As filed with the Securities and Exchange Commission on October 28, 1999
Registration No. 333-79903
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 2 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
COPELCO CAPITAL RECEIVABLES LLC
(Exact name of registrant as specified in its charter)
-------------------
Delaware pending
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
Copelco Capital Receivables LLC
700 East Gate Drive
Mount Laurel, New Jersey 08054-5404
(856) 231-9600
(Name, address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Copies to:
Spencer Lempert, Esq. Peter Humphreys, Esq.
Copelco Capital Financial Services Group, Inc. Dewey Ballantine LLP
700 East Gate Drive 1301 Avenue of the Americas
Mount Laurel, NJ 08054 New York, New York 10019
(856) 231-9600 (212) 259-6730
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering.[_]
If this Form is filed as a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, please check the following box and list the
Securities Act registration number of the earlier effective registration
statement for the same offering.[_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================
Amount Proposed Maximum Proposed Maximum
Title of Securities To Be Aggregate Price Aggregate Offering Amount
Being Registered Registered Per Unit(1) Price(1) Of Registration Fee
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Lease-Backed Notes $1,000,000 100% $1,000,000 $278
===================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is an estimate of the amount of fees and expenses (other
than underwriting discounts and commissions) to be incurred in connection with
the issuance and distribution of the securities being registered.
<TABLE>
<S> <C>
SEC Filing Fee................................................... $ *
Indenture Trustee's Fees and Expenses............................ *
Legal Fees and Expenses.......................................... *
Accounting Fees and Expenses..................................... *
Printing and Engraving Expenses.................................. *
Blue Sky Qualification and Legal Investment Fees and Expenses....
*
Rating Agency Fees............................................... *
Miscellaneous.................................................... *
----------------------------------------------------------------- ---------
TOTAL $
</TABLE>
* To be completed by Amendment.
Item 15. Indemnification of Directors and Officers
The Delaware Limited Liability Company Act (Section 18-108) gives Delaware
limited liability companies broad powers to indemnify and hold harmless any
member or manager or other person from and against any and all claims and
demands whatsoever. The Company shall, to the fullest extent permitted by the
Act, indemnify and hold harmless, and advance expenses to, each member or
manager against any losses, claims, damages or liabilities to which the
indemnified party may become subject in connection with any matter arising from,
related to, or in connection with, the Company's business or affairs.
Copelco Capital, Inc. has also purchased liability policies which indemnify
officers and directors of the Registrant's manager against loss arising from
claims by reason of their legal liability for acts as officers and directors,
subject to limitations and conditions as set forth in the policies.
Pursuant to agreements which the Registrant may enter into with
underwriters or agents (forms of which will be included as exhibits to this
Registration Statement), officers and directors of the Registrant, and
affiliates thereof, may be entitled to indemnification by such underwriters or
agents against certain liabilities, including liabilities under the Securities
Act of 1933, arising from information which has been or will be furnished to the
Registrant by such underwriters or agents that appears in the Registration
Statement or any Prospectus.
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Item 16. Exhibits
Exhibits
1.1 -- Form of Underwriting Agreement for the Offered Notes.
4.1 -- Form of Indenture, including forms of the Notes and certain other
related agreements as Exhibits thereto.
5.1 -- Opinion of Dewey Ballantine LLP regarding legality.
8.1 -- Opinion of Dewey Ballantine LLP regarding tax matters.
10.1 -- Form of Assignment and Servicing Agreement.
23.1 -- Consent of Dewey Ballantine LLP is included in the opinion filed
as Exhibit 5.1 hereto.
23.2* -- Consent of Independent Auditor.
24.1 -- Power of Attorney (Included on Page II-4 hereof).
25.1 -- Statement of Eligibility and Qualification of Trustee (Form T-1).
*To Be Filed by Amendment
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933:
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which is registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the Securities being registered which remain unsold at the termination of the
offering.
(4) If the Registrant is a foreign private issuer, to file a post-effective
amendment to the Registration Statement to include any Financial Statements
required by Rule 3-19 of this chapter at the start of any delayed offering or
throughout a continuous offering. Financial Statements and information otherwise
required by Section 10(a)(3) of the Act need not be furnished, provided, that
the registrant includes in the prospectus by means of a post-effective
amendment, Financial Statements required pursuant to this paragraph (a)(4) and
other information necessary to ensure that all their information in the
prospectus is at least as current as the date of those Financial Statements.
Notwithstanding the foregoing, with respect to Registration Statements on form
F-3 a post-effective amendment need not be filed to include Financial Statements
and information required by Section 10(a)(3) of the Act or Rule 3-19 of this
chapter of such Financial Statements and information also contained in periodic
reports filed with or furnished to the Commission by the Registrant, pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Form F-3.
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<PAGE>
(b) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions referred to in Item 15 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York on the __ day of October,
1999.
COPELCO CAPITAL RECEIVABLES LLC,
Registrant
By: COPELCO MANAGER, INC.
as Manager of the Registrant
By /s/ Robert J. Lemenze, Jr.
---------------------------------
Name: Robert J. Lemenze, Jr.
Title: President, Director
Each person whose signature appears below constitutes and appoints Nicholas
Antonaccio as his/her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him/her in his/her name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Form S-3 and to file the same, with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto such attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as
he/she might or could do in person, hereby ratifying and confirming all that
such attorney-in-fact and agent or his substitute may lawfully do or cause to be
done by virtue thereof.
The Registrant reasonably believes that the security ratings to be assigned
to the securities registered hereunder will make the securities "investment
grade securities" pursuant to Transaction Requirement B.2 of Form S-3, prior to
the sale of such securities.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed by the following persons in
the capacities indicated on the dates indicated below.
Signature Title Date
--------- ----- ----
/s/ Robert J. Lemenze Jr. President October 28, 1999
- ------------------------------ Director
Robert J. Lemenze Jr.
/s/ Nicholas Antonaccio Vice President-Finance, October 28, 1999
- ------------------------------ Treasurer
Nicholas Antonaccio
/s/ John Hakemian Director October 28, 1999
- ------------------------------
John Hakemian
COPELCO CAPITAL RECEIVABLES LLC
$ __________ - ____% Class A-1 Lease-Backed Notes, Series ______
$ __________ - ____% Class A-2 Lease-Backed Notes, Series ______
$ __________ - ____% Class A-3 Lease-Backed Notes, Series ______
$ __________ - ____% Class A-4 Lease-Backed Notes, Series ______
$ __________ - ____% Class A-5 Lease-Backed Notes, Series ______
$ __________ - ____% Class B Lease-Backed Notes, Series ______
$ __________ - ____% Class C Lease-Backed Notes, Series ______
$ __________ - ____% Class D Lease-Backed Notes, Series ______
Dated as of __________________
UNDERWRITING AGREEMENT
[ ]
[ ]
as Representative for the Underwriters
Ladies and Gentlemen:
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (the "Issuer") and Copelco Capital, Inc., a
corporation organized and existing under the laws of Delaware ("Copelco"),
hereby agree with you as follows:
Section 1. Issuance and Sale of Notes. The Issuer has authorized the
issuance of $__________ (the "Class A-1 Initial Principal Amount") of ____%
Class A-1 Lease-Backed Notes, Series ______ (the "Class A-1 Notes"); $__________
(the "Class A-2 Initial Principal Amount") of ____% Class A-2 Lease-Backed
Notes, Series ______ (the "Class A-2 Notes"); $__________ (the "Class A-3
Initial Principal Amount" of ____% Class A-3 Lease-Backed Notes, Series ______
(the "Class A-3 Notes"); $__________ (the "Class A-4 Initial Principal Amount")
of ____% Class A-4 Lease-Backed Notes, Series ______ (the "Class A-4 Notes");
$__________ (the "Class A-5 Initial Principal Amount" together with the Class
A-1 Initial Principal Amount, Class A-2 Initial Principal Amount, Class A-3
Initial Principal Amount, Class A-4 Initial Principal Amount, the "Class A
Initial Principal Amount") of ____% Class A-5 Lease Backed Notes, Series ______
(the "Class A-5 Notes," together with the Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 Notes, the "Class A Notes"); __________ (the
"Class B Initial Principal Amount") of ____% Class B Lease-Backed Notes, Series
______ (the "Class B Notes"); $__________ (the "Class C Initial Principal
Amount") of
<PAGE>
____% Class C Lease-Backed Notes, Series ______ (the "Class C Notes");
$__________ (the "Class D Initial Principal Amount") of ____% Class D
Lease-Backed Notes, Series ______ (the "Class D Notes"; together with the Class
A Notes, the Class B Notes and the Class C Notes, the "Offered Notes");
$__________ (the "Class E Initial Principal Amount") of ____% Class E
Lease-Backed Notes (the "Class E Notes"); $__________ (the "Class R-1 Initial
Principal Amount") of ____% Class R-1 Lease Residual-Backed Notes (the "Class
R-1 Notes"); and $__________ (the "Class R-2 Initial Principal Amount"; together
with the Class A Initial Principal Amount, the Class B Initial Principal Amount,
the Class C Initial Principal Amount, the Class D Initial Principal Amount, the
Class E Initial Principal Amount and the Class R-1 Initial Principal Amount, the
"Initial Principal Amount") of ____% Class R-2 Lease Residual-Backed Notes (the
"Class R-2 Notes"; together with the Class E Notes, the Class R-1 Notes and the
Offered Notes, the "Notes"). The Notes will be issued pursuant to an Indenture,
dated as of ______ 1, ______ (the "Indenture"), among the Issuer, Copelco and
Manufacturers and Traders Trust Company (the "Trustee"). The Notes are more
fully described in the Final Prospectus (as defined below), a copy of which the
Issuer is furnishing to you. The Notes will evidence secured debt obligations of
the Issuer. The assets of the Issuer will include a pool of primarily business
equipment and medical equipment lease contracts, including all payments due
thereunder (the "Leases") and certain interests in the underlying equipment (the
"Equipment"). Capitalized terms used and not defined herein shall have the
meanings specified in the Indenture.
The Offered Notes will be sold by the Issuer to you as underwriters in the
amounts set forth on Schedule A hereto.
The terms which follow, when used in this Underwriting Agreement (the
"Agreement"), shall have the meanings indicated:
"Effective Date" means each date that the Registration Statement and
any post-effective amendment or amendments thereto became or become
effective under the Securities Act.
"Execution Time" means the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" means any prospectus delivered to purchasers of the
Offered Notes at or before the time of confirmation of their purchases.
"Preliminary Prospectus" means any preliminary prospectus included in
the Registration Statement, and which, as of the Effective Date, omits Rule
430A Information.
"Registration Statement" means the registration statement referred to
in the preceding paragraph and any registration statement required to be
filed under the Securities Act or rules thereunder, including amendments,
incorporated documents, exhibits and financial statements, in the form in
which it has or shall become effective and, in the event that any
post-effective amendment thereto
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becomes effective prior to the Issuance Date, shall also mean such
registration statement as so amended. Such term shall include Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424" and "Rule 430A" refer to such rules under the Securities
Act.
"Rule 430A Information" means information with respect to the Offered
Notes and the offering thereof permitted, pursuant to Rule 430A, to be
omitted from the Registration Statement when it becomes effective.
"Underwriters" means ___________________ and ________.
"Underwriting Information" has the meaning given to such term in
Section 8(b) hereof.
Section 2. Purchase and Sale of Offered Notes.
(a) Subject to the terms and conditions and in reliance upon the covenants,
representations and warranties set forth herein, the Underwriters agree to
purchase from the Issuer the Class A Initial Principal Amount of the Class A
Notes, Class B Initial Principal Amount of the Class B Notes, Class C Initial
Principal Amount of the Class C Notes and Class D Initial Principal Amount of
the Class D Notes pursuant to the terms of this Agreement on the Issuance Date
at the purchase price or prices (the "Purchase Price") set forth on Schedule A
attached hereto.
(b) The obligations of each of the Underwriters hereunder to purchase the
respective Offered Notes of each Class shall be several and not joint. Each
Underwriter's obligation shall be to purchase the aggregate principal amount of
Offered Notes of the related Class as is indicated with respect to each
Underwriter on Schedule A attached hereto. The rights of the Issuer, Copelco and
the non-defaulting Underwriter shall be as set forth in Section 13 hereof.
(c) It is understood that the Underwriters propose to offer the Offered
Notes for sale to the public in the manner set forth in the Final Prospectus.
Section 3. Delivery and Payment.
(a) Delivery of and payment for the Offered Notes to be purchased by the
Underwriters shall be made at the offices of Dewey Ballantine LLP, 1301 Avenue
of the Americas, New York, New York, at 10:00 A.M., New York time, on ______ __,
______ (the "Issuance Date"). The Offered Notes shall be registered in the names
of the Underwriters against payment by the Underwriters of the Purchase Price
therefor, to or upon the order of the Issuer by one or more wire transfers in
immediately available funds. Following the Effective Date, at the request of the
Underwriters, delivery of one or more global notes (the "Global Notes")
representing the Offered Notes shall be made to the respective accounts of the
Underwriters against delivery to the Trustee of the originally issued Offered
Notes (the date of such delivery being hereinafter referred to as the
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"Exchange Date"). The Global Notes to be so delivered shall be registered in the
name of Cede & Co., as nominee for The Depository Trust Company ("DTC"). The
interests of beneficial owners of the Offered Notes will be represented by book
entries on the records of DTC and participating members thereof. Definitive
Notes representing the Offered Notes will be available under the circumstances
described in the Indenture.
Section 4. Representations and Warranties.
(a) The Issuer hereby represents and warrants to, and agrees with, the
Underwriters as follows:
(i) The Issuer meets the requirements for use of Form S-1 under the
Securities Act of 1933, as amended (the "Securities Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (Registration No. 333-79903), including the
Preliminary Prospectus relating to the Offered Notes, on such Form S-1 for
the registration under the Securities Act of the Offered Notes. Such
Registration Statement has been declared effective. The Issuer may have
filed one or more amendments thereto, including the related Preliminary
Prospectus, each of which has previously been furnished to you. The Issuer
will file with the Commission either, (A) prior to the effectiveness of
such Registration Statement, a further amendment thereto (including the
form of Final Prospectus) or, (B) after effectiveness of such Registration
Statement, a Final Prospectus in accordance with Rules 430A and 424(b)(1)
or (4). In the case of clause (B), the Issuer will include in such
Registration Statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Securities Act and the
rules thereunder to be included with respect to the Offered Notes and the
offering thereof. As filed, such amendment and form of Final Prospectus, or
such Final Prospectus, shall include all Rule 430A Information and, except
to the extent you shall agree in writing to a modification, shall be in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus which has previously been furnished to you)
as the Issuer has advised you, prior to the Execution Time, will be
included or made therein.
(ii) On the Effective Date, the Registration Statement did or will
comply in all material respects with the applicable requirements of the
Securities Act and the rules thereunder; on the Effective Date and when the
Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Issuance Date, the Final Prospectus will comply in all
material respects with the applicable requirements of the Securities Act
and the rules thereunder; on the Effective Date, the Registration Statement
did not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and the Final
Prospectus, as of its date and on the Issuance Date, did not or will not
include any untrue statement of a material fact or omit to state a material
fact
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necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; the statements in
"Description of the Notes" in the Final Prospectus, to the extent they
constitute a summary of the Notes, the Indenture and the Assignment and
Servicing Agreement, constitute a fair and accurate summary thereof;
provided, however, that the Issuer makes no representations or warranties
as to the Underwriting Information.
(iii) This Agreement has been duly authorized, executed and delivered
by the Issuer and constitutes a legal, valid and binding agreement of the
Issuer enforceable in accordance with its terms, except that the provisions
hereof relating to indemnification of the Underwriters may be subject to
limitations of public policy.
(iv) Each of the Indenture and the Assignment and Servicing Agreement
(the "Assignment and Servicing Agreement") has been duly authorized by the
Issuer and, when executed and delivered by the Issuer, will constitute the
legal, valid and binding obligation of the Issuer, enforceable in
accordance with its terms.
(v) The issuance of the Offered Notes has been duly authorized by the
Issuer and, when duly and validly executed, authenticated and delivered in
accordance with the Indenture and this Agreement, will be the legal, valid
and binding obligations of the Issuer, enforceable in accordance with their
terms, and entitled to the benefits of the Indenture.
(vi) The issue and sale of the Offered Notes and the performance of
this Agreement, the Indenture and the Assignment and Servicing Agreement by
the Issuer will (A) not conflict with or result in a breach of, and will
not constitute a default under any of the provisions of, its certificate of
incorporation or any law, governmental rule or regulation, or any judgment,
decree or order binding on the Issuer or its properties, or any of the
provisions of any indenture, mortgage, deed of trust, contract or other
agreement or instrument to which the Issuer is a party or by which it is
bound or (B) not result in the creation or imposition of any adverse claim
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Offered Notes or the consummation by
the Issuer of the transactions contemplated by this Agreement, except such
consents, approvals, authorizations, registrations or qualifications as may
be required under the Securities Act and under state securities or Blue Sky
laws in connection with the purchase and distribution of the Offered Notes
by the Underwriters.
(vii) The Issuer is not, and will not, as of the Issuance Date, be an
"investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act").
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(viii) The Indenture, when executed and delivered, will have been duly
qualified under the Trust Indenture Act of 1939.
(b) Copelco hereby represents and warrants to and agrees with the
Underwriters as follows:
(i) This Agreement has been duly authorized, executed and delivered,
the Indenture and the Assignment and Servicing Agreement have been duly
authorized, and this Agreement constitutes, and when executed and
delivered, the Indenture and the Assignment and Servicing Agreement will
constitute the legal, valid and binding obligations of Copelco, enforceable
in accordance with their respective terms, except that the provisions
hereof relating to indemnification of the Underwriters may be subject to
limitations of public policy and each of the Indenture and the Assignment
and Servicing Agreement conforms in all material respects to the
description thereof contained in the Prospectus.
(ii) The performance of this Agreement by Copelco, and the
consummation by Copelco of the transactions herein contemplated, will (A)
not conflict with or result in a breach of, and will not constitute a
default under any of the provisions of its certificate of incorporation or
by-laws or any law, governmental rule or regulation, or any judgment,
decree or order binding on Copelco or its properties, or any of the
provisions of any indenture, mortgage, deed of trust, contract or other
agreement or instrument to which Copelco is a party or by which it is bound
or (B) not result in the creation or imposition of any Adverse Claim and no
consent, approval, authorization, order, registration or qualification of
or with any court or governmental agency or body is required for the
consummation by Copelco of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Act and under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Notes by the Underwriters. As used herein,
"Adverse Claim" means a lien, pledge, security interest or other charge or
encumbrance.
(iii) Copelco hereby makes and repeats the representations and
warranties set forth in Section 2 of the Assignment and Servicing
Agreement. Such representations and warranties are incorporated by
reference in this Section 4(b), and the Underwriters may rely thereon as if
such representations and warranties were fully set forth herein.
(iv) Copelco represents and warrants it has delivered to the
Underwriters complete and correct copies of its balance sheet and
statements of income and retained earnings reported by Copelco Capital Inc.
and Copelco Financial Services Group, Inc. (the "Copelco Entities") for the
year ended December 31, ______ and the period ended _______, ______. Except
as set forth in or contemplated in the Registration Statement and the Final
Prospectus, there
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has been no material adverse change in the condition (financial or
otherwise) of the Copelco Entities since _______, ______.
(v) Any taxes, fees and other governmental charges arising from the
execution and delivery of this Agreement, the Assignment and Servicing
Agreement and the Indenture and in connection with the execution, delivery
and issuance of the Offered Notes and with the transfer of the Leases and
the Equipment, have been paid or will be paid by the Issuer prior to the
Closing Date.
(vi) ____________ is an independent public accountant with respect to
the Copelco Entities and the Issuer within the meaning of the Securities
Act and the rules and regulations promulgated thereunder.
(vii) Each of the Issuer and Copelco represents and warrants to you
that there is no pending or threatened action, suit or proceeding against
or affecting it in any court or tribunal or before any arbitrator of any
kind or before or by any governmental authority (i) asserting the
invalidity of this Agreement, the Assignment and Servicing Agreement, the
Indenture or the Offered Notes, (ii) seeking to prevent the issuance of the
Offered Notes or the consummation of any of the transactions contemplated
by this Agreement, the Assignment and Servicing Agreement or the Indenture
or (iii) seeking any determination or ruling that might materially and
adversely affect (A) its performance of its obligations under this
Agreement, the Assignment and Servicing Agreement or the Indenture (as
applicable) or (B) the validity or enforceability of this Agreement, the
Assignment and Servicing Agreement, the Indenture or the Offered Notes.
(c) The Underwriters severally and not jointly will represent and agree
that:
(i) it has not offered or sold, and, prior to the expiration of six
months from the Issuance Date, will not offer or sell, any Offered Notes to
persons in the United Kingdom, except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments
(as principal or agent) for purposes of their business, or otherwise in
circumstances which have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995;
(ii) it has complied and will comply with all applicable provisions of
the Financial Services Act 1986 with respect to anything done by it in
relation to the Offered Notes in, from or otherwise involving the United
Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with the
issue of the Offered Notes to a person who is of a kind described in
Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions)
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Order 1995 or persons to whom such document may otherwise lawfully be
issued, distributed or passed on.
Section 5. Covenants of the Issuer and Copelco. The Issuer and Copelco,
jointly and severally, hereby covenant and agree with you as follows:
(a) To use best efforts to cause the Registration Statement, and any
amendment thereto, if not effective as of the date hereof, to become effective.
If the Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule 424(b),
the Issuer will file the Final Prospectus, properly completed, pursuant to Rule
424(b) within the time period prescribed and will provide evidence satisfactory
to the Underwriters of such timely filing. The Issuer will promptly advise the
Underwriters (i) when the Registration Statement shall have become effective,
(ii) when any amendment thereof shall have become effective, (iii) of any
request by the Commission for any amendment or supplement of the Registration
Statement or the Final Prospectus or for any additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose, and (v) of the receipt by the Issuer of any notification with
respect to the suspension of the qualification of the Offered Notes for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Issuer will not file any amendment of the Registration Statement or
supplement to the Final Prospectus to which the Underwriters reasonably object.
The Issuer and Copelco will use their best efforts to prevent the issuance of
any such stop order and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a Final Prospectus relating to the Offered Notes
is required to be delivered under the Securities Act, any event occurs as a
result of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading or, if it shall be necessary to supplement such
Final Prospectus to comply with the Securities Act or the rules thereunder, the
Issuer promptly will prepare and file with the Commission, subject to paragraph
(a) of this Section 5, a supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) As soon as practicable, the Issuer will make generally available to the
holders of the Offered Notes (the "Offered Noteholders") and to the Underwriters
an earnings statement or statements of the Issuer which will satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 under the
Securities Act.
(d) The Issuer will furnish to the Underwriters and counsel for the
Underwriters, without charge, a signed copy of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by any of
the Underwriters or any dealer may be required by the Securities Act, as many
copies of each Final Prospectus relating to the Offered Notes and any supplement
thereto as the Underwriters may reasonably request.
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<PAGE>
(e) Copelco and the Issuer will take all reasonable actions requested by
the Underwriters to arrange for the qualification of the Offered Notes for sale
under the laws of such jurisdictions within the United States or as necessary to
qualify for DTC and as the Underwriters may designate, will maintain such
qualifications in effect so long as required for the completion of the
distribution of the Offered Notes; provided, in connection therewith the Issuer
shall not be required to qualify as a foreign corporation doing business in any
jurisdiction.
(f) For so long as the Offered Notes are outstanding, the Issuer and
Copelco shall deliver to the Underwriters by first-class mail and as soon as
practicable a copy of all reports and notices delivered to the Rating Agencies,
the Trustee or the Offered Noteholders under the Indenture.
(g) For so long as the Offered Notes are outstanding, the Issuer and
Copelco will furnish to the Underwriters as soon as practicable after filing any
other information concerning the Issuer or Copelco filed with any government or
regulatory authority which is otherwise publicly available.
(h) To the extent, if any, that any rating provided with respect to the
Notes set forth in Section 6(g) hereof is conditional upon the furnishing of
documents reasonably available to the Issuer or Copelco, the Issuer and Copelco
shall furnish such documents within any required time period.
Section 6. Conditions of Underwriters' Obligation. The obligations of the
Underwriters to purchase and pay for the Offered Notes on the Issuance Date
shall be subject to the accuracy in all material respects of the representations
and warranties of the Issuer and Copelco herein, in the Assignment and Servicing
Agreement and in the Indenture, to the performance by the Issuer and Copelco in
all material respects of their obligations hereunder and to the following
additional conditions:
(a) The Issuer and Copelco shall each have delivered a certificate (an
"Officer's Certificate"), dated the Issuance Date, signed by its Vice President
and its Chief Financial Officer, to the effect that:
(i) the representations and warranties made by the Issuer or Copelco
(as the case may be) in this Agreement, the Indenture and the Assignment
and Servicing Agreement are true and correct in all material respects at
and as of the date of such Officer's Certificate as if made on and as of
such date (except to the extent they expressly relate to an earlier date);
(ii) the Issuer or Copelco (as the case may be) has complied with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied under this Agreement, the Indenture and the Assignment and
Servicing Agreement at or prior to the date of such Officer's Certificate;
(iii) nothing has come to such officer's attention that would lead him
to believe that the Final Prospectus contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the
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<PAGE>
statements therein, in the light of the circumstances under which they were
made, not misleading; and
(iv) such officer is not aware of (A) any request of the Commission
for further amendment of the Registration Statement or the Final Prospectus
for any additional information, (B) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceeding for that purpose or (C) any
notification with respect to the suspension of the qualification of the
Offered Notes for sale in any jurisdiction or the threatening of any
proceeding for that purpose.
(b) You shall have received from Spencer N. Lempert, Esq., a favorable
opinion (subject to customary and usual qualifications) with respect to Copelco
and the Issuer, dated the Issuance Date and reasonably satisfactory in form and
substance to the Underwriters and their counsel with respect to, or to the
effect that: (i) the due formation and qualification of each of the Issuer and
Copelco and that the Issuer and Copelco, as applicable, have the corporate power
and authority to perform this Agreement, the Assignment and Servicing Agreement,
the Indenture and the Placement Agreement (the "Transaction Documents") and the
transactions contemplated herein and therein; (ii) the due authorization,
execution, delivery and enforceability of this Agreement and the other
Transaction Documents as applicable, by the Issuer and Copelco; (iii) each of
this Agreement and the other Transaction Documents are the legal, valid and
binding obligation of the Issuer and Copelco, as applicable, enforceable against
each of them in accordance with its terms (subject to customary exceptions
relating to bankruptcy and laws affecting creditors' rights); (iv) the Offered
Notes have been duly authorized, executed and delivered by the Issuer and
constitute the legal, valid and binding obligations of the Issuer, enforceable
in accordance with their terms (subject to customary exceptions as to bankruptcy
and laws affecting creditors' rights) and are entitled to the benefits of the
Indenture; (v) the issuance and sale of the Offered Notes by the Issuer, the
performance of this Agreement by the Issuer and Copelco and the compliance by
the Issuer and Copelco with the terms of the Transaction Documents, as
applicable, and the consummation of the transactions contemplated herein and
therein will not conflict with the organizational documents of the Issuer or
Copelco, or any other contracts to which the Issuer or Copelco is a party or by
which either of them is bound; (vi) there is no legal or governmental proceeding
pending or, to the best of my knowledge, threatened against the Issuer or
Copelco which would have a material adverse effect on the issuance of the
Offered Notes; (vii) in the event a court disregarded the intent of the parties
and characterized the transfers as a pledge of collateral, the Assignment and
Servicing Agreement and accompanying documentation creates a valid security
interest in the Leases and the Equipment (or interests therein) under applicable
law; (viii) assuming no prior financing statements covering the Leases are in
effect based on a review of certain UCC searches, that financing statements
covering the Leases and naming (A) the Issuer as secured party and Copelco as
debtor and (B) the Issuer as debtor and the Trustee as secured party are being
filed in the appropriate filing offices of the State of New Jersey, and assuming
that the Trustee has taken possession of the Leases, the Trustee has a first
priority perfected security interest in all right, title and interest of Copelco
and the Issuer in the Leases; and (ix) on the Issuance Date the Registration
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Statement is effective, and, that to the best of such counsel's knowledge no
stop order suspending the effectiveness of the Registration Statement has been
issued or is threatened, and that although such counsel is not passing on the
factual accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, nothing came to such counsel's
attention that leads such counsel to believe that either the Registration
Statement or the Prospectus (as of the Effective Date or the date of the
Prospectus) contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. In rendering such opinion, counsel may rely, to the extent
deemed proper and as stated therein, as to matters of fact on certificates of
responsible officers of the Issuer or Copelco and public officials and as to
matters of state law of jurisdictions other than the jurisdictions in which such
counsel is admitted to practice, on opinions of local counsel satisfactory to
the Underwriters.
(c) The Underwriters shall have received from Dewey Ballantine LLP, special
counsel for the Underwriters, such opinion or opinions, dated the Issuance Date,
with respect to the validity of the Offered Notes, the Registration Statement,
the Final Prospectus, true sale, nonconsolidation, enforceability of the
Transaction Documents and the Notes, certain securities law issues, perfection,
federal taxes, and other related matters as the Underwriters may require.
(d) At the Execution Time and at the Issuance Date, KMPG LLP shall have
furnished to the Underwriters a letter or letters, dated the date of this
Agreement and the Issuance Date, respectively, in form and substance
satisfactory to the Underwriters.
(e) The Class A-1 Notes shall have been rated at least "___", "___", and
"______", that the Class A-2, A-3, A-4 and A-5 notes be rated at least "___",
"___", and "______", that the Class B Notes be rated at least "___", "___", and
"_____", that the Class C Notes be rated at least "___", "___", and "_____", and
that the Class D Notes be rated at least "___", "___", and "___" by [______],
[______], and [______], respectively, which ratings shall not have been reduced
or withdrawn as evidenced by the Officer's Certificate referred to in Section
6(b).
(f) Counsel to the Trustee shall have delivered a favorable opinion
(subject to customary and usual exceptions), dated the Issuance Date, as the
case may be, and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters and to the Issuer and Copelco and their counsel
with respect to, or to the effect that: (i) the due incorporation and valid
existence of the Trustee, (ii) the due authorization, execution and delivery by
the Trustee of the Indenture, (iii) the Indenture is the legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in accordance
with its terms (subject to customary and usual exceptions) and (iv) the
execution, delivery and performance of the Indenture will not conflict with the
Trustee's organizational documents.
(g) All proceedings in connection with the transactions contemplated by
this Agreement and all documents incident hereto shall be reasonably
satisfactory in form
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<PAGE>
and substance to you, and your special counsel shall have received such other
information, certificates and documents as you or they may reasonably request.
Section 7. Reimbursement of Expenses. In the event that (x) no closing of
the sale of the Offered Notes occurs by the Issuance Date through no fault of
the Issuer or Copelco or because the conditions set forth in Section 6 have not
been met, or (y) the Underwriters terminate the engagement pursuant to Section
10 or because any conditions precedent in Section 6 have not been fulfilled,
then the Issuer and Copelco's liability to the Underwriters shall be limited to
the reimbursement of the Underwriters' expenses incurred through the date of
termination for its reasonable out-of-pocket and incidental expenses. In
addition, whether or not the Offered Notes are issued or sold:
(a) The Issuer or Copelco shall pay the reasonable fees and expenses
associated with the transactions contemplated hereby not paid by the
Underwriters in accordance with the provisions of Section 7(b), including,
without limitation, the following fees and expenses:
(i) Rating Agency fees payable with respect to their ratings of the
Notes;
(ii) fees charged by the firm of independent public accountants
referred to in Section 6(d);
(iii) filing fees in connection with the transactions contemplated
hereby, including, but not limited to, the Commission;
(iv) reasonable fees and expenses of Dewey Ballantine LLP;
(v) Trustee's fees and fees of counsel to the Trustee;
(vi) the costs and expenses of printing the Registration Statement and
the Prospectus;
(vii) the costs of printing or reproducing this Agreement, the Blue
Sky Survey and any other documents in connection with the offer, sale and
delivery of the Offered Notes;
(viii) all expenses in connection with the qualification of the
Offered Notes under state securities laws as provided in section 4(a)(vi),
including the fees and disbursements of counsel in connection with the Blue
Sky Survey;
(ix) the cost of preparing the Offered Notes;
(x) the cost or expenses of any transfer agent or registrar; and
(xi) all other costs and expenses incident to the performance of their
obligations hereunder which are not otherwise specifically provided for in
this Section 7; provided, however, that Copelco does not hereby waive any
rights
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to reimbursement from the Underwriters in the event of any of the
Underwriters' failure to perform in accordance with this Agreement.
(b) It is understood and agreed that, except as provided in Sections 8 and
9, the Underwriters will pay securities transfer taxes on the resale of any of
the Offered Notes by them, and any advertising expenses connected with any
offers they may make.
Section 8. Indemnification and Contribution.
(a) The Issuer and Copelco, jointly and severally, will indemnify and hold
harmless each Underwriter, the officer's and directors of each Underwriter, and
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Securities Act from and against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter or any such controlling
person may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Final Prospectus, or any amendment or supplement thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, and will promptly reimburse each such
Underwriter and each such controlling person for any legal or other expenses
reasonably incurred by such Underwriter or such controlling person in connection
with investigating, preparing to defend or defending, or appearing as a
third-party witness in connection with, any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Issuer and
Copelco shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement or the Final Prospectus or any such amendment or
supplement, in reliance upon and in conformity with the Underwriting Information
(defined below). The foregoing indemnity agreement is in addition to any
liability which each of the Issuer and Copelco may otherwise have to you or any
person who controls you.
(b) Each Underwriter agrees severally, and not jointly, to indemnify and
hold harmless the Issuer and Copelco against any losses, claims, damages or
liabilities to which the Issuer or Copelco may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
an untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, the Final Prospectus, or any amendment or supplement
thereto, (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein in the
light of the circumstances under which they were made not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement or the Final Prospectus or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Issuer or Copelco by or on behalf of such Underwriter expressly
for use therein and provided that such written information was not based upon
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Company-Provided Information (as defined herein); and will reimburse the Issuer
or Copelco for any legal or other expenses reasonably incurred by the Issuer or
Copelco in connection with the investigating, preparing to defend or defending,
or appearing as a third-party witness in connection with, any such loss, claim,
damage, liability or action as such expenses are incurred. The Issuer and
Copelco acknowledge that the statements set forth in the second and sixth
paragraph under the heading "Underwriting" in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in the
Registration Statement, the Preliminary Prospectus or the Final Prospectus (the
"Underwriting Information"), and each of you confirm that such statements are
correct. The foregoing indemnity agreement is in addition to any liability which
you may otherwise have to each of the Issuer and Copelco.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
claim or commencement thereof; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party, and the indemnified party shall have been advised by
counsel that representation of such indemnified party and the indemnifying party
may be inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them, the indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. It is understood that the
indemnifying party shall, in connection with any such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys together with appropriate
local counsel at any time from all indemnified parties not having actual or
potential differing interests with any other indemnified party. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to appoint counsel to defend such action and approval by the indemnified party
of such counsel, the indemnifying party will not be liable for any settlement
entered into without its consent and will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability
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shall be only in respect of the counsel referred to in such clause (i) or (iii).
Notwithstanding the immediately preceding sentence and the first sentence of
this paragraph, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement.
(d) You agree to deliver to the Issuer or Copelco no later than the date on
which the Prospectus is required to be filed pursuant to Rule 424 with a copy of
its Derived Information (defined below) for filing with the Commission.
(e) You agree, assuming all Company-Provided Information (defined below) is
accurate and complete in all material respects, to indemnify and hold harmless
the Issuer and Copelco against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under the 1933
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
of a material fact contained in the Derived Information provided by you, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by him, her or it in connection
with investigating or defending or preparing to defend any such loss, claim,
damage, liability or action as such expenses are incurred. Your obligations
under this Section 8(e) shall be in addition to any liability which you may
otherwise have.
(f) Each of the Issuer and Copelco agrees to indemnify and hold harmless
the Underwriters, each of the Underwriters' officers and directors and each
person who controls the Underwriters within the meaning of Section 15 of the
1933 Act against any and all losses, claims, damages or liabilities, joint or
several, to which they may become subject under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of a material fact
contained in the Company-Provided Information provided by the Issuer or Copelco,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by him, her or it in connection
with investigating or defending or preparing to defend any such loss, claim,
damage, liability or action as such expenses are incurred. Your obligation under
this Section 8(f) shall be in addition to any liability which you may otherwise
have.
The procedures set forth in Section 8(c) shall be equally applicable to
Sections 8(e) and 8(f).
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(g) For purposes of this Section 8, the term "Derived Information" means
such portion, if any, of the information delivered to the Issuer or Copelco by
the Underwriters pursuant to Section 8(d) for filing with the Commission as:
(i) is not contained in the Final Prospectus without taking into
account information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral Term Sheets,
Structural Term Sheets or Computational Materials (as such terms are
interpreted in the No-Action Letters).
"Company-Provided Information" means any computer tape furnished to the
Underwriters by the Company concerning the Leases or any other information
furnished by the Company to the Underwriters that is relied on or is reasonably
anticipated by the parties hereto to be relied on by the Underwriters in the
course of the Underwriters' preparation of its Derived Information or the
written information to be included in the Final Prospectus or Preliminary
Prospectus by the Underwriters as set forth in Section 8(b) herein.
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter (the
"PSA Letter") of Cleary, Gottlieb, Steen & Hamilton on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral Term Sheet" as used
herein includes any subsequent Collateral Term Sheet that reflects a substantive
change in the information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter (the "Kidder letter" and
together with the PSA Letter, the "No-Action Letters") of Brown & Wood on behalf
of Kidder, Peabody & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994).
(h) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer and Copelco on the one hand and the Underwriters on the other from
the offering of the Offered Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Issuer or Copelco on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses,
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claims, damages or liabilities (or actions or proceedings in respect thereof),
as well as any other relevant equitable considerations. The relative benefits
received by the Issuer or Copelco on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion that the total net proceeds
from the offering (before deducting expenses) received by the Issuer and Copelco
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Final Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuer or Copelco on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Issuer, Copelco and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (h) were determined by
pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to above in this subsection
(h). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this subsection (h) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating, preparing to defend or defending, or appearing as
a third-party witness in connection with, any such action or claim.
Notwithstanding the provisions of this subsection (h), neither of the
Underwriters shall be required to contribute any amount in excess of the
underwriting discount as set forth on the cover page of the Prospectus paid to
the respective Underwriter. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(i) The obligations of the Issuer and Copelco under this Section 8 shall be
in addition to any liability which the Issuer or Copelco may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any of the Underwriters within the meaning of the Securities Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Issuer and
Copelco and to each person, if any, who controls the Issuer or Copelco within
the meaning of the Securities Act.
Section 9. Survival. The respective representations, warranties and
agreements of the Issuer, Copelco and the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, notwithstanding
any investigation heretofore or hereafter made by or on behalf of the Issuer,
Copelco or the Underwriters, and such representations, warranties and agreements
made by the Issuer and Copelco shall survive the delivery and payment for the
Offered Notes. The provisions of Sections 7 and 8 shall survive the termination
or cancellation of this Agreement.
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Section 10. Termination.
(a) This Agreement may be terminated by you in your absolute discretion at
any time upon the giving of notice at any time prior to the Issuance Date: (i)
if there has been any material adverse change in the condition, financial or
otherwise, of Copelco or the Issuer, or in the earnings, business affairs or
business prospects of Copelco or the Issuer, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Offered Notes or enforce contracts for the
sale of the Offered Notes, or (iii) if trading generally on either the American
Stock Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or (iv) if a banking moratorium
has been declared by either federal or New York authorities. In the event of any
such termination, no party will have any liability to any other party hereto,
except as otherwise provided in Section 7 or 8 hereof.
(b) This Agreement may not be terminated by the Issuer or Copelco without
the written consent of the Underwriters, except in accordance with law.
(c) Notwithstanding anything herein to the contrary, in the event the
Issuer or Copelco does not perform any obligation under this Agreement or any
representation and warranty hereunder is incomplete or inaccurate in any
material respect, this Agreement and all of the Underwriters' obligations
hereunder may be immediately cancelled by the Underwriters by notice thereof to
the Issuer or Copelco. Any such cancellation shall be without liability of any
party to any other party except that the provisions of Sections 8 and 9 hereof
shall survive any such cancellation.
Section 11. Notices. All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered to or mailed by certified or registered mail, postage prepaid, or
transmitted by telex or telegraph and confirmed by a similar mailed writing, if
to you, addressed to you, at the addresses first stated in this Agreement, or to
such other address as you may designate in writing to the Issuer and Copelco; if
to Copelco, addressed to Copelco at One International Boulevard, Mahwah, New
Jersey 07430, if to the Issuer, addressed to Copelco at East Gate Center, 700
East Gate Drive, Mount Laurel, New Jersey 08054-5400, or such other address as
Copelco or the Issuer may have designated in writing to you.
Section 12. Successors. This Agreement will inure to the benefit of and be
binding upon the Issuer and Copelco and their successors and assigns and the
Underwriters and their respective successors and assigns.
Section 13. Default by One of the Underwriters. If one of the Underwriters
shall fail on the Closing Date to purchase the Class A Notes, Class B Notes,
18
<PAGE>
Class C Notes or Class D Notes, as the case may be, which it is obligated to
purchase hereunder (the "Defaulted Notes"), the remaining Underwriter(s) (the
"Non-Defaulting Underwriter(s)") shall have the right, but not the obligation,
within one (1) Business Day thereafter, to make arrangements to purchase all,
but not less than all, of the Defaulted Notes upon the terms herein set forth;
if, however, the Non-Defaulting Underwriter(s) shall not have completed such
arrangements within such one (1) Business Day period, then this Agreement shall
terminate without liability on the part of the Non-Defaulting Underwriter(s).
No action taken pursuant to this Section 13 shall relieve the defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, any of the Non-Defaulting Underwriters or the Company shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
Section 14. Entire Agreement. This Agreement and the documents referred to
herein and to be delivered pursuant hereto constitute the entire agreement
between the parties pertaining to the subject matter hereof and supersede all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties.
Section 15. Governing Law.
(a) THIS AGREEMENT IS TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
NEW YORK.
(b) THE ISSUER AND COPELCO HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT
LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND EACH WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH IN SECTION
11 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER
THE SAME SHALL HAVE BEEN DEPOSITED IN THE U. S. MAILS, POSTAGE PREPAID. THE
ISSUER AND COPELCO HEREBY WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND
ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE ISSUER OR COPELCO
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT EITHER'S
RIGHT TO
19
<PAGE>
BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE ISSUER AND COPELCO HEREBY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION WITH THIS
AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH
TRIAL WITHOUT A JURY.
Section 16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
Section 17. Miscellaneous. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
If you are in agreement with the foregoing, please sign a counterpart
hereof and return the same to the Issuer or Copelco, whereupon this Agreement
shall become a binding agreement among the Underwriters, the Issuer and Copelco.
20
<PAGE>
Very truly yours,
COPELCO CAPITAL, INC.
By:
--------------------------------
Name:
Title:
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as manager
By:
--------------------------------
Name:
Title:
The foregoing Agreement is
hereby accepted and entered
into as of the date hereof.
[ ]
as Representative of the Underwriters
By:
--------------------------------
Name:
Title:
[Signature Page to the Underwriting Agreement]
<PAGE>
SCHEDULE A
The Class A Notes, Class B Notes, Class C Notes and Class D Notes will be
purchased by _____________________ and _______________________ in the following
amounts:
<TABLE>
<CAPTION>
---------------- ----------------
---------------- ---------------- Underwriting
Principal Amount Principal Amount Discount
---------------- ---------------- -------------
<S> <C> <C> <C>
Class A-1 Notes $ $
Class A-2 Notes $ $
Class A-3 Notes $ $
Class A-4 Notes $ $
Class A-5 Notes $ $
Class B Notes $ $
Class C Notes $ $
Class D Notes $ $
Totals $ $
</TABLE>
<PAGE>
SCHEDULE B
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COPELCO CAPITAL RECEIVABLES LLC,
Issuer
[___________],
Trustee
and
COPELCO CAPITAL, INC.,
Servicer
----------------------
INDENTURE
Dated as of ______, ______
______________________
$__________in aggregate principal amount of Receivables Notes,
and $__________ in aggregate principal amount of Class R
Notes, Series _______, consisting of:
$_________ ____% Class A-1 Lease-Backed Notes
$_________ ____% Class A-2 Lease-Backed Notes
$_________ ____% Class A-3 Lease-Backed Notes
$_________ ____% Class A-4 Lease-Backed Notes
$_________ ____% Class A-5 Lease-Backed Notes
$_________ ____% Class B Lease-Backed Notes
$_________ ____% Class C Lease-Backed Notes
$_________ ____% Class D Lease-Backed Notes
$_________ ____% Class E Lease-Backed Notes
$_________ ____% Class R-1 Lease Residual-Backed Notes
$_________ ____% Class R-2 Lease Residual-Backed Notes
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
COPELCO CAPITAL RECEIVABLES LLC
Reconciliation and Tie between the Indenture
dated as of ______, ______ 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)................................... 8.12; 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
ii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................................3
SECTION 1.01. General Definitions.........................................................3
SECTION 1.02. Compliance Certificates and Opinions.......................................24
SECTION 1.03. Form of Documents Delivered to Trustee.....................................25
SECTION 1.04. Acts of Noteholders, etc...................................................26
SECTION 1.05. Notices, etc., to Trustee, Servicer, Issuer and Rating Agencies............27
SECTION 1.06. Notice to Noteholders; Waiver..............................................27
SECTION 1.07. Effect of Headings and Table of Contents...................................28
SECTION 1.08. Successors and Assigns.....................................................28
SECTION 1.09. GOVERNING LAW..............................................................28
SECTION 1.10. Legal Holidays.............................................................28
SECTION 1.11. Execution in Counterparts..................................................28
SECTION 1.12. Inspection.................................................................29
SECTION 1.13. Survival of Representations and Warranties.................................29
ARTICLE II THE NOTES ...................................................................................29
SECTION 2.01. General Provisions.........................................................29
SECTION 2.02. Execution, Authentication, Delivery, and Dating............................32
SECTION 2.03. Transfer and Exchange......................................................33
SECTION 2.04. Mutilated, Destroyed, Lost and Stolen Notes................................37
SECTION 2.05. Book-Entry Registration of Class A Notes, Class B Notes, Class C Notes,
Class D Notes and Class R Notes........................................38
SECTION 2.06. Notice to Clearing Agency Note Owners......................................39
SECTION 2.07. Definitive Class A Notes, Class B Notes, Class C Notes, Class D Notes and
Class R Notes..........................................................40
SECTION 2.08. Payment of Interest and Principal; Rights Preserved........................41
SECTION 2.09. Persons Deemed Owners......................................................41
SECTION 2.10. Cancellation...............................................................42
SECTION 2.11. Noteholder Lists...........................................................42
SECTION 2.12. Treasury Securities........................................................42
ARTICLE III ACCOUNTS; INVESTMENT OF MONEYS; COLLECTION AND APPLICATION OF MONEYS; REPORTS...............42
SECTION 3.01. Trust Accounts; Investments by Trustee.....................................42
SECTION 3.02. Collection of Moneys.......................................................45
SECTION 3.03. Collection Account; Payments...............................................46
SECTION 3.04. The Residual Account; Payments.............................................48
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C> <C>
SECTION 3.05. The Reserve Account........................................................49
SECTION 3.06. The Liquidity Reserve Account..............................................49
SECTION 3.07. Reports by Trustee; Notices of Certain Payments............................50
SECTION 3.08. Trustee May Rely on Certain Information from Copelco and Servicer..........51
ARTICLE IV RELEASE OF LEASES AND EQUIPMENT..............................................................52
SECTION 4.01. Release of Equipment.......................................................52
SECTION 4.02. Release of Leases Upon Final Lease Payment.................................52
SECTION 4.03. Execution of Documents.....................................................53
ARTICLE V SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER...............................................53
SECTION 5.01. Servicer Events of Default.................................................53
SECTION 5.02. Substitute Servicer........................................................53
ARTICLE VI EVENTS OF DEFAULT; REMEDIES..................................................................54
SECTION 6.01. Events of Default..........................................................54
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.........................54
SECTION 6.03. Remedies...................................................................55
SECTION 6.04. Trustee Shall File Proofs of Claim.........................................56
SECTION 6.05. Trustee May Enforce Claims Without Possession of Notes.....................57
SECTION 6.06. Application of Money Collected.............................................57
SECTION 6.07. Limitation on Suits........................................................59
SECTION 6.08. Unconditional Right of Noteholders to Receive Principal and Interest.......59
SECTION 6.09. Restoration of Rights and Remedies.........................................60
SECTION 6.10. Rights and Remedies Cumulative.............................................60
SECTION 6.11. Delay or Omission Not Waiver...............................................60
SECTION 6.12. Control by Noteholders.....................................................60
SECTION 6.13. Residual Notes Events of Default...........................................61
SECTION 6.14. Undertaking for Costs......................................................62
SECTION 6.15. Waiver of Stay or Extension Laws...........................................62
SECTION 6.16. Sale of Trust Estate.......................................................63
ARTICLE VII THE TRUSTEE.................................................................................64
SECTION 7.01. Certain Duties and Responsibilities........................................64
SECTION 7.02. Notice of Defaults or Events of Default....................................65
SECTION 7.03. Certain Rights of Trustee..................................................65
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes..........................66
SECTION 7.05. May Hold Notes.............................................................66
SECTION 7.06. Money Held in Trust........................................................66
SECTION 7.07. Compensation, Reimbursement, etc...........................................67
SECTION 7.08. Corporate Trustee Required; Eligibility....................................67
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C> <C>
SECTION 7.09. Resignation and Removal; Appointment of Successor..........................68
SECTION 7.10. Acceptance of Appointment by Successor.....................................68
SECTION 7.11. Merger, Conversion, Consolidation or Succession to Business................69
SECTION 7.12. Co-trustees and Separate Trustees..........................................69
SECTION 7.13. Acceptance by Trustee......................................................70
SECTION 7.14. Preferential Collection of Claims Against the Issuer.......................71
SECTION 7.15. Reports by Trustee to Noteholders..........................................71
SECTION 7.16. No Proceedings.............................................................71
ARTICLE VIII COVENANTS..................................................................................71
SECTION 8.01. Payment of Principal and Interest..........................................71
SECTION 8.02. Maintenance of Office or Agency; Chief Executive Office....................71
SECTION 8.03. Money for Payments to Noteholders to be Held in Trust......................72
SECTION 8.04. Corporate Existence; Merger; Consolidation, etc............................73
SECTION 8.05. Protection of Trust Estate; Further Assurances.............................73
SECTION 8.06. Reserved...................................................................74
SECTION 8.07. Performance of Obligations; Assignment and ServicingAgreement..............74
SECTION 8.08. Negative Covenants.........................................................75
SECTION 8.09. Information as to Issuer...................................................75
SECTION 8.10. Payment of Taxes...........................................................76
SECTION 8.11. Indemnification............................................................76
SECTION 8.12. Commission Reports; Reports to Trustee; Reports to Noteholders.............76
ARTICLE IX SUPPLEMENTAL INDENTURES......................................................................77
SECTION 9.01. Supplemental Indentures Without Consent of Noteholders.....................77
SECTION 9.02. Supplemental Indentures with Consent of Noteholders........................78
SECTION 9.03. Execution of Supplemental Indentures.......................................79
SECTION 9.04. Effect of Supplemental Indentures..........................................79
SECTION 9.05. Reference in Notes to Supplemental Indentures..............................79
SECTION 9.06. Compliance with Trust Indenture Act........................................79
ARTICLE X SATISFACTION AND DISCHARGE....................................................................79
SECTION 10.01. Satisfaction and Discharge of Indenture....................................79
SECTION 10.02. Application of Trust Money.................................................80
ARTICLE XI MISCELLANEOUS................................................................................81
SECTION 11.01. Trust Indenture Act Controls...............................................81
</TABLE>
v
<PAGE>
<TABLE>
<S> <C> <C> <C>
SECTION 11.02. Communication by Noteholders with Other Noteholders........................81
SECTION 11.03. Location of Leases.........................................................81
SECTION 11.04. Officers' Certificate and Opinion of Counsel as to Conditions Precedent....81
SECTION 11.05. Statements Required in Certificate or Opinion..............................82
SECTION 11.06. Nonpetition................................................................82
SECTION 11.07. Income Tax Characterization................................................82
SECTION 11.08. Non-Recourse...............................................................83
SECTION 11.09. Subordination of Interests of Noteholders..................................83
</TABLE>
SCHEDULES
SCHEDULE 1 Leases
EXHIBITS
EXHIBIT A Forms of Notes and Form of Trustee's Certificate of
Authentication
EXHIBIT B Form of Investor Letter
vi
<PAGE>
INDENTURE
This INDENTURE dated as of ______, ______, is among COPELCO CAPITAL
RECEIVABLES LLC, a Delaware limited liability company (herein called the
"Issuer"), [______], a ______________, as trustee (herein called the "Trustee"),
and COPELCO CAPITAL, INC., as servicer (herein called the "Servicer").
RECITALS
The Issuer has duly authorized the issuance of $________in aggregate
principal amount of its Lease-Backed Notes, and $_________ in aggregate
principal amount of its Lease Residual-Backed-Notes, Series _______, 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"), $________ aggregate principal amount of ____% Class A-5 Lease-Backed
Notes ("Class A-5 Notes", together with the Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes and Class A-4 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"), $________ aggregate principal amount
of ____% Class E Lease-Backed Notes (the "Class E Notes", together with the
Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes are
referred to collectively as the "Receivable Notes"), $________ aggregate
principal amount of ____%, Class R-1 Residual Notes (the "Class R-1 Notes"), and
$________ aggregate principal amount of ____% Class R-2 Residual Notes (the
"Class R-2 Notes"; together with the Class R-1 Notes, the Class R Notes); the
Class A Notes, the Class B Notes, the Class C Notes, the Class D Notes, the
Class E Notes and the Class R Notes are referred to collectively as 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, the Class D
Notes, the Class E Notes and the Class R 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:
<PAGE>
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 Purchase Amounts, Termination Payments, Residual Realizations 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 Purchase Amounts, Termination Payments,
Residual Realizations and other amounts due or becoming due with respect thereto
since the effective date of their respective addition or substitution (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 collateral (including all rights of the Issuer in any security
deposits and the Issuer's right to repayment by Copelco Capital, Inc.
("Copelco") of any Inter-Company loans pursuant to Section 13.01 of the
Assignment and Servicing Agreement) 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 Copelco 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 Assignment and Servicing 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 Grant, accepts the trusts hereunder in
accordance with the provisions hereof, and agrees to perform the duties herein
required to the best of its ability and to the end that the interests of the
Noteholders may be adequately and effectively protected as hereinafter provided.
2
<PAGE>
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 Section 12 of the Assignment and Servicing
Agreement.
Additional Principal: with respect to each Payment Date equals (a) zero if
each of the Class Target Investor Principal Amounts for Classes B, C, D, and E
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 Balance of the
Receivables Notes plus the Overcollateralization Balance as of the immediately
preceding Payment Date after giving effect to payments on such Payment Date
minus (B) the Discounted Present Value of the Performing Leases as of the
related Determination Date, over (ii) the sum of the Class A Principal Payment,
the Class B Principal Payment, the Class C Principal Payment, the Class D
Principal Payment and the Class E Principal Payment to be paid on such Payment
Date.
Affiliate: with respect to any specified Person, any other Person which
directly or indirectly controls, or is controlled by, or is under common control
with, such specified Person. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
Assignment and Servicing Agreement: the Assignment and Servicing Agreement
dated as of ______, ______ between the Issuer and Copelco, as the same may be
amended or modified from time to time in accordance with the provisions hereof
and thereof.
Authorized Officer: with respect to any matter, any officer of or other
Person representing the Issuer, Copelco or the Servicer, as the case may be, who
is authorized to act for the Issuer, Copelco or the Servicer, as the case may
be.
Available Funds: with respect to any Payment Date, the amount on deposit in
the Collection Account with respect to the immediately preceding Due Period,
3
<PAGE>
including, without limitation, (a) Lease Payments due during the immediately
preceding Due Period (net of any Excess Copy Charges, Maintenance Charges and
Fee Per Scan Charges), (b) recoveries from Non-Performing Leases to the extent
Copelco has not substituted Substitute Leases for such Non-Performing Leases
(except to the extent required to reimburse unreimbursed Servicer Advances
pursuant to Section 5 of the Assignment and Servicing Agreement); (c) proceeds
from repurchases by Copelco of Leases as a result of breaches of representations
and warranties to the extent Copelco has not substituted Substitute Leases for
such Leases other than Residual Warranty Payments; (d) proceeds from the
investment of funds in the Collection Account and the Reserve Account, if any;
(e) Casualty Payments other than Residual Casualty Payments; (f) Servicer
Advances; (g) Termination Payments other than Residual Prepayments; (h) late
charges on delinquent Lease Payments not advanced by the Servicer and (i) to the
extent there occurs an Available Funds Shortfall, funds, if any, on deposit in
the Reserve Account; provided that Available Funds shall not include Residual
Realizations.
Available Reserve Amount: the amount on deposit in the Reserve Account.
Available Funds Shortfall: as defined in Section 3.05(b).
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.
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 A-5 Notes: beneficial interests in the Class A-5 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.
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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.
Book-Entry Class R-1 Notes: beneficial interests in the Class R-1 Notes,
the ownership and transfers by which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
Book-Entry Class R-2 Notes: beneficial interests in the Class R-2 Notes,
the ownership and transfers of which shall be made through book-entries by a
Clearing Agency as described in Section 2.05.
Booked Residual Value: the estimated residual value of the Equipment
recorded on the books of the Transferor as of the Cut-Off Date in the case of
the initial Leases, and as of the date of substitution in the case of a
Substitute Lease.
Business Day: any day that is not a Saturday, Sunday or other day on which
commercial banking institutions in the city in which the Corporate Trust Office
and the Servicer is located are authorized or obligated by law or executive
order to remain closed.
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.
[________]: the initial registered holder of the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes, the Class R-1 Notes and the Class
R-2 Notes, acting as nominee of The Depository Trust Company.
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 ________ Payment Date, the lesser of (1)
the amount necessary to reduce the Outstanding Principal Amount on the Class A-1
Notes to zero and (2) the difference between (a) the Discounted Present Value of
the Performing Leases as of the previous Determination Date and (b) the
Discounted Present Value of the Performing Leases as of the related
Determination Date, and (ii) on and after the _______ Payment 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.
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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
Discounted Present Value of the Performing Leases as of the related
Determination Date.
Class A-1 Initial Principal Amount: $________.
Class A-1 Note Interest Rate: with respect to any Interest Accrual Period,
the rate at which interest accrues on the Class A-1 Notes, which rate shall be
equal to ____% per annum.
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: [_______________] or a holder of a Definitive Class
A-1 Note.
Class A-1 Notes: as defined in the Recitals hereto.
Class A-2 Initial Principal Amount: $________
Class A-2 Note Interest Rate: with respect to any Interest Accrual Period,
the rate at which interest accrues on the Class A-2 Notes, which rate shall be
equal to ____% per annum.
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: [___________] or a holder of a Definitive Class A-2
Note.
Class A-2 Notes: as defined in the Recitals hereto.
Class A-3 Initial Principal Amount: $_______.
Class A-3 Note Interest Rate: with respect to any Interest Accrual Period,
the rate at which interest accrues on the Class A-3 Notes, which rate shall be
equal to ____% per annum.
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
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with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
Class A-3 Noteholder: [_______] or a holder of a Definitive Class A-3 Note.
Class A-3 Notes: as defined in the Recitals hereto.
Class A-4 Initial Principal Amount: $________.
Class A-4 Note Interest Rate: with respect to any Interest Accrual Period,
the rate at which interest accrues on the Class A-4 Notes, which rate shall be
equal to ____% per annum.
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).
Class A-4 Noteholder: [___________] or a holder of a Definitive Class A-4
Note.
Class A-4 Notes: as defined in the Recitals hereto.
Class A-5 Initial Principal Amount: $________.
Class A-5 Note Interest Rate: with respect to any Interest Accrual Period,
the rate at which interest accrues on the Class A-5 Notes, which rate shall be
equal to ____% per annum.
Class A-5 Note Owner: with respect to a Book-Entry Class A-5 Note, the
Person who is the beneficial owner of such Book-Entry Class A-5 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-5 Noteholder: [_______] or a holder of a Definitive Class A-5 Note.
Class A-5 Notes: as defined in the Recitals hereto.
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 Discounted Present Value of the Leases as of
the Cut-Off Date, plus (b) the Cumulative Loss Amount with respect to such
Payment Date, minus (c) the sum of the Outstanding Principal Amount of the Class
C Notes, the Outstanding
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Principal Amount of the Class D Notes, the Outstanding Principal Amount of the
Class E 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 B Note Interest Rate: with respect to any Interest Accrual Period,
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: [_______] or a holder of a Definitive Class B Note.
Class B Notes: as defined in the Recitals hereto.
Class B Percentage: ____% (approximately).
Class B Principal Payment: (a) while the Class A-1 Notes are outstanding,
zero and (b) after the Outstanding Principal Amount on the Class A-1 Notes has
been reduced to zero, the amount necessary to reduce the Outstanding Principal
Amount of the Class B Notes to the greater of the Class B Target Investor
Principal Amount and the Class B Floor.
Class B Target Investor Principal Amount: with respect to each Payment
Date, an amount equal to the product of (a) the Class B Percentage and (b) the
Discounted Present Value of the Performing Leases as of the related
Determination Date.
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 Discounted Present Value of the Leases as of
the Cut-Off Date, plus (b) the Cumulative Loss Amount with respect to such
Payment Date, minus (c) the sum of the Outstanding Principal Amount of the Class
D Notes, the Outstanding Principal Amount of the Class E 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; provided, however, that if the Outstanding Principal
Amount of the Class B Notes is less than or equal to the Class B Floor on such
Payment Date, the Class C Floor will equal the Outstanding Principal Amount of
the Class C Notes utilized in the calculation of the Class B Floor for such
Payment Date.
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Class C Note Interest Rate: with respect to any Interest Accrual Period,
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: [_______] or a holder of a Definitive Class C Note.
Class C Notes: as defined in the Recitals hereto.
Class C Percentage: ___% (approximately).
Class C Principal Payment: (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.
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
Discounted Present Value of the Performing Leases as of the related
Determination 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 Discounted Present Value of the Leases as of
the Cut-Off Date, plus (b) the Cumulative Loss Amount with respect to such
Payment Date, minus (c) the sum of the Outstanding Principal Amount of the Class
E 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; provided, however, that if the
Outstanding Class C Principal Amount is less than or 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 for such
Payment Date.
Class D Note Interest Rate: with respect to any Interest Accrual Period,
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
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with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
Class D Noteholder: [_______] or a holder of a Definitive Class D Note.
Class D Notes: as defined in the Recitals hereto.
Class D Percentage: ___% (approximately).
Class D Principal Payment: (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.
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
Discounted Present Value of the Performing Leases as of the related
Determination Date.
Class E Initial Principal Amount: $_______.
Class E Floor: With respect to each Payment Date, an amount equal to the
total of (a) ___% of the initial Discounted Present Value of the Leases as of
the Cut-Off Date, plus (b) the Cumulative Loss Amount with respect to such
Payment Date, minus (c) the 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 Principal Amount of the Class D Notes is less than or equal
to the Class D Floor on such Payment Date, the Class E Floor will equal the
Outstanding Principal Amount of the Class E Notes utilized in the calculation of
the Class D Floor for such Payment Date.
Class E Note Interest Rate: with respect to any Interest Accrual Period,
the rate at which interest accrues on the Class E Notes, which rate shall be
____% per annum.
Class E Noteholder: a holder of a Class E Note.
Class E Notes: as defined in the Recitals hereto.
Class E Percentage: ___% (approximately).
Class E Principal Payment: (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 E Notes to the greater of the Class E Target Investor
Principal Amount and the Class E Floor.
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Class E Target Investor Principal Amount: with respect to each Payment
Date, an amount equal to the product of (a) the Class E Percentage and (b) the
Discounted Present Value of the Performing Leases as of the related
Determination Date.
Class R Notes: as defined in the Recitals hereto.
Class R-1 Initial Principal Amount: $_______.
Class R-1 Notes: as defined in the Recitals hereto.
Class R-1 Note Interest Rate: with respect to any Interest Accrual Period,
the rate of which interest accrues on the Class R-1 Notes, which rate shall be
____% per annum.
Class R-1 Note Owner: with respect to a Book-Entry Class R-1 Note, the
Person who is the beneficial owner of such Book-Entry Class R-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 R-1 Noteholder: [_______] or a holder of a Definitive Class R-1 Note.
Class R-2 Initial Principal Amount: $_______.
Class R-2 Notes: as defined in the Recitals hereto.
Class R-2 Note Interest Rate: with respect to any Interest Accrual Period,
the rate of which interest accrues on the Class R-2 Notes, which rate shall be
____% per annum.
Class R-2 Noteholder: [_______] or a holder of a Definitive Class R-2 Note.
Class R-2 Note Owner: with respect to a Book-Entry Class R-2 Note, the
Person who is the beneficial owner of such Book-Entry Class R-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 Target Investor Principal Amounts: means the Class A Target Investor
Principal Amount or the Class B Target Investor Principal Amounts or the Class C
Target Investor Principal Amounts or the Class D Target Investor Principal
Amounts or the Class E Target Investor Principal Amounts, respectively.
Clearing Agency: an organization registered as a "clearing agency" pursuant
to Section 17A of the Securities Exchange Act of 1934, as amended.
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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 Account: the account or accounts by that name established and
maintained by the Trustee pursuant to Section 3.01.
Commission: the Securities and Exchange Commission.
Copelco: As defined in the Granting Clause.
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
Copelco.
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 Receivable 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 Discounted Present Value of the Performing
Leases as of the Determination Date relating to the immediately preceding
Payment Date minus the Discounted Present Value of the Performing Leases as of
the related Determination Date and (B) Available Funds for such Payment Date
remaining after the payment of amounts owing the Servicer and in respect of
interest on the Receivable Notes on such Payment Date over (b) the Discounted
Present Value of Performing Leases as of the related Determination Date.
Cut-Off Date: the opening of business on ____, ______.
[_______]: Duff & Phelps Credit Rating Co, and any such successor.
Default: any occurrence that is, or with notice or the lapse of time or
both would become, an Event of Default.
Definitive Note: a definitive, fully registered Note issued pursuant to
Section 2.07.
Delinquent Lease: as of any Determination Date, any Lease (other than a
Lease which became a Non-Performing Lease prior to such Determination Date) with
respect to which the Lessee has not paid all Lease Payments then due.
Depository Agreement: the letter of representations, between the Issuer and
the Depository Trust Company, as Clearing Agency.
Determination Date: with respect to any Payment Date, the fifth Business
Day immediately preceding such Payment Date.
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Discount Rate: with respect to any Determination 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 A-5 Notes,
the Class B Notes, the Class C Notes, the Class D Notes and the Class E Notes on
the Issuance 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 A-5 Initial Principal Amount, the
Class B Initial Principal Amount, the Class C Initial Principal Amount, the
Class D Initial Principal Amount or the Class E Initial Principal Amount, as
applicable, and (ii) the expected weighted average life (under a zero prepayment
and no loss scenario) of each Class of Notes and (b) the Servicing Fee rate of
0.75% per annum.
Discounted Present Value of the Leases: with respect to any Lease as of the
Cut-Off Date or any date thereafter, an amount equal to the net present value of
all Lease Payments (not including delinquent amounts, Excess Copy Charges,
Maintenance Charges and Fee Per Scan Charges) to become due thereunder following
the Cut-Off Date or during the Due Period preceding the following Payment Date,
as the case may be (determined by discounting on a monthly basis (assuming a
calendar year consisting of twelve 30-day months)), at a rate equal to the
Discount Rate, each such Lease Payment from the Payment Date following the date
such Lease Payment was due). In determining the Discounted Present Value of the
Leases on any Determination Date or with respect to a Payment Date, the future
remaining Lease Payments will be calculated after giving effect to any payments
received prior to such date of calculation to the extent such payments relate to
Lease Payments due and payable by the Lessees with respect to the related Due
Period and any prior Due Period.
Discounted Present Value of the Delinquent Leases: with respect to any
Payment Date or Determination Date, the Discounted Present Value of the Leases
that are not Non-Performing Leases as to which a Lease Payment, or any portion
thereof, was 63 or more days overdue as of the last day of the Due Period
immediately preceding such Payment Date.
Discounted Present Value of the Performing Leases: the Discounted Present
Value of the Leases, reduced by the present value of all future remaining
scheduled payments on the Non-Performing Leases (not including delinquent
amounts, Excess Copy Charges, Maintenance Charges or Fee Per Scan Charges)
discounted at the Discount Rate. In determining the Discounted Present Value of
the Performing Leases on any Determination Date or with respect to a Payment
Date, the future remaining Lease Payments will be calculated after giving effect
to any payments received prior to such date of calculation to the extent such
payments relate to Lease Payments due and payable by the Lessees with respect to
the related Due Period and any prior Due Period.
Due Period: with respect to any Payment Date and the Determination Date
with respect thereto, the period beginning on the first day and ending on the
last day of the calendar month prior to the month in which such Payment Date and
such Determination Date occurs.
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Eligible Account: either (a) an account maintained with a depository
institution or trust company acceptable to each of the Rating Agencies or (b) a
trust account or similar account maintained in the corporate trust department
with a federal or state chartered depository institution, which may be an
account maintained with the Trustee.
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
[______] and, to the extent rated by [______] and [______], [______] and
[______];
(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 [______] and, to the
extent rated by [______] and [______], [______] and [______] 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 ___ by [______];
(f) demand notes payable on demand issued by an institution rated
"___" by [_______], and to the extent rated by [______] and [______],
[______] and [_______] at the time of such investment;
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(g) funding agreements or guaranteed investment contracts provided by
issuers rated "P-1" by [______] (and to the extent rated by [______] and
[______], [______] and [______] 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 [_______], [_______]
and [_______]
Equipment: each item of personal property, together with any replacement
parts, additions, and repairs thereto, any replacements thereof, and any
accessories incorporated therein and/or affixed thereto, subject to a Lease or,
following expiration or termination of the Lease to which the same was
previously subject, remaining subject to the lien of 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.
Excess Copy Charge: with respect to any Lease, means the amount owing by
such Lessee under such Lease reflecting usage of the related Equipment in excess
of a specified copy amount per month.
Fee Per Scan Charge: with respect to any Lease, means the amount owing by
such Lessee under such Lease reflecting usage of the related Equipment in excess
of a specified scan amount per month.
Financing Statement: as defined in Section 12 of the Assignment and
Servicing Agreement.
Governmental Authority: Any court or federal or state regulatory body,
administrative agency or other tribunal or other governmental instrumentality.
Grant: grant, bargain, sell, convey, assign, transfer, mortgage, pledge,
create and grant a security interest in and right of set-off against, deposit,
set over and confirm. The Grant of the Trust Estate effected by this Indenture
shall include all 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.
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Indenture: this instrument as originally executed and as from time to time
supplemented or amended pursuant to the applicable provisions hereof.
Initial ADRB: the Initial Aggregate Discounted Residual Balance of the
Leases is equal to $_______. Initial ADRB means the sum of the discounted
present value of ___% of the Booked Residual Values of all Leases, as of the
Cut-Off Date, discounted monthly at one twelfth the Residual Discount Rate.
Initial Booked Residual Value: $________.
Initial Payment Date: ____, ______.
Inter-Company Loans: as defined in Section 13.01 of the Assignment and
Servicing Agreement.
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 A-5 Notes, the Class B Notes, the Class C Notes, the
Class D Notes, the Class E Notes, the Class R-1 Notes and the Class R-2 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 a 30-day
month and a 360-day year.
Interest Payments: as defined in Section 2.01(c).
Issuance Date: ______ ___, ______.
Issuer: the Person named as the "Issuer" in the first paragraph of this
agreement.
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 unless and until released from the lien of this Indenture.
Lease Delinquency Payment: any payment made with respect to a Lease in an
amount equal to all or part of any specific Lease Payment due with respect to
such Lease (a) by the Servicer pursuant to Section 4.01 of the Assignment and
Servicing Agreement, (b) by a transfer from the Reserve Account pursuant to
Section 3.05, or (c) by the Issuer in its sole discretion.
Lease Payment: each periodic installment of rent payable by a Lessee under
a Lease. Casualty Payments, Termination Payments, prepayments of rent required
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pursuant to the terms of a Lease, at or before the commencement of the Lease,
payments becoming due on or before the Cut-Off Date and supplemental or
additional payments required by the terms of a Lease with respect to taxes,
insurance, maintenance (including, without limitation, any Maintenance Charges),
or other specific charges shall not be Lease Payments hereunder. For purposes of
calculating the Discounted Present Value of the Leases and the Discounted
Present Value of the Performing Leases, the amount of any Excess Copy Charges
and Fee Per Scan Charges that may be payable under such Lease shall not be
included in such calculation.
Lease Purchase Amount: at any date of determination with respect to any
Lease, means an amount equal to the sum of (a) the sum of (i) the Discounted
Present Value of the Lease as of the beginning of the Due Period relating to
such date of determination (plus any amounts previously due and unpaid) and (ii)
the product of (x) the amount described in the foregoing clause (i) and (y)
one-twelfth of the Discount Rate and (b) the product of (i) the Initial ADRB and
(ii) the ratio, as of the Cut-Off Date, that the Booked Residual Value of the
Lease bears to the aggregate Booked Residual Value of all Leases.
Lessee: with respect to any Lease, the lessee thereunder.
Lien: as defined in Section 12 of the Assignment and Servicing Agreement.
Liquidity Reserve Account: the account by that name established and
maintained by the Trustee pursuant to Section 3.01.
Maintenance Charges: with respect to any Lease, the amount owing by the
Lessee under the terms of the related Lease in respect of maintenance services
being provided in connection therewith.
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.
[_______]: [_______] Investors Service, Inc. and any successors thereto.
Nominal Buy-Out Lease: as defined in Section 12 of the Assignment and
Servicing Agreement.
Non-Performing Lease: as of any Determination Date, any Lease with respect
to which at any time following the Cut-Off Date or related Transfer Date, as the
case may be, either (a) a Lease Payment, or any portion thereof, was 123 or more
days overdue as of the last day of the Due Period with respect to such
Determination Date, unless on or before such Determination Date such Lease
Payment (or portion thereof) has been paid or (b) the Servicer has accelerated
the remaining payments or has determined such Lease to be uncollectible in
accordance with the Servicer's customary practices prior to the last day of the
Due Period with respect to such Determination Date.
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Noteholder: at any time, any Person in whose name a Note is registered in
the Note Register.
Note Interest Rate: 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 A-5 Interest Rate, the Class B Note Interest Rate, the Class C Note
Interest Rate, the Class D Note Interest Rate, the Class E Note Interest Rate,
the Class R-1 Note Interest Rate or the Class R-2 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 Chairman, 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, Lease Delinquency Payments, Casualty Payments, Termination
Payments or Residual Realizations.
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
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or any Affiliate of the Issuer shall be disregarded and deemed not to be
Outstanding, 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: The aggregate principal amount of the
Class A Notes Outstanding at any time.
Outstanding Class A-1 Principal Amount: the aggregate principal amount of
the Class A-1 Notes Outstanding at any time.
Outstanding Class A-2 Principal Amount: the aggregate principal amount of
the Class A-2 Notes Outstanding at any time.
Outstanding Class A-3 Principal Amount: the aggregate principal amount of
the Class A-3 Notes Outstanding at any time.
Outstanding Class A-4 Principal Amount: the aggregate principal amount of
the Class A-4 Notes Outstanding at any time.
Outstanding Class A-5 Principal Amount: the aggregate principal amount of
the Class A-5 Notes Outstanding at any time.
Outstanding Class B Principal Amount: the aggregate principal amount of the
Class B Notes Outstanding at any time.
Outstanding Class C Principal Amount: the aggregate principal amount of the
Class C Notes Outstanding at any time.
Outstanding Class D Principal Amount: the aggregate principal amount of the
Class D Notes Outstanding at any time.
Outstanding Class E Principal Amount: the aggregate principal amount of the
Class E Notes Outstanding at any time.
Outstanding Class R-1 Principal Amount: the aggregate principal amount of
the Class R-1 Notes Outstanding at any time.
Outstanding Class R-2 Principal Amount: the aggregate principal amount of
the Class R-2 Notes Outstanding at any time.
Outstanding Principal Amount: the aggregate unpaid principal amount of the
Notes Outstanding at any time.
Overcollateralization Balance: with respect to each Payment Date is an
amount equal to the excess, if any, of (a) the Discounted Present Value of
Performing Leases as of the related Determination Date over (b) the Outstanding
Principal Amount
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of the Receivable 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.
Payment Date: the 18th 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.
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,
Copelco, and [___________].
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).
Principal Payments: as defined in Section 2.01(b).
Rating Agency: [_______], [_______] and [_______].
Receivable Noteholder: at any time, any Person in whose name a Receivable
Note is registered in the Note Register.
Receivable Notes: as defined in the Recitals hereto.
Record Date: with respect to any Payment Date, the last day of the calendar
month immediately preceding such Payment Date. The Record Date will be the
Issuance Date with respect to the first Payment Date.
Required Deposit Date: as defined in Section 3.03(a).
Required Liquidity Reserve: (i) From the Cut-Off Date until __________,
$_______ and thereafter, (ii) if the outstanding principal balance of the Class
R-1 Notes is greater than $_______, then the Required Liquidity Reserve Amount
shall equal $_________ and if the outstanding principal balance of the Class R-1
Notes is less than or equal to $_________, then the Required Liquidity Reserve
Amount shall equal $__________.
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Residual Noteholders: at any time, any Person in whose name a Class R Note
is registered in the Note Register.
Required Payment: as defined in Section 3.05(b).
Required Reserve Amount: shall equal the lesser of (a) ____% of the
Discounted Present Value of the Leases and (b) the Outstanding Principal Amount
of the Receivable Notes.
Reserve Account: the account or accounts by that name established and
maintained by the Trustee pursuant to Section 3.01.
Residual Account: the account or accounts by that name established and
maintained by the Trustee pursuant to Section 3.01.
Residual Casualty Payments: at any date of determination with respect to a
Lease, means the excess of (a) the Casualty Payment related to the Lease over
(b) the Discounted Present Value of the remaining Lease Payments related to the
Lease as of the beginning of the Due Period relating to such date of
determination (plus any amounts previously due and unpaid).
Residual Discount Rate: Residual Discount Rate equals ___%. The Residual
Discount Rate is equal to the sum of (a) the weighted average Coupon Rate of the
Class R-1 and the Class R-2 Notes, each weighted by (i) the initial principal
balances of each Class of Class R Notes, and (ii) the weighted average life of
each Class of Class R Notes under a zero prepayment and no loss scenario, as
applicable, and (b) the Residual Servicing Fee expressed as percentage.
Residual Event of Default: as defined in Section 6.13.
Residual Prepayments: at any date of determination with respect to a
Terminated Lease, means the excess of (a) the payment related to the Terminated
Lease over (b) the Discounted Present Value of the remaining Lease Payments
related to the Terminated Lease as of the beginning of the Due Period relating
to such date of determination (plus any amounts previously due and unpaid).
Residual Realizations: the sum of (a) the aggregate cash flows realized
from the sale (including pursuant to a Lessee's purchase option) or re-lease of
any Equipment following the termination of the related Lease other than
Equipment subject to Non-Performing Leases; (b) Residual Warranty Payments; (c)
Residual Casualty Payments and (d) Residual Prepayments. Residual Realizations
shall not include the ongoing cashflows of a newly negotiated lease that Copelco
originates after repurchasing or substituting such predecessor Lease from the
Issuer.
Residual Servicer Advances: as defined in Section 4.01(b) of the Assignment
and Servicing Agreement.
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Residual Servicing Fee: with respect to any Payment Date, the Residual
Servicing Fee payable pursuant to the Assignment and Servicing Agreement.
Residual Trustee Fee: as defined in Section 7.07.
Residual Warranty Payments: at any date of determination with respect to a
Warranty Lease, means the excess of (a) the Lease Purchase Amount related to the
Warranty Lease over (b) the Discounted Present Value of the remaining Lease
Payments related to the Warranty Lease as of the beginning of the Due Period
relating to such date of determination (plus any amounts previously due and
unpaid).
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.
Securities Act: the Securities Act of 1933, as amended.
Servicer: Copelco and any successor Servicer appointed pursuant to the
terms hereof and of the Assignment and 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 Section 4.01(a) of the Assignment and
Servicing Agreement.
Servicer Event of Default: as defined in Section 8.01 of the Assignment and
Servicing Agreement.
Servicer Order: a written order or request delivered to the Trustee and
signed in the name of the Servicer by an Authorized Officer.
Servicing Fee: with respect to any Payment Date, the Servicing Fee payable
pursuant to the Assignment and Servicing Agreement.
Servicing Report: as defined in Section 5.01(b) of the Assignment and
Servicing Agreement.
[_______]: [name of rating agency]
Stated Maturity: The stated maturity date with respect to the Class A-1
Notes is the Payment Date in _______ (the "Class A-1 Stated Maturity Date"), the
stated maturity date with respect to the Class A-2 Notes is the Payment Date in
_______ (the "Class A-2 Stated Maturity Date"), the stated maturity date with
respect to the Class A-3 Notes is the Payment Date in ________ (the "Class A-3
Stated Maturity Date"), the stated maturity date with respect to Class the A-4
Notes is the Payment Date in
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_________ (the "Class A-4 Stated Maturity Date"), the stated maturity date with
respect to Class A-5 Notes is the Payment Date in _______ (the "Class A-5 Stated
Maturity Date"), the stated maturity date with respect to the Class B Notes is
the Payment Date in ________ (the "Class B Stated Maturity Date"), the stated
maturity date with respect to the Class C Notes is the Payment Date in _________
(the "Class C Stated Maturity Date"), the stated maturity date with respect to
the Class D Notes is the Payment Date in ________ (the "Class D Stated Maturity
Date"), the stated maturity date with respect to the Class E Notes is the
Payment Date in _________ (the "Class E Stated Maturity Date"), the stated
maturity date with respect to the Class R-1 Notes is ________ (the "Class R-1
Stated Maturity Date") and the stated maturity date with respect to the Class
R-2 Notes is _________ (the "Class R-2 Stated Maturity Date," together with 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 A-5
Stated Maturity Date, the Class B Stated Maturity Date, the Class C Stated
Maturity Date, the Class D Stated Maturity Date, the Class E Stated Maturity
Date and the Class R-1 Stated Maturity Date, the "Stated Maturity Dates").
Substitute Lease: as defined in Section 12 of the Assignment and Servicing
Agreement.
Terminated Lease: a lease that is terminated prior to its original stated
maturity (but not on account of casualty or a Lease default).
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
Issuer, and the Lessee in accordance with the provisions of Section 4.02 of the
Assignment and Servicing Agreement.
Transaction Payment Amount: for each Required Deposit Date, the amount of
all Lease Payments, Lease Delinquency Payments, Non-Performing Lease Payments,
Casualty Payments, Termination Payments and other payments on or in respect of a
Lease 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
in accordance with Section 5.01(c) of the Assignment and Servicing Agreement.
Trust Accounts: the Collection Account, the Reserve Account, the Residual
Account and the Liquidity Reserve Account.
Trust Estate: all money, instruments and other property subject to or
intended to be subject to the lien of this Indenture including all proceeds
thereof.
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
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termination of such Person's status as Trustee hereunder and the succession of
any other Person to such status.
Trustee Fee: as defined in Section 7.07.
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.
Trust Order or Trust Request: a written order or request delivered to the
Trustee and signed in the name of the Issuer by an Authorized Officer.
Underwriting Agreement: the Underwriting Agreement, among the Issuer,
Copelco and [_______________].
Uniform Commercial Code: 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 Lease: a Lease subject to repurchase by the Transferor as a result
of a breach of a representation or warranty in accordance with the provisions of
Section 4 of the Assignment and Servicing Agreement.
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 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.
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
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matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Wherever in this Indenture, in connection with any application or
certificate or report to 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 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).
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.
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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 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
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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 _____________, 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 East Gate Center, 700 East Gate Drive, Mount
Laurel, New Jersey 08054-5400, (Number for telecopy: 856-273-9288), or at any
other address previously furnished in writing to the Trustee and the Issuer by
the Servicer; or
(c) if to the Servicer, at One International Boulevard, Mahwah, NJ 07430,
Attention: Stephen W. Shippie (Number for telecopy: 856-273-9288), 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 [_______], [_______], and [_______].
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 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
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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. THIS INDENTURE IS SUBJECT TO
THE TRUST INDENTURE ACT OF 1939 AND SHALL BE GOVERNED THEREBY AND CONSTRUED IN
ACCORDANCE THEREWITH.
SECTION 1.10. Legal Holidays.
In any case where any Payment Date or the Stated Maturity or any other date
on which principal of or interest on any Note is proposed to be paid shall not
be a Business Day, then (notwithstanding any other provision of this Indenture
or of the Notes) such payment need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
such Payment Date, Stated Maturity, or other date on which principal of or
interest on any Note is proposed to be paid, provided that no interest shall
accrue for the period from and after such Payment Date, Stated Maturity, or any
other date on which principal of or interest on any Note is proposed to be paid,
as the case may be, until such next succeeding Business Day.
SECTION 1.11. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 1.12. 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 Receivable Notes or 25% of the Outstanding Principal Amount of the Class R
Notes, during the Issuer's normal business hours, to examine all of the books of
account, records, reports
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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 Assignment and
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 and Warranties.
The representations, warranties 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.
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 A-5 Notes, $_________ principal amount of Class B
Notes, $_______ principal amount of Class C Notes, $_______principal amount of
Class D Notes, $________ principal amount of Class E Notes, $_________ principal
amount of Class R-1 Notes, and $________principal amount of Class R-2 Notes and
the forms thereof and of the Trustee's certificate of authentication shall be in
substantially the forms set forth in Exhibit A hereto, with such appropriate
insertions, omissions, substitutions, and other variations as are required or
permitted by this Indenture.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to $_________ of Receivable Notes and
$_________ of Class R Notes, 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 $1,000,000 with
respect to the Class A Notes, the Class B Notes, the Class C Notes, the Class D
Notes, the Class E Notes and the Class R 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
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than an integral multiple of $1,000,000, or the issuance of a single Note of
each Class, with a denomination less than $1,000,000.
(b) For each Payment Date, payments of principal (the "Principal Payments")
on the Notes will be made in accordance with Sections 3.03(b), 3.04(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 Discounted Present Value of the Performing Leases is less than or
equal to five percent (5%) of the aggregate Discounted Present Value of the
Leases 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 A-5 Notes, the Class B Notes, the Class C Notes,
the Class D Notes, the Class E Notes, the Class R-1, and the Class R-2 Notes
will be the interest that has accrued on the respective Notes since the last
Payment Date or, in the case of the first Payment Date, since the Issuance Date,
at the Class A-1 Interest Rate, Class A-2 Interest Rate, Class A-3 Interest
Rate, Class A-4 Interest Rate, Class A-5 Interest Rate, Class B Interest Rate,
Class C Interest Rate, Class D Interest Rate, Class E Interest Rate, Class R-1
Interest Rate and Class R-2 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 A-5 Notes, Class B Notes, the Class C Notes, Class
D Notes, Class E Notes, Class R-1 Notes, and Class R-2 Notes respectively, on
the preceding Payment Date. With respect to the Class A-1 Notes, the interest
will be calculated on the basis of a year of 360 days and the actual number of
days in the related interest accrual period. With respect to all other Notes,
the interest 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), 3.04(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
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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) All Class A-5 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-5 Notes shall be made pro rata
among all Outstanding Class A-5 Notes, without preference or priority of any
kind.
(j) The Class B Notes shall be subordinated to the Class A Notes to the
extent set forth herein. All Class B Notes issued under this Indenture shall be
in all respects equally and ratably entitled to the benefits hereof without
preference, priority or distinction on account of the actual time or times of
authentication and delivery, all in accordance with the terms and provisions of
this Indenture. Payments of principal and interest on the Class B Notes shall be
made pro rata among all Outstanding Class B Notes, without preference or
priority of any kind.
(k) 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.
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(l) 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.
(m) The Class E Notes shall be subordinated to the Class A Notes, the Class
B Notes, the Class C Notes and the Class D Notes to the extent set forth herein.
All Class E 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 E Notes shall be made pro rata
among all Outstanding Class E Notes, without preference or priority of any kind.
(n) Except as provided in Section 6.06, the Class R Notes shall not be
subordinated to the Class A Notes, Class B Notes, Class C Notes, Class D Notes
or Class E Notes, but shall have priority with respect to any Residual
Realizations received hereunder. The Class R-2 Notes shall be subordinated to
the Class R-1 Notes to the extent set forth herein.
(o) All Class R-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 R-1 Notes shall be made pro rata
among all Outstanding Class R-1 Notes, without preference or priority of any
kind.
(p) The Class R-2 Notes shall be subordinated to the Class R-1 Notes to the
extent set forth herein. All Class R-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 R-2 Notes shall
be made pro rata among all Outstanding Class R-2 Notes, without preference or
priority of any kind.
SECTION 2.02. Execution, Authentication, Delivery, and Dating.
(a) The Notes shall be manually executed by the Issuer.
(b) Any Note bearing the signature of an individual who was at the time of
execution thereof a proper officer of the Issuer 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.
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(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 Trust 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
Trust 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 transfers of Notes. The Trustee is hereby appointed "Note
Registrar" for the purpose of registering Notes and transfers of Notes as herein
provided.
No transfer of any Class E 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 B 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 (a) the Class R Notes is
proposed to be made to an Accredited Investor pursuant to clause (iii) above or
(b) the Class E Notes is proposed, the Trustee will require, in order to assure
compliance with such laws, that the Class E Noteholder's or Class R 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 B hereto. Except in the
case of a transfer of Class E Notes or Class R 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
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Servicer or the Issuer). None of the Issuer, the Servicer or the Trustee is
obligated to register or qualify the Class E Notes or the Class R 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 E
Note or Class R 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.
(b) Each transferee of Class R Notes represented by an interest in a Rule
144A Global Note will be deemed to have represented and agreed as follows (terms
used in this paragraph that are defined in Rule 144A under the Securities Act
are used herein as defined therein):
(1) The transferee (A) is a "qualified institutional buyer", (B) is
aware that the sale of the Class R Notes to it is being made in
reliance on the exemption from registration provided by Rule 144A
under the Securities Act and (C) is acquiring the Class R Notes
for its own account or for one or more accounts, each of which is
a QIB, and as to each of which the transferee exercises sole
investment discretion, and in a principal amount of not less than
$1,000,000, for the transferee and for each such account. The
transferee has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of its investment in the Class R Notes, and the transferee
and any accounts for which it is acting are each able to bear the
economic risk of the transferee's or its investment.
(2) The transferee understands that the Class R Notes are being
offered only in a transaction not involving any public offering
in the United States within the meaning of the Securities Act,
the Class R Notes have not been and will not be registered under
the Securities Act, and, if in the future the transferee decides
to offer, resell, pledge or otherwise transfer the Class R Notes,
such Class R Notes may be offered, resold, pledged or otherwise
transferred only in accordance with the legend on such Class R
Notes described above. The transferee acknowledges that no
representation is made by the Issuer as to the availability of
any exemption under
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the Securities Act or any state securities laws for resale of the
Class R Notes.
(3) The transferee has carefully read and understands the Class R
Private Placement Memorandum, including, without limitation, the
"Risk Factor" section therein, and has based its decision to
purchase the Class R Notes upon the information contained therein
and not upon any information, if any, provided to it by any of
the Issuer, the Placement Agent or any other Person. The
transferee is not purchasing the Class R Notes with a view to the
resale, distribution or other disposition thereof in violation of
the Securities Act. The transferee understands that an investment
in the Class R Notes involves certain risks, including the risk
of loss of a substantial part of its investment under certain
circumstances. The transferee has had access to such financial
and other information concerning the Issuer and the Class R Notes
as it deemed necessary or appropriate in order to make an
informed investment decision with respect to its purchase of the
Class R Notes, including an opportunity to ask questions of and
request information from the Placement Agent.
(4) In connection with the transfer of the Class R Notes: (i) none of
the Issuer, the Placement Agent or the Servicer is acting as a
fiduciary or financial or investment adviser for the transferee;
(ii) the transferee is not relying (for purposes of making any
investment decision or otherwise) upon any advice, counsel or
representations (whether written or oral) of the Issuer, the
Placement Agent or the Servicer other than any in a current
private placement memorandum for such Class R Notes and any
representations expressly set forth in a written agreement with
such party; (iii) none of the Issuer, the Placement Agent or the
Servicer has given to the transferee (directly or indirectly
through any other person) any assurance, guarantee, or
representation whatsoever as to the expected or projected
success, profitability, return, performance, result, effect,
consequence, or benefit (including legal, regulatory, tax,
financial, accounting, or otherwise) of the Indenture or
documentation for the Class R Notes; (iv) the transferee has
consulted with its own legal, regulatory, tax, business,
investment, financial, and accounting advisers to the extent it
has deemed necessary, and it has made its own investment
decisions (including decisions regarding the suitability of any
transaction pursuant to the Indenture) based upon its own
judgment and upon any advice from such advisers as it has deemed
necessary and not upon any view expressed by the Issuer; (v) the
transferee has determined that the rates, prices or amounts and
other terms of the purchase and sale of the Class R Notes reflect
those in the relevant market for similar transactions; (vi) the
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transferee is acquiring the Class R Notes with a full
understanding of all of the terms, conditions and risks thereof
(economic and otherwise), and it is capable of assuming and
willing to assume (financially and otherwise) those risks; and
(vii) the transferee is a sophisticated investor.
(5) The transferee understands that the Class R Notes offered in
reliance on Rule 144A will bear the legend set forth in the form
of Class R Notes attached hereto as Exhibit A, and will be
represented by one or more Rule 144A Global Notes. The Class R
Notes may not at any time be held by or on behalf of U.S. persons
that are not QIBs or institutional accredited investors. Before
any interest in a Rule 144A Global Note may be offered, resold,
pledged or otherwise transferred to a person who takes delivery
in the form of an interest in a Definitive Note, the transferor
will be required to provide the Trustee with a written
certification (in the form provided as Exhibit B hereto) as to
compliance with the transfer restrictions.
(6) The transferee will not, at any time, offer to buy or offer to
sell the Class R Notes by any form of general solicitation or
advertising, including, but not limited to, any advertisement,
article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over
television or radio or seminar or meeting whose attendees have
been invited by general solicitations or advertisings.
(7) The transferee by its purchase of the Class R Notes, represents
that either (i) it is not 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 such Class R
Notes will be covered by a U.S. Department of Labor Prohibited
Transaction Class Exemption.
(8) The transferee acknowledges that the Issuer, the Placement Agent
and others will rely upon the truth and accuracy of the foregoing
acknowledgments, representations and agreements and agrees that,
if any of the acknowledgments, representations or warranties
deemed to have been made by it by or in connection with its
purchase of Class R Notes is no longer accurate, it shall
promptly notify the Issuer and the Placement Agent. If the
transferee is acquiring any Class R Notes as a fiduciary or agent
for one or more investor accounts, it shall be deemed to have
represented that it has sole investment discretion with respect
to each such account and that it has full power to make the
foregoing acknowledgments, representations and agreements on
behalf of each such account.
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(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
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 any such 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
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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, Class D Notes and Class R Notes.
Each of the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, the Class A-5 Notes, the Class B Notes, the Class C Notes, the Class D
Notes, the Class R-1 Notes, and the Class R-2 Notes, upon original issuance,
shall be issued in the form attached as Exhibit A 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 A-5 Notes, Class B Notes, Class C Notes, Class D Notes, the Class
R-1 Notes and the Class R-2 Notes shall initially be registered on the Note
Register in the name of [______], 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 A-5 Note Owner, Class B
Note Owner, Class C Note Owner, Class D Note Owner, Class R-1 Note Owner, or
Class R-2 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 A-5 Notes, Definitive Class
B Notes, Definitive Class C Notes, Definitive Class D Notes, Definitive Class
R-1 Notes and/or Definitive Class R-2 Notes ("Definitive Notes") have been
issued to the applicable Note Owners pursuant to Section 2.07:
(a) 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, Class A-5 Notes or the Class B Notes, Class C Notes, Class D Notes or
Class R Notes, as the case may be;
(b) 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 A-5
Notes, Class B Notes, Class C Notes, Class D Notes or Class R 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 A-5 Notes, Class B Notes, Class C
Notes, Class D Notes and Class R
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Notes, as the case may be), as the authorized representatives of the respective
Note Owners;
(c) to the extent that the provisions of this Section 2.05 conflict with
any other provisions of this Indenture, the provisions of this Section 2.05
shall control; and
(d) the rights of the respective Note Owners shall be exercised only
through the Clearing Agency and the Clearing Agency Participants and shall be
limited to those established by law and agreements between such respective Note
Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Depository Agreement, unless and until Definitive 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 A-5 Notes, Class B Notes,
Class C Notes, Class D Notes, Class R-1 Notes and Class R-2 Notes, as the case
may be, to such Clearing Agency Participants.
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 A-5 Notes, Class B
Notes, Class C Notes, Class D Notes, Class R-1 Notes or Class R-2 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 A-5 Notes, the Class B Notes, Class C Notes, Class D Notes, Class
R-1 Notes or Class R-2 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 A-5 Notes, Class B Notes, Class C Notes, Class D Notes, Class
R-1 Notes or Class R-2 Notes evidencing the requisite percentage of the
Outstanding Principal Amount of such Notes, respectively.
SECTION 2.06. Notice to Clearing Agency Note Owners.
Whenever notice or other communication to the Class A-1 Noteholders, Class
A-2 Noteholders, Class A-3 Noteholders, Class A-4 Noteholders, Class A-5
Noteholders, Class B Noteholders, Class C Noteholders, Class D Noteholders,
Class R-1 Noteholders or Class R-2 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 A-5 Note Owners, Class B Note Owners, Class C Note
Owners, Class D Note Owners, Class R-1 Note Owners or Class R-2 Note Owners in
accordance with its applicable rules, regulations and procedures.
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SECTION 2.07. Definitive Class A Notes, Class B Notes, Class C Notes, Class
D Notes and Class R Notes.
(a) 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, Class A-5 Notes, the Class B Notes,
Class C Notes, Class D Notes, the Class R-1 Notes and/or the Class R-2 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, Class A-5 Notes, the Class B Notes,
Class C Notes, Class D Notes, the Class R-1 Notes and/or the Class R-2 Notes
through the Clearing Agency or (c) after the occurrence of a Servicer Event of
Default, Class A-1 Note Owners, Class A-2 Note Owners, Class A-3 Note Owners,
Class A-4 Note Owners, Class A-5 Note Owners, Class B Note Owners, Class C Note
Owners, Class D Note Owners, Class R-1 Note Owners and Class R-2 Note Owners
with respect to the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4
Notes, Class A-5 Notes, Class B Notes, Class C Notes, Class D Notes, Class R-1
Notes and Class R-2 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 A-5 Notes, Class B Notes, Class C Notes, Class D
Notes, Class R-1 Notes and Class R-2 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 A-5 Notes, Class B Notes,
Class C Notes, Class D Notes, Class R-1 Notes or Class R-2 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 A-5 Note Owners, Class B Note Owners, Class C Note Owners, Class D
Note Owners, Class R-1 Note Owners or Class R-2 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 A-5 Note Owners, Class B Note
Owners, Class C Note Owners, Class D Note Owners, Class R-1 Note Owners and
Class R-2 Note Owners with respect to the Class A-1 Notes, Class A-2 Notes,
Class A-3 Notes, Class A-4 Notes, Class A-5 Notes, Class B Notes, Class C Notes,
Class D Notes, Class R-1 Notes and Class R-2 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 A-5 Note Owners, Class B Note Owners,
Class C Note Owners, Class D Note Owners, Class R-1 Note Owners or Class R-2
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
A-5 Notes, Class B Notes, Class C Notes, Class D Notes, Class R-1 Notes or Class
R-2 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
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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.
(b) The Class R Notes sold to QIBs will be represented by a permanent
global note in fully registered form without coupons (the "Rule 144A Global
Note") deposited with a custodian for, and registered in the name of, a nominee
of DTC. In the case of Class R Notes that are Definitive Notes initially issued
to an Accredited Investor or in exchange for the Rule 144A Global Notes, such
Definitive Notes will bear, and be subject to the legend set forth in the form
of Class R Notes attached hereto as Exhibit A. The holder of such Definitive
Note may transfer such Definitive Note by surrendering it at the office or
agency maintained by the Trustee. Upon the transfer, exchange or replacement of
Definitive Notes bearing such legend, or upon specific written request for
removal of the legend on a Definitive Note, the Trustee will deliver only
Definitive Notes that bear such legend, or will refuse to remove such legend, as
the case may be, unless there is delivered to the Trustee such satisfactory
evidence, which may include an opinion of counsel, as may reasonably be required
by the Trustee that neither such legend nor the restrictions on transfer set
forth therein are required to ensure compliance with the provisions of the
Securities Act.
Definitive Notes will not be eligible for clearing or settlement through
DTC, Euroclear or Cedel.
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.
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
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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 Trust 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 interest 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.
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 the
Collection Account and the Reserve Account in the name of the Trustee for the
benefit of
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the Receivable Noteholders to the extent of their interests therein as provided
in this Indenture and in the Assignment and Servicing Agreement which accounts
shall be Eligible Accounts maintained at the Corporate Trust Office. On or
before the Issuance Date, the Trustee shall establish the Residual Account and
the Liquidity Reserve Account in the name of the Trustee for the benefit of the
Residual Noteholders to the extent of their interests therein as provided in
this Indenture and in the Assignment and Servicing Agreement, which accounts
shall be Eligible Accounts 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
and all investments made with such amounts, including all income and other gain
from such investments, shall be held by the Trustee in such accounts as part of
the Trust Estate 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 Collection 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 Trust Estate 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.
(c) Neither the Servicer, Trustee nor the institution then acting as
Trustee shall have any right of set-off with respect to the Collection Account,
the Reserve Account, the Residual Account or the Liquidity Reserve 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 Trust Order or 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 Trust Order or 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
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or facsimile transmission from the employees or agents of the Issuer or the
Servicer, as the case may be, identified therein, in each case in such amounts
as such Trust Order or Servicer Order shall specify. The Issuer agrees to report
as income for financial reporting and tax purposes (to the extent reportable)
all investment earnings on amounts in the Collection Account, the Reserve
Account, the Residual Account, or the Liquidity Reserve Account. Each of the
Issuer and 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 Trust Order or 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 Issuer or 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 Collection Account, the Reserve
Account, the Residual Account or the Liquidity Reserve 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 deposited by the Trustee in such
account immediately upon receipt.
(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:
(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 Trust
Estate;
(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; and
(iii) the proceeds of any sale of an investment shall be remitted by the
purchaser thereof directly to the Trustee for deposit in the account in which
such investment was held.
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(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 Trust Order or 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.
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 Other Lease Payments and which
designated address may be the same designated address to which such 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 (excluding
Residual Realizations) in the Collection Account and Residual Realizations in
the Residual 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 Trust Estate. Any Other
Lease Payments from time to time received at such designated address or
otherwise received by the Servicer or deposited in the Collection Account shall
not constitute part of the Trust Estate.
(b) The Trustee shall from time to time, in accordance with instructions of
the Servicer, withdraw from the Collection Account any amounts in the Collection
Account which the Servicer advises the Trustee are 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 Transaction Payment Amounts.
(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, deliver such payment in the form received
to the Trustee.
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SECTION 3.03. Collection Account; Payments.
(a) The Servicer shall within two Business Days of receipt (a "Required
Deposit Date") deposit the following funds, as received, into the Collection
Account:
(i) Lease Payments (net of any Excess Copy Charges, Maintenance Charges and
Fee Per Scan Charges);
(ii) recoveries from Non-Performing Leases to the extent Copelco has not
substituted Substitute Leases for such Non-Performing Leases (except to the
extent required to reimburse unreimbursed Servicer Advances);
(iii) late charges received on delinquent Lease payments not advanced by
the Servicer;
(iv) proceeds (other than Residual Warranty Payments) from purchases by
Copelco of Leases as a result of breaches of representations and warranties by
Copelco to the extent Copelco has not substituted Substitute Leases for such
Leases;
(v) proceeds from investment of funds in the Collection Account and the
Reserve Account;
(vi) Casualty Payments (other than Residual Casualty Payments);
(vii) Servicer Advances;
(viii) Termination Payments (other than Residual Prepayments) to the extent
the Issuer does not reinvest such Termination Payments in Additional Leases; and
(ix) payments from the Transferor to effect a redemption of the Notes
pursuant to Section 2.01(b).
(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 Collection Account and the
amounts, if any, deposited into the Collection Account from the Reserve Account
in accordance with the provisions of Section 3.05 shall be withdrawn by the
Servicer on or before each Payment Date from the Collection Account, in the
amounts required, for application in the following order of priority, to make
the following required payments:
(i) to pay the Servicing Fee;
(ii) to pay the Trustee Fee;
(iii) to reimburse unreimbursed Servicer Advances in respect of a prior
Payment Date;
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(iv) concurrently and pro rata: (a) to make Interest Payments on the Class
A-1 Notes; (b) to make Interest Payments on the Class A-2 Notes; (c) to make
Interest Payments on the Class A-3 Notes; (d) to make Interest Payments on the
Class A-4 Notes; (e) to make Interest Payments on the Class A-5 Notes;
(v) to make Interest Payments on the Class B Notes;
(vi) to make Interest Payments on the Class C Notes;
(vii) to make Interest Payments on the Class D Notes;
(viii) to make Interest Payments on the Class E Notes;
(ix) to make the Class A Principal Payment (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, then (iv) to the Class A-4 Noteholders only, until
the Outstanding Principal Amount on the Class A-4 Notes is reduced to zero and
finally, (v) to the Class A-5 Noteholders until the Outstanding Principal Amount
on the Class A-5 Notes is reduced to zero;
(x) to pay the Class B Principal Payment to the Class B Noteholders;
(xi) to pay the Class C Principal Payment to the Class C Noteholders;
(xii) to pay the Class D Principal Payment to the Class D Noteholders;
(xiii) to pay the Class E Principal Payment to the Class E Noteholders;
(xiv) to pay the Additional Principal, if any, as an additional reduction
of principal, to the Class A Noteholders then receiving the Class A Principal
Payment until the Outstanding Principal Amount as provided in clause (viii)
above on all of the Class A Notes 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; thereafter to the Class D Noteholders until the Outstanding
Class D Principal Amount has been reduced to zero; and thereafter to the Class E
Noteholders until the Outstanding Class E Principal Amount has been reduced to
zero;
(xv) to make a deposit to the Reserve Account in an amount equal to the
excess of the Required Reserve Amount over the Available Reserve Amount; and
(xvi) to the Issuer, the balance, if any.
(c) Notwithstanding the foregoing, the Trustee shall retain in the
Collection Account an amount equal to all Lease Payments received that were due
since
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the prior Due Period, and all Casualty Payments and Termination Payments
(excluding Residual Realizations) received by the Trustee after the
Determination 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 Residual Account; Payments.
(a) The Servicer shall within two Business Days of receipt deposit the
following funds, as received into the Residual Account:
(i) Residual Realizations;
(ii) proceeds from investment of funds in the Residual Account and the
Liquidity Reserve Account;
(iii) Residual Servicer Advances; and
(iv) payments from the Transferor to effect a redemption of the Class R
Notes pursuant to Section 2.01(b).
(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, amounts on deposit in the Residual Account and the amounts, if
any, deposited into the Residual Account from the Liquidity Reserve Account in
accordance with the provisions of Section 3.06 shall be withdrawn by the
Servicer on or before each Payment Date from the Residual Account, in the
amounts required, for application in the following order of priority, to make
the following required payments:
(i) to pay the Residual Servicing Fee;
(ii) to pay the Residual Trustee Fee;
(iii) to reimburse unreimbursed Residual Servicer Advances in respect of a
prior Payment Date;
(iv) to make Interest Payments on the Class R-1 Notes;
(v) to make Interest Payments on the Class R-2 Notes;
(vi) to make a deposit to the Liquidity Reserve Account in an amount equal
to the excess of the Required Liquidity Reserve over the amount then on deposit
therein;
(vii) to pay principal on the Class R-1 Notes until such time as the
Outstanding Class R-1 Principal Amount is reduced to zero;
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(viii) to pay principal on the Class R-2 Notes until such time as the
Outstanding Class R-2 Principal Amount is reduced to zero; and
(ix) to the Issuer, the balance, if any.
SECTION 3.05. 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 Collection Account such amounts as
shall be required by Section 3.05(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 Collection 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 Collection
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.
(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 3.06. The Liquidity Reserve Account.
(a) On the Issuance Date, the Issuer has made an initial deposit of
$________ into the Liquidity Reserve Account for the sole benefit of the Class R
Notes. On each Payment Date, the Trustee shall transfer to the Liquidity Reserve
Account from the Residual Account such amounts as shall be required by Section
3.06(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 Residual Account
available for distribution under Section 3.04(b) is insufficient to permit on
such Payment Date all distributions required by Section 3.04(b)(i) through
3.04(b)(iv) then, to the extent of the amount on deposit in the Liquidity
Reserve Account, the Trustee shall transfer, not later than the end of such
Business Day, from the Liquidity Reserve Account to the Residual Account such
amount as shall be necessary to make such distribution on such Payment Date.
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(c) If on any Payment Date, the aggregate of the balance in the Residual
Account and the balance in the Liquidity Reserve Account is greater than the
outstanding balance of the Class R Notes and interest payable thereon and the
Residual Servicing Fee payable on such Payment Date, the Trustee shall withdraw
all amounts from the Liquidity Reserve Account and deposit them in the Residual
Account for distribution to the Class R-1 Noteholders and Class R-2 Noteholders
on such date.
(d) If on any Payment Date, the balance in the Liquidity Reserve Account
after giving effect to all distributions required by Section 3.04(b)(i) through
3.04(b)(iv) is greater than the Required Liquidity Reserve the Trustee shall
withdraw such excess from the Liquidity Reserve Account and deposit them in the
Residual Account for distribution to the Class R Noteholder on such Payment
Date.
(e) Upon termination of this Indenture, any balance remaining in the
Liquidity Reserve Account, after all obligations to the Class R 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 3.07. 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 Receivable Noteholder, deliver to the requesting
person a written report setting forth the amounts on deposit in the Collection
Account and the Reserve 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 Section 5.01 of the
Assignment and Servicing Agreement, the Trustee shall mail to the Issuer,
Copelco, each Rating Agency and the Servicer and make available to each
Receivable Noteholder the following information:
(i) the principal amount of all Outstanding Class A-1 Notes, Class A-2
Notes, Class A-3 Notes, Class A-4 Notes, Class A-5 Notes, Class B Notes, Class C
Notes, Class D Notes, and Class E 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 A-5 Notes, Class B Notes, Class C Notes,
Class D Notes and Class E Notes respectively, and with respect to the Receivable
Notes held by each Receivable 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 Collection Account and the Reserve
Account, in each case after giving effect to all of the withdrawals and
applications or
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transfers required on or before such Payment Date pursuant to Sections 3.02,
3.03 and 3.05.
(c) The Trustee shall within two Business Days after the request of the
Issuer, the Servicer, or any Class R Noteholder, deliver to the requesting
person a written report setting forth the amounts on deposit in the Residual
Account and the Liquidity Reserve Account, and identifying the investments
included therein.
(d) 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 Section 5.01 of the
Assignment and Servicing Agreement, the Trustee shall mail to the Issuer,
Copelco, each Rating Agency and the Servicer and make available to each Class R
Noteholder the following information:
(i) the principal amount of all Outstanding Class R-1 Notes and Class R-2
Notes, respectively;
(ii) the amount of Interest Payments and payments in reduction of principal
paid on such Payment Date with respect to all Class R-1 Notes and Class R-2
Notes, respectively, and with respect to the Class R Notes held by each Class R
Noteholder;
(iii) the amount of the Residual Servicing Fee and unreimbursed Residual
Servicer Advances paid on such Payment Date pursuant to Section 3.04(b)(i) and
Section 3.04(b)(ii); and
(iv) the amount on deposit in the Residual Account and the Liquidity
Reserve Account, in each case after giving effect to all the withdrawals and
applications or transfers required on or before such Payment Date pursuant to
Sections 3.04 and 3.06.
(e) With each report of the Trustee furnished pursuant to this Section 3.07
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 following such Payment Date pursuant to Section 6.01 of the Assignment
and Servicing Agreement or, if such reports have not been received, a statement
to such effect.
(f) Upon request of a Noteholder, the Trustee will provide information as
to the Outstanding Principal Amount of each Class of Notes.
SECTION 3.08. Trustee May Rely on Certain Information from Copelco and
Servicer.
Pursuant to Sections 4.01, 4.05, 5.01 and 6.02 of the Assignment and
Servicing Agreement and Section 3.02 through 3.07 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)
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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 Assignment and 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 and the deposit of any
Residual Realization in respect thereof, (c) the repurchase of the related Lease
in accordance with the provisions of Section 5 of the Assignment and 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 Section 11 of the Assignment and Servicing Agreement and (e) upon the
substitution of a Substitute Lease related to such Equipment in accordance with
the provisions of Section 11 of the Assignment and Servicing Agreement. The
proceeds (excluding Residual Realizations) of any such sale, repurchase or
releasing shall be deposited in the Collection Account for disposition under
this Indenture. The Residual Realizations shall be deposited in the Residual
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, the Lease Purchase
Amount, or from the proceeds of the Equipment subject to any Lease (i) the final
Lease Payment due and payable under such Lease and the deposit of any Residual
Realization in respect thereof, (ii) a Termination Payment in respect of such
Lease, and the deposit of any Residual Realization in respect thereof, (iii) a
Lease Purchase Amount in respect of such Lease, and the deposit of any Residual
Realization in respect thereof, (iv) a Casualty Payment under such Lease (and,
following such final Lease Payment, Casualty Payment, Lease Purchase Amount or
Termination Payment, no further payments on or in respect of such Lease are or
will be due and payable), or (iv) the full amount of any recoveries with respect
to such Non-Performing Lease, such Lease shall be released from the lien of this
Indenture.
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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 Trust 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 Assignment and Servicing Agreement (but none of Copelco's obligations
pursuant to Section 4 of the Assignment and Servicing Agreement, which shall
survive such termination). On and after the giving of such written notice, all
rights and obligations of the Servicer under the Assignment and Servicing
Agreement, including, without limitation, the Servicer's right thereunder to
receive the Servicing Fee, but none of the Servicer obligations pursuant to
Section 4 thereof, 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 Assignment and 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 8.03 of the Assignment and 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 Principal Payments at the Stated Maturity of the
relevant Receivable Notes or Interest Payments on the Receivable Notes when such
become due and payable;
(b) 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; or
(c) 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, 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.
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default occurs, the unpaid principal amount of the Notes
shall automatically become due and payable at par together with all accrued and
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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, Class D Notes, Class E Notes and Class R Notes which have become
due otherwise than by such declaration of acceleration and interest thereon
from the date when the same first became due until the date of payment or
deposit at the appropriate Note Interest Rate,
(B) all Interest Payments due with respect to any Class A Notes, Class
B Notes, Class C Notes, Class D Notes, Class E Notes and Class R 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;
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 Trust Estate 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) 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.
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(d) In exercising its rights and obligations under this Section 6.03, the
Trustee may sell the Trust Estate (other than the Liquidity Reserve Account);
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 Trust Estate.
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, Copelco, the Servicer or any other
obligor upon the Notes or the other obligations secured hereby or relating to
the property of the Issuer, Copelco, 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, Copelco 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
(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.
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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.
Any money collected by the Trustee pursuant to this Article following an
Event of Default, and any moneys that may then be held (excluding amounts on
deposit in the Liquidity Reserve Account which will be used, on the Payment Date
immediately following an Event of Default for the payment of interest and
principal to Class R Noteholders in accordance with Clause fourth below) or
thereafter received by the Trustee (other than the Liquidity Reserve Account)
shall be applied in the following order, 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:
first to 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);
second if the person then acting as Servicer under the Assignment and
Servicing Agreement is not Copelco Capital or an Affiliate of Copelco
Capital, to the payment of all Servicer's Fees then due to such person;
third first, pro-rata to the payment of all accrued and unpaid
interest on the Outstanding Class A-1 Principal Amount, Outstanding Class
A-2 Principal Amount, Outstanding Class A-3 Principal Amount, Outstanding
Class A-4 Principal Amount, and Outstanding Class A-5 Principal Amount,
respectively, to the date of payment thereof, including (to the extent
permitted by applicable law) interest on any overdue installment of
interest and principal from the maturity of such installment to the date of
payment thereof at the rate per annum equal to the Class A-1 Note Interest
Rate, Class A-2 Note Interest Rate and Class A-3 Note Interest Rate, Class
A-4 Note Interest Rate and Class A-5 Note Interest Rate, respectively,
second, to the payment of all accrued and unpaid interest on the
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Outstanding Class B Principal Amount to the date of payment thereof,
including (to the extent permitted by applicable law) interest on any
overdue installment of interest and principal from the maturity of such
installment to the date of payment thereof at the rate per annum equal to
the Class B Note Interest Rate, third, to the payment of all accrued and
unpaid interest on the Outstanding Class C Principal Amount to the date of
payment thereof, including (to the extent permitted by applicable law)
interest on any overdue installment of interest and principal from the
maturity of such installment to the date of payment thereof at the rate per
annum equal to the Class C Note Interest Rate, fourth, to the payment of
all accrued and unpaid interest on the Outstanding Class D Principal Amount
to the date of payment thereof, including (to the extent permitted by
applicable law) interest on any overdue installment of interest and
principal from the maturity of such installment to the date of payment
thereof at the rate per annum equal to the Class D Note Interest Rate,
fifth, to the payment of all accrued and unpaid interest on the Outstanding
Class E Principal Amount to the date of payment thereof, including (to the
extent permitted by applicable law) interest on any overdue installment of
interest and principal from the maturity of such installment to the date of
payment thereof at the rate per annum equal to the Class E Note Interest
Rate, sixth, to the payment of the Outstanding Class A-1 Principal Amount,
seventh, to the payment of the Outstanding Class A-2 Principal Amount,
Outstanding Class A-3 Principal Amount, Outstanding Class A-4 Principal
Amount and Outstanding Class A-5 Principal Amount pro-rata, eighth, to the
payment of the Outstanding Class B Principal Amount, ninth, to the payment
of the Outstanding Class C Principal Amount, tenth, to the payment of the
Outstanding Class D Principal Amount and eleventh, to the payment of the
Outstanding Class E Principal Amount; provided, that the Noteholders may
allocate such payments for interest, principal and premium at their own
discretion, except that no such allocation shall affect the allocation of
such amounts or future payments received by any other Noteholder;
fourth first to the payment of all accrued and unpaid interest on the
Outstanding Class R-1 Principal Amount, second to the payment of all
accrued and unpaid interest on the Outstanding Class R-2 Principal Amount,
third to the payment of the Outstanding Class R-1 Principal Amount and
fourth to the payment of the Outstanding Class R-2 Principal Amount;
fifth to the payment of amounts then due the Trustee hereunder;
sixth if the person then acting as Servicer is Copelco Capital or an
Affiliate of Copelco Capital, to the payment of all Servicer's Fees then
due to such Person; and
seventh to the payment of the remainder, if any, to the Issuer or any
other Person legally entitled thereto.
On the Payment Date following an Event of Default, amounts in the
Liquidity Reserve Account shall be used to make any amounts not paid under
item fourth above and thereafter in the priority first through seventh
above.
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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:
(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. It is further understood and intended that so long as any portion
of the Notes remains Outstanding, Copelco shall not have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture (other
than for the enforcement of Sections 3.03(b), 3.04(b), 3.05, 3.06, 4.01 and 4.02
hereof) or for the appointment of a receiver or trustee (including, without
limitation, a proceeding under the Bankruptcy Code), or for any other remedy
hereunder. 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 Trust Estate, the holder of any Note shall
have the absolute and unconditional right to receive payment of the principal of
and interest on such Note on the Maturities for such payments, including the
Stated Maturity, and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Noteholder.
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SECTION 6.09. 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.
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
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(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. Residual Notes Events of Default.
(a) Upon a default in making of Principal Payments at the Stated Maturity
of the relevant Class R Notes or Interest Payments on the Class R Notes when
such become due and payable (a "Residual Event of Default"), the unpaid
principal amount of the Class R 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 a Residual 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 Class R
Notes evidencing 66-2/3% of the then Outstanding Principal Amount of the Class R
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 all Principal Payments on the Class R Notes
which have become due otherwise than by such declaration of acceleration and
interest thereon from the date when the same first became due until the date of
payment or deposit at the appropriate Note Interest Rate all Interest Payments
due with respect to any Class R 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 all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses, disbursements, and
advances of the Trustee, its agents and counsel. No such rescission shall affect
any subsequent Residual Event of Default or impair any right consequent thereon.
(c) If a Residual 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. Following any
acceleration of the Class R Notes, the Trustee shall have all of the rights,
powers and remedies with respect to the Residual Realizations 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. If a Residual Event of Default 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. In exercising its rights and obligations under
this Section 6.13, the Trustee may sell the rights to receive Residual
Realizations to a third party. Neither the Trustee nor any Class R Noteholder
shall have any rights against the Issuer other than to sell the Residual
Realizations.
(d) Any money collected by the Trustee pursuant to this Article following a
sale of rights to Residual Realizations following a Residual Event of Default,
and any moneys that may then be held or thereafter received by the Trustee for
the
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benefit of the Class R Notes or otherwise available in the Residual Account or
the Liquidity Reserve Account shall be applied in the following order, at the
date or dates fixed by the Trustee, upon presentation of the Class R Notes and
surrender thereof:
first to the payment of all costs and expenses of collection incurred
by the Trustee and the Class R Noteholders (including the reasonable fees
and expenses of any counsel to the Trustee and the Noteholders);
second if the person then acting as Servicer under the Assignment and
Servicing Agreement is not Copelco Capital or an Affiliate of Copelco
Capital, to the payment of all Residual Servicer's Fees then due to such
person;
third first to the payment of all accrued and unpaid interest on the
Outstanding Class R-1 Principal Amount, second to the payment of all
accrued and unpaid interest on the Outstanding Class R-2 Principal Amount,
third to the payment of the Outstanding Class R-1 Principal Amount and
fourth to the payment of the Outstanding Class R-2 Principal Amount;
fourth to the payment of amounts then due the Trustee hereunder;
fifth if the person then acting as Servicer is Copelco Capital or an
Affiliate of Copelco Capital, to the payment of all Residual Servicer's
Fees then due to such Person; and
sixth to the payment of the remainder, if any, to the Issuer or any
other Person legally entitled thereto.
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
Maturities 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
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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.
SECTION 6.16. Sale of Trust Estate.
(a) The power to effect any sale of any portion of the Trust Estate
described pursuant to Section 6.03 shall not be exhausted by any one or more
sales as to any portion of the Trust Estate remaining unsold, but shall continue
unimpaired until the entire Trust Estate shall have been sold or all amounts
payable on the Notes shall have been paid. 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 place of such sale. For any public sale
of the Trust Estate, 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 Trust Estate, 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 Trust Estate at a private sale.
(c) In connection with a sale of all or any portion of the Trust Estate:
(i) any one or more Noteholders may bid for and purchase the property
offered for sale, and upon compliance with the terms of sale may hold, retain,
and possess and dispose of such property, without further accountability, and
any Noteholder may, in paying the purchase money therefore, deliver in lieu of
cash any Outstanding Notes or claims for interest thereon for credit in the
amount that shall, upon distribution of the net proceeds of such sale, be
payable thereon, and the Notes, in case the amounts so payable thereon shall be
less than the amount due thereon, shall be returned to the Noteholders after
being appropriately stamped to show such partial payment;
(ii) the Trustee shall execute and deliver an appropriate instrument of
conveyance transferring its interest in any portion of the Trust Estate in
connection with a sale thereof;
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(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 Trust Estate in connection with a sale thereof, and to take all
action necessary to effect such sale; and
(iv) no purchaser or transferee at such a sale shall be bound to ascertain
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 Trust Estate shall be commercially reasonable.
(e) The provisions of this Section 6.16 shall not be construed to restrict
the ability of the Trustee to exercise any rights and powers against the Issuer
or the Trust Estate 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.
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
(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:
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(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 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 Trust Request or Trust Order and any action of the
Issuer may be sufficiently evidenced by a Trust 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
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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.
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.
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SECTION 7.07. Compensation, Reimbursement, etc.
(a) The amount of the "Trustee Fee" which the Trustee shall be entitled to
receive on each Payment Date following the Issuance of the Receivables Notes
shall be determined by multiplying the (i) Discounted Present Value of
Performing Leases as of the prior Payment Date times (ii) one-twelfth of ____%.
The amount of the "Residual Trustee Fee" which the Trustee shall be entitled to
receive on each Payment Date following the issuance of the Residual Notes shall
be determined by multiplying (i) the Booked Residual Values as of the prior
Payment Date for all Performing Leases times (ii) one-twelfth of ____%.
(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 Section 3.04(b) or payable to the Trustee
under clause first of Section 6.06 or clause first of Section 6.13), 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 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 ___ from [______] and ___ 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.
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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.
(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
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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 jurisdiction in which any of the Trust Estate 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 such Trust Estate, or to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If 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.
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(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. 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 Trust Order, may accept the
resignation of or remove any co-trustee or separate trustee appointed under this
Section, and, in case an Event of Default has occurred and is continuing, 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 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.
(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
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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 [______8] of each year, following the date of this Indenture beginning
[______8, 2000], 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 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
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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 in
Wilmington, Delaware; and records with respect to certain of the Leases are
maintained in Mt. Laurel, New Jersey. 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 Collection Account pursuant to
Section 3.03(b) or Section 6.06 or from amounts withdrawn from the Residual
Account pursuant to Section 3.04(b) shall be made on behalf of the Issuer by the
Trustee, and no amounts so withdrawn from the Collection Account or the Residual
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),
Section 3.04(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), Section
3.04(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
(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 due date of the principal of or interest on any Notes, deposit with a
Paying Agent a sum sufficient to pay the principal or interest so becoming due,
such sum to be held in trust for the benefit of the Noteholders entitled to such
principal or interest, and (unless such Paying Agent is the Trustee) the Issuer
will promptly notify the Trustee of its action or failure so to act.
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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 Securities) 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, and (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 and the Assignment and 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 other Person or (ii) commingle its assets with those of any
other Person.
SECTION 8.05. Protection of Trust Estate; 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 Trust Estate;
(ii) maintain or preserve the Lien of this Indenture or carry out more
effectively the purposes hereof;
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(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 Trust Estate; 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 Section 11.03 of the Assignment
and 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 Trust Estate 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. Reserved.
SECTION 8.07. Performance of Obligations; Assignment and Servicing
Agreement.
(a) The Issuer will punctually perform and observe all of its obligations
and agreements contained in this Indenture, 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 Trust
Estate, or which would result in the amendment, hypothecation, subordination,
termination, or discharge of, or impair the validity or effectiveness of, any
Lease or such other instrument, except as expressly provided in this Indenture
or the Assignment and Servicing Agreement.
(c) If any Authorized Officer shall have knowledge of the occurrence of a
default under the Assignment and 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 Assignment
and 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
Trust Estate 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 Trust Estate;
(c) engage in any business or activity other than in connection with, or
relating to the ownership of, the Leases and the interests in the Equipment, the
issuance of the Notes, and the specific transactions contemplated hereby;
(d) become liable for, issue, incur, assume, or allow to remain outstanding
any indebtedness, or guaranty any indebtedness of any Person, other than the
Notes, except as contemplated by this Indenture, the registration statement
filed with respect to the Class A Notes, Class B Notes, Class C Notes and Class
D Notes, and the Assignment and Servicing Agreement;
(e) seek dissolution or liquidation in whole or in part or reorganization
of its business or affairs;
(f) (i) permit the validity or effectiveness of this Indenture or any Grant
hereby to be impaired, or permit the lien of this Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations under this Indenture, except as may
be expressly permitted hereby, (ii) permit any lien, charge, security interest,
mortgage or other encumbrance to be created on or to extend to or otherwise
arise upon or burden the Trust Estate or any part thereof or any interest
therein or the proceeds thereof other than the lien of this Indenture, or (iii)
subject to Section 3.01(c) of the Assignment and Servicing Agreement, permit the
lien of this Indenture not to constitute a valid first priority security
interest in the Trust Estate; or
(g) make any loan or advance to any Affiliate of the Issuer or to any other
Person; provided that the Issuer may from time to time make Inter-Company Loans
on the terms and conditions set forth in Section 13 of the Assignment and
Servicing Agreement.
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
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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
(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. Payment of 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 Trust
Estate
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 Assignment and Servicing
Agreement, including without limitation, any claims resulting from any use,
operation, maintenance, repair, storage or transportation of any item of
Equipment, whether or not in 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.
SECTION 8.12. 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, 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);
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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 8.12 as
may be required to be provided to such Noteholders by the rules and regulations
of the Commission under the provisions of the Trust Indenture Act.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of any Noteholders, the Issuer, by a Trust 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;
(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.
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(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 Trust 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
(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 Trust Estate 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 each Noteholder and each Rating
Agency a copy of any supplemental indenture entered into pursuant to Section
9.02(a).
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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.
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
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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 Trust Order, its
assignee, all cash, securities and other property held by it as part of the
Trust Estate other than funds deposited with the Trustee pursuant to Section
10.01(i)(B), for the payment and discharge of the Notes.
(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.
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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. Location of Leases.
The Servicer shall maintain the Leases at its office in Mt. Laurel, New
Jersey or Mahwah, New Jersey or Moberly, Missouri 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 11.04. 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
(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.
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SECTION 11.05. 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 11.06. Nonpetition.
The Trustee, by entering into this Indenture, and each Noteholder, by
accepting a Note, hereby covenants and agrees that it will not at any time
institute against the Issuer, or cooperate with or encourage others to or join
in any institution against the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any federal or state bankruptcy or similar law in connection with any
obligations relating to the Notes or this Indenture until the expiration of one
year and one day (or if a preference period of the applicable jurisdiction is
longer, the applicable preference period under that bankruptcy or similar law)
from the date the Notes are paid in full.
In addition, each Noteholder, by accepting a Note, and the Trustee, by
entering into this Indenture, hereby covenants and agrees that no claim may be
brought against the Issuer, its directors, officers or shareholders, with
respect to any assets collateralizing any other debt obligation of the Issuer.
SECTION 11.07. 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.
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SECTION 11.08. Non-Recourse.
The Noteholders shall not have at any time any recourse on the Notes or
under this Indenture against the Issuer (other than the Assets).
SECTION 11.09. Subordination of Interests of Noteholders.
Notwithstanding any term of this Indenture, the Issuer and the Trustee
agree and, by its holding of a Note, each Noteholder will be deemed to agree
that, to the extent that the Noteholders are deemed to have any interest or
claim to any assets of the Issuer that are dedicated to other debt obligations
of the Issuer, the Noteholder's claim or interest is subordinate to the claims
or rights of such other debtholders to those assets to the extent described
herein. In addition, each Noteholder agrees that this agreement to subordinate
their claim or interest constitutes a subordination agreement for purposes of
Section 510(a) of the Bankruptcy Code.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
witnessed, all as of the day and year first above written.
COPELCO CAPITAL RECEIVABLES LLC,
as Issuer
BY: COPELCO MANAGER, INC.
By:
-----------------------------
Name:
Title:
[_______________], as Trustee
By
-----------------------------
Name:
Title:
COPELCO CAPITAL, INC., as Servicer
By
------------------------------
Name:
Title:
Signature Page to the Indenture
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EXHIBIT A
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 [______] OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [______] 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, [______], HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS A-1 LEASE-BACKED NOTE, SERIES _______
CUSIP NO. ________
No. R-1 $_______
Copelco Capital Receivables LLC, a limited liability company duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of ______________________ ($________), payable in monthly
installments beginning on ___________, ______, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance at
the rate of ____% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of a year of 360 days and the actual number of days in the period since the last
Payment Date or with respect to the ___________ ______ Payment Date, since ____,
______.
Principal and interest on this Class A-1 Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, 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
<PAGE>
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 the Payment Date in ________,
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
_______" (herein called the "Class A-1 Notes") limited in aggregate principal
amount of $_______, issued under the Indenture, dated as of ______, ______
(herein called the "Indenture"), among the Issuer, Copelco Capital, Inc., as
Servicer, and [______] 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
Trust Estate.
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.
By accepting this Class A-1 Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
A-1-2
<PAGE>
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 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 the City of Buffalo, NY, 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 $1,000,000. 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.
A-1-3
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
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
<PAGE>
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
<PAGE>
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 [______] OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [______] 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, [______], HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS A-2 LEASE-BACKED NOTE, SERIES _______
CUSIP NO. _______
No. R-1 $_______
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of __________________________ ($________), payable in monthly
installments beginning on ___________, ______, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of ____% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of twelve 30-day months and a year of 360 days.
Principal and interest on this Class A-2 Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, 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.
<PAGE>
The Stated Maturity of the Class A-2 Notes is the Payment Date in ________,
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 Notes of
the Issuer designated as its "____% Class A-2 Lease-Backed Notes, Series
_______" (herein called the "Class A-2 Notes") limited in aggregate principal
amount of $_______, issued under the Indenture, dated as of ______, ______
(herein called the "Indenture"), among the Issuer, Copelco Capital Receivables
LLC, as Servicer, and [______] 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
Trust Estate.
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.
By accepting this Class A-2 Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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
A-2-2
<PAGE>
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.
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 the City of Buffalo, NY, 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 $1,000,000. 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.
A-2-3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
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
<PAGE>
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-2 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-2 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
<PAGE>
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 [______] OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [______] 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, [______], HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS A-3 LEASE-BACKED NOTE, SERIES _______
CUSIP NO. _______
No. R-1 $_________
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of __________________________ ($________), payable in monthly
installments beginning on ___________, ______, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of ____% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of twelve 30-day months and a year of 360 days.
Principal and interest on this Class A-3 Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, 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.
<PAGE>
The Stated Maturity of the Class A-3 Notes is the Payment Date in ________,
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 Notes of
the Issuer designated as its "____% Class A-3 Lease-Backed Notes, Series
_______" (herein called the "Class A-3 Notes") limited in aggregate principal
amount of $________, issued under the Indenture, dated as of ______, ______
(herein called the "Indenture"), among the Issuer, Copelco Capital Receivables
LLC, as Servicer, and [______] 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
Trust Estate.
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.
By accepting this Class A-3 Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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
A-3-2
<PAGE>
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.
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 the City of Buffalo, NY, 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 $1,000,000. 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.
A-3-3-
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
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
<PAGE>
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-3 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-3 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
<PAGE>
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 [______] OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [______] 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, [______], HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS A-4 LEASE-BACKED NOTE, SERIES _______
CUSIP NO. __________
No. R-1 $_________
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of _________________________ ($_______), payable in monthly
installments beginning on ___________, ______, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of ____% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of twelve 30-day months and a year of 360 days.
Principal and interest on this Class A-4 Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, 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.
<PAGE>
The Stated Maturity of the Class A-4 Notes is the Payment Date in
_________, 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 Notes of
the Issuer designated as its "____% Class A-4 Lease-Backed Notes, Series
_______" (herein called the "Class A-4 Notes") limited in aggregate principal
amount of $_________, issued under the Indenture, dated as of ______, ______
(herein called the "Indenture"), among the Issuer, Copelco Capital Receivables
LLC, as Servicer, and [______] 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
Trust Estate.
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.
By accepting this Class A-4 Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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
A-4-2
<PAGE>
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.
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 the City of Buffalo, NY, 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 $1,000,000. 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.
A-4-3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
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
<PAGE>
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-4 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-4 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
<PAGE>
CLASS A-5 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 [______] OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [______] 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, [______], HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS A-5 LEASE-BACKED NOTE, SERIES _______
CUSIP NO. ________
No. R-1 $________
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of __________________________ ($__________), payable in monthly
installments beginning on ___________, ______, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of ____% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of twelve 30-day months and a year of 360 days.
Principal and interest on this Class A-5 Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, either by check to the registered
address of the Holder of this Class A-5 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.
<PAGE>
The Stated Maturity of the Class A-5 Notes is the Payment Date in
_________, on which date the Outstanding Principal Amount of the Class A-5 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-5
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class A-5 Note is one of a duly authorized issue of Class A Notes of
the Issuer designated as its "____% Class A-5 Lease-Backed Notes, Series
_______" (herein called the "Class A-5 Notes") limited in aggregate principal
amount of $________, issued under the Indenture, dated as of ______, ______
(herein called the "Indenture"), among the Issuer, Copelco Capital Receivables
LLC, as Servicer, and [______] 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-5 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-5 Note will be secured by the pledge to the Trustee of the
Trust Estate.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class A-5 Notes (but not less than all the
Class A-5 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-5 Note shall terminate.
By accepting this Class A-5 Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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
A-5-2
<PAGE>
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-5 Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Class A-5 Note and of any Class A-5 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-5
Note or any Class A-5 Note.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Class A-5 Note is registrable in the Note Register,
upon surrender of this Class A-5 Note for registration of transfer at the office
or agency of the Trustee in the City of Buffalo, NY, 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-5 Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Class A-5 Notes are issuable only in registered form without coupons in
minimum denominations of $1,000,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class A-5 Notes are exchangeable for a
like aggregate principal amount of Class A-5 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-5 Note is registered as the owner
hereof for all purposes, whether or not this Class A-5 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-5 Note shall be deemed to be contracts made
under the laws of the State of New York and shall for all purposes be governed
by, and construed in accordance with, the laws of the State of New York.
A-5-3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
By: ___________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class A-5 Notes referred to in the within mentioned
Indenture.
[ ], as Trustee
By: ___________________________
Authorized Officer
A-5-4
<PAGE>
ASSIGNMENT FORM
If you the holder want to assign this Class A-5 Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class A-5 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-5 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-5 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-5 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-5 Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
A-5 Note.
A-5-5
<PAGE>
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 [______] OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [______] 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, [______], HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
___% CLASS B LEASE-BACKED NOTE, SERIES _______
CUSIP NO. ________
No. R-1 $________
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of ______________________ ($________), payable in monthly
installments beginning on ___________, ______, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of ___ per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of twelve 30-day months and a year of 360 days.
Principal and interest on this Class B Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, either by check to the registered
address of the Holder of this Class B Note as of the relevant Record Date or by
wire transfer to an account at a bank in the United States as the Holder shall
specify, as provided more fully in the Indenture; provided, that the final
payment of principal and interest in respect of the 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.
<PAGE>
The Stated Maturity of the Class B Notes is the Payment Date in _______, 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 A Notes of the
Trust designated as its "___% Class B Lease-Backed Notes, Series _______"
(herein called the "Class B Notes") limited in aggregate principal amount of
$________, issued under the Indenture, dated as of ______, ______ (herein called
the "Indenture"), among the Issuer, Copelco Capital Receivables LLC, as
Servicer, and [______] 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 to the Trustee of the Trust
Estate.
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.
By accepting this Class B Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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,
B-2
<PAGE>
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.
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 the City of Buffalo, NY, 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 $1,000,000. 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.
B-3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
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
<PAGE>
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
<PAGE>
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 [______] OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [______] 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, [______], HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS C LEASE-BACKED NOTE, SERIES _______
CUSIP NO. ________
No. R-1 $________
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of ________________________ ($_______), payable in monthly
installments beginning on ___________, ______, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of ____% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of twelve 30-day months and a year of 360 days.
Principal and interest on this Class A-2 Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, either by check to the registered
address of the Holder of this Class C 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.
<PAGE>
The Stated Maturity of the Class C Notes is the Payment Date in ________,
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 A Notes of the
Trust designated as its "____% Class C Lease-Backed Notes, Series _______"
(herein called the "Class C Notes") limited in aggregate principal amount of
$________, issued under the Indenture, dated as of ______, ______ (herein called
the "Indenture"), among the Issuer, Copelco Capital Receivables LLC, as
Servicer, and [______] 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 to the Trustee of the Trust
Estate.
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.
By accepting this Class C Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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,
C-2
<PAGE>
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.
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 the City of Buffalo, NY, 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 $1,000,000. 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.
C-3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
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
<PAGE>
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
<PAGE>
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 [______] OR SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO [______] 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, [______], HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS D LEASE-BACKED NOTE, SERIES _______
CUSIP NO. ________
No. R-1 $_______
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of ________________ ($_______), payable in monthly installments
beginning on ___________, ______, in accordance with the Indenture. Interest
will accrue on the unpaid principal hereof from the date of issuance, at the
rate of ____% per annum, until the full amount of principal hereof is otherwise
paid or made available for payment and shall be computed on the basis of twelve
30-day months and a year of 360 days.
Principal and interest on this Class D Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, either by check to the registered
address of the Holder of this Class D 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.
<PAGE>
The Stated Maturity of the Class D Notes is the Payment Date in ________,
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 A Notes of the
Trust designated as its "___% Class D Lease-Backed Notes, Series _______"
(herein called the "Class D Notes") limited in aggregate principal amount of
$________, issued under the Indenture, dated as of ______, ______ (herein called
the "Indenture"), among the Issuer, Copelco Capital Receivables LLC, as
Servicer, and [______] 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 Note will be secured by the pledge to the Trustee of the Trust
Estate.
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.
By accepting this Class D Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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,
D-2
<PAGE>
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.
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 the City of Buffalo, NY, 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 $1,000,000. 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.
D-3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
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
<PAGE>
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 D
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
<PAGE>
CLASS E NOTE
NO TRANSFER OF ANY CLASS E 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 B TO THE INDENTURE; (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. THE TRUSTEE WILL REQUIRE,
IN ORDER TO ASSURE COMPLIANCE WITH SUCH LAWS, THAT THE CLASS E 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 B TO THE
INDENTURE. EXCEPT IN THE CASE OF A TRANSFER OF CLASS E 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 E 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 E NOTE WITHOUT REGISTRATION.
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS E LEASE-BACKED NOTE
CUSIP No. ________
No. R-1 $________
Copelco Capital Receivables LLC, a limited liability company duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
<PAGE>
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay __________________________, or registered
assigns, the principal sum of ___________________________________ ($_______),
payable in monthly installments beginning on ___________, ______, in accordance
with the Indenture. Interest will accrue on the unpaid principal hereof from the
date of issuance, at the rate of ____% per annum, until the full amount of
principal hereof is otherwise paid or made available for payment and shall be
computed on the basis of twelve 30-day months and a year of 360 days.
Principal and interest on this Class E Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, either by check to the registered
address of the Holder of this Class E 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 E Notes shall be payable to the Holder of this Class E Note
only upon presentation and surrender of this Class E 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 E Notes is _________, on which date the
Outstanding Principal Amount of the Class E 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 E Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class E Note is one of a duly authorized issue of Class E Notes of the
Issuer designated as its "____% Class E Lease-Backed Notes, Series _______"
(herein called the "Class E Notes"), limited in aggregate principal amount of
$________, issued under the Indenture, dated as of ______, ______ (herein called
the "Indenture"), among the Issuer, Copelco Capital, Inc., as Servicer, and
[______] 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 E Notes are
authenticated and delivered. Unless otherwise defined herein, all capitalized
terms used herein shall have the meanings set forth in the Indenture.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class E Notes (but not less than all the Class
E 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 E Note shall terminate.
E-2
<PAGE>
By accepting this Class E Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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 E Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class E Note and of any Class E 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 E Note or any Class E Note.
No sale or transfer of this Class E 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 E 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 E Note is registrable in the Note Register,
upon surrender of this Class E Note for registration of transfer at the office
or agency of the Trustee in the City of Buffalo, NY, 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 E Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Class E Notes are issuable only in registered form without coupons in
minimum denominations of $1,000,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class E Notes are exchangeable for a like
aggregate principal amount of Class E Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
E-3
<PAGE>
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 E Note is registered as the owner
hereof for all purposes, whether or not this Class E 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 E 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.
E-4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as manager
By: __________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class E Notes referred to in the within mentioned
Indenture.
[ ], as Trustee
By: __________________________
Authorized Officer
E-5
<PAGE>
ASSIGNMENT FORM
If you the holder want to assign this Class E Note, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Class E 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 E 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 E
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 E 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 E Note and the signed "power of attorney" in separate envelopes.
For added protection, use certified or registered mail for a Class E Note.
E-6
<PAGE>
CLASS R-1 NOTE
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE JURISDICTION. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT, TO
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES (1) TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE ISSUER, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVE IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS PURCHASING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $1,000,000, FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO, IN EACH CASE, COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS AND THE ISSUER'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) AND (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE FOREGOING
CLAUSE (E), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) COMPLETED AND DELIVERED BY THE PROSPECTIVE TRANSFEROR
HEREOF TO THE ISSUER AND THE TRUSTEE AND (2) THAT SUCH HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PROSPECTIVE PURCHASER OF THIS
SECURITY FROM IT OR THE RESALE RESTRICTIONS REFERRED TO IN (1) ABOVE.
<PAGE>
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS R-1 RESIDUAL LEASE-BACKED NOTE
CUSIP No. _______
No. R-1 $_______
Copelco Capital Receivables LLC, a limited liability company duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of, ________________________ ($________), payable in monthly
installments beginning on ___________, ______, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of ____% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of twelve 30-day months and a year of 360 days.
Principal and interest on this Class R-1 Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, either by check to the registered
address of the Holder of this Class R-1 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 R-1 Notes shall be payable to the Holder of
this Class R-1 Note only upon presentation and surrender of this Class R-1 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 R-1 Notes is __________, on which date the
Outstanding Principal Amount of the Class R-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 R-1
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class R-1 Note is one of a duly authorized issue of Class R-1 Notes of
the Trust designated as its "____% Class R-1 Lease-Backed Notes, Series _______"
(herein called the "Class R-1 Notes"), limited in aggregate principal amount of
$________, issued under the Indenture, dated as of ______, ______ (herein called
the "Indenture"), among the Issuer, Copelco Capital, Inc., as Servicer, and
[______] 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 R-1 Notes are
authenticated and delivered. Unless otherwise defined
R-1-2
<PAGE>
herein, all capitalized terms used herein shall have the meanings set forth in
the Indenture.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class R-1 Notes (but not less than all the
Class R-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 R-1 Note shall terminate.
By accepting this Class R-1 Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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 R-1 Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class R-1 Note and of any Class R-1 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 R-1 Note or any Class
R-1 Note.
No sale or transfer of this Class R-1 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 R-1 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 R-1 Note is registrable in the Note Register,
upon surrender of this Class R-1 Note for registration of transfer at the office
or agency of the Trustee in the City of Buffalo, NY, 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
R-1-3
<PAGE>
or his attorney duly authorized in writing, and thereupon one or more new Class
R-1 Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Class R-1 Notes are issuable only in registered form without coupons in
minimum denominations of $1,000,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class R-1 Notes are exchangeable for a
like aggregate principal amount of Class R-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 R-1 Note is registered as the owner
hereof for all purposes, whether or not this Class R-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 R-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.
R-1-4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as manager
By: _________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class R-1 Notes referred to in the within
mentioned Indenture.
[ ], as Trustee
By: _________________________
Authorized Officer
R-1-5
<PAGE>
ASSIGNMENT FORM
If you the holder want to assign this Class R-1 Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class R-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 R-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
R-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 R-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 R-1 Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
R-1 Note.
R-1-6
<PAGE>
CLASS R-2 NOTE
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE JURISDICTION. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT, TO
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES (1) TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE ISSUER, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVE IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF
RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS PURCHASING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $1,000,000, FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO, IN EACH CASE, COMPLIANCE WITH
ANY APPLICABLE STATE SECURITIES LAWS AND THE ISSUER'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) AND (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE FOREGOING
CLAUSE (E), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE
OBTAINED FROM THE TRUSTEE) COMPLETED AND DELIVERED BY THE PROSPECTIVE TRANSFEROR
HEREOF TO THE ISSUER AND THE TRUSTEE AND (2) THAT SUCH HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PROSPECTIVE PURCHASER OF THIS
SECURITY FROM IT OR THE RESALE RESTRICTIONS REFERRED TO IN (1) ABOVE.
<PAGE>
COPELCO CAPITAL RECEIVABLES LLC
____% CLASS R-2 RESIDUAL LEASE-BACKED NOTE
CUSIP No. ________
No. R-1 $_________
Copelco Capital Receivables LLC, a limited liability company duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to [______], or registered assigns, the
principal sum of _____________________________, ($________), payable in monthly
installments beginning on ___________, ______, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of ____% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of twelve 30-day months and a year of 360 days.
Principal and interest on this Class R-2 Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing ___________, ______, either by check to the registered
address of the Holder of this Class R-2 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 R-2 Notes shall be payable to the Holder of
this Class R-2 Note only upon presentation and surrender of this Class R-2 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 R-2 Notes is __________ on which date the
Outstanding Principal Amount of the Class R-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 R-2
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class R-2 Note is one of a duly authorized issue of Class R-2 Notes of
the Trust designated as its "____% Class R-2 Lease-Backed Notes, Series _______"
(herein called the "Class R-2 Notes"), limited in aggregate principal amount of
$_______, issued under the Indenture, dated as of ______, ______ (herein called
the "Indenture"), among the Issuer, Copelco Capital, Inc., as Servicer, and
[______] 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
R-2-2
<PAGE>
which the Class R-2 Notes are authenticated and delivered. Unless otherwise
defined herein, all capitalized terms used herein shall have the meanings set
forth in the Indenture.
If an Event of Default under the Indenture has been declared by the
Trustee, the principal of all the Class R-2 Notes (but not less than all the
Class R-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 R-2 Note shall terminate.
By accepting this Class R-2 Note, the Holder covenants and agrees that it
will not at any time institute against the Issuer, or cooperate with or
encourage others to join in any institution against the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes or this Indenture until
the expiration of one year and one day (or, if a preference period of the
applicable jurisdiction is longer, the applicable preference period under that
bankruptcy or similar law) from the date the Notes are paid in full.
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 R-2 Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class R-2 Note and of any Class R-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 R-2 Note or any Class
R-2 Note.
No sale or transfer of this Class R-2 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 R-2 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 R-2 Note is registrable in the Note Register,
upon surrender of this Class R-2 Note for registration of transfer at the office
or agency of the Trustee in the City of Buffalo, NY, and at any other office or
agency maintained by the Issuer for that purpose, duly endorsed by, or
accompanied by a written instrument of
R-2-3
<PAGE>
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 R-2 Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Class R-2 Notes are issuable only in registered form without coupons in
minimum denominations of $1,000,000. As provided in the Indenture and subject to
certain limitations therein set forth, Class R-2 Notes are exchangeable for a
like aggregate principal amount of Class R-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 R-2 Note is registered as the owner
hereof for all purposes, whether or not this Class R-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 R-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.
R-2-4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: ____, ______
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as manager
By: __________________________
Authorized Officer
Trustee's Certificate of Authentication
This is one of the Class R-2 Notes referred to in the within mentioned
Indenture.
[ ], as Trustee
By: __________________________
Authorized Officer
R-2-5
<PAGE>
ASSIGNMENT FORM
If you the holder want to assign this Class R-2 Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class R-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 R-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
R-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 R-2 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 R-2 Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
R-2 Note.
R-2-6
<PAGE>
EXHIBIT B
FORM OF
INVESTOR'S LETTER
(Date)
Copelco Capital Receivables LLC
700 East Gate Drive
Mount Laurel, New Jersey 08110
[Name & Address of Underwriter]
Ladies and Gentlemen:
We propose to purchase $_________ in original aggregate principal amount of
Copelco Capital Receivables LLC _____% Class E R-1 R-2 Lease-Backed Notes,
Series _______, (the "Notes"). The Notes were issued pursuant to an Indenture
(the "Indenture"), dated as of ______, ______, among Copelco Capital Receivables
LLC, as Issuer, [______], as Trustee, and Copelco Capital, Inc., as Servicer.
Capitalized terms used herein but not otherwise defined shall have the same
meaning as in the Indenture.
In connection with our proposed purchase of the 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
Copelco Capital Receivables 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.
<PAGE>
-------- (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, or (ii) 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,
B-2
<PAGE>
or (b) its acquisition and continued holding of the Notes is covered by a U.S.
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,
TRANSFEREE
B-3
DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TELEPHONE 212 259-8000 FACSIMILE 212 259-6333
October 28, 1999
Copelco Capital Receivables LLC
700 East Gate Drive
Mount Laurel, New Jersey 08054-5400
Re: Copelco Capital Receivables LLC
Registration Statement on Form S-3
(File No. 333-79903)
Ladies and Gentlemen:
We have acted as special counsel for Copelco Capital Receivables LLC, a
Delaware limited liability company (the "Issuer"), in connection with the
preparation of the above-referenced Registration Statement on Form S-3 (the
"Registration Statement"), filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), in respect of
equipment lease asset-backed notes (the "Offered Notes"), each series to be
issued under a separate Indenture, in substantially the form filed as an exhibit
to the Registration Statement, among the Issuer, Copelco Capital, Inc. and the
trustee to be named in the related prospectus supplement.
In that regard, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary or appropriate for the
purposes of this opinion.
The opinions expressed below are subject to bankruptcy, insolvency,
reorganization, moratorium and other laws relating to or affecting creditors'
rights generally and to general equity principles.
We are admitted to the Bar of the State of New York and we express no
opinion as to the laws of any other jurisdiction except as to matters that are
governed by Federal law or the laws of the State of New York. All opinions
expressed herein are based on laws, regulations and policy guidelines currently
in force and may be affected by future regulations.
Based upon the foregoing, we are of the opinion that when, in respect of a
series of Offered Notes, an Indenture has been duly authorized by all necessary
action
<PAGE>
and duly executed and delivered by all necessary parties for such series and
when the Offered Notes have been duly executed and authenticated in accordance
with the provisions of the Indenture, and issued and sold as contemplated in the
Registration Statement, as amended or supplemented, delivered pursuant to
Section 5 of the Act in connection therewith, such Offered Notes will be legally
and validly issued and the holders of such Offered Notes will be entitled to the
benefits of such Indenture.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this opinion, we do not concede that we are
experts within the meaning of the Act or the rules and regulations therewith, or
that this consent is required by Section 7 of the Act.
Very truly yours,
DEWEY BALLANTINE LLP
DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TELEPHONE 212 259-8000 FACSIMILE 212 259-6333
October 28, 1999
Copelco Capital Receivables LLC
700 East Gate Drive
Mount Laurel Drive, New Jersey 08054-5400
Re: Copelco Capital Receivables
LLC Registration Statement on
Form S-3 (File No. 333-79903)
-----------------------------
Ladies and Gentlemen:
We have acted as special counsel to Copelco Capital Receivables LLC (the
"Issuer") in connection with the preparation and filing of a registration
statement on Form S-3 (the "Registration Statement") filed with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Act"), in respect of lease-backed notes (the "Notes") which Copelco Capital
Receivables LLC ("Issuer") plans to offer in series.
It is our opinion that:
o the Issuer will not be treated as an association (or publicly traded
partnership) taxable as a corporation for federal income tax purposes,
so long as no election to the contrary is made on IRS Form 8832 or
otherwise;
o in respect of a series of Notes that has been issued, the Notes will
be characterized as indebtedness for federal income tax purposes; and
o subject to the assumptions and limitations described therein, the
discussion under the heading "Material Federal Income Tax
Consequences" in the prospectus contained in the Registration
Statement sets forth all the material federal income tax consequences
to the original purchasers of the Notes of any series and is accurate
in all material respects.
We hereby consent to the filing of this letter as an Exhibit to the
Registration Statement and to the reference to Dewey Ballantine LLP in the
Registration Statement and in future related prospectus supplements under the
heading "Material Federal Income Tax Consequences." In giving this opinion, we
do not concede that we are experts within the meaning of the Act or the rules
and regulations therewith, or that this consent is required by Section 7 of the
Act.
Very truly yours,
DEWEY BALLANTINE LLP
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COPELCO CAPITAL, INC.,
TRANSFEROR AND SERVICER
AND
COPELCO CAPITAL RECEIVABLES LLC
ISSUER
-------------------------
ASSIGNMENT AND SERVICING AGREEMENT
Dated as of ________, _____
-------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ALL RIGHT, TITLE AND INTEREST IN AND TO THIS AGREEMENT OF COPELCO CAPITAL
RECEIVABLES LLC HAS BEEN ASSIGNED TO AND IS SUBJECT TO A SECURITY INTEREST IN
FAVOR OF [TRUSTEE], AS TRUSTEE, UNDER THE INDENTURE DATED AS OF ________, _____,
FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
<PAGE>
TABLE OF CONTENTS
Page
R E C I T A L S .............................................................1
A G R E E M E N T S..........................................................2
SECTION 1. CAPITAL CONTRIBUTION..............................................2
1.01 Capital Contribution of Leases....................................2
1.02 Capital Contribution of Equipment.................................2
1.03 Contribution of Leases; Grant of Security Interest................2
1.04 Servicer to Act as Custodian......................................3
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR..................4
2.01 Corporate Organization and Authority..............................4
2.02 Business and Property.............................................4
2.03 Financial Statements..............................................4
2.04 Equipment and Leases..............................................5
2.05 Payments..........................................................8
2.06 Full Disclosure...................................................8
2.07 Pending Litigation................................................8
2.08 Title to Properties...............................................9
2.09 Transactions Legal and Authorized.................................9
2.10 Governmental Consent..............................................9
2.11 Taxes ............................................................9
2.12 Compliance with Law..............................................10
2.13 ERISA ...........................................................10
2.14 Ability to Perform...............................................10
2.15 Ordinary Course; No Insolvency...................................11
2.16 Assets and Liabilities...........................................11
2.17 Fair Consideration...............................................11
2.18 Ability to Pay Debts.............................................11
2.19 Bulk Transfer Provisions.........................................11
2.20 Transfer Taxes...................................................12
2.21 Principal Executive Office.......................................12
2.22 Servicing Provisions Customary...................................12
2.23 Nonconsolidation.................................................12
2.24 Contribution Treatment...........................................13
SECTION 3. ADMINISTRATION OF LEASES.........................................13
3.01 Servicer to Act..................................................13
3.02 Lease Amendments and Modifications...............................15
3.03 Non-Performing Leases............................................16
i
<PAGE>
3.04 Costs of Servicing; Servicing Fee; Administrative Expenses.......17
3.05 Other Transactions...............................................17
SECTION 4. SERVICER ADVANCES AND TRANSFEROR'S SUPPORT.......................17
4.01 Late Lease Payments..............................................17
4.02 Early Termination Leases.........................................18
4.03 Indemnification..................................................18
4.04 Purchases; Other Payments........................................19
4.05 Payment Advice...................................................20
SECTION 5. INFORMATION TO BE PROVIDED.......................................20
5.01 Monthly Status Reports; Servicing Reports........................20
5.02 Annual Independent Public Accountant's Report....................22
SECTION 6. THE SERVICER.....................................................22
6.01 Merger or Consolidation of the Servicer..........................22
6.02 Limitation on Liability of the Servicer and Others...............22
6.03 Servicer Not to Resign or Be Removed.............................23
6.04 Financial and Business Information...............................23
6.05 Officers' Certificates...........................................24
6.06 Inspection.......................................................25
6.07 Servicer Records.................................................25
SECTION 7. THE TRANSFEROR...................................................25
7.01 Merger or Consolidation of the Transferor........................25
7.02 Control of Issuer................................................26
7.03 Financial and Business Information...............................26
7.04 Officers' Certificates...........................................27
7.05 Inspection.......................................................27
7.06 Books and Records................................................27
7.07 Communications...................................................28
SECTION 8. DEFAULT .........................................................28
8.01 Servicer Events of Default.......................................28
8.02 Termination......................................................30
8.03 Trustee to Act; Appointment of Successor.........................30
8.04 Servicer to Cooperate............................................31
8.05 Notification to Noteholders......................................31
8.06 Remedies Not Exclusive...........................................31
SECTION 9. SUBSTITUTION AND ADDITION OF LEASES..............................31
9.01 Substitution and Addition........................................31
9.02 Procedure........................................................33
9.03 Objection and Purchase...........................................34
9.04 Transferor's and Servicer's Subsequent Obligations...............34
ii
<PAGE>
SECTION 10. ASSIGNMENT......................................................34
10.01 Assignment to Trustee...........................................34
10.02 Assignment by Transferoror Servicer.............................35
SECTION 11. NATURE OF OBLIGATIONS AND SECURITY THEREFOR.....................35
11.01 Obligations Absolute............................................35
11.02 Security for Obligations........................................35
11.03 Further Assurances; Financing Statements........................36
SECTION 12. DEFINITIONS.....................................................36
SECTION 13. INTER-COMPANY LOANS.............................................42
13.01 Inter-Company Loans.............................................42
SECTION 14. MISCELLANEOUS...................................................42
14.01 Continuing Obligations..........................................42
14.02 GOVERNING LAW...................................................42
14.03 Successors and Assigns..........................................42
14.04 Modification....................................................43
14.05 No Proceedings..................................................43
14.06 Notices.........................................................43
14.07 Counterparts....................................................43
14.08 Nonpetition Covenant............................................43
Schedule 1 - Subsidiaries of the Transferor
Exhibit A - Schedule of Leases and Equipment
Exhibit B - Form of Inter-Company Loan Note
Exhibit C - Form of Receivables Servicing Report
iii
<PAGE>
ASSIGNMENT AND SERVICING AGREEMENT
This ASSIGNMENT AND SERVICING AGREEMENT is made and dated as of ________,
_____, by and between COPELCO CAPITAL RECEIVABLES LLC, a Delaware limited
liability company, as issuer hereunder (the "Issuer") and COPELCO CAPITAL, INC.,
a Delaware corporation, as originator and transferor of the Leases (in such
capacity, the "Transferor") and servicer (in such capacity, the "Servicer").
R E C I T A L S
A. The Transferor wishes to contribute and assign to the Issuer, and the
Issuer wishes to acquire from the Transferor, all right, title and interest of
the Transferor in, to and under the Leases and the Equipment subject to the
Leases (such terms and all other capitalized terms used herein having the
meanings ascribed thereto in Section 12 hereof unless otherwise indicated).
B. Pursuant to the Indenture, the Issuer is issuing one class of _____%
Class A-1 Lease-Backed Notes, Series ______ in the aggregate principal amount of
$__________ (the "Class A-1 Notes"), one class of _____% Class A-2 Lease-Backed
Notes, Series ______ in the aggregate principal amount of $__________ (the
"Class A-2 Notes"), one class of _____% Class A-3 Lease-Backed Notes, Series
______ in the aggregate principal amount of $__________ (the "Class A-3 Notes"),
one class of _____% Class A-4 Lease-Backed Notes, Series ______ in the aggregate
principal amount of $__________ (the "Class A-4 Notes"), _____% Class A-5
Lease-Backed Notes, Series ______ in the aggregate principal amount of
$__________ (the "Class A-5 Notes"); together with the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes (the "Class A
Notes"), one class of _____% Class B Leased-Backed Notes, Series ______ (the
"Class B Notes"), in the aggregate principal amount of $__________, one class of
_____% Class C Lease-Backed Notes, Series ______, in the aggregate principal
amount of $__________ (the "Class C Notes"), one class of _____% Class D
Leased-Backed Notes, Series ______ in the aggregate principal amount of
$__________ (the "Class D Notes"), one class of _____% Class E Lease-Backed
Notes, Series ______, in the aggregate principal amount of $__________ (the
"Class E Notes"; together with the Class A Notes, the Class B Notes, the Class C
Notes and the Class D Notes, the "Receivable Notes"), one class of _____% Class
R-1 Residual Notes, Series ______ in the aggregate principal amount of
$__________ (the "Class R-1 Notes") and one class of _____% Class R-2 Residual
Notes, Series ______ in the aggregate principal amount of $__________ (the Class
R-2 Notes; together with the Class R-1 Notes, the "Class R Notes"; the Class A
Notes, the Class B Notes, the Class C Notes, the Class D Notes, the Class E
Notes and the Class R Notes are referred to collectively as the "Notes"), the
proceeds of which are being used by the Issuer to make a distribution to the
Transferor.
C. Pursuant to the Indenture, the Issuer is granting, inter alia, to the
Trustee, for the benefit of the holders from time to time of the Notes, a
security interest in all right, title and interest of the Issuer in, to and
under the Leases, the interests in the Equipment and this Assignment and
Servicing Agreement.
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A G R E E M E N T S
SECTION 1. CAPITAL CONTRIBUTION
1.01 Capital Contribution of Leases.
By their execution and delivery of this Assignment and Servicing Agreement,
the Transferor hereby contributes and assigns to the Issuer, and the Issuer
hereby acquires from the Transferor without recourse (except to the extent of
the Transferor's purchase obligations as set forth herein), all of the
Transferor's right, title and interest in and to each of the Leases (including
the right to receive all payments due or to become due thereunder since the
Cut-Off Date).
1.02 Capital Contribution of Equipment.
The Transferor and the Issuer each acknowledge and confirm that
contemporaneously with the contribution of the Leases as hereinabove provided,
the Transferor, as a holder of beneficial interests in the Issuer, is
contributing and transferring to the Issuer, and in connection with each
transfer and assignment of Additional Leases and Substitute Leases the
Transferor will contribute and transfer to the Issuer, without recourse, all
right, title and interest of the Transferor in and to each item of Equipment
subject to each Lease, Additional Lease and Substitute Lease. After such
contribution and transfer by the Transferor to the Issuer, all right, title and
interest of the Transferor in and to each item of Equipment subject to each
Lease shall be vested in the Issuer.
1.03 Contribution of Leases; Grant of Security Interest.
It is the intention of the parties hereto that each transfer of Leases,
Additional Leases, Substitute Leases, Lease Payments and all other amounts due
or becoming due with respect thereto and Equipment (or interests therein) being
made hereunder shall constitute a capital contribution and not a loan. The
Transferor shall not take any action inconsistent with the treatment of such
transfers as capital contributions or with the Issuer's ownership of the Leases,
the Lease Receivables and all other amounts due or becoming due with respect
thereto and the interests in the Equipment. The Transferor shall indicate in its
records that ownership of each of the Leases, the Lease Receivables and the
interests in the Equipment is held by the Issuer, and each shall respond to any
inquiries from third parties by indicating that its ownership in the Leases,
Additional Leases, Substitute Leases, the Lease Receivables and all other
amounts due or becoming due with respect thereto and the interests in the
Equipment is held by the Issuer and pledged to the Trustee. In the event,
however, that a court of competent jurisdiction were to hold that any
transaction evidenced hereby constitutes a loan and not a capital contribution,
it is the intention of the parties hereto that this Agreement shall constitute a
security agreement under applicable law and that the Issuer and the Trustee
shall be deemed to have been granted a first priority security interest in (a)
the Leases and all Lease Payments, Casualty Payments, Termination Payments,
Residual Realizations 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, Termination
Payments, Residual Realizations and other amounts
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due or becoming due with respect thereto since the effective date of their
respective addition or substitution (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 (including
all rights of the Issuer in any security deposits) 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 the Transferor in the
Equipment and (d) all proceeds of the conversion, whether voluntary or
involuntary, of any of the foregoing into cash or other property.
1.04 Servicer to Act as Custodian.
(a) The Servicer shall hold and acknowledges that it is holding the Leases
and all other Granted Assets that it may from time to time receive hereunder as
custodian for the Trustee.
(b) The Servicer shall perform its duties under this Section 1.04 in
accordance with the standard set forth in Section 3.01 as such standard applies
to servicers acting as custodial agents. The Servicer shall promptly report to
the Trustee any failure by it to hold the complete Leases as herein provided and
shall promptly take appropriate action to remedy any such failure but only to
the extent (i) any such failure is caused by the acts or omissions of the
Servicer and (ii) such remedial action is otherwise within its capabilities or
control. As custodian, the Servicer shall have and perform the following powers
and duties:
(A) hold the Leases on behalf of the Trustee for the benefit of the
Noteholders, maintain accurate records pertaining to each Lease to enable
it to comply with the terms and conditions of this Assignment and Servicing
Agreement, and maintain a current inventory thereof;
(B) implement policies and procedures in accordance with the
Servicer's normal business practices with respect to the handling and
custody of the Leases so that the integrity and physical possession of the
Leases will be maintained; and
(C) attend to all details in connection with maintaining custody of
the Leases on behalf of the Trustee on behalf of the Noteholders.
(c) In acting as custodian of the Leases, the Servicer agrees further that
it does not and will not have or assert any beneficial ownership interest in
such Leases. The Servicer on behalf of the Noteholders shall mark conspicuously
each original contractual document with a Lessee, and its master data processing
records evidencing each Lease with a legend, acceptable to the Trustee,
evidencing that all right, title and interest in the Leases has been granted to
the Trustee as provided in the Indenture.
(d) The Servicer agrees to maintain the Leases at its office in Mt. Laurel,
New Jersey or Mahwah, New Jersey or Moberly, Missouri 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.
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SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR
The Transferor hereby represents and warrants as follows:
2.01 Corporate Organization and Authority.
The Transferor:
(a) is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation,
(b) has all requisite power and authority and all necessary licenses and
permits to own and operate its properties and to carry on its business
as now conducted (except where the failure to have such licenses and
permits would not have a material adverse effect on the business or
condition (financial or otherwise) of the Transferor or impair the
enforceability of any Lease) and to enter into and perform its
obligations under this Assignment and Servicing Agreement, and the
transactions contemplated hereby, including performance of the duties
of the Servicer and the Transferor's support obligations hereunder,
and
(c) has duly qualified and is authorized to do business and is in good
standing as a foreign corporation in each jurisdiction where the
character of its properties or the nature of its activities makes such
qualification necessary (except where the failure to be so qualified
or in good standing would not have a material adverse effect on the
Trust Estate or the business or condition (financial or otherwise) of
the Transferor or impair the enforceability of any Lease).
2.02 Business and Property.
The Prospectus and the Private Placement Memoranda, accurately describe in
all material respects the general nature of the business of the Transferor.
2.03 Financial Statements.
(a) The consolidated balance sheet of the Transferor and its consolidated
subsidiaries for the fiscal periods ended __________, and __________, and the
related consolidated statements of income, retained earnings and cash flow for
the respective period and fiscal years ended on such dates, all accompanied by
reports thereon containing opinions without qualification, except as therein
noted, by KPMG Peat Marwick, independent certified public accountants, and the
unaudited interim consolidated balance sheet of the Transferor and its
consolidated subsidiaries as of _______, and the related consolidated statements
of income, retained earnings and cash flow for the nine months ended on such
date have been prepared in accordance with generally accepted accounting
principles consistently applied, and present fairly the financial position of
the Transferor and its subsidiaries as of such dates and the results of their
operations for such periods.
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(b) Except as disclosed in the Prospectus, the Private Placement Memoranda
and the financial statements referred to in the preceding Section 2.03(a), since
______, _____ there has been no change in the business, condition or prospects
(financial or otherwise) of the Transferor except changes in the ordinary course
of business, none of which individually or in the aggregate has been materially
adverse. Neither the Transferor nor any of its subsidiaries has any material
liabilities or obligations not incurred in the ordinary course of business other
than those disclosed in the financial statements referred to in Section 2.03(a)
or for which adequate reserves are reflected in such financial statements and
certain contingent obligations of the Transferor relating to other asset
securitization transactions involving the Transferor.
2.04 Equipment and Leases.
(a) Prior to the date of each transfer of any Leases and Equipment in
accordance with Sections 1.01 and 1.02, respectively, the Transferor purchased
each item of Equipment from either (i) the manufacturer or other supplier
following receipt of an invoice from such manufacturer or supplier or (ii) a
Lessee following confirmation that such item of Equipment was on such Lessee's
premises. The Transferor has paid in full, to the manufacturer or supplier or
Lessee, as the case may be, the purchase price and any related charges in
connection with the acquisition of the Equipment. The transfer to the Issuer of
the Leases and all of the Transferor's right, title and interest in each item of
Equipment does not violate the terms or provisions of any Lease or any other
agreement to which the Transferor is a party or by which it is bound.
(b) Upon completion of the transfer described in Article I hereof, the
Issuer will (i) be the legal owner of the Leases (including the right to receive
all payments due or to become due thereunder), (ii) have good title to each item
of the Equipment subject to any Lease other than a Nominal Buy-Out Lease (or
other finance lease), (iii) have a valid security interest in each item of
Equipment subject to any Lease other than a Nominal Buy-Out Lease (or other
finance lease) and (iv) have a perfected security interest in each item of
Equipment with a purchase price in excess of $25,000 subject to a Nominal
Buy-Out Lease (or other finance lease). At such time, the Leases (including the
right to receive all payments due or to become due thereunder) and the
Transferor's interest in the Equipment will be free and clear of all Liens other
than the rights of each Lessee under the Lease to which such Lessee is a party
and the Lien created by the Indenture; and there will be no delinquent taxes or
other outstanding charges affecting the Equipment which are or may be Liens
prior to, or equal or coordinate with, the Lien of the Trustee under the
Indenture.
(c) At the time of each transfer of a Lease hereunder, each such Lease (i)
is or will be a triple-net lease, (ii) is or will be a legal, valid and binding
full recourse obligation of the Lessee thereunder, enforceable by the Issuer
(and by the Trustee as assignee of the Issuer) against such Lessee in accordance
with the terms thereof, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights and by general equity principles, (iii) is
noncancellable by the Lessee and is in full force and effect, and any and all
requirements of any federal, state or local law, including, without limitation,
usury, truth-in-lending and equal credit opportunity laws applicable to each
Lease have been complied with; and the Transferor has no knowledge (after due
inquiry) of any challenge, dispute or claim by or against the Lessee under or
affecting any
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Lease or of the bankruptcy or insolvency of any such Lessee and (iv) is
assignable. As of the initial Determination Date, or the effective date of the
transfer of any Additional Lease or Substitute Lease, each Lessee has paid at
least one installment of rent under its respective Lease.
(d) As of the Cut-Off Date, each Lease hereunder is not a Non-Performing
Lease.
(e) At the time that any item of Equipment (including the Transferor's
security interest in any item not owned by it) is contributed hereunder, the
Transferor will have no knowledge that any item of the Equipment has suffered
any loss or damage which has not been repaired.
(f) Each Lease requires the Lessee thereunder to maintain insurance on the
Equipment subject thereto in an amount at least equal to the fair market value
thereof.
(g) In addition to the insurance maintained by the Lessees with respect to
the Equipment, the Transferor (or an Affiliate of the Transferor) maintains (i)
one or more casualty insurance policies which, in the aggregate, are in an
amount not less than the aggregate Outstanding Principal Amount of the Notes,
(ii) a general liability insurance policy in the aggregate amount of $1,000,000
and (iii) an excess liability insurance policy in umbrella form in the aggregate
amount of $10,000,000. Each of such policies is in full force and effect and
covers all equipment owned by the Transferor and the Issuer. All premiums in
respect of such policies have been paid. Each of the Trustee and the Issuer are
named as loss payees and additional insureds, as their interests may appear, on
such casualty and liability policies maintained by the Transferor.
(h) At the time of each transfer of a Lease hereunder, no Lease had
outstanding rent which was 63 or more days past due as of the Cut-Off Date.
(i) Each Lease was entered into or acquired by the Transferor in accordance
with the Transferor's regular credit approval process described in the
Prospectus, and no selection procedures adverse to the credit quality of the
Leases were employed in selecting the Leases for contribution under this
Assignment and Servicing Agreement.
(j) The obligation of each Lessee to pay rent under each of the Leases
throughout the term thereof is and will be unconditional, without any right of
setoff by such Lessee and without regard to any event affecting the Equipment,
the obsolescence of any Equipment, any claim of such Lessee against the Issuer,
the Transferor or the Servicer or any change in circumstance of such Lessee or
any other circumstance whatsoever except to the extent that in the event of a
casualty of any item of Equipment, the Lessee is obligated to pay, in lieu of
the future Lease Payments with respect to such item, an amount which equals or
exceeds the Discounted Present Value of the Lease as of the Payment Date next
succeeding the making of such payment (plus any unpaid rents).
(k) In the case of each Lease which consists of a master lease and one or
more exhibits or schedules thereto, the Transferor has neither assigned such
master lease in its entirety, nor delivered physical possession of such master
lease, to any Person other than the Issuer or the Trustee (including the trustee
under another indenture in a transaction substantially similar to the
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transaction contemplated hereby, which other indenture provides that the lien
thereof on such master lease extends only to such master lease insofar as it
relates to lease schedules which are not part of the Trust Estate).
(l) As of the time of each transfer of Leases and Equipment hereunder,
there are no facts or circumstances which give rise, or would give rise at any
time in the future, to any right of rescission, setoff, counterclaim or defense,
including the defense of usury, to obligations of any Lessee, including the
obligation of such Lessee to pay all amounts due with respect to any Lease to
which such Lessee is a party, and neither the operation of any of the terms of
any Lease or the exercise of any right thereunder will render such Lease
unenforceable in whole or in part or subject to any right of rescission, setoff,
counterclaim or defense, including the defense of usury, and no such right of
rescission, setoff, counterclaim or defense has been asserted with respect
thereto.
(m) As of the time of each transfer of Leases and Equipment hereunder, no
Lease has been amended, altered or modified in any respect, except in writing
and copies of all such writings are attached to the Lease delivered to the
Trustee.
(n) As of the time of each transfer of Leases and Equipment hereunder, no
Lessee will have been released, in whole or in part, from any of its obligations
in respect of any Lease; no Lease will have been satisfied, cancelled or
subordinated, in whole, or in part, or rescinded, and no Equipment covered by
any Lease will have been released from such Lease, in whole or in part, nor has
any instrument been executed that would effect any such satisfaction, release,
cancellation, subordination or rescission.
(o) As of the time of each transfer of Leases and Equipment hereunder, each
Lease was either (i) originated by the Transferor in the ordinary course of its
business or (ii) purchased by the Transferor for value and taken into possession
prior to the Cut-Off Date in the ordinary course of its business.
(p) No Lease was originated in or is subject to the laws of any
jurisdiction whose laws would make any of the transfers thereof under this
Assignment and Servicing Agreement unlawful.
(q) All parties to each Lease had all requisite authority and capacity to
execute such Lease.
(r) None of the Leases is a consumer lease and each Lessee has accepted the
Equipment leased to it.
(s) The Booked Residual Value of the Equipment as of the Cut-Off Date
equals $___________.
(t) As of the Cut-Off Date, the final lease payment on each Lease was due
and payable on or prior to __________.
(u) Each Lease agreement is "chattel paper" within the meaning of The
Uniform Commercial Code in the states of New York and New Jersey.
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2.05 Payments.
(a) The aggregate amounts of Lease Payments payable by the Lessees under
the Leases during each lease payment period, including amounts on deposit in the
Reserve Account, are sufficient to cover the Servicing Fee and pay the principal
and interest on the Receivable Notes, as such payments become due and payable.
(b) The aggregate amount of Residual Realizations using the average
historical realization rate, including amounts on deposit in the Liquidity
Reserve Account, is sufficient to cover the Residual Servicing Fee and pay the
principal and interest on the Class R Notes as such payments become due and
payable.
(c) The portfolio detail delivered or to be delivered to the Trustee on or
prior to the Issuance Date (i) accurately sets forth, as of the Cut-Off Date,
the amount of each Lease Payment due under each of the Leases and the month in
which such Lease Payment is to be paid in accordance with the terms of the Lease
under which the same is to be paid, (ii) accurately sets forth, as of the
Cut-Off Date, the information with respect to certain other characteristics of
the Leases and the Equipment described in such portfolio detail and (iii) is
otherwise true and correct in all respects.
2.06 Full Disclosure.
The Prospectus and the Private Placement Memoranda (including, without
limitation, the statistical and descriptive information with respect to the
initial Leases, Lessees and Equipment), as of their respective dates, do not
contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading. There is no fact
peculiar to the Transferor or any Affiliate of the Transferor or, to the
knowledge of the Transferor, any Lease, Lessee or item of Equipment, which the
Transferor has not or will not disclose in the Prospectus or the Private
Placement Memoranda which materially affects adversely nor, so far as the
Transferor can now reasonably foresee, will materially affect adversely the
ability of the Transferor to perform the transactions contemplated by this
Assignment and Servicing Agreement.
2.07 Pending Litigation.
There are no proceedings or investigations pending, or to the knowledge
(after due inquiry) of the Transferor threatened, against or affecting the
Transferor or any subsidiary in or before any court, governmental authority or
agency or arbitration board or tribunal, including, but not limited to, any such
proceeding or investigation with respect to any environmental or other liability
resulting from the ownership or use of any of the Equipment, which, individually
or in the aggregate, involve the possibility of materially and adversely
affecting the properties, business, prospects, profits or condition (financial
or otherwise) of the Transferor and its subsidiaries, or the ability of the
Transferor or the Servicer to perform its obligations under this Assignment and
Servicing Agreement. The Transferor is not in default with respect to any order
of any court, governmental authority or agency or arbitration board or tribunal.
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2.08 Title to Properties.
Immediately following the transfer by the Transferor to the Issuer of the
Leases and the Transferor's interest in the Equipment, the Leases (including the
right to receive all payments due or to become due thereunder) and the interest
in the Equipment will be free and clear of all Liens, except the Lien on the
Trust Estate in favor of the Trustee granted pursuant to the Indenture (or the
Lien in favor of the Issuer which is assigned to the Trustee pursuant to the
Indenture).
2.09 Transactions Legal and Authorized.
The transfer by the Transferor of all of its right, title and interest in
and to each item of Equipment and each Lease (including the right to receive all
payments due or to become due thereunder) and compliance by the Transferor with
all of the provisions of this Assignment and Servicing Agreement:
(a) have been duly authorized by all necessary corporate action on the part
of the Transferor, and do not require any stockholder approval, or approval or
consent of any trustee or holders of any indebtedness or obligations of the
Transferor except such as have been duly obtained;
(b) are within the corporate powers of the Transferor; and
(c) are legal and will not conflict with, result in any breach in any of
the provisions of, constitute a default under, or result in the creation of any
Lien upon any property of the Transferor under the provisions of, any agreement,
charter instrument, by-law or other instrument to which the Transferor is a
party or by which it or its property may be bound or result in the violation of
any law, regulation, rule, order or judgment applicable to the Transferor or its
properties, or any order to which the Transferor or its properties is subject,
of or by any government or governmental agency or authority.
2.10 Governmental Consent.
No consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority is necessary or required on the
part of the Transferor in connection with the execution and delivery of this
Assignment and Servicing Agreement or the contribution of the Leases and
Equipment or the performance of its obligations as Servicer.
2.11 Taxes.
(a) All tax returns required to be filed by the Transferor or any
subsidiary in any jurisdiction have in fact been filed, and all taxes,
assessments, fees and other governmental charges upon the Transferor or any
subsidiary, or upon any of their respective properties, income or franchises,
shown to be due and payable on such returns have been paid. To the best of the
Transferor's knowledge all such tax returns were true and correct and neither
the Transferor nor any subsidiary knows of any proposed additional tax
assessment against it in any material amount nor of any basis therefor.
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(b) The provisions for taxes on the books of the Transferor and each of its
subsidiaries are in accordance with generally accepted accounting principles.
2.12 Compliance with Law.
The Transferor:
(a) is not in violation of any laws, ordinances, governmental rules or
regulations to which it is subject;
(b) has not failed to obtain any licenses, permits, franchises or other
governmental authorizations necessary to the ownership of its property
or to the conduct of its business; and
(c) is not in violation in any material respect of any term of any
agreement, charter instrument, by-law or other instrument to which it
is a party or by which it may be bound, which violation or failure to
obtain might materially adversely affect the business or condition
(financial or otherwise) of the Transferor and its subsidiaries.
2.13 ERISA.
(a) The present value of all benefits vested under all "employee pension
benefit plans", as such term is defined in Section 3(2) of ERISA, maintained by
or contributed to by the Transferor and its Related Persons (other than
"multiemployer plans", as such term is defined in Section 3(37) of ERISA), as
from time to time in effect (herein called the "Pension Plans"), does not exceed
the value of the assets of the Pension Plans allocable to such vested benefits;
(b) No Prohibited Transactions, Accumulated Funding Deficiencies or
Reportable Events have occurred with respect to any Pension Plans that, in the
aggregate, could subject the Transferor to any material tax, penalty or other
liability; and
(c) No notice of intent to terminate a Pension Plan under a distress
termination has been filed, nor has the PBGC instituted proceedings to
terminate, or appoint a trustee to administer, a Pension Plan and no event has
occurred or condition exists which might constitute grounds under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan.
2.14 Ability to Perform.
At the date hereof, the Transferor does not believe, nor does it have any
reasonable cause to believe, that it cannot perform each and every covenant
contained in this Assignment and Servicing Agreement or its ability to perform
as Servicer.
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2.15 Ordinary Course; No Insolvency.
The transactions contemplated by the Notes, the Indenture and this
Assignment and Servicing Agreement are being consummated by the Transferor in
furtherance of the Transferor's ordinary business purposes and constitute a
practical and reasonable course of action by the Transferor designed to improve
the financial position of the Transferor, with no contemplation of insolvency
and with no intent to hinder, delay or defraud any of its present or future
creditors. The Transferor will not, either as a result of the transaction
contemplated by this Assignment and Servicing Agreement, or immediately before
or after such transaction, be insolvent or have an unreasonably small capital
for the conduct of its business and the payment of anticipated obligations.
2.16 Assets and Liabilities.
(a) Both immediately before and after any transfer of Leases (including the
right to receive all payments due or to become due thereunder) and the transfer
of the interests in the Equipment contemplated by this Assignment and Servicing
Agreement, the present fair salable value of the Transferor's assets was or will
be in excess of the amount that will be required to pay the Transferor's
probable liabilities as they then exist and as they become absolute and matured;
and
(b) Both immediately before and after any transfer of Leases (including the
right to receive all payments due or to become due thereunder) and the transfer
of the interests in the Equipment contemplated by this Assignment and Servicing
Agreement, the sum of the Transferor's assets was or will be greater than the
sum of the Transferor's debts, valuing the Transferor's assets at a fair salable
value.
2.17 Fair Consideration.
The consideration received by the Transferor, in exchange for the Leases
(including the right to receive all payments due or to become due thereunder)
and the transfer of its interests in the Equipment, is fair consideration having
value equivalent to or in excess of the value of the assets being transferred by
the Transferor.
2.18 Ability to Pay Debts.
Neither as a result of the transaction contemplated by this Assignment and
Servicing Agreement nor otherwise does the Transferor believe that it will incur
debts beyond its ability to pay or which would be prohibited by its charter
documents or by-laws. The Transferor's assets and cash flow enable it to meet
its present obligations in the ordinary course of business as they become due.
2.19 Bulk Transfer Provisions.
The transfer, assignment and conveyance of the Leases and its interests in
the Equipment by the Transferor pursuant to this Assignment and Servicing
Agreement is not subject to the bulk transfer or any similar statutory
provisions in effect in any applicable jurisdiction.
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2.20 Transfer Taxes.
The transfer, assignment and conveyance of the Leases (including all
payments due or to become due thereunder) and its interests in the Equipment by
the Transferor pursuant to this Assignment and Servicing Agreement is not
subject to and will not result in any tax, fee or governmental charge payable by
the Transferor to any federal, state or local government ("Transfer Taxes"). In
the event that the Issuer receives actual notice of any Transfer Taxes arising
out of the transfer, assignment and conveyance of the Leases and/or its
interests in the Equipment, on written demand by the Issuer, or upon the
Transferor otherwise being given notice thereof, the Transferor shall pay, and
otherwise indemnify and hold the Issuer, the Trustee and the holders of the
Notes harmless, on an after-tax basis, from and against any and all such
Transfer Taxes (it being understood that the holders of the Notes and the
Trustee shall have no obligation to pay such Transfer Taxes).
2.21 Principal Executive Office.
The principal executive office of each of the Transferor and the Servicer
is located at One International Boulevard, Mahwah, New Jersey 07430-0631.
2.22 Servicing Provisions Customary.
The servicing arrangements hereunder, including without limitation the
terms and conditions pursuant to which the Transferor will act as Servicer and
the Servicing Fee to be paid to the Transferor, are consistent with the
arrangements and customary practices of the Transferor when providing comparable
services to non-affiliated entities and of other servicers in the equipment
leasing industry.
2.23 Nonconsolidation.
The Transferor is and at all times since its incorporation has been
operated in such a manner that it would not be substantively consolidated with
the Issuer, such that the separate existence of the Transferor and the Issuer
would be disregarded in the event of a bankruptcy or insolvency of the
Transferor or the Issuer, and in such regard:
(a) the Transferor is not involved in the day-to-day management of the
Issuer;
(b) the Transferor maintains separate corporate records and books of
account from the Issuer and otherwise observes corporate formalities and has a
separate business office from the Issuer;
(c) the financial statements and books and records of the Transferor
prepared after the Issuance Date will reflect the separate existence of the
Issuer;
(d) the Transferor maintains its assets separately from the assets of the
Issuer (including through the maintenance of a separate bank account), the
Transferor's funds and assets, and records relating thereto, have not been and
are not commingled with those of the Issuer and the separate creditors of the
Transferor and the Issuer will be entitled to be satisfied
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out of the Transferor's and the Issuer's assets prior to any value in the
Transferor or the Issuer becoming available to the Issuer's equityholders or the
Transferor's creditors;
(e) all business correspondence of the Transferor and other communications
are conducted in the Transferor's own name and on its own stationery; and
(f) the Issuer does not act as an agent of the Transferor in any capacity
and the Transferor does not act as agent for the Issuer, but instead presents
itself to the public as a corporation separate from the Issuer.
2.24 Contribution Treatment.
The Transferor will treat the transfer to the Issuer of the Leases and the
Lease Receivables as a capital contribution and absolute assignment for tax
reporting and accounting purposes.
SECTION 3. ADMINISTRATION OF LEASES
3.01 Servicer to Act.
(a) Notwithstanding the transfers and assignments of the Leases (including
the right to receive all payments due or to become due thereunder) and the
related interests in the Equipment contemplated hereby, the Servicer, for the
benefit of the Issuer, will service and administer each Lease in accordance with
the terms thereof and of this Assignment and Servicing Agreement. The Servicer
shall take, or cause to be taken, all such actions as may be necessary or
advisable to service, administer and collect each Lease from time to time, all
in accordance with (i) customary and prudent servicing procedures for leases of
a similar type, (ii) all applicable laws, rules and regulations, and (iii)
without limitation as to its obligations under the preceding clauses (i) and
(ii), no less a standard of care than that which it applies to Leases it
services for its own account. The Servicer shall provide the Lessees with
appropriate invoices and such other notices as may be required to ensure that
all Lease Payments, Casualty Payments and Termination Payments on or in respect
of each Lease are remitted by the Lessees to the address specified by the
Servicer. The Servicer shall deposit such payments to the Collection Account or
the Residual Account, as applicable, within two Business Days of the receipt
thereof. Any other amount received by the Servicer from time to time from the
Issuer or any Lessee which is or is intended to be subject to the Lien of the
Indenture shall be held in trust by the Servicer, as agent for the Trustee and
promptly turned over to the Trustee or deposited into the Collection Account or
Residual Account, as applicable, for application in accordance with the
provisions of the Indenture.
(b) The Servicer shall do, and shall have full power and authority to do,
subject only to the specific requirements and prohibitions of this Assignment
and Servicing Agreement, any and all things in connection with the servicing and
administration of the Leases and the interests in the Equipment which are
consistent with the manner in which it services leases and equipment
constituting part of its own portfolio and consistent with the customary
practices of servicers in the equipment leasing industry, but in performing its
duties hereunder, the Servicer will act on behalf and for the benefit of the
Issuer, the Trustee and the holders of the Notes, subject at all times to the
provisions of the Indenture, without regard to any relationship
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which the Servicer or any Affiliate of the Servicer may otherwise have with a
Lessee. The Servicer shall at all times act in accordance with the provisions of
each Lease, and shall observe and comply with all requirements of law applicable
to it. Except as permitted by the terms of any Lease following a default
thereunder, the Servicer shall not take any action which would result in the
interference with the Lessee's right to quiet enjoyment of the Equipment subject
to the Lease during the term thereof. The Servicer shall exercise with respect
to each item of Equipment all rights and remedies it, the Issuer or the Trustee
shall have against any vendor of the Equipment, subject to the provisions of any
Lease, and shall promptly pay all amounts realized from such actions to the
Trustee for deposit in the Collection Account or Residual Account, in accordance
with the terms of the Indenture.
(c) Without limiting the generality of the foregoing, the Servicer agrees
to (i) invoice each Lessee monthly (except quarterly, semi-annually or annually
in the case of Leases which provide for quarterly, semi-annual or annual Lease
Payments, respectively) for all Lease Payments required to be paid by such
Lessee in such manner and to the same extent as the Servicer does with respect
to leases held for its own account, (ii) maintain with respect to each Lease and
each item of Equipment, and with respect to each payment by each Lessee and
compliance by each Lessee with the provisions of each Lease, complete and
accurate records in the same form and to the same extent as the Servicer does
with respect to leases and equipment held for its own account (which records
shall be at least as complete and accurate as those maintained by the Servicer
as of the date of this Assignment and Servicing Agreement), and (iii) from time
to time execute, deliver and file (or cause the same to be done), and the
Servicer is hereby authorized and empowered to execute, deliver, and file on
behalf of the Issuer and the Trustee, any and all tax returns with respect to
sales, use, personal property and other taxes (other than corporate income tax
returns) and any and all reports or licensing applications required to be filed
in any jurisdiction with respect to any Lease or any item of Equipment and any
and all required Financing Statements and assignments of Financing Statements
and such additional Financing Statements and continuation statements with
respect thereto as may from time to time be necessary because of Lease
substitutions, equipment replacements in accordance with the provisions of any
Lease or otherwise so that the security interest contemplated by the Indenture
in favor of the Trustee in each of the Leases, at all times will be perfected by
such filings with the appropriate Uniform Commercial Code filing offices. The
Transferor and the Servicer agree to file Financing Statements on Form UCC-1 to
perfect the security interest of the Trustee in the Leases and the Lease
Payments, and to the extent provided herein, the Equipment.
(d) The Servicer will maintain, or cause to be maintained, with respect to
the Leases and the Equipment casualty and liability insurance in amounts at
least as great as those described in Section 2.04(f). Each such casualty and
liability policy (i) if maintained by the Servicer, shall name the Issuer and
Trustee as loss payees or additional insureds and (ii) if maintained by the
Lessee, shall name the Servicer or the Trustee as loss payee and additional
insured; provided that the Servicer shall cause all such policies to name the
Trustee and the Issuer as loss payees and additional insureds if (A) the
Transferor is no longer the Servicer, (B) an Event of Default shall have
occurred and be continuing or (C) a Servicer Event of Default shall have
occurred and be continuing.
(e) On or prior to the Issuance Date, the Servicer will file the Financing
Statements and assignments of Financing Statements in accordance with the Filing
Requirements
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and thereafter will file such additional Financing Statements and continuation
statements and assignments with respect to the Leases as may be necessary
because of equipment replacements in accordance with the provisions of any
Lease, purchases of Additional Leases in accordance with Section 9 and Lease
substitutions pursuant to Section 9 hereof or otherwise so that (i) the
ownership interest contemplated by this Agreement in favor of the Issuer and the
security interest contemplated by the Indenture in favor of the Trustee in each
of the Leases and the Equipment will be perfected by such filings with the
appropriate Uniform Commercial Code filing offices (to the extent this may be
achieved by central filing), and (ii) the security interest contemplated by the
Assignment and Servicing Agreement in favor of the Transferor and the Issuer in
each of the Leases and Equipment will be perfected by such filings with the
appropriate Uniform Commercial Code filing offices (to the extent this may be
achieved by central filing).
(f) The Servicer shall pay the Excess Copy Charges, Maintenance Charges and
Fee Per Scan Charges, if any, owing the related vendor in a timely fashion.
3.02 Lease Amendments and Modifications.
In performing its obligations hereunder, the Servicer may, acting in the
name of the Issuer and without the necessity of obtaining the prior consent of
the Issuer or the Trustee, enter into and grant modifications, waivers and
amendments to the terms of any Lease except for modifications, waivers or
amendments that (a) are inconsistent with the servicing standards set forth in
Section 3.01 above, (b) would reduce the amount or extend the time for payment
of any Lease Payment, Casualty Payment, Termination Payment or Residual
Realizations to be made under a Lease (other than to permit termination of a
Lease which does not otherwise provide for termination by requiring the payment,
in lieu of all future Lease Payments with respect to the Lease or Equipment
subject thereto, an amount which equals or exceeds the Lease Purchase Amount for
such Lease as of such date) or the Lessee's absolute and unconditional
obligation to make payment of the same, (c) would reduce or adversely affect the
Lessee's obligation to maintain, service, insure and care for the Equipment or
would permit the alteration of any item of Equipment in any way which could
adversely affect its present or future value or (d) otherwise could adversely
affect the interests of any of the Issuer, the Trustee or the holders of the
Notes.
In addition, following the transfer of any Lease to the Issuer in
accordance herewith, the Servicer may make adjustments to such Lease which
modify one or more terms of such Lease, such as payment amount or payment date.
Such administrative adjustments may result in a re-booking of such Lease and the
assignment of a new Lease number, but will not be considered to be a
substitution or prepayment of such Lease. Except to the extent the Transferor
substitutes a Substitute Lease therefor in accordance with Section 9 hereof, the
Servicer may permit such adjustments so long as the following conditions
precedent have been satisfied:
(i) after giving effect to such adjustments and any additions and
substitutions pursuant to Section 9, the aggregate Booked Residual Value of
such Leases will not be less than 100% of the aggregate Booked Residual
Value of the Leases adjusted, replaced or substituted since the Issuance
Date.
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(ii) after giving effect to such adjustment and any additions and
substitutions pursuant to Section 9, the final payment on such Lease must
be on or prior to __________.
(iii) after giving effect to such adjustments and any additions and
substitutions pursuant to Section 9 the aggregate amount of Lease Payments
through the term of the Leases (including the Substitute Leases and the
Additional Leases) will not be materially less than the aggregate scheduled
Lease Payments of the Leases prior to such adjustment, substitution or
addition.
(iv) after giving effect to such adjustments, additions and
substitutions pursuant to Section 9, the Discounted Present Value of the
Performing Leases must not be less than the Discounted Present Value of the
Performing Leases prior to such adjustment, addition and substitution.
(v) after giving effect to such adjustments, additions, and
substitutions pursuant to Section 9, the weighted average remaining term of
the Performing Leases must not be greater than the weighted average
remaining term of the Performing Leases prior to such adjustment, addition,
and substitution.
3.03 Non-Performing Leases.
(a) Upon receipt of notice from the Issuer, the Trustee or any other
Person, or if the Servicer otherwise learns that any Lease is a Non-Performing
Lease, the Servicer will take such action as is appropriate, consistent with the
Servicer's administration of leases in its own portfolio and consistent with the
customary practices of servicers in the equipment leasing industry, including
such action as may be necessary to cause, or attempt to cause, the Lessee
thereunder to cure such non-performance (if the same may be cured) or to
terminate or attempt to terminate such Lease and to recover, or attempt to
recover, all damages resulting from such default. The Servicer shall demand, on
behalf of the Issuer, that the Transferor immediately repay any Inter-Company
Loan representing the advance pursuant to Section 13.01 hereof of any security
deposit with respect to any Lease which becomes a Non-Performing Lease, and the
Servicer shall apply such security deposit in accordance with Section 3.03(d)
hereof.
(b) The Servicer will use its best efforts to sell or lease any Equipment
upon the expiration or early termination of a Lease or that is subject to a
Non-Performing Lease in a timely manner and upon the most favorable terms and
conditions available at the time. In the event of an early lease termination,
any Substitute Lease must have a Discounted Present Value equal to or greater
than that of the Terminated Lease, monthly payments at least equal to those of
the Terminated Lease through the remaining term of such Terminated Lease, a
remaining term less than or equal to that of the Terminated Lease and a Booked
Residual Value at least equal to that of such Terminated Lease.
(c) In the event that the Servicer is required to sell or lease any item of
Equipment pursuant to the provisions of this Section 3.03 at a time when the
Servicer has other similar items of equipment available to it, the Servicer will
not favor any such other item in its remarketing efforts.
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(d) All amounts realized by the Servicer in the performance of its duties
hereunder with respect to any Lease or Equipment remaining subject to the Lien
of the Indenture (net of the Servicer's actual out-of-pocket expenses reasonably
incurred in such realization) shall be held in trust by the Servicer, as agent
for the Trustee and deposited into the Collection Account for application in
accordance with the provisions of the Indenture; provided that, to the extent
that (i) the Servicer has made any advances pursuant to Section 4.01 hereof with
respect to any Lease which thereafter became a Non-Performing Lease, and (ii)
the Servicer has not otherwise been fully reimbursed for such advances or
payments, the Servicer shall reimburse itself for such advances or payments from
any amounts recovered with respect to such Non-Performing Lease before
depositing any such amounts pursuant to this Section 3.03(d).
3.04 Costs of Servicing; Servicing Fee; Administrative Expenses.
(a) All costs of servicing each Lease in the manner required by this
Section 3 shall be borne by the Servicer, but the Servicer shall be entitled to
retain, out of any amounts actually recovered by the Servicer in the performance
of its obligations under Section 3.03 hereof with respect to any Lease or the
interests in the Equipment subject thereto, the Servicer's actual out-of-pocket
expenses reasonably incurred in the course of such performance with respect to
such Lease or the interests in the Equipment. (For all purposes of this Section
3 the Servicer's "out-of-pocket expenses" means only those expenses incurred to
third parties (e.g., reasonable fees of outside counsel in a collection suit)
and not salaries, operating costs, overtime wages and other such "overhead"
costs or expenses of the Servicer.) In addition, the Servicer shall be entitled
to receive from the Issuer on each Payment Date following the Issuance Date a
servicing fee with respect to the Receivables Notes (the "Servicing Fee") and a
servicing fee with respect to the Class R Notes (the "Residual Servicing Fee")
in the amounts described in paragraph (b) below.
(b) The amount of the Servicing Fee which the Servicer shall be entitled to
receive on each Payment Date following the original issuance of the Receivables
Notes shall be determined by multiplying (i) the Discounted Present Value of
Performing Leases as of the prior Payment Date times (ii) one-twelfth of 0.75%.
The amount of the Residual Servicing Fee which the Servicer shall be entitled to
receive on each Payment Date following the issuance of the Class R Notes shall
be determined by multiplying (i) the Booked Residual Values as of the prior
Payment Date for all Performing Leases times (ii) one-twelfth of 0.75%.
3.05 Other Transactions.
Nothing in this Assignment and Servicing Agreement shall preclude the
Transferor or the Servicer from entering into other leases or other financial
transactions with any Lessee or selling or discounting any such lease with any
Person.
SECTION 4. SERVICER ADVANCES AND TRANSFEROR'S SUPPORT
4.01 Late Lease Payments.
(a) On each Determination Date, the Servicer may, but will not be required
to, advance and remit to the Trustee for deposit in the Collection Account, in
such manner as will ensure that the Trustee will have immediately available
funds on account thereof by 11:00 A.M.
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New York City time on the second Business Day prior to the next succeeding
Payment Date, an amount (a "Servicer Advance") equal to any Lease Payment due
during the prior Lease Payment Period but unpaid prior to such Determination
Date with respect to any Lease. In consideration of each Servicer Advance the
Servicer will be entitled to retain any late payment fees recovered from the
Lessee with respect to any Lease Payment covered by a Servicer Advance. In
addition, the Servicer will be reimbursed for Servicer Advances from funds in
the Collection Account in accordance with the Indenture on the second following
Payment Date.
(b) On each Determination Date, the Servicer will be required to advance
and remit to the Trustee for deposit in the Residual Account, in such manner as
will ensure that the Trustee will have immediately available funds on account
thereof by 11:00 A.M. New York City time on the second Business Day prior to the
next succeeding Payment Date, an amount (a "Residual Servicer Advance") equal to
the difference between distributions due to be made pursuant to Section
3.02(b)(i)-(iv) of the Indenture and the amounts then on deposit in the Residual
Account and the Liquidity Reserve Account. The Servicer will be reimbursed for
Residual Servicer Advances from funds in the Residual Account in accordance with
the Indenture on the second following Payment Date.
4.02 Early Termination Leases.
Following the Determination Date as of which any Lease first becomes an
Early Termination Lease the Transferor may, but shall have no obligation to,
either (a) substitute one or more Eligible Leases and the Equipment subject
thereto for such Lease and the Equipment subject thereto pursuant to Section 9
hereof (if the Transferor is then entitled to substitute Leases and Equipment in
accordance with the provisions of Section 9.01 hereof) on or before the second
Business Day prior to the next succeeding Payment Date, (b) purchase from the
Issuer such Lease and the related Equipment by remitting to the Trustee an
amount equal to the Lease Purchase Amount in such manner as will ensure that the
Trustee will have immediately available funds therefor by 11:00 A.M. New York
City time on the second Business Day prior to the next succeeding Payment Date
or (c) transfer to the Issuer one or more Additional Leases in consideration of
the proceeds thereof in accordance with Section 9 hereof. Unless the Transferor
takes one of the actions set forth in the prior sentence, the Servicer will not
permit a voluntary termination of a Lease prior to its stated maturity unless it
receives a payment in connection with such termination equal to at least the
Lease Purchase Amount. Any Early Termination Lease and the Equipment subject
thereto which is acquired, or for which Additional Leases have been acquired or
Substitute Leases transferred, pursuant to this Section 4.02 shall nevertheless
remain subject to the Lien of the Indenture until such time as an Additional
Lease or Additional Leases have been acquired or Substitute Lease or Substitute
Leases have been transferred in accordance with the provisions of Section 9
hereof or the Lease Purchase Amount has been paid. A Lease will be considered to
be an "Eligible Lease" if on the date such Lease is substituted for or added in
replacement of an Early Termination Lease, such Lease satisfies the
representations and warranties set forth in Section 2.04(a) through (u) and the
requirements of Section 9 hereof.
4.03 Indemnification.
The Transferor in its capacity as Servicer, agrees to indemnify and hold
harmless the Issuer, the Servicer, the Trustee and each holder of the Notes
(each an "Indemnified Party")
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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 (except to the extent arising out of the
gross negligence or willful misconduct on the part of the Indemnified Party) 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 Indenture,
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 Servicer's possession or under its control pursuant to this
Assignment and Servicing Agreement, 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
the foregoing indemnity shall in no way be deemed to impose on the Transferor
any obligation, other than to the extent specifically set forth in this Section
4, to make any payment with respect to principal or interest on the Notes or to
reimburse the Issuer for any payments on account of the Notes. This Section 4.03
shall bind any successor Servicer hereunder.
4.04 Purchases; Other Payments.
(a) In the event that (i) any of the representations or warranties made by
the Transferor in Sections 2.04 and 2.05 hereof with respect to any of the
Leases or the Equipment subject thereto proves at any time to have been
inaccurate in any material respect as of the Issuance Date or related transfer
date, as the case may be or (ii) any Lease shall be terminated in whole or in
part by a Lessee, or any amounts due with respect to any Lease shall be reduced
or impaired, as a result of any action or inaction by the Transferor (other than
any such action or inaction of the Transferor, when acting as Servicer, in
connection with the enforcement of any Lease in a manner consistent with the
provisions of this Assignment and Servicing Agreement) or any claim by any
Lessee against the Transferor and, in any such case, the event or condition
causing such inaccuracy, termination, reduction, impairment or claim shall not
have been cured or corrected within 30 days after the earlier of the date on
which the Transferor is given notice thereof by the Issuer or the Trustee or the
date on which the Transferor otherwise first has notice thereof, the Transferor
will purchase such Lease and the Equipment subject thereto by paying to the
Trustee, not later than the third Business Day after the Determination Date next
following the expiration of such 30-day period with respect to the events
referenced in Section 4.04(a)(i) and (ii), an amount equal to the Lease Purchase
Amount, and simultaneously with such purchase, the Transferor shall reimburse
the Servicer for all amounts, if any, theretofore advanced by the Servicer
pursuant to Section 4.01 with respect to such Lease. Without limiting the
generality of the foregoing, it is agreed and understood that for purposes of
this Section 4.04, any inaccuracy in any representation or warranty with respect
to (i) the priority of the Lien of the Indenture with respect to any Lease or
(ii) the amount (if less than represented) of the Lease Payments, Casualty
Payments, Termination Payment or Booked Residual Value under any Lease shall be
deemed to be material.
(b) By the Issuance Date, the Transferor agrees to obtain and provide to
the Trustee UCC searches against it from the central filing offices in New
Jersey confirming the absence of any UCC filings (other than those in the
process of being released pursuant to releases delivered on the Issuance Date)
against the Transferor with respect to the Leases (including the right to
receive all payments due or to become due thereunder) and the Equipment, other
than those naming the Transferor or the Issuer as the owner of the Leases or the
Trustee as secured
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party. In the event the Transferor fails to provide any such searches required
by the preceding sentence of this Section 4.04(b) within the required time
period or any search reveals the existence of any conflicting Liens (which are
not removed within 30 days of receipt of such search), the Transferor shall be
required to purchase not later than the third Business Day after the
Determination Date following the expiration of the time period during which such
search was to be obtained or such Lien released, as the case may be, any Lease
of Equipment in any such state for which such searches are not provided or with
respect to which conflicting Liens are found to exist at the Lease Purchase
Amount for such Lease.
(c) The Transferor's obligations under this Section 4.04 are the full
recourse obligations of the Transferor and shall in no way be limited or
discharged by the application of any funds constituting part of the Trust
Estate.
4.05 Payment Advice.
Each payment to the Trustee pursuant to any of the provisions of this
Assignment and Servicing Agreement shall be accompanied by written advice
containing sufficient information to identify the Lease and/or Equipment to
which such payment relates, the Section of this Assignment and Servicing
Agreement pursuant to which such payment is made, and the proper application
pursuant to the provisions of the Indenture of the amounts being paid.
SECTION 5. INFORMATION TO BE PROVIDED
5.01 Monthly Status Reports; Servicing Reports.
(a) Within five Business Days following each Payment Date, the Servicer
will send to the Trustee (copies of which the Trustee shall send to each Rating
Agency and to each holder of the Notes as provided in the Indenture) a written
report, signed by one of the Servicer's financial officers, (i) identifying each
Lease with respect to which any Lease Payment was 30 or more days overdue as of
the end of the immediately preceding Lease Payment Period, the Discounted
Present Value of such Lease as of such Payment Date, the amount advanced by the
Servicer with respect to such Lease pursuant to Section 4.01 hereof since the
Servicer's previous monthly report (or, in the case of the first such report,
since the Cut-Off Date), (ii) identifying each Lease with respect to which any
Lease Payment was 60 or more days overdue as of the end of the immediately
preceding Lease Payment Period, the Discounted Present Value of such Lease as of
such Payment Date, the amount advanced by the Servicer with respect to such
Lease pursuant to Section 4.01 hereof since the Servicer's previous monthly
report (or, in the case of the first such report, since the Issuance Date),
(iii) identifying each Lease with respect to which any Lease Payment was 93 or
more days overdue as of the end of the immediately preceding Lease Payment
Period, the Discounted Present Value of such Lease as of such Payment Date, the
amount advanced by the Servicer with respect to such Lease pursuant to Section
4.01 hereof since the Servicer's previous monthly report (or, in the case of the
first such report, since the Issuance Date), (iv) identifying each Lease which
became a Non-Performing Lease as of the preceding Determination Date and
specifying the Discounted Present Value of such Lease as of such Determination
Date (or,
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in the case of the first such report, subsequent to the Cut-Off Date) and the
aggregate Discounted Present Value of all such Non-Performing Leases, (v)
indicating the aggregate amount recovered by the Servicer subsequent to the
preceding Payment Date (or, in the case of the first Payment Date, subsequent to
the Cut-Off Date) and on or prior to such Payment Date with respect to Lease
Delinquency Payments and Non-Performing Lease Payments previously made by the
Transferor and the Servicer (and the specific amounts so recovered with respect
to any Non-Performing Lease) and (vi) indicating the Residual Realizations, as
of the related Determination Date. Each such report shall also describe
generally what action or actions the Servicer is then taking or proposes to take
to recover from the appropriate Lessees any amounts previously paid by the
Servicer to the Trustee pursuant to Section 4.01 hereof.
(b) On the second Business Day preceding the Payment Date, the Servicer
shall deliver to the Trustee and to each Rating Agency two certificates signed
by an officer of the Servicer (a "Receivable Servicing Report" and a "Residual
Servicing Report," collectively, the "Servicing Report") stating the date and in
the form of Exhibit C hereto.
(c) The Servicing Report shall include, among other items, the total amount
of all Lease Payments, Casualty Payments, Termination Payments, Lease Purchase
Amount, recoveries related to Non-Performing Leases, Residual Realizations,
Similar Transaction Payments and Other Lease Payments received by the Servicer
and deposited in the Collection Account and Residual Account prior to such
Determination Date and on or subsequent to the Determination Date preceding such
Determination Date (or, in the case of the first Determination Date, on or
subsequent to the Cut-Off Date). Such report shall indicate the amount of all
Lease Payments received by the Servicer and deposited in the Collection Account
or Residual Account, as applicable, which are for any Lease Payment Period other
than the Lease Payment Period for such Determination Date and shall identify
each Lease with respect to which a Casualty Payment, Termination Payment or
Lease Purchase Amount was made during such time period. Such report shall also
indicate (i) the aggregate amount paid by the Servicer on or subsequent to the
most recent Determination Date with respect to Non-Performing Leases pursuant to
Section 4.01 hereof, and (ii) the aggregate amount reimbursed to the Servicer
prior to the most recent Determination Date and on or subsequent to the
Determination Date preceding such Determination Date (or, in the case of the
first Determination Date, on or subsequent to the Cut-Off Date) for actual cash
payments made by the Servicer with respect to Non-Performing Leases pursuant to
Section 4.01 hereof. The Servicer hereby represents and warrants that such
calculations will be correct and accurate, and the Servicer shall be fully
responsible for, and shall reimburse and indemnify each Indemnified Party for,
any loss resulting from such Indemnified Party's reliance on any such
calculations which are not correct.
(d) If the Servicer intends to withdraw any funds from the Collection
Account or Residual Account other than on a Payment Date, the Servicer shall
submit with such report a certificate (i) setting forth the amounts to be
withdrawn (on an item-by-item basis), (ii) stating that none of such amounts are
all or part of any Lease Payment, Lease Delinquency Payment, recoveries related
to Non-Performing Leases, Lease Purchase Amount, Casualty Payment, Termination
Payment or Residual Realizations, and (iii) identifying the lease or leases to
which such amounts relate.
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5.02 Annual Independent Public Accountant's Report.
The Servicer shall cause a firm of independent public accountants (who may
also render other services to the Servicer or to the Transferor) to deliver to
the Trustee, with a copy to each Rating Agency, within 135 days following the
end of each fiscal year of the Servicer, beginning with the Servicer's fiscal
year ending __________, _____, a written statement to the effect that such firm
has (a) obtained from the Servicer a copy of the monthly status report pursuant
to Section 5.01 for a single month during the previous calendar year; (b)
compared the information contained in such monthly status report and in the
monthly summaries prepared by the Servicer in support of such monthly status
report to the computer printouts and accounts prepared by the Servicer and
supporting such reports; and (c) selected, at random, 25 Leases included in the
Trust Estate and compared the activity in the files maintained by the Servicer
for such Leases to the activity as reported for those Leases to the monthly
summaries prepared by the Servicer and supporting the monthly status report, and
that, on the basis of such examination and comparison, such firm is of the
opinion that the Servicer has prepared such monthly status report and summaries
in agreement with the computer printouts, accounts and individual Lease files,
except in each case for (x) such exceptions as such firm shall believe to be
immaterial and (y) such other exceptions as shall be set forth in such
statement.
SECTION 6. THE SERVICER
6.01 Merger or Consolidation of the Servicer.
The Servicer will keep in full force and effect its existence, rights and
franchise as a corporation under the laws of its jurisdiction of incorporation
and will preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is necessary to protect the
validity and enforceability of any of the Leases or to permit performance of the
Servicer's duties under this Assignment and Servicing Agreement.
The Servicer shall not merge or consolidate with any other Person unless
(i) the entity surviving such merger or consolidation is a corporation organized
under the laws of the United States or any jurisdiction thereof and (ii) the
surviving entity, if not the Servicer, shall execute and deliver to the Issuer,
the Servicer and the Trustee, in form and substance satisfactory to each of
them, (a) an instrument expressly assuming all of the obligations of the
Servicer hereunder and (b) an opinion of counsel to the effect that such Person
is a corporation of the type described in the preceding clause (i) and has
effectively assumed the obligations of the Servicer hereunder. Upon the
occurrence of any such merger or consolidation, the Servicer shall give notice
promptly to the Rating Agencies.
6.02 Limitation on Liability of the Servicer and Others.
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall incur any liability to the Issuer, the Trustee or
the holders of the Notes for any action taken or not taken in good faith
pursuant to the terms of this Assignment and Servicing Agreement with respect to
any Lease (including any Non-Performing Lease) or the Equipment subject thereto;
provided, however, that this provision shall not protect the Servicer or any
such person against any breach of warranties, representations or covenants made
by it herein or in any
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certificate delivered in conjunction with the purchase of the Notes or for any
liability which would otherwise be imposed for any action or inaction resulting
from willful misconduct or bad faith or for negligence in the performance or
nonperformance of its duties hereunder.
6.03 Servicer Not to Resign or Be Removed.
The Servicer shall not resign from the servicing obligations and duties
hereby imposed on it except upon determination that such duties hereunder are no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced by an opinion of independent
counsel to the Servicer, in form and substance satisfactory to the holders of
the Notes, to such effect delivered to the Trustee.
Except as provided in Section 8.02 hereof, the Servicer shall not be
removed or be replaced as Servicer with respect to any Lease or any of the
Equipment.
No resignation or removal of the Servicer shall in any event (i) become
effective until the Trustee or a successor servicer shall have assumed the
Servicer's servicing responsibilities and obligations in accordance with Section
8.02 hereof, or (ii) affect the Transferor's obligations pursuant to Section 3
hereof.
6.04 Financial and Business Information.
The Servicer will deliver to the Issuer and the Trustee upon receipt
thereof shall deliver to each Rating Agency and upon request, to any holder of
outstanding Notes evidencing not less than 25% of the Outstanding Principal
Amount of the Receivable Notes or the Class R Notes (and, upon the request of
any holder of outstanding Notes, to any prospective transferee of any Notes)
and, in the case of subsection (c) below:
(a) Quarterly Statements - within 45 days after the end of each of the
first three quarterly fiscal periods in each fiscal year of the Servicer, a copy
of:
(1) a consolidated balance sheet of the Servicer (or its parent) and
its consolidated subsidiaries at the end of such quarter, and
(2) consolidated statements of income, retained earnings and cash flow
of the Servicer (or its parent) and its consolidated subsidiaries for that
quarter and for the portion of the fiscal year ending with such quarter,
accompanied by a certificate signed by a principal financial officer of the
Servicer stating that such financial statements present fairly the financial
condition of the Servicer and its consolidated subsidiaries and have been
prepared in accordance with generally accepted accounting principles
consistently applied;
(b) Annual Statements - within 135 days after the end of each fiscal year
of the Servicer, a copy of:
(1) a consolidated balance sheet of the Servicer (or its parent) and
its consolidated subsidiaries, at the end of that year, and
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(2) consolidated statements of income, retained earnings and cash flow
of the Servicer (or its parent) and its consolidated subsidiaries for that
year, setting forth in each case in comparative form the figures for the
previous fiscal year,
all in reasonable detail and accompanied by an opinion of a firm of independent
certified public accountants of recognized national standing stating that such
financial statements present fairly the financial condition of the Servicer and
its consolidated subsidiaries and have been prepared in accordance with
generally accepted accounting principles consistently applied (except for
changes in application in which such accountants concur and footnote), and that
the examination of such accountants in connection with such financial statements
has been made in accordance with generally accepted auditing standards, and
accordingly included such tests of the accounting records and such other
auditing procedures as were considered necessary in the circumstances;
(c) Notice of Servicer Event of Default - immediately upon becoming aware
of the existence of any condition or event which constitutes a Servicer Event of
Default, a written notice, by certified mail return receipt requested, hand
delivery or overnight courier, describing its nature and period of existence and
what action the Servicer is taking or proposes to take with respect thereto;
(d) SEC and Other Reports - promptly upon their becoming available, one
copy of each report (including the Servicer's annual report to shareholders and
reports on Form 8-K, 10-K, and 10-Q), proxy statement, registration statement,
prospectus and notice filed with or delivered to any securities exchange, the
Securities and Exchange Commission or any successor agencies; and
(e) Report on Proceedings - promptly upon the Servicer's becoming aware of
(1) any proposed or pending investigation of it by any governmental
authority or agency, or
(2) any court or administrative proceeding
which involves or may involve the possibility of materially and adversely
affecting the properties, business, prospects, profits or conditions (financial
or otherwise) of the Servicer, a written notice specifying the nature of such
investigation or proceeding and what action the Servicer is taking or proposes
to take with respect thereto and evaluating its merits; and
(f) Requested Information - with respect to the Class E Notes and the Class
R Notes, with reasonable promptness, any other data and information which may be
reasonably requested from time to time, including, without limitation, any
information required to be made available at any time to any prospective
transferee of any Notes in order to satisfy the requirements of Rule 144A under
the Securities Act of 1933, as amended.
6.05 Officers' Certificates.
With each set of financial statements delivered pursuant to Section 6.04,
the Servicer will deliver an Officers' Certificate stating (i) that the officers
signing such Officers' Certificate have reviewed the relevant terms of this
Assignment and Servicing Agreement and
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have made, or caused to be made under such officers' supervision, a review of
the activities of the Servicer during the period covered by the statements then
being furnished, (ii) that the review has not disclosed the existence of any
Servicer Event of Default or, if a Servicer Event of Default exists, describing
its nature and what action the Servicer has taken and is taking with respect
thereto, and (iii) that on the basis of such review the officers signing such
certificate are of the opinion that during such period the Servicer has serviced
the Leases in compliance with the procedures hereof except as described in such
certificate.
6.06 Inspection.
The Servicer will permit, on reasonable prior notice, the representatives
of the Issuer and the Trustee and the holder of any Notes evidencing not less
than 25% of the Outstanding Principal Amount of any class of Notes to inspect
the servicing operations and discuss the servicing operations of the Servicer
with any of its officers or employees all at such reasonable times and as often
as may be reasonably requested for the purpose of reviewing the Servicer or the
Servicer's performance of its duties and obligations hereunder. Any expense
incident to the exercise by the Issuer, the Trustee, or any holder of the Notes
during the continuance of any Servicer Event of Default, or any event or
condition which with the giving of notice or the lapse of time or both would
become a Servicer Event of Default, of any right under this Section 6.06 shall
be borne by the Servicer.
6.07 Servicer Records.
The Servicer will indicate in its records that it is servicing and
administering each Lease in its capacity as Servicer hereunder, and to the
extent it is in possession of any original Lease agreement, will hold such
Lease, subject to the provisions of the Indenture as Custodian for the Trustee.
SECTION 7. THE TRANSFEROR
7.01 Merger or Consolidation of the Transferor.
The Transferor will keep in full force and effect its existence, rights and
franchise as a corporation under the laws of its jurisdiction of incorporation
and will preserve its qualification to do business as a foreign corporation in
each jurisdiction in which such qualification is necessary to protect the
validity and enforceability of any of the Leases or to permit performance of the
Transferor's duties under this Assignment and Servicing Agreement.
The Transferor shall not merge or consolidate with any other Person unless
(i) the entity surviving such merger or consolidation is a corporation organized
under the laws of the United States or any jurisdiction thereof and (ii) the
surviving entity, if not the Transferor, shall execute and deliver to the Issuer
or the Servicer and the Trustee, in form and substance satisfactory to each of
them, (a) an instrument expressly assuming all of the obligations of the
Transferor hereunder and (b) an opinion of counsel to the effect that such
Person is a corporation of the type described in the preceding clause (i) and
has effectively assumed the obligations of the Transferor hereunder.
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7.02 Control of Issuer.
So long as any of the Notes or the other obligations secured by the
Indenture remain outstanding, the Transferor will not (i) sell, pledge or
otherwise transfer any of its membership interest in the Issuer held by the
Transferor or (ii) vote such beneficial interests in favor of any amendment to
or alteration of the certificate of formation of the Issuer.
7.03 Financial and Business Information.
The Transferor will deliver to the Issuer and the Trustee and upon receipt
thereof the Trustee shall deliver to each Rating Agency and upon request, to any
holder of outstanding Notes evidencing not less than 25% of the Outstanding
Principal Amount of Receivable Notes or to any holder of Outstanding Notes
evidencing not less than 25% of the Outstanding Principal Amount of the Class R
Notes (and, upon the request of any holder of outstanding Notes, to any
prospective transferee of any Notes):
(a) Notice of Servicer Event of Default - immediately upon becoming aware
of the existence of any condition or event which constitutes a Servicer Event of
Default, a written notice (with a copy to each Rating Agency) describing its
nature and period of existence and what action the Transferor is taking or
proposes to take with respect thereto;
(b) SEC and Other Reports - promptly upon their becoming available, one
copy of each report (including the Transferor's annual report to shareholders
and reports on Form 8-K, 10-K, and 10-Q), proxy statement, registration
statement, prospectus and notice filed with or delivered to any securities
exchange, the Securities and Exchange Commission or any successor agencies;
(c) Report on Proceedings - promptly upon the Transferor's becoming aware
of
(1) any proposed or pending investigation of it by any governmental
authority or agency, or
(2) any 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 Transferor, a written notice specifying the nature of such
investigation or proceeding and what action the Transferor is taking or proposes
to take with respect thereto and evaluating its merits;
(d) ERISA - (i) promptly and in any event within ten days after the
Transferor knows or has reason to know of the occurrence of a Reportable Event
with respect to a Pension Plan with regard to which notice must be provided to
the PBGC, a copy of such materials required to be filed with the PBGC with
respect to such Reportable Event and in each such case a statement of the chief
financial officer of the Transferor setting forth details as to such Reportable
Event and the action which the Transferor proposes to take with respect thereto;
(ii) at least ten days prior to the filing by any plan administrator of a
Pension Plan of a notice of intent to terminate such Pension Plan, a copy of
such notice; (iii) upon request of the Issuer and
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the Trustee, and in no event more than ten days after such request, copies of
each annual report which is filed on Form 5500, together with certified
financial statements for the Pension Plan (if any) as of the end of such year
and actuarial statements on Schedule B to such Form 5500; (iv) promptly and in
any event within ten days after it knows or has reason to know of any event or
condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan,
a statement of the chief financial officer of the Transferor describing such
event or condition; (v) promptly and in no event more than ten days after
receipt thereof by the Transferor or any Related Person, each notice received by
the Transferor or any Related Person concerning the imposition of any withdrawal
liability under Section 4202 of ERISA; and (vi) promptly after receipt thereof a
copy of any notice the Transferor or any Related Person may receive from the
PBGC or the Internal Revenue Service with respect to any Pension Plan; provided,
however, that this subsection (vi) shall not apply to notices of general
application promulgated by the PBGC or the Internal Revenue Service or notices
which would not require any material payment by the Transferor or any Related
Person; and
(e) Requested Information - with reasonable promptness, any other data and
information which may be reasonably requested from time to time.
7.04 Officers' Certificates.
With each set of financial statements delivered pursuant to Section 7.03,
the Transferor will deliver an Officers' Certificate stating that the officers
signing such Certificate have reviewed the relevant terms of this Assignment and
Servicing Agreement and have made, or caused to be made under such officers'
supervision, a review of the activities of the Transferor during the period
covered by the income statements then being furnished and, so long as the
Transferor is Servicer hereunder, that the review has not disclosed the
existence of any Servicer Event of Default or, if a Servicer Event of Default
exists, describing its nature and what action the Transferor has taken and is
taking with respect thereto.
7.05 Inspection.
The Transferor will permit, on reasonable prior notice, the representatives
of the Issuer, the Servicer, the Trustee, or any holder of the Notes evidencing
not less than 25% of the Outstanding Principal Amount of any class of Notes to
examine the servicing operations and discuss the servicing operations of the
Transferor with any of its officers or employees, all at such reasonable times
and as often as may be reasonably requested for the purpose of reviewing its
performance as a Servicer hereunder. Any expense incident to the exercise by the
Issuer, the Trustee or any holder of the Notes during the continuance of any
default by the Transferor in any of its obligations hereunder of any right under
this Section 7.05 shall be borne by the Transferor.
7.06 Books and Records.
The Transferor will clearly mark its books and records to reflect
contributions of Leases and Equipment pursuant to this Agreement.
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7.07 Communications.
The Transferor will reply to all inquiries by third parties with respect to
the transactions contemplated by this Agreement by indicating that it has
contributed the Leases and its right, title and interest in the related
Equipment and that the Issuer now holds title to the Leases and such interest in
the related Equipment.
SECTION 8. DEFAULT
8.01 Servicer Events of Default.
The following events and conditions shall constitute Servicer Events of
Default hereunder:
(i) failure on the part of the Servicer to deposit to the Collection
Account, Residual Account or other applicable account in accordance with
the terms of the Indenture within three Business Days following the receipt
thereof any monies received by the Servicer (including, without limitation,
any Lease Payments and any Non-Performing Lease Payments) and required to
be deposited hereunder;
(ii) so long as the Transferor is the Servicer hereunder, failure on
the part of the Transferor to pay to the Trustee on the date when due in
accordance with the terms hereof, any payment required to be made by the
Transferor pursuant to Section 4 hereof;
(iii) failure on the part of either the Servicer or (so long as the
Transferor is the Servicer) the Transferor to observe or perform in any
material respect any other of their respective covenants or agreements in
this Assignment and Servicing Agreement which failure continues unremedied
for a period of 30 days after the earlier of (A) the date it first becomes
known to any officer of the Transferor or the Servicer, as the case may be,
and (B) the date on which written notice thereof requiring the same to be
remedied shall have been given to the Transferor or the Servicer, as the
case may be, by the Trustee, or to the Transferor or the Servicer, as the
case may be, and the Trustee by any holder of the Notes;
(iv) if any representation or warranty made by the Transferor in this
Assignment and Servicing Agreement or in any certificate or other writing
delivered pursuant hereto or made by any successor Servicer in connection
with such successor Servicer's assumption of the duties of the Servicer
shall prove to be incorrect in any material respect as of the time when the
same shall have been made; provided, however, that the breach of any
representation or warranty made by the Transferor or Servicer in this
Assignment and Servicing Agreement will be deemed to be "material" only if
it affects the Noteholders, the enforceability of the Indenture or of the
Notes; and provided, further, that a material breach of any representation
or warranty made by the Transferor in this Assignment and Servicing
Agreement with respect to any of the Leases or the Equipment subject
thereto will not constitute a Servicer Event of Default if the Transferor
purchases
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such Lease and Equipment in accordance with this Assignment and Servicing
Agreement;
(v) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Servicer in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization, or other similar law or (B) a decree or order
adjudging the Servicer bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment, or
composition of or in respect of the Servicer under any applicable federal
or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator, or other similar official of the Servicer 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;
(vi) the commencement by the Servicer of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization, or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Servicer 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 Servicer or of any substantial
part of its property, or the making by it of an assignment for the benefit
of creditors, or the failure by the Servicer to pay its debts generally as
they become due, or the taking of corporate action by the Servicer in
furtherance of any such action;
(vii) the failure of the Servicer to make one or more payments due
with respect to aggregate recourse debt or other obligations exceeding
$5,000,000, or the occurrence of any event or the existence of any
condition, the effect of which event or condition is to cause (or permit
one or more persons to cause) more than $5,000,000 of aggregate recourse
debt or other obligations of the Servicer to become due before its (or
their) stated maturity or before its (or their) regularly scheduled dates
of payment so long as such failure, event or condition shall be continuing
and shall not have been waived by the Person or Persons entitled to
performance; or
(viii) a final judgment or judgments (or decrees or orders) for the
payment of money aggregating in excess of $5,000,000 and any one of such
judgments (or decrees or orders) has remained unsatisfied and in effect for
any period of 60 consecutive days without a stay of execution.
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8.02 Termination.
So long as a Servicer Event of Default shall be continuing, the Trustee
shall, upon the instructions of the holders of 66-2/3% in Outstanding Principal
Amount of the Notes, by notice in writing to the Servicer terminate all of the
rights and obligations of the Servicer (but not the Transferor's obligations
which shall survive any such termination) under this Assignment and Servicing
Agreement. On the receipt by the Servicer of such written notice, all authority
and power of the Servicer under this Assignment and Servicing Agreement to take
any action with respect to any Lease or Equipment shall cease and the same shall
pass to and be vested in the Trustee pursuant to and under this Section and the
Indenture; and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact
or otherwise, any and all other acts or things necessary or appropriate to
effect the purposes of such notice of termination, whether to complete the
transfer and assignment of any Lease and the related Equipment, or otherwise.
8.03 Trustee to Act; Appointment of Successor.
(a) On and after the time the Servicer receives a notice of termination
pursuant to Section 8.02 hereof, the Trustee, subject to the terms of Section
4.02 of the Indenture, shall be the successor in all respects to the Servicer in
its capacity as servicer of the Leases under this Assignment and Servicing
Agreement and, to such extent, shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof (but not the obligations of the Transferor contained in
Section 4 hereof which shall survive any such termination as above provided) and
shall be entitled to receive from the Issuer the Servicing Fee provided for in
Section 3.04 hereof; provided that the Trustee shall in no way be responsible or
liable for any action or actions of the Servicer before the time the Servicer
receives such a notice of termination.
(b) Notwithstanding the above, the Trustee may, if it shall be unwilling to
so act, or shall, if it is unable to so act, give notice of such fact to each
holder of the Notes and (i) appoint an established institution satisfactory to
the holders of 66-2/3% in Outstanding Principal Amount of the Notes as the
successor to the Servicer hereunder to assume all of the rights and obligations
of the Servicer hereunder, including, without limitation, the Servicer's right
hereunder to receive the Servicing Fee (but not the obligations of the
Transferor contained in Section 4 hereof) or, (ii) if no such institution
satisfactory to the holders of 66-2/3% in Outstanding Principal Amount of the
Notes is so appointed within 60 days following the giving of such notice,
appoint a bank or other established institution, which has experience in
servicing lease contracts and equipment similar to the Leases and Equipment and
as to which each of [________], [________] and [________] has indicated in
writing that the appointment of such Person, as the successor to the Servicer
hereunder will not result in the reduction or withdrawal of such Rating Agency's
then-current rating of the Notes or, (iii) if no such institution is so
appointed, petition a court of competent jurisdiction to appoint an institution
meeting such criteria as the Servicer hereunder. Pending appointment of a
successor to the Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. In connection with such appointment and assumption, the
Trustee shall cause such successor to the Servicer to enter into a servicing
agreement substantially in the form of this Assignment and Servicing Agreement
except that such agreement shall not include any of the Transferor's
representations, warranties or
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obligations and the Trustee may make arrangements for the compensation of such
successor out of payments on Leases as it and such successor shall agree;
provided, however, that no such compensation shall be in excess of that provided
for a successor to the Servicer in Section 4.04 hereof. The Trustee shall
provide the Rating Agencies with prior written notice of the appointment of any
successor to the Servicer.
8.04 Servicer to Cooperate.
The Servicer hereby agrees to cooperate with the Trustee or any successor
to the Servicer appointed in accordance with Section 8.03 hereof, as applicable,
in effecting the termination and transfer of the responsibilities and rights of
the Servicer hereunder to the Trustee or any successor to the Servicer,
including, without limitation, the execution and delivery of assignments of
Financing Statements, and the transfer to the Trustee or the successor to the
Servicer for administration by it of all cash amounts which shall at the time be
held by the Servicer or thereafter received with respect to the Leases. The
Servicer hereby agrees to transfer to any successor to the Servicer its
electronic records and all other records, correspondence and documents relating
to the Leases and Equipment in the manner and at such times as the successor to
the Servicer shall reasonably request. The Servicer hereby designates the
Trustee and any successor to the Servicer its agent and attorney-in-fact to
execute transfers of Financing Statements (including any and all Financing
Statements naming an individual Lessee as debtor and the Servicer as secured
party) and any other filings or instruments which may be necessary or advisable
to effect such transfer of the Servicer's responsibilities and rights hereunder.
8.05 Notification to Noteholders.
Upon any such termination or appointment of a successor to the Servicer,
the Issuer shall cause the Trustee to give prompt written notice thereof to each
Rating Agency and to each holder of the Notes in the manner provided in the
Indenture.
8.06 Remedies Not Exclusive.
Nothing in the preceding provisions of this Section 8 shall be interpreted
as limiting or restricting any rights or remedies which the Issuer, the Trustee
or any other Person would otherwise have at law or in equity on account of the
breach or violation of any provision of this Assignment and Servicing Agreement
by the Servicer, including, without limitation, the right to recover full and
complete damages on account thereof to the extent not inconsistent with Section
6.02 hereof.
SECTION 9. SUBSTITUTION AND ADDITION OF LEASES
9.01 Substitution and Addition.
(a) Subject to the satisfaction of the requirements set forth in Section
9.01(b) hereof, the Transferor will have the right (but not the obligation) at
any time to substitute one or more Eligible Leases and the Equipment subject
thereto (each, a "Substitute Lease") for a Lease (for purposes of this Section 9
referred to as a "Predecessor Lease") and the Equipment subject thereto if:
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(i) the Predecessor Lease became (A) a Non-Performing Lease, (B) a
Warranty Lease or (C) an Adjusted Lease during the immediately preceding
Due Period;
(ii) the aggregate Discounted Present Value of the Non-Performing
Leases that are Predecessor Leases shall not in the aggregate exceed 10% of
the Discounted Present Value of the Leases on the Cut-Off Date; and
(iii) the aggregate Discounted Present Value of the Adjusted Leases
and Warranty Leases that are Predecessor Leases shall not exceed 10% of the
Discounted Present Value of the Leases on the Cut-off Date.
Subject to the satisfaction of the requirements set forth in Section 4 and
Section 9.01(b) hereof, in the event of an Early Lease Termination which has
been prepaid in full, the Issuer will have the option to reinvest the proceeds
of such Early Termination Lease in one or more Additional Leases. The purchase
price of such Additional Lease or Leases will be an amount equal to the proceeds
of such Early Termination Lease.
(b) Each transfer of Substitute Leases and addition of Additional Leases
will be subject to the satisfaction of the following conditions precedent:
(i) after giving effect to such additions and substitutions and any
adjustments pursuant to Section 4.02 thereof, the aggregate Booked Residual
Value of such Leases must be not less than 100% of the Booked Residual
Value of the Leases added, substituted or adjusted since the Issuance Date.
(ii) the final payment on such Substitute Lease or Additional Lease
must be on or prior to ________.
(iii) after giving effect to such additions and substitutions and any
adjustments pursuant to Section 4.02 hereof the aggregate amount of Lease
Payments through the term of the Leases (including the Substitute Leases
and the Additional Leases) and the Discounted Present Value of the
Performing Leases will not be materially less than the aggregate scheduled
Lease Payments of the Leases and the Discounted Present Value of the
Leases, respectively prior to such substitution or addition or adjustment;
and
(iv) after giving effect to such adjustments, additions and
substitutions, the Discounted Present Value of the Performing Leases must
not be less than the Discounted Present Value of the Performing Leases
prior to such adjustment, substitution or addition.
(v) after giving effect to such adjustments, additions, and
substitutions pursuant to Section 9, the weighted average remaining term of
the Performing Leases must not be greater than the weighted average
remaining term of the Performing Leases prior to such adjustment, addition,
and substitution.
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(vi) such Additional Lease or Substitute Lease was originated in the
Healthcare Group, the Commercial and Industrial Group and the Business
Technology Group or its predecessors or successors.
(c) Each addition and substitution pursuant to this Section 9.01 shall
include the right to receive all amounts due or to become due under each
Substitute Lease being substituted or Additional Leases being purchased and any
security deposits paid by the related Lessee to the Transferor in connection
therewith (other than any prepayments of rent required pursuant to the terms
thereof at or before the commencement of such Lease and any payments due before
the Lease Payment Period during which such substitution or addition is made). At
the time of each such substitution and addition, the Transferor shall transfer
to the Trustee all Lease Payments actually received by the Transferor which
became due during the current Lease Payment Period.
9.02 Procedure.
(a) By 11:00 A.M. on the third Business Day following each Determination
Date, the Transferor shall give written notice to the Servicer of any
substitution pursuant to Section 9.01 of Substitute Leases for Predecessor
Leases or addition of Additional Leases for Early Termination Leases which have
been prepaid in full during the preceding Lease Payment Period. By 11:00 A.M. on
the fourth Business Day following each Payment Date, the Transferor shall
deliver to the Servicer and the Trustee and, to the extent not included in the
Monthly Servicer Report, the Trustee shall promptly deliver to each Rating
Agency (i) a supplement to Exhibit A hereto setting forth the information shown
thereon for each such Substitute Lease and Additional Lease, (ii) an Officer's
Certificate (A) certifying that each such Substitute Lease and Additional Lease
is an "Eligible Lease", (B) specifying each Predecessor Lease for which a
substitution has been made and each Early Termination Lease which is being
replaced by an Additional Lease and the amount of each periodic Lease Payment
and the Booked Residual Value under each such Predecessor Lease and the amount
of each periodic Lease Payment and the Booked Residual Value under each
Additional Lease and Substitute Lease being transferred thereby and (C) that all
conditions precedent to such addition or substitution have been satisfied and
(iii) such additional information concerning such Additional Leases, Substitute
Leases, Early Termination Leases or Predecessor Leases as may be needed for the
Servicer to prepare its monthly reports pursuant to Section 5.01 hereof and to
otherwise carry out its duties as servicer hereunder.
(b) Subject to the provisions of Section 9.03, the delivery of any
Officer's Certificate and supplement to Exhibit A pursuant to Section 9.02(a)
shall be conclusive evidence, without further act or deed, that during the
immediately preceding Lease Payment Period (i) the Transferor contributed as a
contribution to capital to the Issuer pursuant to Section 9.01 hereof all of the
Transferor's right, title and interest in and to the Substitute Leases and
Additional Leases identified in such supplement and the related rights described
in Section 9.01 hereof, (ii) the Transferor transferred to the Issuer, as a
contribution to capital, all of the Transferor's right, title and interest in
and to the Equipment subject to such Substitute Leases (to the extent of the
Transferor's interest in such Equipment, including the Transferor's security
interest in any Equipment which is not owned by the Transferor), and (iii) the
Issuer assigned and transferred to the Transferor, without representation or
warranty, all of the Issuer's right, title and interest in
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<PAGE>
and to the Predecessor Leases and Early Termination Leases identified in such
Officer's Certificate and the Equipment subject thereto (to the extent of the
Issuer's interest in such Equipment, including the Issuer's security interest in
any Equipment which is not owned by the Issuer). The Transferor shall promptly
deliver to the Trustee (or a custodian on its behalf) the original executed
counterpart of each Substitute Lease and Early Termination Lease assigned to the
Issuer pursuant to Section 9.01 hereof and the Issuer shall promptly request the
Trustee to deliver to the Transferor the original executed counterpart of each
Predecessor Lease for which substitution has been made pursuant to Section 11.01
hereof.
9.03 Objection and Purchase.
If any holder of the Notes objects to any substitution of Leases within ten
days of receipt of the Servicer's monthly report providing notice thereof
pursuant to Section 5.01 above, on the grounds either that any Substitute Lease
or Additional Lease is not an Eligible Lease within the meaning of the
definition thereof or that such substitution or addition is otherwise not
permitted under the provisions of Section 9.01 hereof, the Transferor shall be
entitled to present such additional information as it deems appropriate in an
effort to demonstrate that such Lease is an Eligible Lease and that such
substitution is permitted under the provisions of Section 11.01 hereof.
Following such presentation, the substitution shall remain effective if each
person originally objecting to the substitution withdraws his objection. If the
conditions specified in the preceding sentence are not satisfied, or if at any
time it is established that any lease was not, at the time of substitution, an
Eligible Lease, then the Transferor shall be required to purchase such Lease in
accordance with the provisions of Section 4.04 hereof.
9.04 Transferor's and Servicer's Subsequent Obligations.
Upon any substitution of Leases in accordance with the provisions of this
Section 9, the Transferor's and the Servicer's obligations hereunder with
respect to the Predecessor Lease shall cease but the Transferor and the Servicer
shall each thereafter have the same obligations with respect to the Substitute
Lease substituted as it has with respect to all other Leases subject to the
terms hereof.
SECTION 10. ASSIGNMENT
10.01 Assignment to Trustee.
It is understood that this Assignment and Servicing Agreement and all
rights of the Issuer hereunder will be assigned by the Issuer to the Trustee
pursuant to the Indenture, for the benefit of the Trustee, the holders from time
to time of the Notes as provided in the Indenture, and may be subsequently
assigned by the Trustee to any successor Trustee or as otherwise provided in the
Indenture. Each of the Transferor and the Servicer hereby expressly agrees to
each such assignment and agrees that all of its duties, obligations,
representations and warranties hereunder shall be for the benefit of, and may be
enforced by, the Trustee, the holders from time to time of the Notes, and any
successor to or assignee of any thereof.
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<PAGE>
10.02 Assignment by Transferor or Servicer.
None of the respective rights or obligations of the Transferor and the
Servicer hereunder may be assigned without the prior written consent of the
Issuer and the Trustee (acting upon the instructions of the holders of 66-2/3%
of the then aggregate unpaid Outstanding Principal Amount of the Notes);
provided, that nothing herein shall preclude the Servicer from performing its
duties hereunder through the use of agents to the extent that such use is
consistent with the Servicer's business practices in dealing with leases and
equipment for its own account.
SECTION 11. NATURE OF OBLIGATIONS AND SECURITY THEREFOR
11.01 Obligations Absolute.
The obligations of the Transferor hereunder, and the rights of the Trustee,
as assignee of the Issuer, in and to all amounts payable by the Transferor
hereunder, shall be absolute and unconditional and shall not be subject to any
abatement, reduction, setoff, defense, counterclaim or recoupment whatsoever,
including, without limitation, abatements, reductions, setoffs, defenses,
counterclaims or recoupments due or alleged to be due to, or by reason of, any
past, present or future claims which the Transferor may have against the
Servicer, the Issuer, the Trustee, and any holder of the Notes or any other
Person for any reason whatsoever; nor, except as otherwise expressly provided
herein, shall this Assignment and Servicing Agreement terminate, or the
respective obligations of the Issuer, the Transferor or the Servicer be
otherwise affected, by reason of any defect in any Lease or in any unit of
Equipment or in the respective rights and interests of the Issuer, the
Transferor and the Trustee therein, or by reason of any Liens, encumbrances,
security interests or rights of others with respect to any Lease or any unit of
Equipment, or any failure by the Issuer or the Servicer to perform any of its
obligations herein contained, or by reason of any other indebtedness or
liability, howsoever and whenever arising, of the Issuer, the Servicer, the
Trustee, or any holder of the Notes to the Transferor or any other Person or by
reason of any insolvency, bankruptcy, or similar proceedings by or against the
Transferor, the Servicer, the Issuer, the Trustee or any other Person or for any
other cause whether similar or dissimilar to the foregoing, any present or
future law to the contrary notwithstanding, it being the intention of the
parties hereto that all obligations of the Transferor hereunder and all amounts
payable by the Transferor hereunder shall continue to be due and payable in all
events and in the manner and at the times herein provided unless and until the
obligation to perform or pay the same shall be terminated or limited pursuant to
the express provisions of this Assignment and Servicing Agreement.
11.02 Security for Obligations.
As security for the full and timely performance by the Transferor and the
Servicer of each of its obligations hereunder, and by the Issuer of each of its
obligations hereunder and under the Notes and the Indenture, the Transferor
hereby pledges and grants to the Trustee (as a precaution in the event that,
contrary to the intent of the parties to the transactions contemplated hereby,
it is contended that either has any continuing interest in any Lease or item of
Equipment subject to the Indenture) a first priority Lien on and security
interest in all right, title and interest of the Transferor now or hereafter
acquired in and to each Lease (including the right to receive all payments due
or to become due thereunder) and each item of Equipment at any time subject
35
<PAGE>
to the Indenture. The foregoing security interest is granted upon and is subject
to the same terms and provisions as are set forth in the Indenture and shall
continue in full force and effect until the same is discharged in accordance
with the terms therein, notwithstanding any waiver or modification of any of the
terms hereof or thereof or of any of the Notes, whether with or without the
consent of the Transferor.
11.03 Further Assurances; Financing Statements.
Each of the Transferor and the Servicer severally agrees that at any time
and from time to time, at its expense, it shall promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable or that the Issuer or the Trustee may request to perfect
and protect the assignments and security interests granted or purported to be
granted herein with respect to the Leases and the Lease Payments or to enable
the Issuer or the Trustee to exercise and enforce its rights and remedies under
this Agreement with respect to any Leases and the Lease Payments. Without
limiting the generality of the foregoing, each of the Transferor shall execute
and file such financing or continuation statements, or amendments thereto, and
such other instruments or notices as may be necessary or desirable or that the
Issuer or the Trustee may request to protect and preserve the assignments and
security interests granted by this Agreement with respect to the Leases.
SECTION 12. DEFINITIONS
As used in this Assignment and Servicing Agreement, the following terms
have the respective meanings set forth below or set forth in the Section hereof
or in any other agreement indicated:
Accumulated Funding Deficiency - a funding deficiency described in Section
302 of ERISA.
Additional Lease - 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) acquired by the Issuer from the Transferor with all
or a portion of the proceeds of an Early Termination Lease that has been prepaid
in full pursuant to Section 9 hereof.
Adjusted Lease - a Lease which has had one or more non-credit related terms
adjusted or modified by the Servicer.
Affiliate - Section 1.01 of the Indenture.
Booked Residual Value - the estimated residual value of the Equipment
recorded on the books of the Transferor as of the Cut-Off Date in the case of
the initial Leases, and as of the date of substitution in the case of a
Substitute Lease.
Business Day - any day that is not a Saturday, Sunday or other day on which
commercial banking institutions in the city in which the Corporate Trust Office
or the Servicer is located are authorized or obligated by law or executive order
to remain closed.
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<PAGE>
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.
Class A Notes - the Issuer's Class A-1 Notes, Class A-2 Notes, Class A-3
Notes, Class A-4 Notes and Class A-5 Notes.
Class A-1 Notes - the Issuer's _____% Class A-1 Lease-Backed Notes, Series
______.
Class A-2 Notes - the Issuer's _____% Class A-2 Lease-Backed Notes, Series
______.
Class A-3 Notes - the Issuer's _____% Class A-3 Lease-Backed Notes, Series
______.
Class A-4 Notes - the Issuer's _____% Class A-4 Lease-Backed Notes, Series
______.
Class A-5 Notes - the Issuer's _____% Class A-5 Lease-Backed Notes, Series
______.
Class B Notes - the Issuer's _____% Class B Lease-Backed Notes, Series
______.
Class C Notes - the Issuer's _____% Class C Lease-Backed Notes, Series
______.
Class D Notes - the Issuer's _____% Class D Lease-Backed Notes, Series
______.
Class E Notes - the Issuer's _____% Class E Lease-Backed Notes, Series
______.
Class R Notes - the Issuer's Class R-1 Notes and Class R-2 Notes.
Class R-1 Notes - the Issuer's _____% Class R-1 Lease-Backed Notes, Series
______.
Class R-2 Notes - the Issuer's _____% Class R-2 Lease-Backed Notes, Series
______.
Code - the Internal Revenue Code of 1986, as amended.
Collection Account - Section 1.01 of the Indenture.
Corporate Trust Office - Section 1.01 of the Indenture.
Cut-Off Date - opening of business on _______, _____.
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<PAGE>
Delinquent Lease - Section 1.01 of the Indenture.
Determination Date - Section 1.01 of the Indenture.
Discounted Present Value of the Leases - Section 1.01 of the Indenture.
Early Termination Lease - a lease which has been prepaid prior to its
original stated maturity.
Eligible Lease - Section 4.02 hereof.
Equipment - all units or items of equipment from time to time subject to
any Lease and all such units or items of equipment (to the extent of the
Issuer's interest therein) remaining subject to the Lien of the Indenture
following the expiration or termination of the Lease to which the same was
previously subject.
ERISA - the Employee Retirement Income Security Act of 1974, as amended.
Event of Default - Section 1.01 of the Indenture.
Excess Copy Charges - Section 1.01 of the Indenture.
Fee Per Scan Charges - Section 1.01 of the Indenture.
Filing Requirements - Financing Statements necessary to perfect the
ownership interest of the Issuer and the perfected security interest of the
Trustee in the Leases and the Equipment.
Financing Statement - a statement filed pursuant to the UCC which evidences
a perfected security interest in an asset.
Governmental Authority: Any court or federal or state regulatory body,
administrative agency or other tribunal or other governmental instrumentality.
Granted Assets - The assets of the Granting Clause of the Indenture.
Indemnified Party - Section 4.03 hereof.
Indenture - the Indenture dated as of ________, _____, among the Issuer,
the Trustee and the Servicer, as the same may be supplemented, modified or
amended from time to time in accordance with the terms thereof.
Inter-Company Loans - Section 13.01 hereof.
Issuance Date - ________, _____.
Issuer - Copelco Capital Receivables LLC, a Delaware limited liability
company.
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<PAGE>
Lease - 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 on Exhibit A hereto, as the same may be
amended or modified from time to time in accordance with the provisions hereof
and thereof.
Lease Delinquency Payment - Section 1.01 of the Indenture.
Lease Payment - Section 1.01 of the Indenture.
Lease Payment Period - with respect to any Payment Date and the
Determination Date with respect thereto, the calendar month prior to the month
in which such Payment Date and Determination Date occur.
Lease Receivables - with respect to any Lease, all amounts owing by the
Lessee thereunder.
Lease Purchase Amount - at any date of determination with respect to any
Lease, means an amount equal to the sum of (a) the sum of (i) the Discounted
Present Value of the Lease as of the beginning of the Due Period relating to
such date of determination (plus any amounts previously due and unpaid) and (ii)
the product of (x) the amount described in the foregoing clause (i) and (y)
one-twelfth of the Discount Rate and (b) the product of (i) the Initial ADRB and
(ii) the ratio, as of the Cut-Off Date, that the Booked Residual Value of the
Lease bears to the aggregate Booked Residual Value of all Leases.
Lessee - each lessee under a Lease.
Lien - means a security interest, lien, charge, pledge, equity, or
encumbrance of any kind other than tax liens, mechanics liens, and any liens
that attach to a Lease by operation of law.
Liquidity Reserve Account - Section 1.01 of the Indenture.
Maintenance Charges - Section 1.01 of the Indenture.
Nominal Buy-Out Lease - each Lease identified on Exhibit A hereto as having
an estimated residual value of $10 or less in the column under the-heading
"RESIDUAL".
Non-Performing Lease - Section 1.01 of the Indenture.
Nonrecoverable Advance - any advance made or to be made by the Servicer
pursuant to Section 4.01 hereof which, in the good faith judgment of the
Servicer, will ultimately not be recoverable by the Servicer under the terms of
this Assignment and Servicing Agreement and the Indenture.
Noteholder - at any time, any Person in whose name a note is registered in
the Note Register (as defined in the Indenture).
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<PAGE>
Notes - the Class A Notes, Class B Notes, Class C Notes, Class D Notes,
Class E Notes and Class R Notes issued pursuant to the Indenture and all notes
issued in exchange therefor pursuant to the Indenture.
Officers' Certificate - with respect to the Transferor or Servicer, a
certificate delivered to the Trustee and signed by the Chairman, the President,
or a Vice President, and by another Vice President, the Treasurer, an Assistant
Treasurer, the Secretary, or an Assistant Secretary of the Transferor or
Servicer, as the case may be, who is not the same person as the other officer
signing such certificate.
Original Principal Amount of the Notes - the principal amount of the Notes
originally issued on the Issuance Date.
Other Lease Payments - Section 1.01 of the Indenture.
Outstanding Principal Amount - Section 1.01 of the Indenture.
PBGC - the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
Payment Date - the 18th day of each calendar month (or the next Business
Day thereafter if such day is not a Business Day).
Predecessor Lease - Section 11.01 hereof.
Pension Plan - Section 2.13 hereof.
Person - an individual, partnership, corporation, joint venture,
association, limited liability company, trust (including any beneficiary
thereof) or unincorporated organization, or a government or agency or political
subdivision thereof.
Prime Rate - the [Trustee] prime lending rate.
Private Placement Memoranda - each final Private Placement Memoranda used
in connection with the private offering of the Class E Notes and the Class R
Notes.
Prohibited Transaction - any transaction described in Section 406 of ERISA
which is not exempt by reason of Section 408 of ERISA or the transitional rules
set forth in Section 414(c) of ERISA and any transaction described in Section
4975(c) of the Code which is not exempt by reason of Section 4975(c)(2) or
Section 4975(d) of the Code, or the transitional rules of Section 2003(c) of
ERISA.
Prospectus - the form of final prospectus to be used in connection with the
public offering of the Class A Notes, the Class B Notes, the Class C Notes and
Class D Notes as filed with the Securities and Exchange Commission pursuant to
Rule 424(b).
Rating Agency - [_____________], [_____________] or [_____________]
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Receivable Notes - Section 1.01 of the Indenture.
Registration Statement - the registration statement (File No. 333-69983)
filed with the Securities and Exchange Commission for the registration of the
Class A Notes, the Class B Notes, the Class C Notes and the Class D Notes.
Related Person - any Person (whether or not incorporated) which is under
common control with the Transferor within the meaning of Section 414(c) of the
Internal Revenue Code of 1986, as amended, or of Section 4001(b) of ERISA.
Reportable Event - any of the events set forth in Section 4043(c) of ERISA
or the regulations thereunder, a withdrawal from a Pension Plan described in
Section 4063 of ERISA, or a cessation of operations described in Section 4062(e)
of ERISA.
Reserve Account - Section 1.01 of the Indenture.
Residual Account - Section 1.01 of the Indenture.
Residual Realization - Section 1.01 of the Indenture.
Residual Servicing Fee - Section 3.04(a) hereof.
Servicer - the corporation so identified in the first paragraph of this
Assignment and Servicing Agreement and any successor thereto in accordance with
the provisions hereof.
Servicer Event of Default - Section 10.01 hereof.
Servicing Fee - Section 3.04(a) hereof.
Servicing Report - Section 5.01(b) hereof.
Similar Transaction Amount - Section 1.01 of the Indenture.
Similar Transaction Payments - Section 1.01 of the Indenture.
Substitute Lease - Section 9.01(a) hereof.
Stated Maturity - Section 1.01 of the Indenture.
Termination Payment - Section 1.01 of the Indenture.
Transaction Payment Amount - Section 1.01 of the Indenture.
Transferor - the corporation so identified in the first paragraph of this
Assignment and Servicing Agreement and any successor thereto in accordance with
the provisions hereof.
Trust Estate - Section 1.01 of the Indenture.
Trustee - [Trustee], and any successor thereto, as trustee under the
Indenture.
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Underwriting Agreement - the Underwriting Agreement dated _________, _____
among the Issuer, the Servicer and First Union Capital Markets Corp., as
representative of the underwriters for the purchase and sale of the Class A
Notes, the Class B Notes, the Class C Notes and the Class D Notes.
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.
Utilized Residual Amount - Section 1.01 of the Indenture.
Warranty Lease - Section 1.01 of the Indenture.
SECTION 13. INTER-COMPANY LOANS
13.01 Inter-Company Loans.
With the contribution of the Leases, the Issuer has acquired the right to
hold and apply in accordance with the provisions of certain of the Leases,
security deposits. The Issuer may from time to time, to the extent permitted by
law, lend such security deposits and any amounts disbursed to the Issuer
pursuant to Sections 3.04(b), 3.05(b) or 6.06 of the Indenture to the Transferor
(each such advance, an "Inter-Company Loan"). Each Inter-Company Loan shall be
on a demand basis, shall bear interest at an annual rate equal to the Prime Rate
plus one percent, shall be in the form attached hereto as Exhibit B and shall
otherwise be on such arm's-length terms and conditions as the Issuer and the
Transferor may agree.
SECTION 14. MISCELLANEOUS
14.01 Continuing Obligations.
This Assignment and Servicing Agreement shall continue in full force and
effect until each of the Notes and any other amounts due to any holder of the
Notes have been paid in full and all other obligations, if any, secured by the
Lien of the Indenture have been fully satisfied.
14.02 GOVERNING LAW.
THIS ASSIGNMENT AND SERVICING AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK. IF ANY PROVISION OF THIS ASSIGNMENT AND SERVICING
AGREEMENT IS DEEMED INVALID, IT SHALL NOT AFFECT THE BALANCE OF THIS ASSIGNMENT
AND SERVICING AGREEMENT.
14.03 Successors and Assigns.
This Assignment and Servicing Agreement shall be binding upon and inure to
the benefit of the successors and assigns of the Issuer, the Transferor, the
Servicer and the Trustee
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<PAGE>
and shall inure to the benefit of the successors and assigns of the holders,
from time to time, of the Notes.
14.04 Modification.
The terms of this Assignment and Servicing Agreement shall not be waived,
modified or amended without the written consent of the party against whom such
waiver, modification or amendment is claimed and, in any case, the Trustee
(acting upon the instructions of the holders of 66-2/3% of the then aggregate
unpaid Outstanding Principal Amount of the Notes).
14.05 No Proceedings.
The Transferor and the Servicer, each hereby agree that it will not,
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) of the
Indenture so long as there shall not have elapsed one year plus one day since
the latest maturing Notes have been paid in full in cash.
14.06 Notices.
All notices and other communications given in connection with this
Assignment and Servicing Agreement shall be sufficient for every Person
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, in case of the Transferor, to East
Gate Center, 700 East Gate Drive, Mount Laurel, New Jersey 08054-5400,
Attention: [ ] with a copy to the General Counsel (telecopy: 856-273-9288) and
in the case of the Issuer, the Servicer and the Trustee and the holders of the
Notes, to such addresses as are provided pursuant to Sections 1.05 and 1.06 of
the Indenture or to such other address as either party may specify to the other
from time to time in accordance with this Section 14.06.
14.07 Counterparts.
This Assignment and Servicing Agreement may be executed in any number of
counterparts, each counterpart constituting an original, but all together
constituting only one Agreement.
14.08 Nonpetition Covenant.
The Transferor, by entering into this Assignment and Servicing Agreement,
hereby covenants and agrees that it will not at any time institute against the
Issuer or cooperate with or encourage others to or join in any action against
the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes or the related Indenture until the expiration of one year and one day (or
if a preference period of a jurisdiction is longer, the applicable preference
period under that bankruptcy or similar law) from the date the Notes are paid in
full.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and
Servicing Agreement as of the date and year first written above.
COPELCO CAPITAL, INC., as
Transferor and Servicer
By:
----------------------------
Name:
Title:
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as manager
By:
----------------------------
Name:
Title:
The undersigned hereby acknowledges
receipt of a copy of the foregoing
Assignment and Servicing Agreement
and agrees to, and to be bound by,
each of the provisions thereof
applicable to the undersigned.
[TRUSTEE],
as Trustee
By:
----------------------------
Name:
Title:
[Signature Page to the Assignment and Servicing Agreement]
<PAGE>
EXHIBIT A
SCHEDULE OF LEASES AND EQUIPMENT
[On file with Trustee]
A-1
<PAGE>
INTER-COMPANY LOAN NOTE
ALL RIGHT, TITLE AND INTEREST IN AND TO THIS PROMISSORY NOTE ON THE PART OF
COPELCO CAPITAL RECEIVABLES LLC HAS BEEN ASSIGNED TO AND IS SUBJECT TO A
SECURITY INTEREST IN FAVOR OF [TRUSTEE], AS TRUSTEE, UNDER AN INDENTURE DATED AS
OF _________, _____, FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
$_____________ ________, _____
COPELCO CAPITAL, INC., a Delaware corporation (the "Maker"), with its
principal office at One International Boulevard, Mahwah, NJ 07430-0631, FOR
VALUE RECEIVED, hereby promises to pay to the order of Copelco Capital
Receivables LLC, a Delaware limited liability company or its assignee (the
"Payee"), for its account, the principal sum of ____________________
($____________) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Loans made by the Payee to the Maker under the
Assignment Agreement (as defined below)), together with interest per annum on
the unpaid principal amount hereof at the Prime Rate plus one per cent, in
lawful money of the United States of America and in immediately available funds
immediately on the demand of the Payee.
The date, amount and interest rate, of each Loan made by the Payee to the
Maker, and each payment made on account of the principal thereof, shall be
recorded by the Payee on its books and, prior to any transfer of this Note,
endorsed by the Payee on the schedule attached hereto or any continuation
thereof.
This Note evidences certain Inter-Company Loans from Payee to Maker
pursuant to Section 13.01 of that certain Assignment and Servicing Agreement
dated as of ________, _____, between the Maker and the Payee (the "Assignment
Agreement"). Capitalized terms used in this Note have the respective meanings
assigned to them in the Assignment Agreement.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
COPELCO CAPITAL, INC.
By
----------------------------
<PAGE>
SCHEDULE OF LOANS
This Note evidences demand Loans made under the within-described Assignment
Agreement to the Maker, on the date, at the interest rate, and in the principal
amounts set forth below, subject to the payments and prepayments of principal
set forth below:
<TABLE>
<CAPTION>
======================================================================================================================
Principal Amount Interest Amount Unpaid Principal Notation
Date of Loan Rate Paid or Prepaid Amount Made By
- ---- ---------------- -------- --------------- ---------------- ---------
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
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</TABLE>
<PAGE>
EXHIBIT C
Form of Receivables Servicing Report
Line
================================================================================
1 Transaction Cash Flow - see computer detail
================================================================================
1/1 Beginning Net Present Value
1/2 Less:
- current month
1/3 Add: Actual Interest Payment (Weighted Avg. A, B & C notes)
1/4 Add: 0.75% Servicing Component
1/5 Less: Current month Nonperforming
1/5a Less: Warranty Leases
1/6 Less: Amounts on Early Terminations
1/7 Add: Amounts due to Substitutions
1/8 Add: Amounts due to Additional leases (Prepaid leases)
1/9 Ending Net Present Value
================================================================================
2 Overdue Lease Payments - see computer detail
================================================================================
2/1 Beginning Balance
2/2 (Memo) Overdue Payments Received
2/3 Less: Reimbursed Per This Report
2/4 Less: Past Dues on Disqualified Leases - Early Terminations
2/5 Less: Past Dues on Disqualified Leases - Nonperforming and Warranty
2/6 Add: Last Month's Current Payments that became Past due
2/7 Add: Received on Replacements Leases
2/8 (MEMO) Net New Advances
2/9 Ending Balance
================================================================================
3 Residual
================================================================================
3/1 Beginning Availability
3/2 Less: Amount Used
3/3 Ending Maximum Availability
3/4 (Memo) Amount Realized
3/5 LTD Residuals of Nonperforming, Warranty, and Prepaid leases
substituted
3/6 LTD Residuals of Substitutions
================================================================================
4 Collection account-Advance Lease Payments
================================================================================
4/1 Beginning Balance
4/2 Less: Applied to Current from Prepaid
4/3 Less: Advance on Disqualified Leases
4/4 Add: Received This Month
4/5 Add: Received on Replacement Leases
4/6 Ending Balance
C-1
<PAGE>
================================================================================
5 Residual Event Calculation
================================================================================
5/1 Delinquency condition exist (payments over 62 days performing leases
only)
5/2 Overdue payments and PV on leases over 62 but less than 122 days
5/3 PV of performing leases
5/4 Delinquency Rate Current Month
5/5 Second Preceding Month
5/6 Third Preceding Month
5/7 Average
5/8 Residual Realization > 100% (Yes/No)
5/9 Copelco Capital as Servicer (Yes/No)
================================================================================
6 Cash Reserve Account
================================================================================
6/1 Beginning Balance
6/2 Less: New Obligations: Total Shortfall (B9)
6/3 Plus: Interest earned on Cash Reserve Acct.
6/4 Ending Balance
6/5 ___% of Outstanding Note Value
6/6 Lesser of __% of $__________ and Outstanding Note Value
6/7 Target Cash Reserve (Greater of 6/5 & 6/6)
6/8 Cash Reserve Release (6/4-6/7)
6/9 Ending Balance Cash Reserve Account
================================================================================
7 Residual Account
================================================================================
7/1 Beginning Balance
7/2 Plus Current Month Addition
7/3 Less Disbursements
7/4 Ending Balance
================================================================================
8 Nonperforming Leases
================================================================================
8/1 Beginning Balance of Nonperforming Leases
8/2 Plus Current Month Additions
8/3 Plus Past Due Payments on Nonperforming Leases
8/4 Less Current Month Recoveries
8/5 Ending Balance
================================================================================
Cash Receipts
================================================================================
Line
A/1 Regular monthly payments
A/2 Overdue payments
A/3 Overdue Payments due on Early Termination and Termed Out Leases (From
Transferor)
A/4 Advance Payments of monthly rentals
A/5 Residual Values
A/6 Recoveries on Defaulted Leases
A/7 Proceeds from investment of Collection Accounts funds
A/8 Draws upon Residual Account
A/9 Casualty and Termination Payments
A/10 Servicer Advances
A/11 Total Receipts
C-2
<PAGE>
================================================================================
Disbursement Requirements
================================================================================
Line
B/1 Past Due Payments Collected, Due Servicer (COLLECTION ACCT)
B/2 Overdue Payments Advanced, on Disqualified Leases (COLLECTION ACCT)
B/3 Servicing Fee (COLLECTION ACCT)
B/4 Advanced Payments on Disqualified Leases (COLLECTION ACCT)
B/5 Total to Servicer
B/6 Collection Account - Advanced Rents (Monthly-Increase/(Decrease))
================================================================================
B/7 Net cash receipts
================================================================================
B/8 Shortfall
B/9 Draw on Cash Reserve
B/10 Draw on Residual Account
B/11 Total Available Funds
================================================================================
C Noteholders
================================================================================
C/1 Class A-1 Interest Paid ____%
C/2 Class A-2 Interest Paid ____%
C/3 Class A-3 Interest Paid ____%
C/4 Class A-4 Interest Paid ____%
C/5 Class A-5 Interest Paid ____%
C/6 Class B Interest Paid ____%
C/7 Class C Interest Paid ____%
C/8 Class D Interest Paid ____%
C/9 Class E Interest Paid ____%
C/10 Beginning Class A-1 Note Balance
C/11 Class A-1 Note Value Target (___% of 1/9)
C/12 Class A-1 Principal Paid
C/13 Beginning Class A-2 Note Balance
C/14 Class A-2 Note Value
C/15 Ending Class A-2 Note Balance
C/16 Class A-2 Principal Paid
C/17 Beginning Class A-3 Note Balance
C/17 Class A-3 Note Value
C/19 Ending Class A-3 Note Balance
C/20 Class A-3 Principal Paid
C/21 Beginning Class A-4 Note Balance
C/22 Class A-4 Note Value
C/23 Class A-4 Principal Paid
C/24 Ending Class A-4 Note Balance
C/25 Beginning Class A-5 Note Balance
C/26 Class A-5 Note Value
C/27 Ending Class A-5 Balance
C/28 Class A-5 Principal Paid
C/29 Beginning Class B Note Balance
C/30a Class B Note Value Target (__% of 1/9)
C/30b Class B Note Value Floor (__% of $__________ + Cum. Losses-C/12-6/4)
C-3
<PAGE>
C/31 Class B Principal Paid
C/32 Ending Class B Note Balance
C/33 Beginning Class C Note Balance
C/34a Class C Note Value Target (__% of 1/9)
C/34b Class C Note Value Floor (__% of $__________ + Cum. Losses-6/4)
C/35 Class C Principal Paid
C/36 Ending Class C Note Balance
C/37 Beginning Class D Note Balance
C/38 Class D Note Value Target (__% of 1/9)
C/39 Class D Note Value Floor (__% of $__________ + Cum. Losses-6/4)
C/40 Class D Principal Paid
C/41 Ending Class D Note Balance
C/42 Beginning Class E Note Balance
C/43 Class E Note Value Target (__% of 1/9)
C/44 Class E Note Value Floor (__% of $__________ + Cum. Losses-6/4)
C/45 Class E Principal Paid
C/46 Ending Class E Note Balance
C/47 Balance Available for Distribution to Copelco
================================================================================
D Miscellaneous Tracking Items
================================================================================
D/1 % of Total Nonperforming and Warranty substituted as per Initial Outs,
Note Value
D/2 (MEMO) Cumulative amounts on Early Lease Terminations due to
modification of leases
D/3 (MEMO) Cumulative amounts of additional leases purchased
D/4 (MEMO) Avg. residual realization greater than booked residual by
Document Imaging and Major Accounts division for last three months
(Yes/No)
D/5 % of Total Variance of Residuals substituted for Nonperforming &
Prepaid leases and residuals of Substituted leases to Initial pool
booked residuals
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of eligibility under the Trust Indenture Act
of 1939 of a Corporation designated to act as Trustee
Check if an application to determine eligibility of a Trustee
pursuant to Section 305(b)(2) X
MANUFACTURERS AND TRADERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 16-0538020
(Jurisdiction of incorporation (I.R.S. employer
or organization if not a national bank) identification No.)
One M&T Plaza
Buffalo, New York 14240-2399
(Address of principal executive offices) (Zip Code)
COPELCO CAPITAL RECEIVABLES LLC
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
(Address of principal executive offices) (Zip Code)
LEASE-BACKED NOTES
(Title of indenture securities)
<PAGE>
Item 1. General Information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Superintendent of Banks of the State of New York, 2 World Trade
Center, New York, NY 10047 and Albany, NY 12203.
Federal Reserve Bank of New York, 33 Liberty Street, New York, NY
10045.
Federal Deposit Insurance Corporation, Washington, D.C. 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
[Items 3 through 15 omitted pursuant to General Instruction B to Form T-1]
<PAGE>
Item 16. List of Exhibits
Exhibit 1. Organization Certificate of the Trustee as now in effect
(incorporated by reference to Exhibit 1, Form T-1,
Registration Statement No. 333-75673).
Exhibit 2. Certificate of Authority of the Trustee to commence
business (incorporated by reference to Exhibit 2, Form
T-1, Registration Statement No. 333-75673).
Exhibit 3. Authorization of the Trustee to exercise corporate trust
powers (incorporated by reference to Exhibit 3, Form
T-1, Registration Statement No. 333-75673).
Exhibit 4. Existing By-Laws of the Trustee (incorporated by
reference to Exhibit 4, Form T-1, Registration Statement
No. 333-75673).
Exhibit 5. Not Applicable.
Exhibit 6. Consent of the Trustee (incorporated by reference to
Exhibit 6, Form T-1, Registration Statement No.
333-75673).
Exhibit 7. Report of Condition of the Trustee.*
Exhibit 8. Not Applicable.
Exhibit 9. Not Applicable.
- ----------
* Filed Herewith
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Manufacturers and Traders Trust Company, a banking corporation
organized and existing under the laws of the State of New York, has duly caused
this statement of eligibility and qualification to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Buffalo, and
State of New York, on the 26th day of October, 1999.
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ RUSSELL T. WHITLEY
--------------------------
Russell T. Whitley
Assistant Vice President
<PAGE>
EXHIBIT 7
REPORT OF CONDITION OF THE TRUSTEE
MANUFACTURERS AND TRADERS TRUST COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
<TABLE>
<CAPTION>
June 30,
1999
Dollars in thousands
-------------------
<S> <C>
Assets Cash and due from banks $ 543,655
Money-market assets 868,446
Investment securities
Available for sale (cost: $1,792,980) 1,767,918
Held to maturity (market value: $85,985) 86,561
Other (market value: $111,707) 111,707
------------
Total investment securities 1,966,186
------------
Loan and leases, net of unearned discount 16,010,453
Allowance for possible credit losses (309,672)
------------
Loan and leases, net 15,700,781
Other assets 1,489,418
------------
Total assets $ 20,568,486
Liabilities Deposits
Non-interest-bearing $ 2,199,370
Interest-bearing 12,174,387
------------
Total deposits 14,373,757
Short-term borrowings 1,964,301
Accrued interest and other liabilities 740,217
Long-term borrowings 1,502,541
------------
Total liabilities 18,580,816
------------
Stockholder's equity 1,987,670
------------
Total liabilities and stockholder's equity $ 20,568,486
------------
</TABLE>
