntary, of any of the foregoing into
cash or other property (collectively, the "Granted Assets"). Such Grant is made
in trust to secure (i) the payment of all amounts due on the Notes, in
accordance with their terms, equally and ratably without prejudice, priority, or
distinction among any of the Notes, respectively, by reason of differences in
time of issuance or otherwise, (ii) the payment of all other sums payable under
this Indenture with respect to the Notes and (iii) compliance with the
provisions of this Indenture with respect to the Notes.
The Trustee acknowledges such ▇▇▇▇▇, accepts the trusts hereunder in
accordance with the provisions hereof, and agrees to perform the duties herein
required to the best of its ability and to the end that the interests of the
Noteholders may be adequately and effectively protected as hereinafter provided.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. General Definitions.
Except as otherwise specified or as the context may otherwise require, the
following terms have the meanings set forth below for all purposes of this
Indenture, and the definitions of such terms are applicable to the singular as
well as to the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
Accredited Investor: as defined in Section 2.03 of this Agreement.
Act: with respect to any Noteholder, as defined in Section 1.04.
Additional Lease: as defined in the Servicing Agreement.
Additional Principal: with respect to each Payment Date equals (a) zero if
each of the Class Target Investor Principal Amounts for Class B Notes, Class C
Notes and Class D Notes exceed their respective Class Floors on such Payment
Date and (b) in each other case the excess, if any, of (i)(A) the Outstanding
Principal Amount of the Notes plus the Overcollateralization Balance as of the
immediately preceding Payment
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Date after giving effect to payments on such Payment Date minus (B) the
Aggregate Discounted Lease Balance as of the related Calculation Date, over (ii)
the sum of the Class A Principal Payment, the Class B Principal Payment, the
Class C Principal Payment and the Class D Principal Payment to be paid on such
Payment Date.
Affiliate: of any specified Person: any other Person which directly or
indirectly controls, or is controlled by, or is under common control with, such
specified Person. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
Aggregate Discounted Lease Balance: for any Calculation Date, the sum of
the Discounted Lease Balances of all Leases as of such Calculation Date.
Authorized Officer: with respect to any matter, any officer of or other
Person representing the Issuer, Charter or the Servicer, as the case may be, who
is authorized to act for the Issuer, Charter or the Servicer, as the case may
be.
Available Funds: With respect to any Payment Date, the amount on deposit in
the Distribution Account with respect to the immediately preceding Collection
Period, net of any Excluded Amounts, including, without limitation, (a) Lease
Payments due during the immediately preceding Collection Period; (b) Servicer
Advances; (c) recoveries from Defaulted Leases to the extent the Servicer has
not substituted Substitute Leases for such Defaulted Leases; (d) proceeds from
repurchases by the Transferor or the Seller, as the case may be, of Leases as a
result of breaches of representations and warranties to the extent the
Transferor or the Seller, as the case may be, has not substituted Substitute
Leases for such Leases; (e) any Casualty Payments and any Prepayment to the
extent not already included in clause (d) hereof; (f) Termination Payments to
the extent the Issuer does not reinvest such Termination Payments in Additional
Leases; (g) any late charges or residual proceeds with respect to a Lease as to
which unpaid Lease Payments have not been advanced by the Servicer; (h) payments
from the Issuer to effect a redemption of the Notes pursuant to Section 2.01(b);
and (i) to the extent there occurs an Available Funds Shortfall, funds, if any,
on deposit in the Reserve Account.
Available Funds Shortfall: as defined in Section 3.04(b).
Available Reserve Amount: with respect to any date of determination, the
amount on deposit in the Reserve Account as of such date of determination.
Bankruptcy Code: The Bankruptcy Code of 1978, as amended.
Book-Entry Class A-1 Notes: beneficial interests in the Class A-1 Notes,
the ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
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Book-Entry Class A-2 Notes: beneficial interests in the Class A-2 Notes,
the ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
Book-Entry Class A-3 Notes: beneficial interests in the Class A-3 Notes,
the ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
Book-Entry Class A-4 Notes: beneficial interests in the Class A-4 Notes,
the ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
Book-Entry Class B Notes: beneficial interests in the Class B Notes, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
Book-Entry Class C Notes: beneficial interests in the Class C Notes, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
Book-Entry Class D Notes: beneficial interests in the Class D Notes, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
Business Day: any day that is not a Saturday, Sunday or other day on which
commercial banking institutions in the cities in which the Corporate Trust
Office or the Servicer are located are authorized or obligated by law or
executive order to remain closed.
Calculation Date: with respect to any Payment Date, the last day of the
month preceding the month of such Payment Date.
Casualty Payment: any payment pursuant to a Lease on account of the loss,
theft, condemnation, governmental taking, destruction, or damage beyond repair
of any item of Equipment subject thereto which results, in accordance with the
terms of the Lease, in a reduction in the number or amount of any future Lease
Payments due thereunder or in the termination of the Lessee's obligation to make
future Lease Payments thereunder.
Cede & Co.: the initial registered holder of the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes, acting as nominee of The
Depository Trust Company.
Charter: Charter Financial, Inc., a corporation organized and existing
under the laws of the State of New York, and its successors and permitted
assigns.
Class: with respect to any Notes, the class of such Notes, and reference
thereto shall refer to one or more of the Class A-1 Notes, the Class A-2 Notes,
the Class
4
A-3 Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes or the
Class D Notes, as the context so requires.
Class A Notes: as defined in the Recitals hereto.
Class A Percentage: [_____________]% (approximately).
Class A Principal Payment: (a) while the Class A-1 Notes are outstanding,
(i) on all Payment Dates prior to the Class A-1 Stated Maturity Date, the lesser
of (1) the amount necessary to reduce the Outstanding Principal Amount on the
Class A-1 Notes to zero and (2) excess, if any of, (A) the Aggregate Discounted
Lease Balance as of the previous Calculation Date (or with respect to the
Initial Payment Date, the Initial Aggregate Discounted Lease Principal Balance)
over (B) the Aggregate Discounted Lease Balance as of the related Calculation
Date, and (ii) on all Payment Dates on and after the Class A-1 Stated Maturity
Date, the entire Outstanding Principal Amount on the Class A-1 Notes, and (b)
after the Class A-1 Notes have been paid in full, the amount necessary to reduce
the aggregate Outstanding Principal Amount on the Class A Notes to the Class A
Target Investor Principal Amount for such Payment Date.
Class A Target Investor Principal Amount: with respect to each Payment
Date, an amount equal to the product of (a) the Class A Percentage and (b) the
Aggregate Discounted Lease Balance as of the related Calculation Date.
Class A-1 Initial Principal Amount: $[_____________].
Class A-1 Note Interest Rate: the rate at which interest accrues on the
Class A-1 Notes, which rate with respect to each Interest Accrual Period shall
be at a rate per annum equal to [______]%.
Class A-1 Note Owner: with respect to a Book-Entry Class A-1 Note, the
Person who is the beneficial owner of such Book-Entry Class A-1 Note, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
Class A-1 Noteholder: (a) with respect to a Book-Entry Class A-1 Note, Cede
& Co. and (b) with respect to a Definitive Class A-1 Note, the Holder of such
Definitive Class A-1 Note.
Class A-1 Notes: as defined in the Recitals hereto.
Class A-1 Stated Maturity Date: ___________, 20__.
Class A-2 Initial Principal Amount: $[_____________].
Class A-2 Note Interest Rate: the rate at which interest accrues on the
Class A-2 Notes, which rate with respect to each Interest Accrual Period shall
be at a rate per annum equal to [______]%.
5
Class A-2 Note Owner: with respect to a Book-Entry Class A-2 Note, the
Person who is the beneficial owner of such Book-Entry Class A-2 Note, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
Class A-2 Noteholder: (a) with respect to a Book-Entry Class A-2 Note, Cede
& Co.; and (b) with respect to a Definitive Class A-2 Note, to the Holder of
such Definitive Class A-2 Note.
Class A-2 Notes: as defined in the Recitals hereto.
Class A-2 Stated Maturity Date: __________, 20__.
Class A-3 Initial Principal Amount: $[_____________].
Class A-3 Note Interest Rate: the rate at which interest accrues on the
Class A-3 Notes, which rate with respect to each Interest Accrual Period shall
be at a rate per annum equal to [______]%.
Class A-3 Note Owner: with respect to a Book-Entry Class A-3 Note, the
Person who is the beneficial owner of such Book-Entry Class A-3 Note, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
Class A-3 Noteholder: (a) with respect to a Book-Entry Class A-3 Note, Cede
& Co.; and (b) with respect to a Definitive Class A-3 Note, the Holder of such
Definitive Class A-3 Note.
Class A-3 Notes: as defined in the Recitals hereto.
Class A-3 Stated Maturity Date: __________, 20__.
Class A-4 Initial Principal Amount: $[_____________].
Class A-4 Note Interest Rate: the rate at which interest accrues on the
Class A-4 Notes, which rate with respect to each Interest Accrual Period shall
be at a rate per annum equal to [______]%.
Class A-4 Note Owner: with respect to a Book-Entry Class A-4 Note, the
Person who is the beneficial owner of such Book-Entry Class A-4 Note, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
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Class A-4 Noteholder: (a) with respect to a Book-Entry Class A-4 Note, Cede
& Co.; and (b) with respect to a Definitive Class A-4 Note, the Holder of such
Definitive Class A-4 Note.
Class A-4 Notes: as defined in the Recitals hereto.
Class A-4 Stated Maturity Date: __________, 20__.
Class B Initial Principal Amount: $[_____________].
Class B Floor: with respect to each Payment Date, an amount equal to the
total of (a) [______]% of the Initial Aggregate Discounted Lease Balance, plus
(b) the Cumulative Loss Amount with respect to such Payment Date, minus (c) the
sum of (i) the Outstanding Principal Amount of the Class C Notes, (ii) the
Outstanding Principal Amount of the Class D Notes and (iii) the
Overcollateralization Balance as of the immediately preceding Payment Date after
giving effect to all principal payments made on that day, minus (d) the amount
on deposit in the Reserve Account after giving effect to withdrawals to be made
on such Payment Date.
Class B Note Interest Rate: the rate at which interest accrues on the Class
B Notes, which rate shall be [______]% per annum.
Class B Note Owner: with respect to a Book-Entry Class B Note, the Person
who is the beneficial owner of such Book-Entry Class B Note, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
Class B Noteholder: (a) with respect to a Book-Entry Class B Note, Cede &
Co.; and (b) with respect to a Definitive Class B Note, the Holder of such
Definitive Class B Note.
Class B Notes: as defined in the Recitals hereto.
Class B Percentage: [______]% (approximately).
Class B Principal Payment: with respect to any Payment Date, (a) while the
Class A-1 Notes are outstanding, zero and (b) after the Outstanding Principal
Amount on the Class A-1 Notes has been reduced to zero, the amount necessary to
reduce the Outstanding Principal Amount of the Class B Notes to the greater of
the Class B Target Investor Principal Amount and the Class B Floor for such
Payment Date.
Class B Stated Maturity Date: __________, 20__.
Class B Target Investor Principal Amount: with respect to each Payment
Date, an amount equal to the product of (a) the Class B Percentage and (b) the
Aggregate Discounted Lease Balance as of the related Calculation Date.
7
Class C Initial Principal Amount: $[_____________].
Class C Floor: with respect to each Payment Date, the amount equal to the
total of (a) [______]% of the Initial Aggregate Discounted Lease Balance, plus
(b) the Cumulative Loss Amount with respect to such Payment Date, minus (c) the
sum of the Outstanding Principal Amount of the Class D Notes, and the
Overcollateralization Balance as of the immediately preceding Payment Date after
giving effect to all principal payments made on that day, minus (d) the amount
on deposit in the Reserve Account after giving effect to withdrawals to be made
on such Payment Date.
Class C Note Interest Rate: the rate at which interest accrues on the Class
C Notes, which rate shall be [_______]% per annum.
Class C Note Owner: with respect to a Book-Entry Class C Note, the Person
who is the beneficial owner of such Book-Entry Class C Note, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
Class C Noteholder: (a) with respect to a Book-Entry Class C Note, Cede &
Co.; and (b) with respect to a Definitive Class C Note, the Holder of such
Definitive Class C Note.
Class C Notes: as defined in the Recitals hereto.
Class C Percentage: [_______]% (approximately).
Class C Principal Payment: with respect to any Payment Date, (a) while the
Class A-1 Notes are outstanding, zero and (b) after the Outstanding Principal
Amount on the Class A-1 Notes has been reduced to zero, the amount necessary to
reduce the Outstanding Principal Amount of the Class C Notes to the greater of
the Class C Target Investor Principal Amount and the Class C Floor for such
Payment Date.
Class C Stated Maturity Date: __________, 20__.
Class C Target Investor Principal Amount: with respect to each Payment
Date, an amount equal to the product of (a) the Class C Percentage and (b) the
Aggregate Discounted Lease Balance as of the related Calculation Date.
Class D Initial Principal Amount: $[_____________].
Class D Floor: with respect to each Payment Date, an amount equal to the
total of (a) [________]% of the Initial Aggregate Discounted Lease Balance, plus
(b) the Cumulative Loss Amount with respect to such Payment Date, minus (c), and
the Overcollateralization Balance as of the immediately preceding Payment Date
after giving effect to all principal payments made on that day, minus (d) the
amount on deposit in the Reserve Account after giving effect to withdrawals to
be made on such Payment Date; provided, however, that, if the Outstanding Class
C Principal Amount is less than or
8
equal to the Class C Floor on such Payment Date, the Class D Floor will equal
the Outstanding Class D Principal Amount utilized in the calculation of the
Class C Floor Amount for such Payment Date.
Class D Note Interest Rate: the rate at which interest accrues on the Class
D Notes, which rate shall be [________]% per annum.
Class D Note Owner: with respect to a Book-Entry Class D Note, the Person
who is the beneficial owner of such Book-Entry Class D Note, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
Class D Noteholder: (a) with respect to a Book-Entry Class D Note, Cede &
Co.; and (b) with respect to a Definitive Class D Note, the Holder of such Class
D Note.
Class D Notes: as defined in the Recitals hereto.
Class D Percentage: [________]% (approximately).
Class D Principal Payment: with respect to any Payment Date, (a) while the
Class A-1 Notes are outstanding, zero and (b) after the Outstanding Principal
Amount on the Class A-1 Notes has been reduced to zero, the amount necessary to
reduce the Outstanding Principal Amount of the Class D Notes to the greater of
the Class D Target Investor Principal Amount and the Class D Floor for such
Payment Date.
Class D Stated Maturity Date: __________, 20__.
Class D Target Investor Principal Amount: with respect to each Payment
Date, an amount equal to the product of (a) the Class D Percentage and (b) the
Aggregate Discounted Lease Balance as of the related Calculation Date.
Class Floor: with respect to any Payment Date and any class (other than the
Class A Notes), any of the Class B Floor, the Class C Floor, and/or the Class D
Floor, each as of such Payment Date, as applicable.
Class Target Investor Principal Amount: with respect to any Payment Date
and Class, any of the Class A Target Investor Principal Amount, any of the Class
B Target Investor Principal Amount, any of the Class C Target Investor Principal
Amount, and/or any of the Class D Target Investor Principal Amount, each as of
such Payment Date, as applicable.
Clearing Agency: an organization registered as a "clearing agency" pursuant
to Section 17A of the Securities Exchange Act of 1934, as amended.
9
Clearing Agency Participant: 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.
Collection Period: with respect to any Payment Date, the period from and
including the first day of the calendar month preceding the month of such
Payment Date, to and including the last day of such calendar month.
Commission: the Securities and Exchange Commission.
Corporate Trust Office: the principal corporate trust office of the Trustee
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other
address as the Trustee may designate from time to time by notice to the
Noteholders, the Issuer and Charter.
Credit and Collection Policies: means those credit and collection policies
and practices of Charter relating to leases and lease receivables generally as
in effect from time to time.
Cumulative Loss Amount: with respect to each Payment Date, an amount equal
to the excess, if any, of (a) the total of (i) the Outstanding Principal Amount
of the Notes as of the immediately preceding Payment Date after giving effect to
all principal payments made on that day, plus (ii) the Overcollateralization
Balance as of the immediately preceding Payment Date, minus (iii) the lesser of
(A) the excess, if any, of (1) the Aggregate Discounted Lease Balance as of the
Calculation Date relating to the immediately preceding Payment Date over (2) the
Aggregate Discounted Lease Balance as of the related Calculation Date and (B)
Available Funds for such Payment Date remaining after the payment of amounts (1)
owed to the Servicer and (2) in respect of interest on the Notes on such Payment
Date over (b) the Aggregate Discounted Lease Balance as of the related
Calculation Date.
Cut-Off Date: the close of business on June 30, 1999.
DCR: Duff & ▇▇▇▇▇▇ Credit Rating Co., and any successor thereto.
Default: any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
Defaulted Lease: as of any Calculation Date, any Lease with respect to
which at any time following the Cut-Off Date or the related Transfer Date, as
the case may be, either (a) a Lease Payment, or any portion thereof, was more
than 120 days overdue as of such Calculation Date, unless on or before such
Calculation Date such Lease Payment (or portion thereof) has been paid or (b)
the Servicer has charged off in accordance with the Servicer's customary
practices prior to such Calculation Date.
Definitive Note: a definitive, fully registered Note issued pursuant to
Section 2.07.
10
Depository Agreement: the letter of representations, between the Issuer and
the Depository Trust Company, as Clearing Agency.
Discount Rate: with respect to any Calculation Date, [______]%, which
equals the sum of (a) the weighted-average interest rate of the Class A-1 Notes,
the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the Class B
Notes, the product of the Class C Notes and the Class D Notes calculated as of
the Closing Date weighted by (i) the Class A-1 Initial Principal Amount, the
Class A-2 Initial Principal Amount, the Class A-3 Initial Principal Amount, the
Class A-4 Initial Principal Amount, the Class B Initial Principal Amount, the
Class C Initial Principal Amount or the Class D Initial Principal Amount, as
applicable, and (ii) the expected weighted average life (under a zero prepayment
and no loss scenario) of each such Class of Notes and (b) the Servicing Fee rate
of 0.50% per annum.
Discounted Lease Balance: (a) for any Lease as of the Cut-Off Date, the
present value of all Lease Payments due thereon after the Cut-Off Date
(excluding payments with respect to Defaulted Leases, Early Termination Leases
and Leases Subject to a Warranty Event), discounted monthly, as to each Lease
Payment, from the last day of the Collection Period in which such Lease Payment
is to become due at a rate equal to the product of (i) one-twelfth and (ii) the
Discount Rate; (b) for any Lease as of any Payment Date, the present value of
each remaining Lease Payment to become due under a Lease as of the related
Calculation Date (excluding payments with respect to Defaulted Leases, Early
Termination Leases and Leases subject to a Warranty Event), discounted monthly,
as to each Lease Payment, from the last day of the Collection Period in which
such Lease Payment is to become due at a rate equal to the product of (i)
one-twelfth and (ii) the Discount Rate; and (c) notwithstanding the foregoing,
on the date that a Lease becomes a Defaulted Lease, the Discounted Lease Balance
for such Lease will be reduced to zero.
Distribution Account: the account or accounts by that name established and
maintained by the Servicer pursuant to Section 3.01.
Early Termination Lease: a Lease which is the subject of an early
termination prior to its original stated maturity due to the payment of a
Termination Payment by the Lessee under such Lease.
Eligible Account: either (a) a segregated trust account with an Eligible
Institution or (b) a segregated trust account with the corporate trust
department of a trust depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any
of the notes of such trust depository institution has a credit rating from each
Rating Agency in one of its generic rating categories which signifies investment
grade.
Eligible Institution: means, (a) the corporate trust department of the
Trustee, or (b) a trust depository institution organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia (or any domestic
11
branch of a foreign bank), which (i) (A) has either (1) a long-term unsecured
debt rating acceptable to the Rating Agencies or (2) a short-term unsecured debt
rating or certificate of deposit rating acceptable to the Rating Agencies or (B)
the parent corporation of which has either (1) a long-term unsecured debt rating
acceptable to the Rating Agencies or (2) a short-term unsecured debt rating or
certificate of deposit rating acceptable to the Rating Agencies and (ii) whose
deposits are insured by the FDIC.
Eligible Investments: any one or more of the following obligations or
securities:
(a) direct non-callable obligations of, and non-callable obligations
fully guaranteed by, the United States of America, or any agency or
instrumentality of the United States of America the obligations of which
are backed by the full faith and credit of the United States of America;
(b) demand and time deposits in, certificates of deposits of, and
bankers' acceptances issued by, any depository institution or company
(including the Trustee acting in its commercial capacity) incorporated
under the laws of the United States of America or any state thereof, having
a combined capital and surplus of at least $100,000,000, and subject to
supervision and examination by federal and/or state banking authorities, so
long as at the time of such investment or contractual commitment providing
for such investment the commercial paper or other short-term debt
obligations of such depository institution or company (or, in the case of a
depository institution that is the principal subsidiary of a holding
company, the commercial paper or other short-term debt obligations of such
holding company) have the highest short-term credit ratings available from
S&P, ▇▇▇▇▇'▇ and, to the extent rated by DCR and Fitch, DCR and Fitch;
(c) repurchase obligations with respect to and collateralized by (i)
any security described in clause (a) above or (ii) any other security
issued or guaranteed by an agency or instrumentality of the United States
of America, in each case entered into with a depository institution or
company (acting as principal) of the type described in clause (b) above;
provided that the Trustee has taken delivery of such security;
(d) commercial paper (including both non-interest bearing discount
obligations and interest-bearing obligations) payable on demand or on a
specified date not more than one year after the date of issuance thereof
having the highest short-term credit ratings from S&P, ▇▇▇▇▇'▇ and, to the
extent rated by DCR and Fitch, DCR and Fitch at the time of such
investment;
(e) money market funds that redeem their shares on demand, invest only
in other Eligible Investments, and are rated AAAm or AAAm-G by S&P and Aaa
by Moody's;
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(f) demand notes payable on demand issued by an institution rated
"A-1+" by S&P, and to the extent rated by DCR and Fitch, DCR and Fitch at
the time of such investment;
(g) funding agreements or guaranteed investment contracts provided by
issuers rated "A-1+" by Standard & Poor's (and to the extent rated by DCR
and Fitch, DCR and Fitch at the time of such investment) which provide, by
their terms, for receipt by the trustee on or prior to the next Payment
Date of a predetermined fixed dollar amount which cannot vary or change;
and
(h) such other investments as may be approved by S&P, DCR and Fitch.
Equipment: with respect to any Lease, each item of property, together with
any replacement parts, additions, and repairs thereto, any replacements thereof,
and any accessories incorporated therein and/or affixed thereto, subject to such
Lease or, following expiration or termination of such Lease to which the same
was previously subject, remaining subject to the lien of this Indenture in
accordance with the provisions hereof.
Event of Default: as defined in Section 6.01.
Exchange Act: the Securities Exchange Act of 1934, as amended.
Excluded Amounts: means amounts exempt from deposit into the Collection
Account, including (i) collections attributable to any taxes, fees or other
charges imposed by any governmental authority; (ii) collections representing
reimbursements of insurance premiums or payments for services that were not
financed by the Seller; (iii) other non-contract or rental charges reimbursable
to the Servicer in accordance with the Servicer's customary policies and
procedures; (iv) collections with respect to repurchased Leases or Lease which
has been substituted by a Substitute Lease; and (v) any servicing charges.
Finance Lease: means a Lease whereby the originator is deemed to have made
a loan to the Lessee, which loan is secured by the Lessee's ownership interest
in the related Equipment, and the lease or installment payments thereon
represent repayment on such loan.
Financing Statement: as defined in the Servicing Agreement.
Fitch: Fitch IBCA, Inc. and any successors thereto.
Governmental Authority: Any court or federal or state regulatory body,
administrative agency or other tribunal or other governmental instrumentality.
▇▇▇▇▇: grant, bargain, ▇▇▇▇, convey, assign, transfer, mortgage, pledge,
create and grant a security interest in and right of set-off against, deposit,
set over and confirm. The Grant of the Granted Assets effected by this Indenture
shall include all
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rights, powers, and options (but none of the obligations) of the Issuer with
respect thereto, including, without limitation, the immediate and continuing
right to claim for, collect, receive, and give receipts for Lease Payments in
respect of the Leases and all other moneys payable thereunder, to give and
receive notices and other communications, to make waivers or other agreements,
to exercise all rights and options, to bring judicial proceedings in the name of
the Issuer or otherwise, and generally to do and receive anything that the
Issuer is or may be entitled to do or receive thereunder or with respect
thereto.
Granted Assets: as defined in the Granting Clause.
Holder: a holder of a Note.
Indenture: this instrument as originally executed and as from time to time
supplemented or amended pursuant to the applicable provisions hereof.
Initial Aggregate Discounted Lease Balance: the sum of the Discounted Lease
Balance of each of the Leases as of the Cut-Off Date.
Initial Payment Date: August 25, 1999.
Interest Accrual Period: With respect to any Payment Date for the Class A-1
Notes, the period from and including the prior Payment Date (or, in the case of
the first Payment Date, from and including the Issuance Date) to, but excluding,
the current Payment Date, with interest being computed on the basis of the
actual number of days in such Interest Accrual Period and a 360-day year. With
respect to any Payment Date for the Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes, the Class B Notes, the Class C Notes, and the Class D Notes,
the period from and including the prior Payment Date (or in the case of the
first Payment Date, from and including the Closing Date) to but excluding the
current Payment Date, with interest being computed on the basis of a 30-day
month and a 360-day year.
Interest Payments: as defined in Section 2.01(c).
Issuance Date: July [__], 1999.
Issuer: the Person named as the "Issuer" in the first paragraph of this
instrument.
Issuer Order or Issuer Request: a written order or request delivered to the
Trustee and signed in the name of the Issuer by an Authorized Officer.
Lease: at any time, each separate lease agreement and each lease schedule
or supplement (and each master lease agreement insofar as the same relates to
any such schedule or supplement) described in Schedule 1 hereto, as the same may
be amended or modified from time to time in accordance with the provisions
hereof and thereof and of the Servicing Agreement unless and until released from
the lien of this Indenture.
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Lease Payment: means, with respect to any Lease, the monthly, quarterly,
semi-annual or seasonal payments scheduled to be made under the terms of the
Lease whether received on or after the expiration or other termination of the
Lease. Casualty Payments, Termination Payments, prepayments of rent required
pursuant to Termination Payments, prepayments of rent required pursuant to the
terms of a Lease at or before the commencement of the term of such lease,
payments becoming due before the Cut-Off Date or the Transfer Date as
applicable, and supplemental or additional payments required by the terms of
such a Lease with respect to taxes, insurance, maintenance (including, without
limitation, any maintenance charges), or other specific charges shall not be
considered Lease Payments hereunder.
Lease Receivable: with respect to any Lease, such Lease, the related
Equipment and related rights thereto.
Lease Repurchase Amount: with respect to any Lease as of any date of
determination, means an amount equal to the sum of (a) the Discounted Lease
Balance of such Lease as of the prior Payment Date, (b) the next scheduled Lease
Payment on such Lease and (c) any amounts previously due and unpaid with respect
to such Lease, whether as a result of a repurchase by the Seller or the
Transferor as a result of a Warranty Event or otherwise.
Lessee: with respect to any Lease, the lessee thereunder.
Lien: as defined in the Servicing Agreement.
LLC Agreement: the Limited Liability Company Operating Agreement, dated as
of September 18, 1998, as amended as of May 17, 1999 pursuant to which the
Issuer is governed.
Lockbox Account: the account or accounts by that name established and
maintained by the Servicer pursuant to Section 3.01.
Lockbox Agreement: the Special Lockbox Deposit Agreement, effective as of
October 21, 1996, among Charter, LaSalle National Bank, The Bank of New York and
the Designated Parties thereto (as defined therein) from time to time, as
amended and as supplemented.
Maturity: with respect to any installment of principal of or interest on
any Note, the date on which such installment is due and payable as therein or
herein provided, whether at the Stated Maturity, by declaration of acceleration,
or otherwise.
Member: any member of the Issuer, as specified in the LLC Agreement from
time to time.
Moody's: ▇▇▇▇▇'▇ Investor Services, Inc. and any successors thereto.
Nonrecoverable Advance: a Servicer Advance which the Servicer reasonably
determines will not be ultimately recovered from the related Lease.
15
Noteholder: at any time, any Person in whose name a Note is registered in
the Note Register.
Note Interest Rate: with respect to any Class of Notes, the Class A-1 Note
Interest Rate, the Class A-2 Note Interest Rate, the Class A-3 Note Interest
Rate, the Class A-4 Interest Rate, the Class B Note Interest Rate, the Class C
Note Interest Rate or the Class D Note Interest Rate, as the case may be.
Note Owner: the owner of a Note issued hereunder.
Note Register: as defined in Section 2.03.
Notes: any notes authorized by, and authenticated and delivered under, this
Indenture.
Officers' Certificate: a certificate delivered to the Trustee and signed by
the President, or a Vice President of the Issuer, and by another Vice President,
the Treasurer, and Assistant Treasurer, the Secretary, or an Assistant Secretary
of the Issuer who is not the same Person as the other officer signing such
certificate.
Opinion of Counsel: a written opinion, which shall be satisfactory in form
and substance to the Trustee, of counsel who may, except as otherwise expressly
provided in this Indenture, be inside or outside counsel for the Issuer and who
shall be satisfactory to the Trustee.
Other Lease Payments: all payments on or in respect of leases which are not
Lease Payments, Prepayments, Casualty Payments, Termination Payments or Similar
Transaction Payments.
Outstanding: with respect to the Notes, as of any date of determination,
all Notes theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes or portions thereof for whose payment money in the necessary
amount has been theretofore irrevocably deposited with the Trustee in trust
for the holders of such Notes; and
(c) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture unless proof
satisfactory to the Trustee is presented that any such Notes are held by a
Person in whose hands the Note is a valid obligation;
provided, however, that in determining whether the holders of the requisite
percentage of the Outstanding Principal Amount of the Notes have given any
request, demand, authorization, direction, notice, consent, or waiver hereunder,
Notes owned by the Issuer or any Affiliate of the Issuer shall be disregarded
and deemed not to be Outstanding,
16
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent, or
waiver, only Notes that a Responsible Officer of the Trustee actually knows to
be so owned shall be so disregarded.
Outstanding Class A Principal Amount: with respect to any time of
determination, the aggregate principal amount of the Class A Notes Outstanding
at such time of determination.
Outstanding Class A-1 Principal Amount: with respect to any time of
determination, the aggregate principal amount of the Class A-1 Notes Outstanding
at such time of determination.
Outstanding Class A-2 Principal Amount: with respect to any time of
determination, the aggregate principal amount of the Class A-2 Notes Outstanding
at such time of determination.
Outstanding Class A-3 Principal Amount: with respect to any time of
determination, the aggregate principal amount of the Class A-3 Notes Outstanding
at such time of determination.
Outstanding Class A-4 Principal Amount: with respect to any time of
determination, the aggregate principal amount of the Class A-4 Notes Outstanding
at such time of determination.
Outstanding Class B Principal Amount: with respect to any time of
determination, the aggregate principal amount of the Class B Notes Outstanding
at such time of determination.
Outstanding Class C Principal Amount: with respect to any time of
determination, the aggregate principal amount of the Class C Notes Outstanding
at such time of determination.
Outstanding Class D Principal ▇▇▇▇▇▇: with respect to any time of
determination, the aggregate principal amount of the Class D Notes Outstanding
at such time of determination.
Outstanding Principal Amount: with respect to any time of determination,
the aggregate unpaid principal amount of the Notes Outstanding at such time of
determination.
Overcollateralization Balance: with respect to each Payment Date, an amount
equal to the excess, if any, of (a) the Aggregate Discounted Lease Balance as of
the related Calculation Date over (b) the Outstanding Principal Amount of the
Notes as of such Payment Date after giving effect to all principal payments made
on that day.
Paying Agent: each agent of the Issuer appointed for the purpose of making
payments on the Notes, including the Trustee.
17
Payment Date: the 25th day of each month (or the next Business Day
thereafter if such day is not a Business Day), commencing on the Initial Payment
Date, and ending on the latest Stated Maturity.
Permitted Encumbrance: means any of the following:
(a) liens, charges or other encumbrances for taxes and assessments which
are not yet due and payable;
(b) liens of or resulting from any judgment or award, the time for the
appeal or petition for rehearing of which shall not have expired, or in respect
of which the Servicer and/or the Issuer shall at any time in good faith be
prosecuting an appeal or proceeding for a review and in respect of which a stay
of execution pending such appeal or proceeding for review shall have been
secured;
(c) liens, charges or other encumbrances or priority claims incidental to
the conduct of business or the ownership of properties and assets (including
warehousemen's and attorneys' liens and statutory landlords' liens) and
deposits, pledges or liens to secure statutory obligations, surety or appeal
bonds or other liens of like general nature incurred in the ordinary course of
business and not in connection with the borrowing of money, provided in each
case, the obligation secured is not overdue or, if overdue, is being contested
in good faith by appropriate actions or proceedings;
(d) liens, charges or encumbrances in favor of the Trustee under the
Indenture;
(e) with respect to Equipment, the interest of a Lessee in such Equipment
under the related Lease; or
(f) interests of third parties in any Lease, Lease Receivables, Equipment
and/or related security subject to a Lease participation or a Rent Stream
Obligation.
Person: any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
Placement Agent Agreement: the Placement Agent Agreement, among the Issuer,
Charter, and First Union Capital Markets Corp.
Predecessor Notes: 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 2.04 in lieu of a lost, destroyed or stolen Note (or
a mutilated Note surrendered to the Trustee) shall be deemed to evidence the
same debt as the lost, destroyed or stolen Note (or a mutilated Note surrendered
to the Trustee).
18
Prepayment: any voluntary partial or full payment of a Lease, any partial
or full prepayment upon the liquidation of a Defaulted Lease, payments upon
acquisitions by the Servicer or the Transferor of Leases from the Granted Assets
on account of a breach of certain representations and warranties in the related
Transaction Document or payments upon an optional acquisition by the Servicer or
the Transferor of Leases from the Granted Assets.
Principal Payments: as defined in Section 2.01(b).
Rating Agencies: S&P and DCR.
Record Date: with respect to any Payment Date, the last day of the calendar
month immediately preceding such Payment Date.
Rent Stream Obligation: means a Lease (a) where only the related Lease
Receivables due under such Lease are conveyed as part of the Granted Assets, and
(b) with respect to which the Equipment thereunder, the related originator or
the Issuer.
Required Deposit Date: as defined in Section 3.03(a).
Responsible Officer: with respect to the Trustee, any person regularly
engaged in the administration or supervision of corporate trust accounts
(including, in the case of the original Trustee hereunder, any officer in its
Corporate Trust Administration) and also, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
S&P: Standard & Poor's Ratings Services, a division of the ▇▇▇▇▇▇-▇▇▇▇
Companies Inc. and any successor thereto.
Securities Act: the Securities Act of 1933, as amended.
Seller: Charter Financial, Inc., and its successors and permitted assigns.
Seller Contribution and Sale Agreement: the Lease Contribution and Sale
Agreement, dated as of July 1, 1999 between Charter, the Issuer and the Trustee,
as the same may be amended or modified from time to time in accordance with the
provisions hereof and thereof.
Servicer: Charter and any successor Servicer appointed pursuant to the
terms hereof and of the Servicing Agreement and, to the extent that it at any
time is performing the functions of the Servicer, the Trustee, subject to the
terms of Section 5.01 hereof.
Servicer Advance: as defined in the Servicing Agreement.
Servicer Event of Default: as defined in the Servicing Agreement.
19
Servicer Order: a written order or request delivered to the Trustee and
signed in the name of the Servicer by an Authorized Officer.
Servicing Agreement: the Servicing Agreement dated as of July 1, 1999
between the Issuer and Charter, as the same may be amended or modified from time
to time in accordance with the provisions hereof and thereof.
Servicing Fee: with respect to any Payment Date, the Servicing Fee payable
pursuant to the Servicing Agreement.
Servicing Report: as defined in the Servicing Agreement.
Similar Transaction Agreement: an indenture between the Trustee and a
wholly-owned special purpose subsidiary of Charter other than the Issuer,
substantially similar to this Indenture, pursuant to which notes, substantially
similar to the Notes, have been issued or may be issued in the future.
Similar Transaction Amount: for each Required Deposit Date, the amount of
all Similar Transaction Payments received by the Servicer and deposited in the
Collection Account pursuant to Section 3.02(a) and reported by the Servicer for
such Required Deposit Date pursuant to Section 5.03(a) of the Servicing
Agreement.
Similar Transaction Payments: all payments on or in respect of leases
subject to the lien of any Similar Transaction Agreement or held in custody
pursuant to the Lockbox Agreement for a transaction or facility other than
pursuant to this Indenture.
Stated Maturity: with respect to any Class of Notes, the stated maturity
date with respect to such Class, which shall refer to one or more of the Class
A-1 Stated Maturity Date, the Class A-2 Stated Maturity Date, the Class A-3
Stated Maturity Date, the Class A-4 Stated Maturity Date, the Class B Stated
Maturity Date, the Class C Stated Maturity Date or the Class D Stated Maturity
Date, as applicable.
Substitute Lease: as defined in the Servicing Agreement.
Synthetic Lease: means a Lease with respect to which the Equipment related
thereto (a) is owned by the "lessor" thereof for accounting purposes and (b) is
owned by the "lessee" thereof for tax purposes.
Termination Payment: a payment payable by a Lessee under a Lease upon the
early termination of such Lease (but not on account of a casualty or a Lease
default) which may be agreed upon by the Servicer, acting in the name of the
beneficial owner thereof, and the Lessee in accordance with the provisions of
the Servicing Agreement.
Transaction Documents: means any and all agreements relating to the
establishment of the Issuer, the sale and contribution of the Lease Receivables,
the servicing of the Lease Receivables and the issuance of Notes, including,
without limitation, the LLC Agreement, the Transferor Contribution and Sale
Agreement, the Seller Contribution and Sale Agreement, the Servicing Agreement
and this Indenture.
20
Transfer Date: with respect to a Substitute Lease or an Additional Lease,
the date specified with respect to such Substitute Lease or such Additional
Lease on Schedule 1 as to which all Lease Payments and all other payments
described herein in respect thereof which are due on or after such date are
subject of the Grant herein and are subject to the lien of this Indenture.
Transferor: Charter Funding Corporation V, a New York corporation, and its
successors.
Transferor Contribution and Sale Agreement: the Lease Contribution and Sale
Agreement, dated as of July 1, 1999 between the Transferor and the Issuer as the
same may be amended or modified from time to time in accordance with the
provisions hereof and thereof.
Trust Accounts: the Reserve Account, the Lockbox Account and the
Distribution Account.
Trustee: the Person named as the "Trustee" in the first paragraph of this
instrument until a successor Person shall have become the Trustee pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Person; provided, that the provisions of Section 7.07 and Section
8.11, as applicable to any Person at any time serving as Trustee hereunder,
shall survive the termination of such Person's status as Trustee hereunder and
the succession of any other Person to such status.
Trust Indenture Act: the Trust Indenture Act of 1939 as in effect on the
date on which this Indenture is qualified under the Trust Indenture Act, except
as provided in Section 9.06 hereof.
Underwriting Agreement: the Underwriting Agreement, among the Issuer,
Charter, and First Union Capital Markets Corp.
Uniform Commercial Code or UCC: with respect to a particular
jurisdiction, the Uniform Commercial Code, as in effect from time to time in
such jurisdiction, or any successor statute thereto.
Warranty Event: with respect to a Lease shall occur and exist
when one or more of the representations and warranties given with respect to
such Lease under the Seller Sale and Contribution Agreement or the Transfer Sale
and Contribution Agreement shall have been breached and remain uncured.
SECTION 1.02. Compliance Certificates and Opinions.
Upon any written application or request (or oral application with prompt
written or telecopied confirmation) by the Issuer to the Trustee to take any
action under any provision of this Indenture, other than any request that (a)
the Trustee authenticate the Notes specified in such request, (b) the Trustee
invest moneys in any of the Trust Accounts pursuant to the written directions
specified in such request, or (c) the Trustee
21
pay moneys due and payable to the Issuer hereunder to the Issuer's assignee
specified in such request, the Trustee shall require the Issuer to furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and that the request otherwise is in accordance with the terms of
the Indenture, and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that, in the case of any such requested action as to which other evidence of
satisfaction of the conditions precedent thereto is specifically required by any
provision of this Indenture, no additional certificate or opinion need be
furnished.
SECTION 1.03. Form of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Issuer delivered to the
Trustee may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such officer's certificate or opinion and
any Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Issuer as to such factual matters unless such officer or counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous. Any
Opinion of Counsel may be based on the written opinion of other counsel, in
which event such Opinion of Counsel shall be accompanied by a copy of such other
counsel's opinion and shall include a statement to the effect that such counsel
believes that such counsel and the Trustee may reasonably rely upon the opinion
of such other counsel.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Wherever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer shall
deliver any document as a condition of the granting of such application, or as
evidence of compliance with any term hereof, it is intended that the truth and
accuracy, at the time of the granting of such application or at the effective
date of such certificate or report (as the case may be), of the facts and
opinions stated in such document shall in such case be conditions precedent to
the right of 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
22
Trustee's right to rely upon the truth and accuracy of any statement or opinion
contained in any such document as provided in Section 7.01(a)(ii).
(e) Whenever in this Indenture it is provided that the absence of the
occurrence and continuation of a Default or Event of Default or Servicer Event
of Default is a condition precedent to the taking of any action by the Trustee
at the request or direction of the Issuer, then, notwithstanding that the
satisfaction of such condition is a condition precedent to the Issuer's right to
make such request or direction, the Trustee shall be protected in acting in
accordance with such request or direction if it does not have knowledge of the
occurrence and continuation of such Default or Event of Default or Servicer
Event of Default. For all purposes of this Indenture, the Trustee shall not be
deemed to have knowledge of any Default or Event of Default nor shall the
Trustee have any duty to monitor or investigate to determine whether a default
has occurred (other than an Event of Default of the kind described in Section
6.01(a)) or Servicer Event of Default unless a Responsible Officer of the
Trustee shall have actual knowledge thereof or shall have been notified in
writing thereof by the Issuer, the Servicer, or any Noteholder.
SECTION 1.04. Acts of Noteholders, etc.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Noteholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Noteholders in person or by agents duly appointed
in writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
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 7.01) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the holder of any Note shall bind every future holder of the
same Note and the holder of every Note issued upon the registration of transfer
thereof or in exchange therefore or in lieu thereof in respect of anything done,
omitted or suffered to be done by
23
the Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
(d) By accepting the Notes issued pursuant to this Indenture, each
Noteholder irrevocably appoints the Trustee hereunder as the special
attorney-in-fact for such Noteholder vested with full power on behalf of such
Noteholder to effect and enforce the rights of such Noteholder and the revisions
pursuant hereto for the benefit of such Noteholder; provided that nothing
contained in this Section 1.04(d) shall be deemed to confer upon the Trustee any
duty or power to vote on behalf of the Noteholders with respect to any matter on
which the Noteholders have a right to vote pursuant to the terms of this
Indenture.
SECTION 1.05. Notices, etc., to Trustee, Servicer, Issuer and Rating
Agencies.
Any request, demand, authorization, direction, notice, consent, waiver, Act
of Noteholders, or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with, the Trustee, the Issuer or the
Servicer shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage prepaid
or certified mail return receipt requested, or sent by private courier or
confirmed telecopy. Unless otherwise specifically provided herein, no such
request, demand, authorization, direction, notice, consent, waiver, Act of
Noteholders or other document shall be effective until received and any
provision hereof requiring the making, giving, furnishing, or filing of the same
on any date shall be interpreted as requiring the same to be sent or delivered
in such fashion that it will be received on such date. Any such request, demand,
authorization, direction, notice, consent, waiver, Act of Noteholders, or other
document shall be sent or delivered to the following addresses:
(a) if to the Trustee, at the Corporate Trust Office, Attention: Corporate
Trust Administration (Number for telecopy: (▇▇▇) ▇▇▇-▇▇▇▇), or at any other
address previously furnished in writing to the Issuer and the Servicer by the
Trustee; or
(b) if to the Issuer at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, with a
copy to the Servicer, or at any other address previously furnished in writing to
the Trustee and the Servicer by the Issuer; or
(c) if to the Servicer, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Number for telecopy: 212-805-1050), or at any other
address previously furnished in writing to the Trustee and the Issuer by the
Servicer.
(d) if to the Rating Agencies: to Standard & Poor's Ratings Group, ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed Surveillance Group,
and to Duff & ▇▇▇▇▇▇ Credit Rating Co., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Structured Finance Monitoring Group.
24
SECTION 1.06. Notice to Noteholders; Waiver.
(a) Where this Indenture provides for notice to Noteholders of any event,
or the mailing of any report to Noteholders, such notice or report shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid or certified mail return receipt
requested, or sent by private courier service or confirmed telecopy to each
Noteholder affected by such event or to whom such report is required to be
mailed, at its address as it appears in the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice or the mailing of such report. In any case where a notice or
report to Noteholders is mailed, neither the failure to mail such notice or
report, nor any defect in any notice or report so mailed, to any particular
Noteholder shall affect the sufficiency of such notice or report with respect to
other Noteholders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
(b) In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to mail or send notice to
Noteholders, in accordance with Section 1.06(a), of any event or any report to
Noteholders when such notice or report is required to be delivered pursuant to
any provision of this Indenture, then such notification or delivery as shall be
made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
SECTION 1.07. Effect of Headings and Table of Contents.
The Article and Section headings herein and in the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.08. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer or the Trustee
shall bind its respective successors and permitted assigns, whether so expressed
or not.
SECTION 1.09. GOVERNING LAW.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF. THIS INDENTURE IS SUBJECT TO THE TRUST
INDENTURE ACT OF 1939, AS AMENDED, AND SHALL BE GOVERNED THEREBY AND CONSTRUED
IN ACCORDANCE THEREWITH.
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SECTION 1.10. Legal Holidays.
In any case where any Payment Date or the Stated Maturity or any other date
on which principal of or interest on any Note is proposed to be paid shall not
be a Business Day, then (notwithstanding any other provision of this Indenture
or of the Notes) such payment need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
such Payment Date, Stated Maturity, or other date on which principal of or
interest on any Note is proposed to be paid; provided that no interest shall
accrue for the period from and after such Payment Date, Stated Maturity, or any
other date on which principal of or interest on any Note is proposed to be paid,
as the case may be, until such next succeeding Business Day.
SECTION 1.11. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 1.12. Inspection.
The Issuer agrees that, on reasonable prior notice, it will permit the
representatives of the Trustee or any Noteholder holding Notes, or a beneficial
interest therein, evidencing at least [25%] of the Outstanding Principal Amount
of the Notes, during the Issuer's normal business hours, to examine all of the
books of account, records, reports and other papers of the Issuer, to make
copies thereof and extracts therefrom, to cause such books to be audited by
independent accountants selected by the Issuer and reasonably acceptable to the
Trustee or such Noteholder, as the case may be, and to discuss its affairs,
finances and accounts with its officers, employees and independent accountants
(and by this provision the Issuer hereby authorizes its accountants to discuss
with such representatives such affairs, finances and accounts), all at such
reasonable times and as often as may be reasonably requested for the purpose of
reviewing or evaluating the financial condition or affairs of the Issuer or the
performance of and compliance with the covenants and undertakings of the Issuer
in this Indenture, the Servicing Agreement or any of the other documents
referred to herein or therein. Any expense incident to the exercise by the
Trustee at any time or any Noteholder during the continuance of any Default or
Event of Default, of any right under this Section 1.12 shall be borne by the
Issuer.
SECTION 1.13. Survival of Representations, Warranties and Covenants.
The representations, warranties, covenants and certifications of the Issuer
made in this Indenture or in any certificate or other writing delivered by the
Issuer pursuant hereto shall survive the authentication and delivery of the
Notes hereunder.
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ARTICLE II
THE NOTES
SECTION 2.01. General Provisions.
(a) The Notes shall consist of $[_____________] principal amount of Class
A-1 Notes, $[_____________] principal amount of Class A-2 Notes,
$[_____________] principal amount of Class A-3 Notes, $[_____________] principal
amount of Class A-4 Notes, $[_____________] principal amount of Class B Notes,
$[_____________] principal amount of Class C Notes and $[_____________]
principal amount of Class D Notes and the forms thereof and of the Trustee's
certificate of authentication shall be in substantially the forms set forth in
Exhibit A through Exhibit D hereto, as applicable, with such appropriate
insertions, omissions, substitutions, and other variations as are required or
permitted by this Indenture.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $1,000, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 2.03, 2.04, or 9.05. The
Notes shall be issuable only in registered form and only in minimum
denominations of at least $1,000 with respect to the Class A Notes, the Class B
Notes, the Class C Notes and the Class D Notes; provided that the foregoing
shall not restrict or prevent the transfer in accordance with Section 2.03 of
any Note having a remaining Outstanding Principal Amount of other than an
integral multiple of [$1,000], or the issuance of a single Note of each Class,
with a denomination less than [$1,000].
(b) For each Payment Date, payments of principal (the "Principal Payments")
on the Notes will be made in accordance with Sections 3.03(b) or 6.06, as
applicable. Except as otherwise provided in Section 6.02, no part of the
principal of any Note shall be paid prior to the Payment Date on which such
principal is due in accordance with the preceding provisions of this Section
2.01(b), except that the Issuer may redeem the Notes in their entirety
(including any unpaid interest due), without premium, as of any Payment Date on
which the Aggregate Discounted Lease Balance is less than or equal to Ten
percent (10%) of the Aggregate Discounted Lease Balance as of the Cut-Off Date
(after giving effect to all Principal Payments on such Payment Date). The Issuer
will give notice of any such redemption to each Noteholder and the Trustee at
least 30 days before the Payment Date fixed for such prepayment by certified
mail return receipt requested, hand delivery or overnight courier. Notice of
such prepayment having been so given, the remaining unpaid principal as of the
Payment Date fixed for prepayment together with all interest accrued and unpaid
to such Payment Date, shall become due and payable on such Payment Date.
(c) For each Payment Date, the interest due and payable (the "Interest
Payments") with respect to the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes, Class B Notes, Class C Notes and Class D Notes will be
the interest that has accrued on the respective Notes during the related
Interest Accrual Period, at the Class A-1 Note Interest Rate, Class A-2 Note
Interest Rate, Class A-3 Note Interest Rate, Class
27
A-4 Note Interest Rate, Class B Note Interest Rate, Class C Note Interest Rate
and Class D Note Interest Rate, respectively, applied to the then Outstanding
Principal Amounts of the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes, Class B Notes, Class C Notes and Class D Notes, respectively,
on the preceding Payment Date. With respect to the Class A-1 Notes, the Interest
Payments will be calculated on the basis of the actual days elapsed in such
Interest Accrual Period and a 360-day year. With respect to the Notes, other
than the Class A-1 Notes, the Interest Payments will be calculated on the basis
of a year of 360 days comprised of twelve 30-day months. Interest Payments will
be made in accordance with Sections 3.03(b) and 6.06, as applicable.
(d) All payments made with respect to any Note shall be made in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts and shall be applied first to the
interest then due and payable on such Notes, then to the principal thereof, and
finally to premium, if any.
(e) All Class A-1 Notes issued under this Indenture shall be in all
respects equally and ratably entitled to the benefits hereof without preference,
priority or distinction on account of the actual time or times of authentication
and delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class A-1 Notes shall be made pro rata
among all Outstanding Class A-1 Notes, without preference or priority of any
kind.
(f) All Class A-2 Notes issued under this Indenture shall be in all
respects equally and ratably entitled to the benefits hereof without preference,
priority or distinction on account of the actual time or times of authentication
and delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class A-2 Notes shall be made pro rata
among all Outstanding Class A-2 Notes, without preference or priority of any
kind.
(g) All Class A-3 Notes issued under this Indenture shall be in all
respects equally and ratably entitled to the benefits hereof without preference,
priority or distinction on account of the actual time or times of authentication
and delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class A-3 Notes shall be made pro rata
among all Outstanding Class A-3 Notes, without preference or priority of any
kind.
(h) All Class A-4 Notes issued under this Indenture shall be in all
respects equally and ratably entitled to the benefits hereof without preference,
priority or distinction on account of the actual time or times of authentication
and delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class A-4 Notes shall be made pro rata
among all Outstanding Class A-4 Notes, without preference or priority of any
kind.
(i) The Class B Notes shall be subordinated to the Class A Notes to the
extent set forth herein. All Class B Notes issued under this Indenture shall be
in all respects equally and ratably entitled to the benefits hereof without
preference, priority or distinction on account of the actual time or times of
authentication and delivery, all in
28
accordance with the terms and provisions of this Indenture. Payments of
principal and interest on the Class B Notes shall be made pro rata among all
Outstanding Class B Notes, without preference or priority of any kind.
(j) The Class C Notes shall be subordinated to the Class A Notes and the
Class B Notes to the extent set forth herein. All Class C Notes issued under
this Indenture shall be in all respects equally and ratably entitled to the
benefits hereof without preference, priority or distinction on account of the
actual time or times of authentication and delivery, all in accordance with the
terms and provisions of this Indenture. Payments of principal and interest on
the Class C Notes shall be made pro rata among all Outstanding Class C Notes,
without preference or priority of any kind.
(k) The Class D Notes shall be subordinated to the Class A Notes, the Class
B Notes and Class C Notes to the extent set forth herein. All Class D Notes
issued under this Indenture shall be in all respects equally and ratably
entitled to the benefits hereof without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions of this Indenture. Payments of
principal and interest on the Class D Notes shall be made pro rata among all
Outstanding Class D Notes, without preference or priority of any kind.
SECTION 2.02. Execution, Authentication, Delivery, and Dating.
(a) The Notes shall be manually executed in the name and on behalf of the
Issuer by the Trustee.
(b) Any Note bearing the signature of an individual who was at the time of
execution thereof a proper officer of the Trustee shall bind the Issuer,
notwithstanding that such individual ceases to hold such office prior to the
authentication and delivery of such Note or did not hold such office at the date
of such Note.
(c) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein,
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Each Note shall be dated the date of
its authentication.
(d) The Notes may from time to time be executed by the Issuer and delivered
to the Trustee for authentication together with a Issuer Request to the Trustee
directing the authentication and delivery of such Notes and thereupon the same
shall be authenticated and delivered by the Trustee in accordance with such
Issuer Request.
SECTION 2.03. Transfer and Exchange.
(a) The Issuer shall cause to be kept at the Corporate Trust Office a
register (the "Note Register") in which, subject to such reasonable regulations
as the Trustee may prescribe, the Issuer shall provide for the registration of
Notes and of
29
transfers of Notes. The Trustee is hereby appointed "Note Registrar" for the
purpose of registering Notes and transfers of Notes as herein provided.
(b) No transfer of any Class C or Class D Note may be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act and an effective registration or a qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification because the transfer satisfies one of the
following: (i) such transfer is in compliance with Rule 144A under the
Securities Act, to a person who the transferor reasonably believes is a
Qualified Institutional Buyer (as defined in Rule 144A) that is purchasing for
its own account or for the account of a Qualified Institutional Buyer and to
whom notice is given that such transfer is being made in reliance upon Rule 144A
under the Securities Act as certified by such transferee in a letter in the form
of Exhibit E hereto; (ii) after the appropriate holding period, such transfer is
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 under the Securities Act; (iii) such transfer is to a transferee who is
an "Accredited Investor" (as defined in Rule 501 of the Securities Act) in a
transaction exempt from the registration requirements of the Securities Act, in
each case in accordance with any applicable securities laws of any State of the
United States or (iv) such transfer is otherwise exempt from the registration
requirements of the Securities Act. If any resale or other transfer of the Class
C or the Class D Notes is proposed, the Trustee will require, in order to assure
compliance with such laws, that the Class C or the Class D Noteholder's
prospective transferee referred to in the preceding clauses (iii) or (iv)
deliver an investment letter certifying to the Issuer and the Trustee as to the
facts surrounding such transfer in the form of Exhibit E hereto. Except in the
case of a transfer of Class C or Class D Notes to a transferee referred to in
the preceding clause (i) or, in general, a transfer that is to be made after
three years from the Issuance Date, the Trustee shall require an opinion of
counsel satisfactory to it to the effect that such transfer may be made pursuant
to an exemption from the Securities Act without such registration (which opinion
of counsel shall not be an expense of the Trustee or the Servicer or the
Issuer). None of the Issuer, the Servicer or the Trustee is obligated to
register or qualify the Class C and Class D Notes under the Securities Act or
any other securities law or to take any action not otherwise required under this
Indenture to permit the transfer of any Class C or Class D Note without
registration.
The Trustee shall not register the transfer of any Note (other than the
transfer of a Note to the nominee of the Clearing Agency) unless the transferee
has executed and delivered to the Trustee a certification to the effect that
either (i) the transferee is not (A) an employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title I of ERISA or (B) a plan
(as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as
amended (the "Code")) that is subject to Section 4975 of the Code (each of the
foregoing, a "Benefit Plan"), and is not acting on behalf of or investing the
assets of a Benefit Plan, or (ii) the transferee's acquisition and continued
holding of the Note will be covered by a U.S. Department of Labor Prohibited
Transaction Class Exemption. Each transferee of a book-entry Note shall be
deemed to make one of the foregoing representations.
30
(c) Subject to Section 2.03(a), upon surrender for registration of transfer
of any Note at the office of the Issuer designated pursuant to Section 8.02 for
such purpose, the Issuer shall execute and the Trustee upon request shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denominations and of a like
aggregate original principal amount. The Trustee shall make a notation on any
such new Note of the amount of principal, if any, that has been paid on such
Note.
(d) 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.
(e) Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Issuer or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Trustee duly executed, by the holder thereof or his
attorney-in-fact duly authorized in writing.
(f) No service charge shall be made for any registration of transfer or
exchange of Notes, but the Issuer or the Trustee may require payment by the
transferor of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or exchange
of Notes, other than exchanges pursuant to Section 9.05 not involving any
transfer.
SECTION 2.04. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If any mutilated Note is surrendered to the Trustee, the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefore a
replacement Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
(b) If there shall be delivered to the Issuer and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Note and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of actual notice to
the Issuer or the Trustee that such Note has been acquired by a bona fide
purchaser, the Issuer shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a
replacement Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
(c) In case the final installment of principal on a mutilated, destroyed,
lost or stolen Note has become, or will at the next Payment Date become, due and
payable, the Issuer in its discretion may, instead of issuing a replacement
Note, pay such Note.
(d) Upon the issuance of any replacement Note under this Section, the
Issuer or the Trustee may require the payment by the Noteholder of a sum
sufficient to
31
cover any tax or other governmental charge that may be imposed as a result of
the issuance of such replacement Note.
(e) Every replacement Note issued pursuant to this Section 2.04 in lieu of
any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes duly issued hereunder.
(f) The provisions of this Section 2.04 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 2.05. Book-Entry Registration of Class A Notes, Class B Notes,
Class C Notes and Class D Notes.
(a) Each of the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class
A-4 Notes, the Class B Notes, the Class C Notes and the Class D Notes, upon
original issuance, shall be issued in the forms attached as Exhibit A through
Exhibit D hereto, as applicable, and delivered to The Depository Trust Company,
the initial Clearing Agency, by, or on behalf of, the Issuer. Each of the Class
A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes,
Class C Notes and Class D Notes, shall initially be registered on the Note
Register in the name of Cede & Co., the nominee of The Depository Trust Company,
as the initial Clearing Agency, and no Class A-1 Note Owner, Class A-2 Note
Owner, Class A-3 Note Owner, Class A-4 Note Owner, Class B Note Owner, Class C
Note Owner or Class D Note Owner will receive a definitive note representing
such Note Owner's interest, except as provided in Section 2.07. Unless and until
Definitive Class A-1 Notes, Definitive Class A-2 Notes, Definitive Class A-3
Notes, Definitive Class A-4 Notes, Definitive Class B Notes, Definitive Class C
Notes or Definitive Class D Notes ("Definitive Notes") have been issued to the
applicable Note Owners pursuant to Section 2.07:
(i) the provisions of this Section 2.05 shall be in full force and effect
with respect to the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, the Class B Notes, Class C Notes or Class D Notes, as the case may be;
(ii) the Issuer, the Servicer and the Trustee may deal with the Clearing
Agency and the Clearing Agency Participants for all purposes with respect to the
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B
Notes, Class C Notes or Class D Notes, as the case may be (including the making
of distributions on the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class
A-4 Notes, Class B Notes, Class C Notes and Class D Notes, as the case may be),
as the authorized representatives of the respective Note Owners;
(iii) to the extent that the provisions of this Section 2.05 conflict with
any other provisions of this Indenture, the provisions of this Section 2.05
shall control; and
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(iv) the rights of the respective Note Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements between such respective Note
Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Depository Agreement, unless and until Definitive Notes, are issued
pursuant to Section 2.07, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the related Class A-1 Notes, Class
A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes, Class C Notes and
Class D Notes, as the case may be, to such Clearing Agency Participants.
(b) For purposes of any provision of this Indenture requiring or permitting
actions with the consent of, or at the direction of, holders of Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes, Class C Notes
or Class D Notes, as the case may be, evidencing a specified percentage of the
Outstanding Principal Amount of the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes, Class B Notes, Class C Notes or Class D Notes,
respectively, such direction or consent may be given by Note Owners (acting
through the Clearing Agency and the Clearing Agency Participants) owning Class
A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes,
Class C Notes or Class D Notes, evidencing the requisite percentage of the
Outstanding Principal Amount of such Notes, respectively.
SECTION 2.06. Notice to Clearing Agency.
Whenever notice or other communication to the Class A-1 Noteholders, Class
A-2 Noteholders, Class A-3 Noteholders, Class A-4 Noteholders, Class B
Noteholders, Class C Noteholders or Class D Noteholders is required under this
Agreement, unless and until Definitive Notes shall have been issued to the
related Note Owners pursuant to Section 2.07, the Trustee shall give all such
notices and communications specified herein to be given to such Noteholders to
the applicable Clearing Agency which shall give such notices and communications
to the related Class A-1 Note Owners, Class A-2 Note Owners, Class A-3 Note
Owners, Class A-4 Note Owners, Class B Note Owners, Class C Note Owners or Class
D Note Owners in accordance with its applicable rules, regulations and
procedures.
SECTION 2.07. Definitive Class A Notes, Class B Notes, Class C Notes and
Class D Notes.
If (a) (i) the Issuer advises the Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
under the Depository Agreement with respect to the Class A-1 Notes, Class A-2
Notes, Class A-3 Notes, Class A-4 Notes, the Class B Notes, Class C Notes and/or
Class D Notes and (ii) the Trustee or the Issuer is unable to locate a qualified
successor, (b) the Issuer, at its option, advises the Trustee in writing that it
elects to terminate the book-entry system with respect to the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, the Class B Notes, Class C
Notes and/or Class D Notes, through the Clearing Agency or (c) after the
occurrence of a Servicer Event of Default, the Class A-1 Note Owners, Class A-2
Note
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Owners, Class A-3 Note Owners, Class A-4 Note Owners, Class B Note Owners, Class
C Note Owners and Class D Note Owners with respect to the Class A-1 Notes, Class
A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes, Class C Notes and
Class D Notes, evidencing not less than 50% of the aggregate unpaid Outstanding
Principal Amount of the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class
A-4 Notes, Class B Notes, Class C Notes and Class D Notes, respectively, advise
the Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system with respect to the Class
A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes,
Class C Notes and Class D Notes, respectively, through the Clearing Agency is no
longer in the best interests of the Class A-1 Note Owners, Class A-2 Note
Owners, Class A-3 Note Owners, Class A-4 Note Owners, Class B Note Owners, Class
C Note Owners or Class D Note Owners, as the case may be, the Trustee shall
notify all Class A-1 Note Owners, Class A-2 Note Owners, Class A-3 Note Owners,
Class A-4 Note Owners, Class B Note Owners, Class C Note Owners and Class D Note
Owners with respect to the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes,
Class A-4 Notes, Class B Notes, Class C Notes and Class D Notes, respectively,
through the Clearing Agency, of the occurrence of any such event and of the
availability of Definitive Notes, to Class A-1 Note Owners, Class A-2 Note
Owners, Class A-3 Note Owners, Class A-4 Note Owners, Class B Note Owners, Class
C Note Owners or Class D Note Owners, respectively, requesting the same. Upon
surrender to the Trustee of the Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes, Class B Notes, Class C Notes or Class D Notes, as the
case may be, by the Clearing Agency, accompanied by registration instructions
from the Clearing Agency for registration, the Issuer shall execute and the
Trustee shall authenticate and deliver the relevant Definitive Notes. Neither
the Issuer nor the 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, as the case may be,
all references herein to obligations imposed upon or to be performed by the
Clearing Agency shall be deemed to be imposed upon and performed by the Trustee,
to the extent applicable with respect to such Definitive Notes, and the Trustee
shall recognize the holders of the relevant Definitive Notes as Noteholders
hereunder. Definitive Notes will not be eligible for clearing or settlement
through DTC.
SECTION 2.08. Payment of Interest and Principal; Rights Preserved.
(a) Any installment of interest or principal, payable on any Note that is
punctually paid or duly provided for by the Issuer on the applicable Payment
Date shall be paid to the Person in whose name such Note was registered at the
close of business on the Record Date for such Payment Date by wire transfer of
federal funds to the account and number specified in the Note Register on such
Record Date for such Person or, if no such account or number is so specified,
then by check mailed to such Person's address as it appears in the Note Register
on such Record Date.
(b) All reductions in the principal amount of a Note effected by payments
of installments of principal made on any Payment Date shall be binding upon all
holders of such Note and of any Note issued upon the registration of transfer
thereof or in exchange therefore or in lieu thereof, whether or not such payment
is noted on such Note. All payments on the Notes shall be paid without any
requirement of presentment but each Holder of any Note shall be deemed to agree,
by its acceptance of the same, to surrender such Note at the Corporate Trust
Office against payment of the final installment of principal of such Note.
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SECTION 2.09. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the
Issuer, the Trustee, and any agent of the Issuer or the Trustee may treat the
registered Noteholder as the owner of such Note for the purpose of receiving
payment of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer, the
Trustee, nor any agent of the Issuer or the Trustee shall be affected by notice
to the contrary.
SECTION 2.10. Cancellation.
All Notes surrendered for registration of transfer or exchange or following
final payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Issuer may
at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes held by the Trustee may be disposed of in the
normal course of its business or as directed by a Issuer Order.
SECTION 2.11. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Noteholders and shall otherwise comply with Section 312(a) of the Trust
Indenture Act. In the event the Trustee no longer serves as the Note Registrar,
the Issuer (or any other obligor upon the Notes) shall furnish to the Trustee at
least five Business Days before each Payment Date (and in all events in
intervals of not more than 6 months) and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Noteholders, and the Issuer
shall otherwise comply with Section 312(a) of the Trust Indenture Act.
SECTION 2.12. Treasury Securities.
In determining whether the Noteholders of the required Outstanding
Principal Amount of the Notes have concurred in any direction, waiver or
consent, Notes owned by the Issuer, any other obligor upon the Notes or an
Affiliate of the Issuer shall be considered as though not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes which a Responsible
Officer knows are so owned shall be so disregarded.
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ARTICLE III
ACCOUNTS; INVESTMENT OF MONEYS; COLLECTION
AND APPLICATION OF MONEYS; REPORTS
SECTION 3.01. Trust Accounts; Investments by Trustee.
(a) On or before the Issuance Date, the Trustee shall establish in the name
of the Trustee for the benefit of the Noteholders and the Issuer to the extent
of their interests therein as provided in this Indenture, the Seller
Contribution and Sale Agreement, the Transferor Contribution and Sale Agreement
and in the Servicing Agreement, the following accounts, which accounts shall be
Eligible Accounts:
(i) the Lockbox Account;
(ii) the Reserve Account; and
(iii) the Distribution Account.
The Reserve Account and the Distribution Account shall be maintained at the
Corporate Trust Office. Subject to the further provisions of this Section
3.01(a), the Trustee shall, upon receipt or upon transfer from another account,
as the case may be, deposit into such accounts all amounts received by it which
are required to be deposited therein in accordance with the provisions of this
Indenture. All such amounts (other than investments made with such amounts,
which shall be payable on each Payment Date to the Servicer as additional
servicing compensation), shall be held by the Trustee in such accounts as part
of the Granted Assets as herein provided, subject to withdrawal by the Trustee
in accordance with, and for the purposes specified in the provisions of, this
Indenture.
(b) The Trustee shall hold in trust but shall not be required to deposit in
any account specified in Section 3.01(a) any payment received by it until such
time as the Trustee shall have identified to its reasonable satisfaction the
nature of such payment and, on the basis thereof, the proper account or accounts
into which such payment is to be deposited. In determining into which of the
accounts, if any, referred to above any amount received by the Trustee is to be
deposited, the Trustee may conclusively rely (in the absence of bad faith on the
part of the Trustee) on the advice of the Servicer. Unless the Trustee is
advised differently in writing by the Lessee making the payment or by the
Servicer in writing (with the Servicer's instruction controlling), the Trustee
shall assume that any amount remitted to it by such Lessee is to be deposited
into the Lockbox Account pursuant to Section 3.03. The Trustee may establish
from time to time such deadline or deadlines as it shall determine are
reasonable or necessary in the administration of the Granted Assets after which
all amounts received or collected by the Trustee on any day shall not be deemed
to have been received or collected until the next succeeding Business Day.
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(c) Neither the Servicer, Trustee nor the institution then acting as
Trustee shall have any right of set-off with respect to the Lockbox Account, the
Reserve Account or the Distribution Account, or any investment therein.
(d) So long as no Event of Default shall have occurred and be continuing,
all or a portion of the amounts in the Trust Accounts, shall be invested and
reinvested by the Trustee pursuant to a Servicer Order in one or more Eligible
Investments. Subject to the restrictions on the maturity of investments set
forth in Section 3.01(f), each such Servicer Order may authorize the Trustee to
make the specific Eligible Investments set forth therein, to make Eligible
Investments from time to time consistent with the general instructions set forth
therein, or to make specific Eligible Investments pursuant to instructions
received in writing or by telegraph or facsimile transmission from the employees
or agents of the Servicer identified therein, in each case in such amounts as
such Servicer Order shall specify. The Servicer agrees to report as income for
financial reporting and tax purposes (to the extent reportable) all investment
earnings on amounts in the Reserve Account, the Lockbox Account and the
Distribution Account. The Servicer agrees to give appropriate and timely
investment directions to the Trustee so that there will not be more than two
Business Days in any one calendar year at the end of which funds in the Trust
Accounts are not invested, directly or indirectly, pursuant to a Servicer Order
in Eligible Investments that mature on or after the opening of business on the
next Business Day.
(e) In the event that either (i) the Servicer, as the case may be, shall
have failed to give investment directions to the Trustee by 9:30 A.M., New York
City time on any Business Day on which there may be uninvested cash or (ii) an
Event of Default shall be continuing, the Trustee shall promptly invest and
reinvest the funds then in the Reserve Account, the Lockbox Account or the
Distribution Account, as the case may be, to the fullest extent practicable in
one or more Eligible Investments. All investments made by the Trustee shall
mature no later than the maturity date therefore permitted by Section 3.01(f)
unless the Trustee shall have received written confirmation from each Rating
Agency, that the liquidation of such Eligible Investments prior to their
respective maturity dates, will not result in the reduction or withdrawal of
such Rating Agency's then-current rating of the Notes.
(f) Unless payable on demand, no investment of any amount held in the Trust
Accounts shall mature later than the Business Day immediately preceding the
Payment Date which is scheduled to occur immediately following the date of
investment. All income or other gains (net of losses) from the investment of
moneys deposited in the Trust Accounts shall be transferred by the Trustee to
the Servicer in accordance with the written instructions of the Servicer then in
effect on such Payment Date.
(g) Any investment of any funds in the Trust Accounts and any sale of any
investment held in such accounts, shall be made under the following terms and
conditions:
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(i) each such investment shall be made in the name of the Trustee or in the
name of a nominee of the Trustee, in each case in such manner as shall be
necessary to maintain the identity of such investments as assets of the Granted
Assets;
(ii) any certificate or other instrument evidencing such investment shall
be delivered directly to the Trustee or its agent and the Trustee shall have
sole possession of such instrument, and all income on such investment for the
benefit of the Servicer; and
(iii) the proceeds of any sale of an investment shall be remitted by the
purchaser thereof directly to the Trustee for distribution as provided in
paragraph (f) hereof.
(h) If any amounts are needed for disbursement from the Trust Accounts and
sufficient uninvested funds are not collected and available therein to make such
disbursement, in the absence of a Servicer Order for the liquidation of
investments held therein in an amount sufficient to provide the required funds,
the Trustee shall select and cause to be sold or otherwise converted to cash a
sufficient amount of the investments in such accounts.
(i) The Trustee shall not in any way be held liable by reason of any
insufficiency in the Trust Accounts resulting from losses on investments made in
accordance with the provisions of this Section 3.01 (but the institution serving
as Trustee shall at all times remain liable for its own debt obligations, if
any, constituting part of such investments). The Trustee shall not be liable for
any investment made by it in accordance with this Section 3.01 on the grounds
that it could have made a more favorable investment or a more favorable
selection for sale of an investment.
(j) The Servicer shall promptly reimburse the Trustee for the benefit of
the Noteholders for any investment loses resulting from any investment resulting
from a Servicer Order.
SECTION 3.02. Collection of Moneys.
(a) On or before the Issuance Date, the Servicer shall designate an address
for the receipt directly from Lessees of all Lease Payments, Casualty Payments
and Termination Payments on or in respect of each Lease (which payments may be
aggregated by the Lessee paying the same with Similar Transaction Payments and
Other Lease Payments and which designated address may be the same designated
address to which such Similar Transaction Payments and Other Lease Payments may
be sent). The Servicer shall, within two Business Days of receipt of any payment
at such designated address, deposit such payment, or cause such payment to be
deposited into the Lockbox Account. All Lease Payments, Casualty Payments,
Termination Payments and other payments relating to a Lease received at such
designated address and so deposited shall constitute part of the Granted Assets.
Any Similar Transaction Payments and Other Lease Payments from time to time
received at such designated address or otherwise received by the Servicer or
deposited in the Lockbox Account shall not constitute part of the Granted
Assets.
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(b) The Trustee shall from time to time, in accordance with instructions of
the Servicer and the provisions of the Similar Transaction Agreements and the
Lockbox Agreement, withdraw from the Lockbox Account any amounts in the Lockbox
Account which the Servicer advises the Trustee are (i) Similar Transaction
Payments and apply such payments in accordance with the Similar Transaction
Agreements and (ii) Other Lease Payments. Prior to such payment, the Trustee
shall have rights to and an interest in such amounts to the extent (but only to
the extent) it is determined that such amounts actually constitute Available
Funds, or would with the passage of time, constitute Available Funds.
(c) If at any time the Issuer shall receive any payment on or in respect of
any Lease, it shall hold such Payment in trust for the benefit of the Trustee
and the holders of the Notes, shall segregate such payment from the other
property of the Issuer, and shall, promptly (but in no event later than the next
following Business Day) upon receipt, deposit such payment in the form received
to the Lockbox Account for the benefit of the Trustee for the benefit of the
Noteholders.
SECTION 3.03. Lockbox Account; Payments.
(a) The Servicer shall within two Business Days of receipt (a "Required
Deposit Date") deposit, or cause to be deposited, the following funds, as
received, into the Lockbox Account:
(i) Lease Payments;
(ii) Servicer Advances;
(iii) recoveries from Defaulted Leases to the extent Servicer has not
substituted Substitute Leases for such Defaulted Leases;
(iv) proceeds from repurchases by the Transferor or the Seller, as the case
may be, of Leases due to a Warranty Event or otherwise to the extent the
Transferor, or the Seller, as applicable, has not substituted Substitute Leases
for such Leases;
(v) any Casualty Payments and Prepayments to the extent not already
included in clause (iv) hereof;
(vi) Termination Payments to the extent the Issuer does not reinvest such
Termination Payments in Additional Leases;
(vii) late charges on delinquent Lease Payments or residual proceeds with
respect to a Lease as to which unpaid Lease Payments have not been advanced by
the Servicer; and
(viii) payments from the Issuer to effect a redemption of the Notes
pursuant to Section 2.01(b).
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(b) Unless the Notes have been declared due and payable pursuant to Section
6.02 and moneys collected by the Trustee are being applied in accordance with
Section 6.06, Available Funds on deposit in the Lockbox Account shall be
withdrawn by the Servicer on or before each Payment Date from the Lockbox
Account, in the amounts required, and deposited in the Distribution Account for
application in the following order of priority, to make the following required
payments:
(i) to pay the Servicing Fee for such Payment Date;
(ii) to reimburse unreimbursed Servicer Advances in respect of a prior
Payment Date;
(iii) concurrently and pro rata: (a) to make Interest Payments for such
Payment Date on the Class A-1 Notes; (b) to make Interest Payments for such
Payment Date on the Class A-2 Notes; (c) to make Interest Payments for such
Payment Date on the Class A-3 Notes; and (d) to make Interest Payments for such
Payment Date on the Class A-4 Notes;
(iv) to make Interest Payments for such Payment Date on the Class B Notes;
(v) to make Interest Payments for such Payment Date on the Class C Notes;
(vi) to make Interest Payments for such Payment Date on the Class D Notes;
(vii) to make the Class A Principal Payment for such Payment Date (i) to
the Class A-1 Noteholders only, until the Outstanding Principal Amount on the
Class A-1 Notes is reduced to zero, then (ii) to the Class A-2 Noteholders only,
until the Outstanding Principal Amount on the Class A-2 Notes is reduced to
zero, then (iii) to the Class A-3 Noteholders only, until the Outstanding
Principal Amount on the Class A-3 Notes is reduced to zero and finally, (iv) to
the Class A-4 Noteholders until the Outstanding Principal Amount on the Class
A-4 Notes is reduced to zero;
(viii) to pay the Class B Principal Payment for such Payment Date to the
Class B Noteholders;
(ix) to pay the Class C Principal Payment for such Payment Date to the
Class C Noteholders;
(x) to pay the Class D Principal Payment for such Payment Date to the Class
D Noteholders;
(xi) to pay the Additional Principal for such Payment Date, if any, as an
additional reduction of principal, first to the Class A-1 Noteholders until the
Outstanding Class A-1 Principal Amount has been reduced to zero, second to the
Class A-2 Noteholders until the Outstanding Class A-2 Principal Amount has been
reduced to zero,
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third to the Class A-3 Noteholders until the Outstanding Class A-3 Principal
Amount has been reduced to zero, fourth to the Class A-4 Noteholders until the
Outstanding Class A-4 Principal Amount has been reduced to zero, thereafter to
the Class B Noteholders as an additional reduction of principal until the
Outstanding Class B Principal Amount has been reduced to zero, thereafter to the
Class C Noteholders until the Outstanding Class C Principal Amount has been
reduced to zero; and thereafter to the Class D Noteholders until the Outstanding
Class D Principal Amount has been reduced to zero; and
(xii) to make a deposit to the Reserve Account in an amount equal to the
excess, if any, of the Required Reserve Amount over the Available Reserve
Amount, for such Payment Date, and
(xiii) to the Issuer, the balance, if any.
(c) Notwithstanding the foregoing, the Trustee shall retain in the Lockbox
Account an amount equal to all Lease Payments received that were due since the
related Calculation Date, and all Casualty Payments, Termination Payments and
other payments received by the Trustee after the Calculation Date for such
Payment Date and shall not distribute any such amounts on such Payment Date. If
at any time any amount or portion thereof previously distributed pursuant to
this Section 3.03(c) shall have been recovered, or shall be subject to recovery,
in any proceeding with respect to the Issuer or otherwise, then for purposes of
determining future distributions pursuant to this Section 3.03(c) such amount or
portion thereof shall be deemed to have not been previously so distributed.
SECTION 3.04. The Reserve Account.
(a) On the Issuance Date, the Issuer has made an initial deposit of
$[___________] into the Reserve Account. On each Payment Date, the Trustee shall
transfer to the Reserve Account from the Distribution Account such amounts as
shall be required by Section 3.04(b).
(b) If by 12:00 noon, New York City time, one Business Day preceding any
Payment Date, the amount of collected funds on deposit in the Lockbox Account
available for distribution under Section 3.03(b) is insufficient to permit on
such Payment Date all distributions required by Section 3.03(b)(i) through
3.03(b)(xii) (such payments, the "Required Payments" and such shortfall, an
"Available Funds Shortfall"), then, to the extent of the Available Reserve
Amount on deposit in the Reserve Account, the Trustee shall transfer, not later
than the end of such Business Day, from the Reserve Account to the Distribution
Account such amount to the extent available as shall be necessary to make on
such Payment Date all Required Payments.
(c) In the event that after giving effect to all the disbursements required
to be made on any Payment Date, the Available Reserve Amount exceeds the
Required Reserve Amount, the Trustee shall transfer, not later than the end of
business on such Payment Date, an amount equal to such excess to the Issuer.
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(d) Upon termination of this Indenture, any balance remaining in the
Reserve Account, after all obligations to the Noteholders hereunder have been
fully satisfied, shall be paid to reimburse the Trustee for any amounts owing to
it arising from the performance of its obligations under this Indenture and,
then, to the Issuer.
SECTION 3.05. The Distribution Account.
The Servicer will establish and maintain the Distribution Account with the
Trustee, in the name of the Trustee on behalf of the Noteholders, in which
amounts released from the Collection Account for distribution to the Noteholders
pursuant to Section 3.03(b) will be deposited and from which distributions to
the Noteholders will be made.
SECTION 3.06. Reports by Trustee; Notices of Certain Payments.
(a) The Trustee shall within two Business Days after the request of the
Issuer, the Servicer or any Noteholder, deliver to the requesting person a
written report setting forth the amounts on deposit in the Reserve Account, the
Lockbox Account and the Distribution Account and identifying the investments
included therein.
(b) Within five Business Days following each Payment Date or as promptly as
possible thereafter but in no event later than two Business Days following the
receipt of the Monthly Report from the Servicer pursuant to the Servicing
Agreement, the Trustee shall mail to the Issuer, Charter, each Rating Agency and
the Servicer and make available to each Noteholder the following information:
(i) the Outstanding Principal Amount of all Outstanding Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes, Class B Notes, Class C Notes
and Class D Notes, respectively;
(ii) the amount of Interest Payments and payments in reduction of principal
paid on such Payment Date with respect to all Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes, Class A-4 Notes, Class B Notes, Class C Notes and Class D Notes
respectively, and with respect to the Notes held by each Noteholder;
(iii) the amount of the Servicing Fee and unreimbursed Servicer Advances
paid on such Payment Date pursuant to Section 3.03(b)(i) and Section
3.03(b)(ii); and
(iv) the amount on deposit in the Reserve Account, the Lockbox Account and
the Distribution Account, in each case after giving effect to all of the
withdrawals and applications or transfers required on or before such Payment
Date pursuant to Sections 3.02 and 3.03.
(c) With each report of the Trustee furnished pursuant to this Section 3.06
following any Payment Date, the Trustee shall enclose a copy of the relevant
Servicing Report and the report required to be furnished to the Trustee by the
Servicer
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following such Payment Date pursuant to the Servicing Agreement or, if such
reports have not been received, a statement to such effect.
(d) Upon request of a Noteholder, the Trustee will provide information as
to the Outstanding Principal Amount of each Class of Notes.
SECTION 3.07. Trustee May Rely on Certain Information from Charter and
Servicer.
Pursuant to the Servicing Agreement and Section 3.02 through 3.06 hereof,
the Servicer is required to furnish to the Trustee from time to time certain
information and make various calculations which are relevant to the performance
of the Trustee's duties in this Article Three and in Article Four of this
Indenture. The Trustee shall be entitled to rely in good faith on such
information or calculations in the performance of its duties hereunder (i)
unless and until a Responsible Officer of the Trustee has actual knowledge, or
is advised by any Noteholder (either in writing or orally with prompt written or
telecopied confirmation), that such information or calculations is or are
incorrect, or (ii) unless there is a manifest error in any such information.
ARTICLE IV
RELEASE OF LEASES AND EQUIPMENT
SECTION 4.01. Release of Equipment.
Subject to the satisfaction of the provisions of Section 4.02, the Trustee
shall release Equipment from the Lien of the Indenture upon the occurrence of
any of the following events: (a) the sale of such Equipment pursuant to Section
4.03(b) of the Servicing Agreement (unless retained by the Issuer for
re-leasing), (b) the expiration of the related Lease upon the payment of the
final Lease Payment due and payable under such Lease, (c) the repurchase of the
related Lease in accordance with the provisions of the Servicing Agreement, (d)
the addition of an Additional Lease to the extent new Equipment is provided in
replacement of such Equipment in accordance with the provisions of the Servicing
Agreement and (e) upon the substitution of a Substitute Lease in accordance with
the provisions of the Servicing Agreement. The proceeds of any such sale,
repurchase or releasing shall be deposited in the Lockbox Account for
disposition under this Indenture.
SECTION 4.02. Release of Leases Upon Final Lease Payment.
In the event that the Trustee shall have received notice (either in writing
or orally with prompt written or telecopied confirmation) from the Servicer that
the Trustee has received from amounts paid by the Lessee, from the Lease
Repurchase Amount, or from the proceeds of the Equipment subject to any Lease
(i) the final Lease Payment due and payable under such Lease, (ii) a Termination
Payment in respect of such Lease, (iii) a Lease Repurchase Amount in respect of
such Lease, (iv) a Casualty Payment under such Lease (and, following such final
Lease Payment, Casualty Payment, Lease Repurchase Amount or Termination Payment,
no further payments on or in respect of such Lease are
43
or will be due and payable), or (iv) the full amount of any recoveries with
respect to such Defaulted Lease, such Lease shall be released from the lien of
this Indenture.
SECTION 4.03. Execution of Documents.
The Trustee shall promptly execute and deliver such documents, including,
without limitation, partial releases and termination statements (which shall be
furnished to the Trustee by the Issuer), and take such other actions as the
Issuer, by Issuer Request, may reasonably request (including the return of any
Lease which has been released) to fully effectuate the release from this
Indenture of any Lease and interests in the related Equipment required to be so
released pursuant to Sections 4.01 or 4.02.
ARTICLE V
SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER
SECTION 5.01. Servicer Events of Default.
If a Servicer Event of Default shall have occurred and be continuing, the
Trustee shall, upon the written request of the holders of 66-2/3% of the then
Outstanding Principal Amount of the Notes, give notice in writing to the
Servicer of the termination of all of the rights and obligations of the Servicer
under the Servicing Agreement. On and after the giving of such written notice,
all rights and obligations of the Servicer under the Servicing Agreement,
including, without limitation, the Servicer's right thereunder to receive the
Servicing Fee, shall pass to, be vested in, and be assumed by the Trustee, and
the Trustee shall be authorized to, and shall, execute and deliver, on behalf of
the Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such termination and of such passing,
vesting, and assumption; provided that in performing the duties of the Servicer
under the Servicing Agreement the Trustee shall at all times be deemed to be
acting as the Trustee hereunder and shall be entitled to the full benefit of all
the protections, benefits, immunities and indemnities provided in this Indenture
for or with respect to the Trustee, including, without limitation, those set
forth in Article Seven hereof.
SECTION 5.02. Substitute Servicer.
Notwithstanding the provisions of Section 5.01, the Trustee may, if it
shall be unwilling to continue to act as the successor to the Servicer in
accordance with Section 5.01, or shall, if it is unable to continue to so act or
is so instructed in writing by the holders of 66-2/3% of the then Outstanding
Principal Amount of the Notes, appoint a successor to the Servicer in accordance
with the provisions of Section 10.03 of the Servicing Agreement.
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ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.01. Events of Default.
"Event of Default," wherever used herein, means any one of the following
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in making of (i) Principal Payments at the Stated Maturity of
the relevant Notes or (ii) Interest Payments within 4 days of on the Notes when
such become due and payable;
(b) the failure of the Seller, the Transferor, or the Servicer to make
payments or deposits required under the Transaction Documents within three (3)
Business Days;
(c) the failure of the Seller or the Servicer, the Transferor, the Issuer,
or the Trustee to perform any covenant with respect to the Transaction
Documents, which failure has a material adverse effect on the Noteholders and
which continues unremedied for a period of [60] days after discovery or notice
of such failure (provided no such cure period shall apply to the Seller's
failure to accept the reassignment of any Lease that is not an Eligible Lease,
and further provided, only a five (5) day cure period will apply to the
Seller's, the Transferor's, the Issuer's or the Trustee's covenant not to grant
a security interest in or otherwise create a lien on the Leases);
(d) any representation or warranty by the Seller, the Transferor, the
Trustee or the Issuer is not correct in any material respect and continues for a
period of [60] days after discovery or notice of such failure (provided that the
Transferor and/or the Seller can "cure" such misrepresentation by purchasing the
Leases related thereto);
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Issuer in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or (ii) a decree or order adjudging the
Issuer a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment, or composition of or in respect
of the Issuer under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator, or other
similar official of the Issuer or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days;
(f) the commencement by the Issuer of a voluntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization, or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent,
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or the consent by it to the entry of a decree or order for relief in respect of
the Issuer in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization, or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar
official of the Issuer or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the Issuer's failure to
pay its debts generally as they become due, or the taking of corporate action by
the Issuer in furtherance of any such action; or
(g) the Issuer has become an "Investment Company" as defined under the
Investment Company Act of 1940, as amended.
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default occurs, the unpaid Outstanding Principal Amount
of the Notes shall automatically become due and payable at par together with all
accrued and unpaid interest thereon, without presentment, demand, protest or
notice of any kind, all of which are hereby waived by the Issuer.
(b) At any time after such an Event of Default has occurred and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the holders of Notes evidencing 66-2/3%
of the then Outstanding Principal Amount of the Notes by written notice to the
Issuer and the Trustee, may rescind and annul such declaration and its
consequences if the Issuer has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all Principal Payments on any Class A Notes, Class B Notes, Class
C Notes and Class D Notes, which have become due otherwise than by such
declaration of acceleration and interest thereon from the date when the
same first became due until the date of payment or deposit at a rate per
annum equal to the appropriate Note Interest Rate,
(B) all Interest Payments due with respect to any Class A Notes, Class
B Notes, Class C Notes and Class D Notes and, to the extent that payment of
such interest is lawful, interest upon overdue interest from the date when
the same first became due until the date of payment or deposit at a rate
per annum equal to the appropriate Note Interest Rates, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements, and advances of the
Trustee, its agents and counsel;
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No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 6.03. Remedies.
(a) If an Event of Default occurs and is continuing of which a Responsible
Officer has actual knowledge, the Trustee shall immediately give notice to each
Noteholder as set forth in Section 7.02.
(b) Following any acceleration of the Notes, the Trustee shall have all of
the rights, powers and remedies with respect to the Granted Assets as are
available to secured parties under the Uniform Commercial Code or other
applicable law. Such rights, powers and remedies may be exercised by the Trustee
in its own name as trustee of an express trust.
(c) If an Event of Default specified in Section 6.01(a) through Section
6.01(d), or Section 6.01(g), occurs and is continuing, the Trustee is authorized
to recover judgment in its own name and as trustee of an express trust against
the Issuer for the whole amount of principal and interest remaining unpaid.
(d) In exercising its rights and obligations under this Section 6.03, the
Trustee may sell the Granted Assets; provided that if the Event of Default
involves other than non-payment of principal or interest on the Notes, then such
sale must be for an amount greater than or equal to amounts due under clauses
first through fourth in Section 6.06 unless directed otherwise by the holders of
66-2/3% of the then Outstanding Principal Amount of the Notes. Neither the
Trustee nor any Noteholder shall have any rights against the Issuer other than
to enforce the Lien against the Leases and the Equipment and to sell the Granted
Assets.
SECTION 6.04. Trustee Shall File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition, or other
judicial proceeding relative to the Issuer, Charter, the Servicer or any other
obligor upon the Notes or the other obligations secured hereby or relating to
the property of the Issuer, Charter, the Servicer or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Issuer, Charter or the Servicer for the payment of overdue principal or
interest or any such other obligation) shall by intervention in such proceeding
or otherwise,
(i) file and prove a claim for the whole amount of principal and interest
owing and unpaid in respect of the Notes and any other obligation secured hereby
and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Noteholders allowed in such judicial proceeding, and
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(ii) collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator, or
other similar official in any such judicial proceeding is hereby authorized by
each Noteholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Noteholders
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07.
(b) Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any holder thereof or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the holders
of the Notes in respect of which such judgment has been recovered.
SECTION 6.06. Application of Money Collected.
After the payment of all costs and expenses of collection incurred by the
Trustee and the Noteholders (including the reasonable fees and expenses of any
counsel to the Trustee and the Noteholders), any money collected by the Trustee
pursuant to this Article following an Event of Default, and any moneys that may
then be held or thereafter received by the Trustee shall be applied in the order
specified in Section 3.03(b), provided that, for the purpose of such
application, the Principal Payment for each Class shall be deemed to equal the
Outstanding Principal Amount of such Class, at the date or dates fixed by the
Trustee and, in case of the distribution of the entire amount due on account of
principal or interest, upon presentation of the Notes and surrender thereof.
SECTION 6.07. Limitation on Suits.
None of the Noteholders shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
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(i) such Noteholder has previously given written notice to the Trustee of a
continuing Event of Default;
(ii) the Holders of not less than 66-2/3% of the then Outstanding Principal
Amount of the Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(iii) such Noteholder or Noteholders have offered to the Trustee adequate
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Trustee for 30 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(v) so long as any of the Notes remain Outstanding, no direction
inconsistent with such written request has been given to the Trustee during such
30-day period by the Holders of 66-2/3% of the then Outstanding Principal Amount
of the Notes;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb, or prejudice the rights of any other
Noteholders, or to obtain or to seek to obtain priority or preference over any
other Noteholders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all the
Noteholders. Nothing in this Section 6.07 shall be construed as limiting the
rights of otherwise qualified Noteholders to petition a court for the removal of
a Trustee pursuant to Section 7.09(h) hereof.
SECTION 6.08. Unconditional Right of Noteholders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, other than the
provisions hereof limiting the right to recover amounts due on the Notes to
recoveries from the property of the Granted Assets, the holder of any Note shall
have the absolute and unconditional right to receive payment of the principal of
and interest on such Note on the Payment Dates applicable for such payments,
including the Stated Maturity, and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Noteholder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any Noteholder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Noteholder, then and in every such case, subject to any
determination in such proceeding, the Issuer, the Trustee and the Noteholders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Noteholders
continue as though no such proceeding had been instituted.
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SECTION 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost, or stolen Notes in Section 2.04(f), no right or
remedy herein conferred upon or reserved to the Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Noteholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Noteholders, as the
case may be.
SECTION 6.12. Control by Noteholders.
Except as may otherwise be provided in this Indenture, until such time as
the conditions specified in Sections 10.01(i) and (ii) have been satisfied in
full, the holders of 66-2/3% of the then Outstanding Principal Amount of the
Notes shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee. Notwithstanding the foregoing,
(i) no such direction shall be in conflict with any rule of law or with
this Indenture;
(ii) the Trustee shall not be required to follow any such direction which
the Trustee reasonably believes might result in any personal liability on the
part of the Trustee for which the Trustee is not adequately indemnified; and
(iii) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with any such direction; provided that the Trustee
shall give notice of any such action to each Noteholder.
SECTION 6.13. Sale of Granted Assets.
(a) The power to effect any sale of any portion of the Granted Assets
described pursuant to Section 6.03 shall not be exhausted by any one or more
sales as to any portion of the Granted Assets remaining unsold, but shall
continue unimpaired until the entire Granted Assets shall have been sold or all
amounts payable on the Notes shall have been paid. The Trustee may from time to
time, upon directions in accordance with Section 6.12, postpone any public sale
by public announcement made at the time and
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place of such sale. For any public sale of the Granted Assets, the Trustee shall
have provided each Noteholder with notice of such sale at least two weeks in
advance of such sale which notice shall specify the date, time and location of
such sale.
(b) To the extent permitted by applicable law, the Trustee shall not in any
private sale sell to a third party the Granted Assets, or any portion thereof,
unless,
(i) until such time as the conditions specified in Sections 10.01(a)(i) and
(ii) have been satisfied in full, the holders of 66-2/3% of the then Outstanding
Principal Amount of each Class of the Notes voting separately consent to or
direct the Trustee in writing to make such sale; or
(ii) the proceeds of such sale would be not less than the sum of all
amounts due to the Trustee hereunder and the entire unpaid principal amount of
the Notes and interest due or to become due thereon in accordance with Section
6.06 on the Payment Date next succeeding the date of such sale.
The foregoing provisions shall not preclude or limit the ability of the
Trustee to purchase all or any portion of the Granted Assets at a private sale.
(c) In connection with a sale of all or any portion of the Granted Assets:
(i) any one or more Noteholders may bid for and purchase the property
offered for sale, and upon compliance with the terms of sale may hold, retain,
and possess and dispose of such property, without further accountability, and
any Noteholder may, in paying the purchase money therefore, deliver in lieu of
cash any Outstanding Notes or claims for interest thereon for credit in the
amount that shall, upon distribution of the net proceeds of such sale, be
payable thereon, and the Notes, in case the amounts so payable thereon shall be
less than the amount due thereon, shall be returned to the Noteholders after
being appropriately stamped to show such partial payment;
(ii) the Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of the Granted Assets in
connection with a sale thereof;
(iii) the Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer to transfer and convey its interest in any
portion of the Granted Assets in connection with a sale thereof, and to take all
action necessary to effect such sale; and
(iv) no purchaser or transferee at such a sale shall be bound to ascertain
the Trustee's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any moneys.
(d) The method, manner, time, place and terms of any sale of all, or any
portion of, the Granted Assets shall be commercially reasonable.
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(e) The provisions of this Section 6.13 shall not be construed to restrict
the ability of the Trustee to exercise any rights and powers against the Issuer
or the Granted Assets that are vested in the Trustee by this Indenture,
including, without limitation, the power of the Trustee to proceed against the
collateral subject to the lien of this Indenture and to institute judicial
proceedings for the collection of any deficiency remaining thereafter.
SECTION 6.14. Undertaking for Costs.
All parties to this Indenture agree (and each holder of any Note by its
acceptance thereof shall be deemed to have agreed) that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than 10% of the then Outstanding Principal Amount
of the Notes, or to any suit instituted by any Noteholder for the enforcement of
the payment of the principal of or interest on any Note on or after the
applicable Payment Dates for such payments, including the Stated Maturity as
applicable.
SECTION 6.15. 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, which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VII
THE TRUSTEE
SECTION 7.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default known to the
Trustee,
(i) the 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 Trustee; and
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(ii) in the absence of bad faith on its part, the 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 Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing to the
actual knowledge of a Responsible Officer of the Trustee, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved, subject to Section
7.03(f) hereof, that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Noteholders in accordance with Section 6.12 relating to the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;
and
(iv) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 7.02. Notice of Defaults or Events of Default.
Within two Business Days after a Responsible Officer obtaining knowledge of
the occurrence of any Default or Event of Default hereunder, the Trustee shall
transmit, by certified mail return receipt requested, hand delivery or overnight
courier, to all Noteholders, as their names and addresses appear in the Note
Register, and
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the Rating Agencies notice of such Default or Event of Default hereunder known
to the Trustee, unless such Default or Event of Default shall have been cured or
waived.
SECTION 7.03. Certain Rights of Trustee.
Subject to the provisions of Section 7.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, note, debenture, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by a Issuer Request or Issuer Order and any action of the
Issuer may be sufficiently evidenced by a Issuer Order;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel as to legal matters and the
written advice of any such counsel selected by the Trustee with due care shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Noteholders pursuant to this Indenture, unless such Noteholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, note, debenture,
other evidence of indebtedness, or other paper or document, but the Trustee, in
its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
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SECTION 7.04. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuer,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application by
the Issuer of the proceeds of the Notes.
SECTION 7.05. May Hold Notes.
The Trustee, in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with the Issuer with the same rights
it would have if it were not Trustee.
SECTION 7.06. Money Held in Trust.
Money and investments held by the Trustee shall be held in trust in one or
more trust accounts hereunder, but need not be segregated from other funds
except to the extent required by law.
SECTION 7.07. Compensation, Reimbursement, etc.
The Issuer agrees:
(a) to pay to the Trustee from time to time, solely from and only to the
extent that amounts are available, such compensation for all services rendered
by it hereunder as the Issuer and the Trustee may agree in writing (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request, solely from and only to the extent that amounts are available
to the Issuer under Section 3.03(b) or payable to the Trustee under clause first
of Section 6.06, for all reasonable expenses, disbursements, and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement,
or advance as may be attributable to its negligence or bad faith.
SECTION 7.08. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall (a) be a
corporation organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers; (b) have a combined capital and surplus
of at least $100,000,000; (c) be subject to supervision or examination by
federal or state authority; and (d) at the time of appointment, shall have
long-term debt obligations (or, if the Trustee does not
55
have outstanding long-term debt obligations and is a subsidiary of a holding
company, which holding company shall have long-term obligations) having a credit
rating of at least "A-" from S&P and Baa3 from ▇▇▇▇▇'▇.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
This Indenture shall always have a Trustee who satisfies the requirements
of Section 310(a)(1) of the Trust Indenture Act. The Trustee is subject to the
provisions of Section 310(b) of the Trust Indenture Act regarding
disqualification of a trustee upon acquiring any conflicting interest.
SECTION 7.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time by giving written notice thereof to
the Issuer and by mailing notice of resignation by first-class mail, postage
prepaid, to Noteholders at their addresses appearing on the Note Register.
(c) The Trustee may be removed at any time by Act of the holders of not
less than a majority of the then Outstanding Principal Amount of the Notes,
delivered to the Trustee and the Issuer.
(d) If the Trustee shall resign, be removed, or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Issuer,
with the consent of the holders of 66-2/3% of the Outstanding Principal Amount
of the Notes, by an act of the Issuer, shall promptly appoint a successor
Trustee.
(e) If no successor Trustee shall have been so appointed by the Issuer or
the Noteholders as hereinbefore provided and accepted appointment in the manner
hereinafter provided within 30 days after any such resignation or removal,
existence of incapability, or occurrence of such vacancy, the Trustee or any
Noteholder may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to all Noteholders,
as their names and addresses appear in the Note Register and each Rating Agency.
Each notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office.
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(g) The Issuer may remove the Trustee if the Trustee fails to comply with
Section 7.08 of this Indenture.
(h) If the Trustee after written request by any Noteholder who has been a
Noteholder for at least six months fails to comply with Section 310(b) of the
Trust Indenture Act, such Noteholder may petition any court of competent
jurisdiction, for the removal of the Trustee and the appointment of a successor
Trustee.
SECTION 7.10. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuer and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Issuer or the
successor Trustee, such retiring Trustee shall, upon payment of its charges and
expenses, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Issuer shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
(b) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 7.11. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Notes shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion, or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes. The Trustee shall provide prompt written notice to
each Rating Agency of any event referenced in this Section 7.11.
SECTION 7.12. Co-trustees and Separate Trustees.
(a) At any time or times, if the Issuer, the Trustee or any Noteholder
determines that it is necessary for the purpose of meeting the legal
requirements of any
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jurisdiction in which any assets of the Granted Assets may at the time be
located, the Issuer and the Trustee shall have power to appoint, and, upon the
written request of the Trustee or the holders of a majority of the then
Outstanding Principal Amount of the Notes, the Issuer shall for such purpose
join with the Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint one or more Persons
approved by the Trustee either to act as co-trustee, jointly with the Trustee,
of all or any part of the Granted Assets, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Issuer does not join in
such appointment within 15 days after the receipt by it of a request so to do,
or in case an Event of Default has occurred and is continuing, the Trustee, or
the holders of a majority of the then Outstanding Principal Amount of the Notes,
alone shall have power to make such appointment.
(b) Should any written instrument from the Issuer be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Issuer.
(c) Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms:
(i) the Notes shall be authenticated and delivered and all rights, powers,
duties, and obligations hereunder in respect of the custody of securities, cash
and other personal property held by, or required to be deposited or pledged
with, the Trustee hereunder, shall be exercised, solely by the Trustee;
(ii) the rights, powers, duties, and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Trustee or
by the Trustee and such co-trustee or separate trustee jointly, as shall be
provided in the instrument appointing such co-trustee or separate trustee,
except to the extent that, under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee;
(iii) the Trustee at any time, by an instrument in writing executed by it,
with the concurrence of the Issuer evidenced by a Issuer Order, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case an Event of Default has occurred and is continuing, the
Trustee shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Issuer; upon the
written request of the Trustee, the Issuer shall join with the Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to effectuate such resignation or removal. A
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successor to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section;
(iv) no co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Trustee or any other such trustee
hereunder and the Trustee shall not be personally liable by reason of any act or
omission of any co-trustee or other such separate trustee hereunder selected by
the Trustee with due care or appointed in accordance with directions to the
Trustee pursuant to Section 6.12; and
(v) any Act of Noteholders delivered to the Trustee shall be deemed to have
been delivered to each such co-trustee and separate trustee.
SECTION 7.13. Acceptance by Trustee.
The Trustee hereby acknowledges the conveyance of the Granted Assets and
the receipt of the Leases and the other Granted Assets granted by the Issuer
hereunder and declares that the Trustee, through a custodian, will hold such
Leases and other Granted Assets conveyed by the Issuer in trust, for the use and
benefit of all Noteholders subject to the terms and provisions hereof.
SECTION 7.14. Preferential Collection of Claims Against the Issuer.
The Trustee is subject to Trust Indenture Act Section 311(a), excluding any
creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee
who has resigned or been removed shall be subject to Trust Indenture Act Section
311(a) to the extent indicated therein.
SECTION 7.15. Reports by Trustee to Noteholders.
To the extent required by the Trust Indenture Act, within 60 days after
each May 15, following the date of this Indenture, the Trustee shall mail to
Noteholders a brief report dated as of such reporting date that complies with
Trust Indenture Act Section 313(a), if such a report is required pursuant to
Trust Indenture Act Section 313(a). The Trustee also shall comply with Trust
Indenture Act Section 313(b). The Trustee shall also transmit by mail all
reports as required by Trust Indenture Act Section 313(c).
A copy of each such report required under Trust Indenture Act Section 313
shall, at the time of such transmission to Noteholders be filed with the
Commission and with each stock exchange or other market system on which the
Notes are listed. The Issuer or any other obligor upon the Notes shall notify
the Trustee if the Notes become listed on any stock exchange or market trading
system.
SECTION 7.16. No Proceedings.
The Trustee hereby agrees that it will not, with respect to its fees and
expenses, directly or indirectly institute, or cause to be instituted, against
the Issuer any proceeding of the type referred to in Section 6.01(b) or (c) so
long as there shall not have
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elapsed one year plus one day since the latest maturing Notes have been paid in
full in cash.
ARTICLE VIII
COVENANTS
SECTION 8.01. Payment of Principal and Interest.
The Issuer will duly and punctually pay the principal of and interest on
the Notes in accordance with the terms of the Notes and this Indenture.
SECTION 8.02. Maintenance of Office or Agency; Chief Executive Office.
(a) The Issuer will maintain at the Corporate Trust Office an office or
agency where Notes may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served. The Issuer hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
(b) The chief executive office of the Issuer, and the office at which the
Issuer maintains its records with respect to the Leases, the interests in the
Equipment, and the transactions contemplated hereby, is currently located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇; and records with respect to certain of the
Leases are maintained at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. The Issuer will
not change the location of such offices without giving the Trustee at least 30
days prior written notice thereof.
SECTION 8.03. Money for Payments to Noteholders to be Held in Trust.
(a) All payments of amounts due and payable with respect to any Notes that
are to be made from amounts withdrawn from the Distribution Account pursuant to
Section 3.03(b) or Section 6.06 shall be made on behalf of the Issuer by the
Trustee, and no amounts so withdrawn from the Distribution Account for payments
of Notes shall be paid over to the Issuer under any circumstances except as
provided in this Section 8.03 or in Section 3.03(b) or Section 6.06.
(b) In making payments hereunder, the Trustee will:
(i) allocate all sums received for payment to the Noteholders on each
Payment Date among such Noteholders pursuant to Section 3.03(b) or Section 6.06,
as applicable, in accordance with the information known to the Trustee;
(ii) hold all sums held by it for the payment of amounts due with respect
to the Notes in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided; and
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(iii) comply with all requirements of the Internal Revenue Code of 1986, as
amended (or any successor statutes), and all regulations thereunder, with
respect to the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
Whenever the Issuer shall have one or more Paying Agents, it will, prior to
each Payment Date, deposit with a Paying Agent a sum sufficient to pay the
principal or interest so becoming due, such sum to be held in trust for the
benefit of the Noteholders entitled to such principal or interest, and (unless
such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of
its action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and
(2) give the Trustee notice of any default by the Issuer (or any other
obligor upon the Notes) in the making of any payment of principal or
interest.
(c) Except as required by applicable law, any money held by the Trustee in
trust for the payment of any amount due with respect to any Note and remaining
unclaimed for three years after such amount has become due and payable to the
Noteholder shall be discharged from such trust and, subject to applicable
escheat laws, paid to the Issuer upon request; and such Noteholder shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Trustee with respect to such trust money shall
thereupon cease.
SECTION 8.04. Corporate Existence; Merger; Consolidation, etc.
(a) The Issuer will keep in full effect its existence and rights as a
limited liability company under the laws of the State of Delaware.
(b) The Issuer shall at all times observe and comply in all material
respects with (i) all laws applicable to it, (ii) all requisite and appropriate
organizational and other formalities in the management of its business and
affairs and the conduct of the transactions contemplated hereby and by the
Underwriting Agreement, the Seller Contribution and Sale Agreement, the
Transferor Contribution and Sale Agreement and the Servicing Agreement.
(c) The Issuer shall not (i) consolidate or merge with or into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any
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other Person or (ii) commingle its assets with those of any other Person, except
as permitted under the Transaction Documents.
SECTION 8.05. Protection of Granted Assets; Further Assurances.
The Issuer will from time to time execute and deliver all such supplements
and amendments hereto and all such Financing Statements, continuation
statements, instruments of further assurance, and other instruments, and will
take such other action as may be necessary or advisable to:
(i) Grant more effectively all or any portion of the Granted Assets;
(ii) maintain or preserve the Lien of this Indenture or carry out more
effectively the purposes hereof;
(iii) publish notice of, or protect the validity of, any Grant made or to
be made by this Indenture and perfect the security interest contemplated hereby
in favor of the Trustee in each of the Leases, in the Equipment and all other
property included in the Granted Assets; provided, that the Issuer shall not be
required to file Financing Statements with respect to the interests in the
Equipment in addition to those contemplated by the Servicing Agreement;
(iv) enforce or cause the Servicer to enforce any of the Leases; or
(v) preserve and defend title to the Leases (including the right to receive
all payments due or to become due thereunder), the interests in the Equipment,
or other property included in the Granted Assets and preserve and defend the
rights of the Trustee and the Noteholders in such Leases (including the right to
receive all payments due or to become due thereunder), interests in the
Equipment and other property against the claims of all Persons and parties.
The Issuer, upon the Issuer's failure to do so, hereby designates the Trustee
its agent and attorney-in-fact to execute any Financing Statement or
continuation statement required pursuant to this Section 8.05; provided,
however, that such designation shall not be deemed to create a duty in the
Trustee to monitor the compliance of the Issuer with the foregoing covenants;
and provided, further, that the duty of the Trustee to execute any instrument
required pursuant to this Section 8.05 shall arise only if a Responsible Officer
of the Trustee has actual knowledge of any failure of the Issuer to comply with
the provisions of this Section 8.05.
SECTION 8.06. Commission Reports; Reports to Trustee; Reports to
Noteholders.
To the extent it has not satisfied the following requirements by reporting
under Section 8.09 hereof, the Issuer shall:
(a) file with the Trustee, within 15 days after the Issuer is required to
file the same with the Commission, copies of the annual reports and of the
information,
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documents and other reports which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act (or
copies of such portions thereof as may be prescribed by rules and regulations of
the Commission); or, if the Issuer is not required to file with the Commission
information, documents or reports pursuant to either Section 13 or Section 15(d)
of the Exchange Act, then the Issuer will file with the Trustee and with the
Commission, in accordance with rules and regulations prescribed by the
Commission, such of the supplementary and periodic information, documents and
reports required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the rules
and regulations prescribed by the Commission, such additional information,
documents and reports with respect to compliance by the Issuer with the
conditions and covenants provided for in this Indenture as may be required by
such rules and regulations; and
(c) furnish to the Trustee for distribution to the Noteholders, as the
names and addresses of such Noteholders appear in the Note Register, in the
manner and to the extent provided in Section 7.15 hereof, such summaries of any
information, documents and reports required to be filed with the Trustee
pursuant to the provisions of Subsections (a) and (b) of this Section 8.06 as
may be required to be provided to such Noteholders by the rules and regulations
of the Commission under the provisions of the Trust Indenture Act.
SECTION 8.07. Performance of Obligations; Servicing Agreement.
(a) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, the Servicing Agreement, the Seller
Contribution and Sale Agreement, the Transferor Contribution and Sale Agreement,
the Notes, the Underwriting Agreement and the Placement Agent Agreement.
(b) The Issuer will not take any action or permit any action to be taken by
others which would release any Person from any of such Person's covenants or
obligations under any Lease or any other instrument included in the Granted
Assets, or which would result in the amendment, hypothecation, subordination,
termination, or discharge of, or impair the validity or effectiveness of, any
Lease or such other instrument, except as expressly provided in this Indenture
or the Servicing Agreement.
(c) If any Authorized Officer shall have knowledge of the occurrence of a
default under the Servicing Agreement, the Issuer shall promptly notify the
Trustee and the Noteholders thereof, and shall specify in such notice the
action, if any, the Issuer is taking in respect of such default. Unless
consented to by the holders of 66-2/3% of the then Outstanding Principal Amount
of the Notes, the Issuer may not waive any default under or amend the Servicing
Agreement.
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SECTION 8.08. Negative Covenants.
The Issuer will not:
(a) sell, transfer, exchange or otherwise dispose of any portion of the
Granted Assets except as expressly permitted by this Indenture;
(b) claim any credit on, or make any deduction from, the principal of, or
interest on, any of the Notes by reason of the payment of any taxes levied or
assessed upon any portion of the Granted Assets;
(c) engage in any business or activity other than in connection with, or
relating to the ownership of, the Leases and the interests in the Equipment, the
issuance of the Notes, and the specific transactions contemplated hereby;
(d) become liable for, issue, incur, assume, or allow to remain outstanding
any indebtedness, or guaranty any indebtedness of any Person, other than the
Notes, except as contemplated by this Indenture, the registration statement
filed with respect to the Class A Notes and Class B Notes, and the Servicing
Agreement;
(e) seek dissolution or liquidation in whole or in part or reorganization
of its business or affairs;
(f) (i) permit the validity or effectiveness of this Indenture or any Grant
hereby to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations under this Indenture, except as may
be expressly permitted hereby, (ii) permit any lien, charge, security interest,
mortgage or other encumbrance to be created on or to extend to or otherwise
arise upon or burden the Granted Assets or any part thereof or any interest
therein or the proceeds thereof other than the lien of this Indenture, or (iii)
subject to Section 4.01(c) of the Servicing Agreement, permit the lien of this
Indenture not to constitute a valid first priority security interest in the
Granted Assets; or
(g) make any loan or advance to any Affiliate of the Issuer or to any other
Person.
SECTION 8.09. Information as to Issuer.
The Issuer shall deliver to the Trustee and, the Trustee shall deliver to
each Rating Agency and to each holder of outstanding Notes (and, upon the
request of any Noteholder, to any prospective transferee of any Notes):
(a) Notice of Event of Default - immediately upon becoming aware of the
existence of any condition or event which constitutes a Default or an Event of
Default, a written notice describing its nature and period of existence and what
action the Issuer is taking or proposes to take with respect thereto; and
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(b) Report on Proceedings - promptly upon the Issuer's becoming aware of
(i) any proposed or pending investigation of it by any governmental authority or
agency, or (ii) any pending or proposed court or administrative proceeding which
involves or may involve the possibility of materially and adversely affecting
the properties, business, prospects, profits or condition (financial or
otherwise) of the Issuer, a written notice specifying the nature of such
investigation or proceeding and what action the Issuer is taking or proposes to
take with respect thereto and evaluating its merits.
SECTION 8.10. Taxes.
The Issuer shall pay all taxes when due and payable or levied against its
assets, properties or income, including any property that is part of the Granted
Assets.
SECTION 8.11. Indemnification.
The Issuer agrees to indemnify and hold harmless the Trustee and each
Noteholder (each an "Indemnified Party") against any and all liabilities,
losses, damages, penalties, costs and expenses (including costs of defense and
legal fees and expenses) which may be incurred or suffered by such Indemnified
Party without negligence or willful misconduct on its part as a result of
claims, actions, suits or judgments asserted or imposed against it and arising
out of the transactions contemplated hereby or by the Servicing Agreement,
including, without limitation, any claims resulting from any use, operation,
maintenance, repair, storage or transportation of any item of Equipment, whether
or not in the Issuer's possession or under its control, and any tort claims and
any fines or penalties arising from any violation of the laws or regulations of
the United States or any state or local government or governmental authority;
provided that, all amounts payable pursuant to this Section 8.11 shall be fully
subordinated to amounts payable under the Notes, shall be without recourse to
the Issuer except to the extent that all amounts otherwise due and payable under
the terms of this Indenture have been fully paid and shall not, to the extent
that such amounts are unpaid, constitute a claim against the Issuer except to
the extent that all amounts otherwise due and payable under the terms of this
Indenture have been fully paid.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of any Noteholders, the Issuer, by a Issuer Order,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(i) to add to the covenants of the Issuer for the benefit of the
Noteholders, or to surrender any right or power herein conferred upon the
Issuer;
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(ii) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein; or
(iii) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or to better assure, convey and confirm
unto the Trustee any property subject or required to be subjected to the lien of
this Indenture; provided such action pursuant to this Section 9.01(a) shall not
adversely affect the interests of the Noteholders in any respect or result in
the reduction or withdrawal of the then current ratings of the Outstanding
Notes.
(b) The Trustee shall promptly deliver to each Noteholder and each Rating
Agency a copy of any supplemental indenture entered into pursuant to Section
9.01(a).
SECTION 9.02. Supplemental Indentures with Consent of Noteholders.
(a) With the consent of the holders of not less than 66-2/3% of the then
Outstanding Principal Amount of the Notes and by Act of said Noteholders
delivered to the Issuer and the Trustee, the Issuer, by a Issuer Order, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Noteholders under this Indenture; provided, that no supplemental indenture
shall be entered into if it would result in the reduction or withdrawal of the
then current ratings of the Outstanding Notes and no supplemental indenture
shall, without the consent of the holder of each Outstanding Note affected
thereby:
(i) change the Stated Maturity of any Note or the Principal Payments or
Interest Payments due or to become due on any Payment Date with respect to any
Note, or change the priority of payment thereof as set forth herein, or reduce
the principal amount thereof or the Note Interest Rate thereon, or change the
place of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Maturity thereof;
(ii) reduce the percentage of the Outstanding Principal Amount of the Notes
the consent of whose Noteholders is required for any such supplemental
indenture, for any waiver of compliance with provisions of this Indenture or
Events of Default and their consequences, or for any Act of Noteholders;
(iii) modify any of the provisions of this Section except to increase any
percentage or fraction set forth therein or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Note affected thereby;
(iv) modify or alter the provisions of the proviso to the definition of the
term "Outstanding"; or
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(v) permit the creation of any lien ranking prior to or on a parity with
the lien of this Indenture with respect to any part of the Granted Assets or,
except as provided in Sections 4.01 or 4.02, terminate the lien of this
Indenture on any property at any time subject hereto or deprive any Noteholder
of the security afforded by the lien of this Indenture.
(b) The Trustee shall promptly deliver to the Servicer, each Noteholder and
each Rating Agency a copy of any supplemental indenture entered into pursuant to
Section 9.02(a).
SECTION 9.03. Execution of Supplemental Indentures.
In executing any supplemental indenture (a) pursuant to Article 9.01 of
this Indenture or (b) pursuant to Section 9.02 of this Indenture without the
consent of each holder of the Notes to the execution of the same, the Trustee
shall be entitled to receive, and (subject to Section 7.01) 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. The
Trustee may, but shall not be obligated to, enter into any supplemental
indenture which affects the Trustee's own rights, duties, projections, or
immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes, and every
Noteholder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
such supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
SECTION 9.06. Compliance with Trust Indenture Act.
Every amendment, supplement or waiver to this Indenture or the Notes shall
comply with the Trust Indenture Act as then in effect.
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ARTICLE X
SATISFACTION AND DISCHARGE
SECTION 10.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(i) 100 days shall have elapsed since either
(A) all Notes theretofore authenticated and delivered (other than
(1) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.04 and (2) Notes 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
8.03(c)) have been delivered to the Trustee for cancellation; or
(B) the final installments of principal on all such Notes not
theretofore delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity, as
applicable, within one year,
and the Issuer has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such Notes
not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of
Notes which have become due and payable) or to the Stated Maturity
thereof;
(ii) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer for the benefit of the Noteholders; and
(iii) the Issuer has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
At such time, the Trustee shall deliver to the Issuer or, upon Issuer Order, its
assignee, all cash, securities and other property held by it as part of the
Granted Assets other than funds deposited with the Trustee pursuant to Section
10.01(i)(B), for the payment and discharge of the Notes.
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(b) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Sections 7.07 and 8.11, and, if
money shall have been deposited with the Trustee pursuant to Section
10.01(i)(B), the obligations of the Trustee under Section 10.02 and Section
8.03(c) shall survive.
(c) The Trustee shall provide prompt written notice to each Rating Agency
of any satisfaction and discharge of this Indenture pursuant to this Article 10.
SECTION 10.02. Application of Trust Money.
Subject to the provisions of Section 8.03(c), all money deposited with the
Trustee pursuant to Sections 10.01 and 8.03 shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to the
payment to the Persons entitled thereto, of the principal and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by operation of Trust Indenture Act Section 318(a), the duties
imposed by Section 318(a) shall control.
SECTION 11.02. Communication by Noteholders with Other Noteholders.
Noteholders may communicate, pursuant to Trust Indenture Act Section
312(b), with other Noteholders with respect to their rights under this Indenture
or the Notes. The Issuer, the Trustee, the Note Registrar and all other parties
shall have the protection of Trust Indenture Act Section 312(c).
SECTION 11.03. Officers' Certificate and Opinion of Counsel as to
Conditions Precedent.
Upon any request or application by the Issuer (or any other obligor upon
the Notes) to the Trustee to take any action under this Indenture, the Issuer
(or such other Obligor) shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the statements set forth
in Section 11.04) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
69
(b) an Opinion of Counsel (which shall include the statements set forth in
Section 11.04) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
SECTION 11.04. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
SECTION 11.05. Nonpetition.
The Trustee shall not petition or otherwise invoke the process of any
Governmental Authority for the purpose of commencing or sustaining a case
against the Issuer under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or any substantial part of
its respective property, or ordering the winding up or liquidation of the
affairs of the Issuer.
SECTION 11.06. Limitation of Liability of Trustee.
It is expressly understood and agreed by the parties hereto that (i) this
Agreement is executed and delivered by the Issuer, a special purpose Delaware
limited liability company governed under the LLC Agreement, in the exercise of
the powers and authority conferred and vested in it, (ii) the representations,
undertakings and agreements herein made on the part of the Issuer are made and
intended not as personal representations, undertakings and agreements by the
Trustee, or any Member but are made and intended for the purpose of binding only
the Issuer, (iii) nothing herein contained shall be construed as creating any
liability for the Trustee or any Member, individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by any Person claiming by, through or under this
Agreement and (iv) under no circumstances shall the Trustee or any Member be
personally liable for the payment of any indebtedness or expenses of the Issuer
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Issuer under this Agreement.
70
SECTION 11.07. Location of Leases.
The Servicer shall maintain the Leases at its office in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or at such other offices of the Servicer as shall from
time to time be identified by prior written notice to the Trustee. Subject to
the foregoing, the Servicer may temporarily move individual Leases or any
portion thereof without notice as necessary to conduct collection and other
servicing activities.
SECTION 11.08. Income Tax Characterization.
The parties hereto agree that it is their mutual intent that, for all
applicable tax purposes, the Notes will constitute indebtedness and that for all
applicable tax purposes, accordingly, the Issuer will be treated as sole and
exclusive owner of the Granted Assets. Further, each party hereto and each
Noteholder (by receiving and holding a Note), hereby covenants to every other
party hereto and to every other Noteholder to treat the Notes as indebtedness
for all applicable tax purposes in all tax filings, reports and returns and
otherwise, and further covenants that neither it nor any of its Affiliates will
take, or participate in the taking of or permit to be taken, any action that is
inconsistent with the treatment of the Notes as indebtedness for tax purposes.
All successors and assigns of the parties hereto shall be bound by the
provisions hereof.
71
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
witnessed, all as of the day and year first above written.
CHARTER EQUIPMENT LEASE 1999-1 LLC
By: CHARTER FUNDING CORPORATION V
By:
---------------------------------
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION],
as Trustee
By:
---------------------------------
Name:
Title:
CHARTER FINANCIAL, INC., as Servicer
By:
---------------------------------
Name:
Title:
72
SCHEDULE 1
SCHEDULE OF LEASES
CLASS A-1 NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CHARTER EQUIPMENT LEASE 1999-1 LLC
[ ]% CLASS A-1 LEASE-BACKED NOTE, SERIES 1999-1
CUSIP NO. [__________]
No. R-1 $[_]
Charter Equipment Lease 1999-1 LLC, a limited liability company organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of [_________________________________________________] Dollars
($[_____________]), payable in monthly installments beginning on August 25,
1999, in accordance with the Indenture. Interest will accrue on the unpaid
principal hereof from the date of issuance, at the rate of [_____]% per annum,
until the full amount of principal hereof is otherwise paid or made available
for payment and shall be computed on the basis of a year of 360 days and the
actual number of days in the period since the last Payment Date or with respect
to the August 25, 1999 Payment Date, since the Issuance Date.
Principal and interest on this Class A-1 Note shall be paid on the 25th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing August 25, 1999, either by check to the registered
address of the Holder of this Class A-1 Note as of the relevant Record Date or
by wire transfer to an account at a bank in the United States as the Holder
shall specify, as provided more fully in the Indenture; provided, that the final
payment of principal and interest in respect of the Notes shall be payable to
the Holder of this Note only upon presentation and surrender of
this Note at the Corporate Trust Office of the Trustee or at the principal
office of any Paying Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class A-1 Notes is [_____________], on which
date the Outstanding Principal Amount of the Class A-1 Notes shall be due and
payable.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Class A-1
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class A-1 Note is one of a duly authorized issue of Class A Notes of
the Issuer designated as its "[_________]% Class A-1 Lease-Backed Notes, Series
1999-1" (herein called the "Class A-1 Notes") limited in aggregate principal
amount of $[_____________], issued under the Indenture, dated as of July 1, 1999
(herein called the "Indenture"), between the Issuer and LaSalle Bank National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee and the Holders and of the terms upon which the Class A-1 Notes are
authenticated and delivered. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings set forth in the Indenture.
This Class A-1 Note will be secured by the pledge to the Trustee of the
Granted of Assets.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class A-1 Notes (but not less than all the
Class A-1 Notes) may be declared due and payable in the manner and with the
effect provided in the Indenture. Notice of such declaration will be given by
mail to Holders, as their names and addresses appear in the Note Register, as
provided in the Indenture. Upon payment of such principal amount together with
all accrued interest, the obligations of the Issuer with respect to the payment
of principal and interest on this Class A-1 Note shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66-2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class A-1 Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class A-1 Note and of any Class A-1 Note issued upon the registration of
transfer hereof or in exchange here for or
A-1-2
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Class A-1 Note or any Class A-1 Note.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Class A-1 Note is registrable in the Note Register,
upon surrender of this Class A-1 Note for registration of transfer at the office
or agency of the Trustee in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and at any other office or agency maintained by the Issuer for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class A-1
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class A-1 Notes are issuable only in registered form without coupons in
minimum denominations of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class A-1 Notes are exchangeable for a
like aggregate principal amount of Class A-1 Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Class A-1 Note is registered as the owner
hereof for all purposes, whether or not this Class A-1 Note may be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture and this Class A-1 Note shall be deemed to be contracts made
under the laws of the State of New York and shall for all purposes be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to the conflict of law provisions thereof.
A-1-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: [_____________], 1999
CHARTER EQUIPMENT LEASE 1999-1 LLC
By: CHARTER FUNDING
CORPORATION V
By: ______________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class A-1 Notes referred to in the within mentioned
Indenture.
[__________________], as Trustee
By: ______________________________
Authorized Officer
A-1-4
ASSIGNMENT FORM
If you the holder want to assign this Class A-1 Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class A-1 Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class A-1 Note on
the books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed:_________________________
_________________________
(sign exactly as the name
appears on the other side
of this Class A-1 Note)
Signature Guarantee ____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class A-1 Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class A-1 Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
A-1 Note.
A-1-5
CLASS A-2 NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CHARTER EQUIPMENT LEASE 1999-1 LLC
[_______]% CLASS A-2 LEASE-BACKED NOTE, SERIES 1999-1
CUSIP NO. [_____________]
No. R-1 $[_]
Charter Equipment Lease 1999-1 LLC, a limited liability company duly
organized and existing under the laws of Delaware (herein called the "Issuer",
which term includes any successor Person under the Indenture referred to
herein), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of [ ] Dollars ($[ ]), payable in monthly
installments beginning on August 25, 1999, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from [_____________], 1999,
at the rate of [________]% per annum, until the full amount of principal hereof
is otherwise paid or made available for payment and shall be computed on the
basis of twelve 30-day months and a year of 360 days.
Principal and interest on this Class A-2 Note shall be paid on the 25th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing August 25, 1999, either by check to the registered
address of the Holder of this Class A-2 Note as of the relevant Record Date or
by wire transfer to an account at a bank in the United States as the Holder
shall specify, as provided more fully in the Indenture; provided, that the final
payment of principal and interest in respect of the Notes shall be payable to
the Holder of this Note only upon presentation and surrender of this Note at the
Corporate Trust Office of the Trustee or at the principal office of any Paying
Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class A-2 Notes is [_____________], on which
date the Outstanding Principal Amount of the Class A-2 Notes shall be due and
payable.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Class A-2
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class A-2 Note is one of a duly authorized issue of Class A-2 Notes of
the Issuer designated as its "[________]% Class A-2 Lease-Backed Notes, Series
1999-1" (herein called the "Class A-2 Notes") limited in aggregate principal
amount of $[_____________], issued under the Indenture, dated as of July 1, 1999
(herein called the "Indenture"), between the Issuer and LaSalle Bank National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee and the Holders and of the terms upon which the Class A-2 Notes are
authenticated and delivered. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings set forth in the Indenture.
This Class A-2 Note will be secured by the pledge to the Trustee of the
Granted of Assets.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class A-2 Notes (but not less than all the
Class A-2 Notes) may be declared due and payable in the manner and with the
effect provided in the Indenture. Notice of such declaration will be given by
mail to Holders, as their names and addresses appear in the Note Register, as
provided in the Indenture. Upon payment of such principal amount together with
all accrued interest, the obligations of the Issuer with respect to the payment
of principal and interest on this Class A-2 Note shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66 2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class A-2 Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class A-2 Note and of any Class A-2 Note issued upon the registration of
transfer hereof or in exchange here for or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Class A-2 Note or any Class
A-2 Note.
A-2-2
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Class A-2 Note is registrable in the Note Register,
upon surrender of this Class A-2 Note for registration of transfer at the office
or agency of the Trustee in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and at any other office or agency maintained by the Issuer for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class A-2
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class A-2 Notes are issuable only in registered form without coupons in
minimum denominations of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class A-2 Notes are exchangeable for a
like aggregate principal amount of Class A-2 Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Class A-2 Note is registered as the owner
hereof for all purposes, whether or not this Class A-2 Note may be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture and this Class A-2 Note shall be deemed to be contracts made
under the laws of the State of New York and shall for all purposes be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to the conflict of law provisions thereof.
A-2-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: [_____________], 1999
CHARTER EQUIPMENT LEASE 1999-1 LLC
By: CHARTER FUNDING CORPORATION V
By: ______________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class A-2 Notes referred to in the within
mentioned Indenture.
[___________________], as Trustee
By: ______________________________
Authorized Officer
A-2-4
ASSIGNMENT FORM
If you the holder want to assign this Class A-2 Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class A-2 Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class A-2 Note on
the books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed:_________________________
_________________________
(sign exactly as the name
appears on the other side
of this Class A-2 Note)
Signature Guarantee ____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class A Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class A Note and the signed "power of attorney" in separate envelopes.
For added protection, use certified or registered mail for a Class A-2 Note.
A-2-5
CLASS A-3 NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CHARTER EQUIPMENT LEASE 1999-1 LLC
[_______]% CLASS A-3 LEASE-BACKED NOTE, SERIES 1999-1
CUSIP NO. [_____________]
No. R-1 $[_]
Charter Equipment Lease 1999-1 LLC, a limited liability company duly
organized and existing under the laws of Delaware (herein called the "Issuer",
which term includes any successor Person under the Indenture referred to
herein), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of
[___________________________________________________________________________]
Dollars ($[_____________]), payable in monthly installments beginning on August
25, 1999, in accordance with the Indenture. Interest will accrue on the unpaid
principal hereof from [_____________], at the rate of [________]% per annum,
until the full amount of principal hereof is otherwise paid or made available
for payment and shall be computed on the basis of twelve 30-day months and a
year of 360 days.
Principal and interest on this Class A-3 Note shall be paid on the 25th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing August 25, 1999, either by check to the registered
address of the Holder of this Class A-3 Note as of the relevant Record Date or
by wire transfer to an account at a bank in the United States as the Holder
shall specify, as provided more fully in the Indenture; provided, that the final
payment of principal and interest in respect of the Notes shall be payable to
the Holder of this Note only upon presentation and surrender of this Note at the
Corporate Trust Office of the Trustee or at the principal office of any Paying
Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class A-3 Notes is [_____________], on which
date the Outstanding Principal Amount of the Class A-3 Notes shall be due and
payable.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Class A-3
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class A-3 Note is one of a duly authorized issue of Class A-3 Notes of
the Issuer designated as its "[_______]% Class A-3 Lease-Backed Notes, Series
1999-1 (herein called the "Class A-3 Notes") limited in aggregate principal
amount of $[_____________], issued under the Indenture, dated as of July 1, 1999
(herein called the "Indenture"), between the Issuer and LaSalle Bank National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee and the Holders and of the terms upon which the Class A-3 Notes are
authenticated and delivered. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings set forth in the Indenture.
This Class A-3 Note will be secured by the pledge to the Trustee of the
Granted of Assets.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class A-3 Notes (but not less than all the
Class A-3 Notes) may be declared due and payable in the manner and with the
effect provided in the Indenture. Notice of such declaration will be given by
mail to Holders, as their names and addresses appear in the Note Register, as
provided in the Indenture. Upon payment of such principal amount together with
all accrued interest, the obligations of the Issuer with respect to the payment
of principal and interest on this Class A-3 Note shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66-2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class A-3 Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class A-3 Note and of any Class A-3 Note issued upon the registration of
transfer hereof or in exchange here for or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Class A-3 Note or any Class
A-3 Note.
A-3-2
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Class A-3 Note is registrable in the Note Register,
upon surrender of this Class A-3 Note for registration of transfer at the office
or agency of the Trustee in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and at any other office or agency maintained by the Issuer for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class A-3
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class A-3 Notes are issuable only in registered form without coupons in
minimum denominations of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class A-3 Notes are exchangeable for a
like aggregate principal amount of Class A-3 Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Class A-3 Note is registered as the owner
hereof for all purposes, whether or not this Class A-3 Note may be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture and this Class A-3 Note shall be deemed to be contracts made
under the laws of the State of New York and shall for all purposes be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to the conflict of law provisions thereof.
A-3-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: [_____________], 1999
CHARTER EQUIPMENT LEASE 1999-1 LLC
By: CHARTER FUNDING CORPORATION V
By: ______________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class A-3 Notes referred to in the within mentioned
Indenture.
[_____________], as Trustee
By: ______________________________
Authorized Officer
A-3-4
ASSIGNMENT FORM
If you the holder want to assign this Class A-3 Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class A-3 Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class A-3 Note
on the books of the Issuer. The agent may substitute another to act for
him.
Dated: ________________ Signed:_________________________
_________________________
(sign exactly as the name
appears on the other side
of this Class A-3 Note)
Signature Guarantee ____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class A Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class A Note and the signed "power of attorney" in separate envelopes.
For added protection, use certified or registered mail for a Class A-3 Note.
A-3-5
CLASS A-4 NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CHARTER EQUIPMENT LEASE TRUST 1999-1 LLC
[_________]% CLASS A-4 LEASE-BACKED NOTE, SERIES 1999-1
CUSIP NO. [_____________]
No. R-1 $[_]
Charter Equipment Lease 1999-1 LLC, a limited liability company duly
organized and existing under the laws of Delaware (herein called the "Issuer",
which term includes any successor Person under the Indenture referred to
herein), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of
[___________________________________________________________________________]
Dollars ($[_____________]), payable in monthly installments beginning on August
25, 1999, in accordance with the Indenture. Interest will accrue on the unpaid
principal hereof from [_____________], 1999, at the rate of [_______]% per
annum, until the full amount of principal hereof is otherwise paid or made
available for payment and shall be computed on the basis of twelve 30-day months
and a year of 360 days.
Principal and interest on this Class A-4 Note shall be paid on the 25th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing August 25, 1999, either by check to the registered
address of the Holder of this Class A-4 Note as of the relevant Record Date or
by wire transfer to an account at a bank in the United States as the Holder
shall specify, as provided more fully in the Indenture; provided, that the final
payment of principal and interest in respect of the Notes shall be payable to
the Holder of this Note only upon presentation and surrender of this Note at the
Corporate Trust Office of the Trustee or at the principal office of any Paying
Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class A-4 Notes is [_____________], on which
date the Outstanding Principal Amount of the Class A-4 Notes shall be due and
payable.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Class A-4
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class A-4 Note is one of a duly authorized issue of Class A-4 Notes of
the Issuer designated as its "[________] % Class A-4 Lease-Backed Notes, Series
1999-1" (herein called the "Class A-4 Notes") limited in aggregate principal
amount of $[_____________], issued under the Indenture, dated as of July 1, 1999
(herein called the "Indenture"), between the Issuer and LaSalle Bank National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee and the Holders and of the terms upon which the Class A-4 Notes are
authenticated and delivered. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings set forth in the Indenture.
This Class A-4 Note will be secured by the pledge to the Trustee of the
Granted Assets.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class A-4 Notes (but not less than all the
Class A-4 Notes) may be declared due and payable in the manner and with the
effect provided in the Indenture. Notice of such declaration will be given by
mail to Holders, as their names and addresses appear in the Note Register, as
provided in the Indenture. Upon payment of such principal amount together with
all accrued interest, the obligations of the Issuer with respect to the payment
of principal and interest on this Class A-4 Note shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66-2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time Outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class A-4 Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class A-4 Note and of any Class A-4 Note issued upon the registration of
transfer hereof or in exchange here for or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Class A-4 Note or any Class
A-4 Note.
A-4-2
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Class A-4 Note is registrable in the Note Register,
upon surrender of this Class A-4 Note for registration of transfer at the office
or agency of the Trustee in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and at any other office or agency maintained by the Issuer for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class A-4
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class A-4 Notes are issuable only in registered form without coupons in
minimum denominations of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class A-4 Notes are exchangeable for a
like aggregate principal amount of Class A-4 Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Class A-4 Note is registered as the owner
hereof for all purposes, whether or not this Class A-4 Note may be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture and this Class A-4 Note shall be deemed to be contracts made
under the laws of the State of New York and shall for all purposes be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to the conflict of law provisions thereof.
A-4-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: [_____________], 1999
CHARTER EQUIPMENT LEASE 1999-1 LLC
By: CHARTER FUNDING CORPORATION V
By: ______________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class A-4 Notes referred to in the within mentioned
Indenture.
[____________________], as Trustee
By: ______________________________
Authorized Officer
A-4-4
ASSIGNMENT FORM
If you the holder want to assign this Class A-4 Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class A-4 Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class A-4 Note on
the books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed:_________________________
_________________________
(sign exactly as the name
appears on the other side
of this Class A-4 Note)
Signature Guarantee ____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class A Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class A Note and the signed "power of attorney" in separate envelopes.
For added protection, use certified or registered mail for a Class A-4 Note.
A-4-5
CLASS B NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CHARTER EQUIPMENT LEASE 1999-1 LLC
[_________] % CLASS B LEASE-BACKED NOTE, SERIES 1999-1
CUSIP No. [_____________]
No. R-1 $[_]
Charter Equipment Lease 1999-1 LLC, a limited liability company duly
organized and existing under the laws of Delaware (herein called the "Issuer",
which term includes any successor Person under the Indenture referred to
herein), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of
[___________________________________________________________________________]
Dollars ($[_____________]), payable in monthly installments beginning on August
25, 1999, in accordance with the Indenture. Interest will accrue on the unpaid
principal hereof from [_____________], at the rate of [_______] % per annum,
until the full amount of principal hereof is otherwise paid or made available
for payment and shall be computed on the basis of twelve 30-day months and a
year of 360 days.
Principal and interest on this Class B Note shall be paid on the 25th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing August 25, 1999, either by check to the registered
address of the Holder of this Class B Note or by wire transfer to an account at
a bank in the United States as the Holder shall specify, as provided more fully
in the Indenture; provided, that the final payment of principal and interest in
respect of the Class B Notes during the Principal Amortization Period shall be
payable to the Holder of this Class B Note only upon presentation and surrender
of this Class B Note at the Corporate Trust Office of the
Trustee or at the principal office of any Paying Agent appointed pursuant to the
Indenture. The Stated Maturity of the Class B Notes is [_____________], on which
date the Outstanding Principal Amount of the Class B Notes shall be due and
payable.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Class B Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class B Note is one of a duly authorized issue of Class B Notes of the
Issuer designated as its "[________] % Class B Lease-Backed Notes, Series
1999-1" (herein called the "Class B Notes"), limited in aggregate principal
amount of $[_____________], issued under the Indenture, dated as of July 1, 1999
(herein called the "Indenture"), between the Issuer and LaSalle Bank National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee and the Holders and of the terms upon which the Class B Notes are
authenticated and delivered. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings set forth in the Indenture.
This Class B Note will be secured by the pledge of the Trustee of the
Granted Assets.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class B Notes (but not less than all the Class
B Notes) may be declared due and payable in the manner and with the effect
provided in the Indenture. Notice of such declaration will be given by mail to
Holders, as their names and addresses appear in the Note Register, as provided
in the Indenture. Upon payment of such principal amount together with all
accrued interest, the obligations of the Issuer with respect to the payment of
principal and interest on this Class B Note shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66-2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class B Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class B Note and of any Class B Note issued upon the registration of transfer
hereof or in exchange here for or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Class B Note or any Class B Note.
No sale or transfer of this Class B Note may be made unless such sale or
transfer complies with or is exempt from registration requirements of the
Securities Act
B-2
and applicable state securities laws. Prospective transferees of this Class B
Note will be required to deliver a certificate pursuant to the terms of the
Indenture relating to compliance with the Securities Act and applicable state
securities law.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Class B Note is registrable in the Note Register,
upon surrender of this Class B Note for registration of transfer at the office
or agency of the Trustee in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and at any other office or agency maintained by the Issuer for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class B
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class B Notes are issuable only in registered form without coupons in
minimum denominations of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class B Notes are exchangeable for a like
aggregate principal amount of Class B Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Class B Note is registered as the owner
hereof for all purposes, whether or not this Class B Note may be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture and this Class B Note shall be deemed to be contracts made
under the laws of the State of New York and shall for all purposes be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to the conflict of law provisions thereof.
B-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: [_____________], 1999
CHARTER EQUIPMENT LEASE 1999-1 LLC
By: CHARTER FUNDING CORPORATION V
By: ______________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class B Notes referred to in the within mentioned
Indenture.
[____________________], as Trustee
By: ______________________________
Authorized Officer
B-4
ASSIGNMENT FORM
If you the holder want to assign this Class B Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Class B Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class B Note on the
books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed:_________________________
_________________________
(sign exactly as the name
appears on the other side
of this Class B Note)
Signature Guarantee ____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class B Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class B Note and the signed "power of attorney" in separate envelopes.
For added protection, use certified or registered mail for a Class B Note.
B-5
CLASS C NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CHARTER EQUIPMENT LEASE 1999-1 LLC
[_________] % CLASS C LEASE-BACKED NOTE, SERIES 1999-1
CUSIP No. [_____________]
No. R-1 $[_]
Charter Equipment Lease 1999-1 LLC, a limited liability company duly
organized and existing under the laws of Delaware (herein called the "Issuer",
which term includes any successor Person under the Indenture referred to
herein), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of
[___________________________________________________________________________]
Dollars ($[_____________]), payable in monthly installments beginning on August
25, 1999, in accordance with the Indenture. Interest will accrue on the unpaid
principal hereof from [_____________], at the rate of [________] % per annum,
until the full amount of principal hereof is otherwise paid or made available
for payment and shall be computed on the basis of twelve 30-day months and a
year of 360 days.
Principal and interest on this Class C Note shall be paid on the 25th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing August 25, 1999, either by check to the registered
address of the Holder of this Class C Note or by wire transfer to an account at
a bank in the United States as the Holder shall specify, as provided more fully
in the Indenture; provided, that the final payment of principal and interest in
respect of the Class C Notes during the Principal Amortization Period shall be
payable to the Holder of this Class C Note only upon presentation and surrender
of this Class C Note at the Corporate Trust Office of the Trustee or at the
principal office of any Paying Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class C Notes is [_____________], on which date
the Outstanding Principal Amount of the Class C Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Class C Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class C Note is one of a duly authorized issue of Class C Notes of the
Issuer designated as its "[_________]% Class C Lease-Backed Notes, Series
1999-1" (herein called the "Class C Notes"), limited in aggregate principal
amount of $[_____________], issued under the Indenture, dated as of July 1, 1999
(herein called the "Indenture"), between the Issuer and LaSalle Bank National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee and the Holders and of the terms upon which the Class C Notes are
authenticated and delivered. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings set forth in the Indenture.
This Class C Note will be secured by the pledge of the Trustee of the
Granted Assets.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class C Notes (but not less than all the Class
C Notes) may be declared due and payable in the manner and with the effect
provided in the Indenture. Notice of such declaration will be given by mail to
Holders, as their names and addresses appear in the Note Register, as provided
in the Indenture. Upon payment of such principal amount together with all
accrued interest, the obligations of the Issuer with respect to the payment of
principal and interest on this Class C Note shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66-2/3% in aggregate
principal amount of the Notes at the time outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class C Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class C Note and of any Class C Note issued upon the registration of transfer
hereof or in exchange here for or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Class C Note or any Class C Note.
No sale or transfer of this Class C Note may be made unless such sale or
transfer complies with or is exempt from registration requirements of the
Securities Act and applicable state securities laws. Prospective transferees of
this Class C Note will be
C-2
required to deliver a certificate pursuant to the terms of the Indenture
relating to compliance with the Securities Act and applicable state securities
law.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Class C Note is registrable in the Note Register,
upon surrender of this Class C Note for registration of transfer at the office
or agency of the Trustee in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and at any other office or agency maintained by the Issuer for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class C
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class C Notes are issuable only in registered form without coupons in
minimum denominations of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class C Notes are exchangeable for a like
aggregate principal amount of Class C Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Class C Note is registered as the owner
hereof for all purposes, whether or not this Class C Note may be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture and this Class C Note shall be deemed to be contracts made
under the laws of the State of New York and shall for all purposes be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to the conflict of law provisions thereof.
C-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: [_____________], 1999
CHARTER EQUIPMENT LEASE 1999-1 LLC
By: CHARTER FUNDING CORPORATION V
By: ______________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class C Notes referred to in the within mentioned
Indenture.
[____________________], as Trustee
By: ______________________________
Authorized Officer
C-4
ASSIGNMENT FORM
If you the holder want to assign this Class C Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Class C Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class C Note on the
books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed:_________________________
_________________________
(sign exactly as the name
appears on the other side
of this Class C Note)
Signature Guarantee ____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class C Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class C Note and the signed "power of attorney" in separate envelopes.
For added protection, use certified or registered mail for a Class C Note.
C-5
CLASS D NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
CHARTER EQUIPMENT LEASE 1999-1 LLC
[_________] % CLASS D LEASE-BACKED NOTE, SERIES 1999-1
CUSIP No. [_____________]
No. R-1 $[_]
Charter Equipment Lease 1999-1 LLC, a limited liability company organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of [_______________________________________________] Dollars
($[_____________]), payable in monthly installments beginning on August 25,
1999, in accordance with the Indenture. Interest will accrue on the unpaid
principal hereof from [_____________], at the rate of [_________] % per annum,
until the full amount of principal hereof is otherwise paid or made available
for payment and shall be computed on the basis of twelve 30-day months and a
year of 360 days.
Principal and interest on this Class D Note shall be paid on the 25th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing August 25, 1999, either by check to the registered
address of the Holder of this Class D Note or by wire transfer to an account at
a bank in the United States as the Holder shall specify, as provided more fully
in the Indenture; provided, that the final payment of principal and interest in
respect of the Class D Notes during the Principal Amortization Period shall be
payable to the Holder of this Class D Note only upon presentation and surrender
of this Class D Note at the Corporate Trust Office of the Trustee or at the
principal office of any Paying Agent appointed pursuant to the Indenture.
The Stated Maturity of the Class D Notes is [_____________], on which date
the Outstanding Principal Amount of the Class D Notes shall be due and payable.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Class D Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class D Note is one of a duly authorized issue of Class D Notes of the
Issuer designated as its "[______]% Class D Lease-Backed Notes, Series 1999-1"
(herein called the "Class D Notes"), limited in aggregate principal amount of
$[_____________], issued under the Indenture, dated as of July 1, 1999 (herein
called the "Indenture"), between the Issuer and LaSalle Bank National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Issuer,
the Trustee and the Holders and of the terms upon which the Class D Notes are
authenticated and delivered. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings set forth in the Indenture.
This Class D will be secured by the pledge of the Trustee of the Granted
Assets.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class D Notes (but not less than all the Class
D Notes) may be declared due and payable in the manner and with the effect
provided in the Indenture. Notice of such declaration will be given by mail to
Holders, as their names and addresses appear in the Note Register, as provided
in the Indenture. Upon payment of such principal amount together with all
accrued interest, the obligations of the Issuer with respect to the payment of
principal and interest on this Class D Note shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders under the Indenture at any time by the
Issuer and the Trustee with the consent of the Holders of 66-2/3% in aggregate
principal amount of the Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at the time outstanding, on behalf of all the
Holders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Class D Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class D Note and of any Class D Note issued upon the registration of transfer
hereof or in exchange here for or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Class D Note or any Class D Note.
No sale or transfer of this Class D Note may be made unless such sale or
transfer complies with or is exempt from registration requirements of the
Securities Act and applicable state securities laws. Prospective transferees of
this Class D Note will be
D-2
required to deliver a certificate pursuant to the terms of the Indenture
relating to compliance with the Securities Act and applicable state securities
law.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Class D Note is registrable in the Note Register,
upon surrender of this Class D Note for registration of transfer at the office
or agency of the Trustee in ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
and at any other office or agency maintained by the Issuer for that purpose,
duly endorsed by, or accompanied by a written instrument of transfer in the form
satisfactory to the Note Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Class D
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Class D Notes are issuable only in registered form without coupons in
minimum denominations of $1,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class D Notes are exchangeable for a like
aggregate principal amount of Class D Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Class D Note is registered as the owner
hereof for all purposes, whether or not this Class D Note may be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture and this Class D Note shall be deemed to be contracts made
under the laws of the State of New York and shall for all purposes be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to the conflict of law provisions thereof.
D-3
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: [_____________], 1999
CHARTER EQUIPMENT LEASE 1999-1 LLC
By: CHARTER FUNDING CORPORATION V
By: ______________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class D Notes referred to in the within mentioned
Indenture.
[____________________], as Trustee
By: ______________________________
Authorized Officer
D-4
ASSIGNMENT FORM
If you the holder want to assign this Class D Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Class D Note to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ____________, agent to transfer this Class D Note on the
books of the Issuer. The agent may substitute another to act for him.
Dated: ________________ Signed:_________________________
_________________________
(sign exactly as the name
appears on the other side
of this Class C Note)
Signature Guarantee ____________________________________________________________
Important Notice: When you sign your name to this Assignment Form without
filling in the name of your "Assignee" or "Attorney", this Note becomes fully
negotiable, similar to a check endorsed in blank. Therefore, to safeguard a
signed Class D Note, it is recommended that you fill in the name of the new
owner in the "Assignee" blank. Alternatively, instead of using this Assignment
Form, you may sign a separate "power of attorney" form and then mail the
unsigned Class D Note and the signed "power of attorney" in separate envelopes.
For added protection, use certified or registered mail for a Class D Note.
D-5
EXHIBIT B
[FORM OF
INVESTOR'S LETTER]
(Date)
Charter Equipment Lease 1999-1 LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
First Union Capital Markets Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We propose to purchase $___________ in original aggregate principal amount
of Charter Equipment Lease 1999-1 LLC _____% Class C or D Lease-Backed Notes,
Series 1999-1, (the "Notes"). The Notes were issued pursuant to an Indenture
(the "Indenture"), dated as of July 1, 1999, among Charter Equipment Lease
1999-1 LLC, LaSalle Bank National Association and Charter Financial, Inc.
Capitalized terms used herein but not otherwise defined shall have the same
meaning as in the Indenture.
In connection with our proposed purchase of Notes, we agree to the
following terms and conditions and make the representations and warranties
stated herein with the express understanding that they will be relied upon by
Charter Equipment Lease 1999-1 LLC and the parties to the Placement Agent
Agreement.
1. We understand that the Notes have not been registered under the
Securities Act of 1933, as amended (the "Securities Act") or registered or
qualified under any state securities or "Blue Sky" laws and are being sold to us
in a transaction that is exempt from the registration requirements of the
Securities Act and the registration or qualification requirements of such state
laws.
2. We are (Check one):
___ (a) a "Qualified Institutional Buyer" (as defined in Rule 144A under
the Securities Act), in the case of a transfer of Certificates to
be made in reliance on Rule 144A.
___ (b) an institutional investor that has such knowledge and experience
in financial and business matters as to be capable of evaluating
the merits and risks of an investment in the Notes and is able to
bear the
economic risk of investment in the Notes.
___ (c) an "accredited investor" as defined in Rule 501 promulgated under
the Securities Act that has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of investment in the Notes and is able to bear
the economic risk of investment in the Notes.
3. We agree that, to the extent that Section 2(a) of this letter is
applicable, that the Notes will not be transferred unless such transfer is made
in reliance on Rule 144A or unless some other exemption from the registration
requirements of the Securities Act, or any applicable state securities law, is
available.
4. To the extent that Section 2(b) or (c) of this letter is applicable,
that we are acquiring the Notes (i) solely for investment purposes for our own
account or for accounts as to which we exercise sole investment discretion and
not with a view to any resale or distribution of the Notes in whole or in part,
or (ii) otherwise for purposes which will not constitute a distribution of
securities under the Securities Act, or under any state securities or "Blue Sky"
laws subject, nevertheless, to the understanding that disposition of our
property shall at all times be and remain within our control, and under no
circumstances will we attempt to sell, pledge, hypothecate or otherwise transfer
all or any portion of our interest in the Notes except in accordance with the
terms of the Notes and the Indenture.
5. We agree not to sell the Notes in whole or in part, unless the
subsequent purchaser agrees to be subject to the same representations and
warranties as were applicable to us in acquiring the Notes.
6. We understand that each of the Notes shall bear a legend substantially
as set forth in the form of Note included in the Indenture.
7. We understand that there is no public market for the Notes and it is
unlikely that such market will develop.
8. We are authorized to invest in the Notes and we are sophisticated
institutional investors and have knowledge and experience in financial and
business matters and we are capable of evaluating the merits and risks of its
investment in the Notes and we are able to bear the economic risk of such
investment for an indefinite period of time. We have been given such information
concerning the Notes as we have requested.
9. The Purchaser represents that either (a) it is not (i) an employee
benefit plan (as defined in section 3(3) of the Employee Retirement Income
Security act of 1974, as amended ("ERISA")), which is subject to the provisions
of Title I of ERISA, (ii) a plan described in section 4975(e)(1) of the Internal
Revenue Code of 1986, or (iii) an entity whose underlying assets are deemed to
be assets of a plan described in (i) or (ii)
B-2
above by reason of such plan's investment in the entity (any such entity
described in clauses (i) through (iii), a "Benefit Plan Entity") or (b) it is a
Benefit Plan Entity and its acquisition and holding of the Notes is covered by a
Department of Labor Prohibited Transaction Class Exemption.
10. We certify that, in acquiring the Notes, we have complied with any
applicable guidelines or regulations for or limitations on investments
established by each regulatory agency or body, if any, which has jurisdiction
over investments made by us and that our acquisition and retention of the Notes
will not violate the limitations on possession contained in any such guidelines,
regulations or limitations.
11. We will comply with all applicable federal and state securities laws in
connection with any subsequent resale of the Notes.
Very truly yours,
[ ]
B-3
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................2
SECTION 1.01. General Definitions.......................................................2
SECTION 1.02. Compliance Certificates and Opinions.....................................21
SECTION 1.03. Form of Documents Delivered to Trustee...................................22
SECTION 1.04. Acts of Noteholders, etc.................................................23
SECTION 1.05. Notices, etc., to Trustee, Servicer, Issuer and Rating Agencies..........24
SECTION 1.06. Notice to Noteholders; Waiver............................................25
SECTION 1.07. Effect of Headings and Table of Contents.................................25
SECTION 1.08. Successors and Assigns...................................................25
SECTION 1.09. GOVERNING LAW............................................................25
SECTION 1.10. Legal Holidays...........................................................26
SECTION 1.11. Execution in Counterparts................................................26
SECTION 1.12. Inspection...............................................................26
SECTION 1.13. Survival of Representations, Warranties and Covenants....................26
ARTICLE II THE NOTES............................................................................27
SECTION 2.01. General Provisions.......................................................27
SECTION 2.02. Execution, Authentication, Delivery, and Dating..........................29
SECTION 2.03. Transfer and Exchange....................................................29
SECTION 2.04. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, Lost and Stolen Notes..............................31
SECTION 2.05. Book-Entry Registration of Class A Notes, Class B Notes, Class C Notes
and Class D Notes........................................................32
SECTION 2.06. Notice to Clearing Agency................................................33
SECTION 2.07. Definitive Class A Notes, Class B Notes, Class C Notes and Class D Notes.33
SECTION 2.08. Payment of Interest and Principal; Rights Preserved......................34
SECTION 2.09. Persons Deemed Owners....................................................35
SECTION 2.10. Cancellation.............................................................35
SECTION 2.11. Noteholder Lists.........................................................35
SECTION 2.12. Treasury Securities......................................................35
ARTICLE III ACCOUNTS; INVESTMENT OF MONEYS; COLLECTION AND APPLICATION OF MONEYS; REPORTS.......36
SECTION 3.01. Trust Accounts; Investments by Trustee...................................36
SECTION 3.02. Collection of Moneys.....................................................38
SECTION 3.03. Lockbox Account; Payments................................................39
SECTION 3.04. The Reserve Account......................................................41
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SECTION 3.05. The Distribution Account.................................................42
SECTION 3.06. Reports by Trustee; Notices of Certain Payments..........................42
SECTION 3.07. Trustee May Rely on Certain Information from Charter and Servicer........43
ARTICLE IV RELEASE OF LEASES AND EQUIPMENT......................................................43
SECTION 4.01. Release of Equipment.....................................................43
SECTION 4.02. Release of Leases Upon Final Lease Payment...............................43
SECTION 4.03. Execution of Documents...................................................44
ARTICLE V SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER.......................................44
SECTION 5.01. Servicer Events of Default...............................................44
SECTION 5.02. Substitute Servicer......................................................44
ARTICLE VI EVENTS OF DEFAULT; REMEDIES..........................................................45
SECTION 6.01. Events of Default........................................................45
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.......................46
SECTION 6.03. Remedies.................................................................47
SECTION 6.04. Trustee Shall File Proofs of Claim.......................................47
SECTION 6.05. Trustee May Enforce Claims Without Possession of Notes...................48
SECTION 6.06. Application of Money Collected...........................................48
SECTION 6.07. Limitation on Suits......................................................48
SECTION 6.08. Unconditional Right of Noteholders to Receive Principal and Interest.....49
SECTION 6.09. Restoration of Rights and Remedies.......................................49
SECTION 6.10. Rights and Remedies Cumulative...........................................50
SECTION 6.11. Delay or Omission Not Waiver.............................................50
SECTION 6.12. Control by Noteholders...................................................50
SECTION 6.13. Sale of Granted Assets...................................................50
SECTION 6.14. Undertaking for Costs....................................................52
SECTION 6.15. Waiver of Stay or Extension Laws.........................................52
ARTICLE VII THE TRUSTEE.........................................................................52
SECTION 7.01. Certain Duties and Responsibilities......................................52
SECTION 7.02. Notice of Defaults or Events of Default..................................53
SECTION 7.03. Certain Rights of Trustee................................................54
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes........................55
SECTION 7.05. May Hold Notes...........................................................55
SECTION 7.06. Money Held in Trust......................................................55
SECTION 7.07. Compensation, Reimbursement, etc.........................................55
SECTION 7.08. Corporate Trustee Required; Eligibility..................................55
SECTION 7.09. Resignation and Removal; Appointment of Successor........................56
SECTION 7.10. Acceptance of Appointment by Successor...................................57
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SECTION 7.11. Merger, Conversion, Consolidation or Succession to Business..............57
SECTION 7.12. Co-trustees and Separate Trustees........................................57
SECTION 7.13. Acceptance by Trustee....................................................59
SECTION 7.14. Preferential Collection of Claims Against the Issuer.....................59
SECTION 7.15. Reports by Trustee to Noteholders........................................59
SECTION 7.16. No Proceedings...........................................................59
ARTICLE VIII COVENANTS..........................................................................60
SECTION 8.01. Payment of Principal and Interest........................................60
SECTION 8.02. Maintenance of Office or Agency; Chief Executive Office..................60
SECTION 8.03. Money for Payments to Noteholders to be Held in Trust....................60
SECTION 8.04. Corporate Existence; Merger; Consolidation, etc..........................61
SECTION 8.05. Protection of Granted Assets; Further Assurances.........................62
SECTION 8.06. Commission Reports; Reports to Trustee; Reports to Noteholders...........62
SECTION 8.07. Performance of Obligations; Servicing Agreement..........................63
SECTION 8.08. Negative Covenants.......................................................64
SECTION 8.09. Information as to Issuer.................................................64
SECTION 8.10. Taxes....................................................................65
SECTION 8.11. Indemnification..........................................................65
ARTICLE IX SUPPLEMENTAL INDENTURES..............................................................65
SECTION 9.01. Supplemental Indentures Without Consent of Noteholders...................65
SECTION 9.02. Supplemental Indentures with Consent of Noteholders......................66
SECTION 9.03. Execution of Supplemental Indentures.....................................67
SECTION 9.04. Effect of Supplemental Indentures........................................67
SECTION 9.05. Reference in Notes to Supplemental Indentures............................67
SECTION 9.06. Compliance with Trust Indenture Act......................................67
ARTICLE X SATISFACTION AND DISCHARGE............................................................68
SECTION 10.01. Satisfaction and Discharge of Indenture.................................68
SECTION 10.02. Application of Trust Money..............................................69
ARTICLE XI MISCELLANEOUS........................................................................69
SECTION 11.01. Trust Indenture Act Controls............................................69
SECTION 11.02. Communication by Noteholders with Other Noteholders.....................69
SECTION 11.03. Officers' Certificate and Opinion of Counsel as to Conditions Precedent.69
SECTION 11.04. Statements Required in Certificate or Opinion...........................70
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SECTION 11.05. Nonpetition.............................................................70
SECTION 11.06. Limitation of Liability of Trustee......................................70
SECTION 11.07. Location of Leases......................................................71
SECTION 11.08. Income Tax Characterization.............................................71
SCHEDULES
SCHEDULE 1 Schedule of Leases
EXHIBITS
EXHIBIT A - Forms of Notes and Form of Trustee's Certificate of
EXHIBIT D Authentication
EXHIBIT E Form of Investor Letter