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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported): April 20, 2000
COPELCO CAPITAL RECEIVABLES LLC
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(Exact name of registrant as specified in its charter)
DELAWARE 333-79903 PENDING
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
700 EAST GATE DRIVE
MOUNT LAUREL, NEW JERSEY 08054-5404
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(Address of Principal (Zip Code)
Executive Offices)
Registrant's telephone number, including area code: (856) 231-9600
No Change
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(Former name or former address, if changed since last report)
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Item 2. ACQUISITION OR DISPOSITION OF ASSETS
Description of the Notes and the Leases
Copelco Capital Receivables LLC (the "Registrant") registered an issuance
of up to $1,200,000,000 in principal amount of Lease-Backed Securities on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Act"), by the Registration Statement on Form S-3 (File
No. 333-79903) (the "Registration Statement"). Pursuant to the Registration
Statement, the Registrant issued approximately $883,148,838 in aggregate
principal amount of Series 2000-A Lease-Backed Notes (the "Notes") on April 20,
2000 (the "Closing Date"). This Current Report on Form 8-K is being filed to
satisfy an undertaking to file copies of certain agreements executed in
connection with the issuance of the Notes, the forms of which were filed as
Exhibits to the Registration Statement.
The Notes were issued pursuant to an Indenture (the "Indenture") attached
hereto as Exhibit 4.1, dated as of April 1, 2000, between the Registrant, as
Issuer (the "Issuer"), Manufacturers and Traders Trust Company in its capacity
as Trustee (the "Trustee"), and Copelco Capital, Inc., in its capacity as
Servicer (the "Servicer"). The Notes consist of seven classes of notes, the
Class A-1 Notes (the "Class A-1 Notes") and the Class A-2a Notes (the "Class
A-2a Notes", the Class A-3 Notes (the "A-3 Notes"), the Class A-4 Notes (the
"Class A-4 Notes"), the Class D Notes (the "Class D Notes", and collectively
with the Class A-1, Class A-2, Class A-3, Class A-4, Class B Notes, Class C
Notes and Class D Notes, the "Notes"). The Issuer also issued four classes of
notes sold in separate private placements--the Class A-2b Lease-Backed Notes,
Series 2000-A, the Class E Lease Backed Notes, Series 2000-A, the Class R-1
Lease Backed Notes, Series 2000-A and the Class R-2 Lease Backed Notes, Series
2000-A. The Notes evidence indebtedness of the Issuer and are backed solely by a
pledge of the Issuer's assets.
The assets of the Issuer securing the Notes consist of a pool of copier,
computer, healthcare and commercial and industrial equipment leases, and all of
the Issuer's interest in the equipment underlying the leases.
The Notes have an aggregate principal amount of $883,148,838. The Class A-1
Notes have an interest rate of 6.50728%, the Class A-2a Notes have a one-month
LIBOR interest rate, the Class A-3 Notes have an interest rate of 7.12%, the
Class A-4 Notes have an interest rate of 7.22%, the Class B Notes have an
interest rate of 7.30%, the Class C Notes have an interest rate of 7.39%, the
Class D Notes have an interest rate of 7.87%.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not applicable
(b) Not applicable
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(c) Exhibits:
1.1 Underwriting Agreement, dated as of April 14, 2000, among the
Registrant, as Issuer (the "Issuer"), Copelco Capital, Inc. ("Copelco"), and
First Union Securities, Inc., as Representative of the Underwriters (the
"Underwriter").
4.1 Indenture, including forms of the Notes and certain other related
agreements thereto, dated as of April 1, 2000, between the Registrant, as Issuer
(the "Issuer"), Manufacturers and Traders Trust Company, in its capacity as
Trustee (the "Trustee"), and Copelco Capital, Inc., in its capacity as Servicer
(the "Servicer").
5.1 Opinion of Dewey Ballantine LLP regarding legality, dated April 20,
2000.
8.1 Opinion of Dewey Ballantine LLP regarding tax matters, dated April 20,
2000.
10.1 Assignment and Servicing Agreement, dated as of April 1, 2000, among
the Registrant as Issuer (the "Issuer") and Copelco Capital, Inc., as Transferor
and Servicer (the "Servicer").
23.1 Consent of Dewey Ballantine LLP.*
23.2 Consent of KPMG LLP.
*Previously filed on Form S-3 with the Securities and Exchange on October
28, 1999 in Exhibits 5.1 and 8.1 thereto.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COPELCO CAPITAL RECEIVABLES LLC
By Copelco Manager, as manager of the Registrant
By: /s/ NICHOLAS ANTONACCIO
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Name: Nicholas Antonaccio
Title: Vice President-Finance & Treasurer
Dated: April 27, 2000
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EXHIBIT INDEX
Exhibit No. Description
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1.1 Underwriting Agreement, dated as of April 14, 2000, among the
Registrant, as Issuer (the "Issuer"), Copelco Capital, Inc.
("Copelco"), and First Union Securities, Inc., as Representative of
the Underwriters (the "Underwriter").
4.1 Indenture, including forms of the Notes and certain other related
agreements thereto, dated as of April 1, 2000, between the Registrant,
as Issuer (the "Issuer"), Manufacturers and Traders Trust Company, in
its capacity as Trustee (the "Trustee"), and Copelco Capital, Inc., in
its capacity as Servicer (the "Servicer").
5.1 Opinion of Dewey Ballantine LLP regarding legality, dated April 20,
2000
8.1 Opinion of Dewey Ballantine LLP regarding tax matters, dated April 20,
2000
10.1 Assignment and Servicing Agreement, dated as of April 1, 2000, among
the Registrant as Issuer (the "Issuer") and Copelco Capital, Inc., as
Transferor and Servicer (the "Servicer").
23.1 Consent of Dewey Ballantine LLP.*
23.2 Consent of KPMG LLP.
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* Previously filed on Form S-3 with the Securities and Exchange on October 28,
1999 in Exhibits 5.1 and 8.1 thereto.
COPELCO CAPITAL RECEIVABLES LLC
$185,926,071 - 6.50728% Class A-1 Lease-Backed Notes, Series 2000-A
$139,444,553 - one-month LIBOR Class A-2a Lease-Backed Notes, Series 2000-A
$255,648,348 - 7.12% Class A-3 Lease-Backed Notes, Series 2000-A
$237,055,741 - 7.22% Class A-4 Lease-Backed Notes, Series 2000-A
$ 18,592,607 - 7.30% Class B Lease-Backed Notes, Series 2000-A
$ 18,592,607 - 7.39% Class C Lease-Backed Notes, Series 2000-A
$ 27,888,911 - 7.87% Class D Lease-Backed Notes, Series 2000-A
April 14, 2000
UNDERWRITING AGREEMENT
FIRST UNION SECURITIES, INC.
One First Union Capital Markets Corp., TW 9
Charlotte, North Carolina 28288-0610,
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 $185,926,071 (the "Class A-1 Initial Principal Amount") of 6.50728%
Class A-1 Lease-Backed Notes, Series 2000-A (the "Class A-1 Notes");
$139,444,553 (the "Class A-2a Initial Principal Amount") of one-month LIBOR
Class A-2a Lease-Backed Notes, Series 2000-A (the "Class A-2a Notes");
$255,648,348 (the "Class A-3 Initial Principal Amount") of 7.12% Class A-3
Lease-Backed Notes, Series 2000-A (the "Class A-3 Notes"); $237,055,741 (the
"Class A-4 Initial Principal Amount," together with the Class A-1 Initial
Principal Amount, the Class A-2a Initial Principal Amount and the Class A-3
Initial Principal Amount, the "Class A Initial Principal Amount") of 7.22% Class
A-4 Lease-Backed Notes, Series 2000-A (the "Class A-4 Notes, and together with
the Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A
Notes"); $18,592,607 (the "Class B Initial Principal Amount") of 7.30% Class B
Lease-Backed Notes, Series 2000-A (the "Class B Notes"); $18,592,607 (the "Class
C Initial Principal Amount") of 7.39% Class C Lease-Backed Notes, Series 2000-A
(the "Class C Notes"); $27,888,911 (the "Class D Initial Principal Amount") of
7.87% Class D Lease-Backed Notes, Series 2000-A (the "Class D Notes"; together
with the Class A Notes, the Class B Notes and the Class C Notes, the "Offered
Notes"); $139,444,553 (the "Class A-2b Initial Principal Amount") of variable
Class A-2b Lease-Backed Notes, Series 2000-A (the "Class A-2b Notes");
$25,564,835 (the "Class E Initial Principal Amount") of 9.820%
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Class E Lease-Backed Notes (the "Class E Notes"); $71,459,924 (the "Class R-1
Initial Principal Amount") of 7.565% Class R-1 Lease Residual-Backed Notes (the
"Class R-1 Notes"); and $24,564,349 (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 8.438% 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 April 1, 2000 (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:
"Base Prospectus" means prospectus included in the Registration
Statement.
"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 the Base Prospectus together with any
prospectus supplement delivered to purchasers of the Offered Notes at or
before the time of confirmation of their purchases.
"Preliminary Prospectus" means any preliminary prospectus supplement
specifically relating to the Offered Notes, together with the Base
Prospectus.
"Registration Statement" means the registration statement
(No. 333-79903) 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 becomes effective prior to the Issuance Date, shall also
mean such registration
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statement as so amended.
"Rule 424" refers to such rule under the Securities Act.
"Underwriters" means First Union Securities, Inc., Prudential
Securities Incorporated, Banc of America Securities LLC and Mellon
Financial Markets, LLC.
"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 April 20,
2000 (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 "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.
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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-3 under the
Securities Act of 1933, as amended (the "Securities Act"), and has filed
with the Securities and Exchange Commission (the "Commission") the
Registration Statement, including the Base Prospectus and form of
Prospectus Supplement, on such Form S-3 for the registration under the
Securities Act of the Notes. Such Registration Statement has been declared
effective. The Issuer may have filed one or more amendments thereto, 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 Rule 424(b). In the case of clause (B),
the Issuer will include in such Registration Statement, as amended at the
Effective Date, all information required by the Securities Act and the
rules thereunder to be included with respect to the Notes and the offering
thereof. As filed, such amendment and form of Final Prospectus, or such
Final Prospectus, shall include all information required by the Securities
Act and, except to the extent you shall agree in writing to a modification,
shall be in all substantive respects 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, in light of the circumstances under
which they were made, 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 necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, PROVIDED, HOWEVER, that the
Issuer makes no representation or warranty 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
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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
dated as of April 1, 2000 by and among Copelco and the Issuer (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").
(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
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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 Final 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, 1999. Except as set forth in or contemplated in the
Registration Statement and the Final Prospectus, there has been no material
adverse change in the condition (financial or otherwise) of the Copelco
Entities since December 31, 1999.
(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.
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(vi) KPMG Peat Marwick 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) Each of 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) 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.
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
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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.
(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
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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 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.
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(b) You shall have received from Dilworth Paxon LLP 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 such counsel's 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 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 nothing came to such
counsel's attention that leads such counsel to believe that either the
Registration Statement or the Final Prospectus (as of the Effective Date or the
date of the Final 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
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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 Peat Marwick 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 "P-1", "F-1+/AAA",
and "A-1+", that the Class A-2a Notes shall have been rated "P-1", "F-1+/AAA",
and "A-1", that the Class A-3, and A-4 notes be rated at least "Aaa", "AAA", and
"AAA", that the Class B Notes be rated at least "Aa2", "AA", and "AA", that the
Class C Notes be rated at least "Aa2", "AA", and "AA", and that the Class D
Notes be rated at least "Baa2", "BBB", and "BBB" by Moody's Investors Service,
Inc., Fitch IBCA, Inc., and Standard and Poors Rating Group, a division of
McGraw Hill Companies, Inc., 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, Hodgson, Russ, Andrews, Woods & Goodyear 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 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
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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 Final Prospectus and the Preliminary 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 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.
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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
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, fifth and sixth
paragraph under the heading "Underwriting" in the Final Prospectus constitute
the only information furnished in writing by or on behalf of
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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 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
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not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement.
(d) Each underwriter agrees, severally and not jointly, 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) Each underwriter agrees, severally and not jointly, 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).
(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:
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(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, 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)
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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 Final 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.
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
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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,
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,
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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 THE RIGHT
OF EITHER OF THE ISSUER OR COPELCO TO 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
19
<PAGE>
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, on one hand, and the
Issuer and Copelco, on the other hand.
20
<PAGE>
Very truly yours,
COPELCO CAPITAL, INC.
By: /s/ NICHOLAS ANTONACCIO
---------------------------------
Name: Nicholas Antonaccio
Title: SVP & CFO
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
By: /s/ NICHOLAS ANTONACCIO
---------------------------------
Name: Nicholas Antonaccio
Title: SVP & CFO
The foregoing Agreement is
hereby accepted and entered
into as of the date hereof.
FIRST UNION SECURITIES, INC.,
as Representative of the Underwriters
By: /s/ MARK T. ADAMSON
------------------------------
Name: Mark T. Adamson
Title: V.P.
[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 First Union Securities, Inc., Prudential Securities Incorporated,
Banc of America Securities LLC and Mellon Financial Markets, LLC in the
following amounts:
<TABLE>
<CAPTION>
Prudential
First Union Securities Banc of America Mellon Financial
Securities, Inc. Incorporated Securities LLC Markets, LLC Underwriting
Principal Amount Principal Amount Principal Amount Principal Amount Discount
---------------- ---------------- ---------------- ---------------- --------
<S> <C> <C> <C> <C> <C>
Class A-1 Notes ........ $ 92,963,035.50 $ 55,777,821.30 $ 27,888,910.65 $ 9,296,303.55 0.100%
Class A-2a Notes ....... 139,444,553.00 - - - 0.100%
Class A-3 Notes ........ 127,824,174.00 76,694,504.40 38,347,252.20 12,782,417.40 0.175%
Class A-4 Notes ........ 118,527,870.50 71,116,722.30 35,558,361.15 11,852,787.05 0.220%
Class B Notes .......... 9,296,303.50 9,296,303.50 - - 0.250%
Class C Notes .......... 9,296,303.50 9,296,303.50 - - 0.300%
Class D Notes .......... 13,944,455.50 13,944,455.50 - - 0.400%
--------------- --------------- --------------- --------------
Totals ............ $511,296,695.50 $236,126,110.50 $101,794,524.00 $33,931,508.00
=============== =============== =============== ==============
</TABLE>
================================================================================
COPELCO CAPITAL RECEIVABLES LLC,
Issuer
MANUFACTURERS AND TRADERS TRUST COMPANY,
Trustee
and
COPELCO CAPITAL, INC.,
Servicer
----------------------
INDENTURE
Dated as of April 1, 2000
----------------------
$908,713,673 in aggregate principal amount of Receivables
Notes, and $96,024,273 in aggregate principal amount of
Class R Notes, Series 2000-A, consisting of:
$185,926,071 6.50728% Class A-1 Lease-Backed Notes
$139,444,553 one-month LIBOR Class A-2a Lease-Backed Notes
$139,444,553 variable Class A-2b Lease-Backed Notes
$255,648,348 7.12% Class A-3 Lease-Backed Notes
$237,055,741 7.22% Class A-4 Lease-Backed Notes
$18,592,607 7.30% Class B Lease-Backed Notes
$18,592,607 7.39% Class C Lease-Backed Notes
$27,888,911 7.87% Class D Lease-Backed Notes
$25,564,835 9.820% Class E Lease-Backed Notes
$71,459,924 7.565% Class R-1 Lease Residual-Backed Notes
$24,564,349 8.438% Class R-2 Lease Residual-Backed Notes
================================================================================
<PAGE>
COPELCO CAPITAL RECEIVABLES LLC
Reconciliation and Tie between the Indenture
dated as of April 1, 2000 and the
Trust Indenture Act of 1939, as amended
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
ss. 310 (a)(1)........................... s. 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>
TABLE OF CONTENTS
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................... 3
SECTION 1.01. General Definitions........................................................ 3
SECTION 1.02. Compliance Certificates and Opinions.......................................26
SECTION 1.03. Form of Documents Delivered to Trustee.....................................26
SECTION 1.04. Acts of Noteholders, etc...................................................27
SECTION 1.05. Notices, etc., to Trustee, Servicer, Issuer and Rating Agencies............28
SECTION 1.06. Notice to Noteholders; Waiver..............................................29
SECTION 1.07. Effect of Headings and Table of Contents...................................30
SECTION 1.08. Successors and Assigns.....................................................30
SECTION 1.09. GOVERNING LAW..............................................................30
SECTION 1.10. Legal Holidays.............................................................30
SECTION 1.11. Execution in Counterparts..................................................30
SECTION 1.12. Inspection.................................................................30
SECTION 1.13. Survival of Representations and Warranties.................................31
ARTICLE II THE NOTES....................................................................... 31
SECTION 2.01. General Provisions.........................................................31
SECTION 2.02. Execution, Authentication, Delivery, and Dating............................34
SECTION 2.03. Transfer and Exchange......................................................35
SECTION 2.04. Mutilated, Destroyed, Lost and Stolen Notes................................39
SECTION 2.05. Book-Entry Registration of Class A-1, Class A-2a, Class A-3, Class A-4,
Class B Notes, Class C Notes, Class D Notes and Class R Notes..........40
SECTION 2.06. Notice to Clearing Agency Note Owners......................................41
SECTION 2.07. Definitive Class A-1 Notes, Class A-2a Notes, Class A-3 Notes, Class A-4
Notes, Class B Notes, Class C Notes, Class D Notes and Class R Notes...42
SECTION 2.08. Payment of Interest and Principal; Rights Preserved........................43
SECTION 2.09. Persons Deemed Owners......................................................43
SECTION 2.10. Cancellation...............................................................44
SECTION 2.11. Noteholder Lists...........................................................44
SECTION 2.12. Treasury Securities........................................................44
SECTION 2.13. Calculation of the LIBOR Rate..............................................44
ARTICLE III ACCOUNTS; INVESTMENT OF MONEYS; COLLECTION AND APPLICATION OF MONEYS; REPORTS...45
SECTION 3.01. Trust Accounts; Investments by Trustee.....................................45
SECTION 3.02. Collection of Moneys.......................................................48
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 3.03. Collection Account; Payments...............................................48
SECTION 3.04. The Residual Account; Payments.............................................52
SECTION 3.05. The Reserve Account........................................................53
SECTION 3.06. The Liquidity Reserve Account..............................................53
SECTION 3.07. The Class A Principal Payment Account......................................54
SECTION 3.08. The Class A-2 Funding Account..............................................55
SECTION 3.09. Reports by Trustee; Notices of Certain Payments............................55
SECTION 3.10. Trustee May Rely on Certain Information from Copelco and Servicer..........57
SECTION 3.11. Modifications to Class A-2b Notes..........................................57
SECTION 3.12. Swap Termination; Successor Swap Counterparty..............................58
ARTICLE IV RELEASE OF LEASES AND EQUIPMENT..................................................58
SECTION 4.01. Release of Equipment.......................................................58
SECTION 4.02. Release of Leases Upon Final Lease Payment.................................59
SECTION 4.03. Execution of Documents.....................................................59
ARTICLE V SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER...................................59
SECTION 5.01. Servicer Events of Default.................................................59
SECTION 5.02. Substitute Servicer........................................................60
ARTICLE VI EVENTS OF DEFAULT; REMEDIES......................................................60
SECTION 6.01. Events of Default..........................................................60
SECTION 6.02. Acceleration of Maturity; Rescission and Annulment.........................61
SECTION 6.03. Remedies...................................................................62
SECTION 6.04. Trustee Shall File Proofs of Claim.........................................62
SECTION 6.05. Trustee May Enforce Claims Without Possession of Notes.....................63
SECTION 6.06. Application of Money Collected.............................................63
SECTION 6.07. Limitation on Suits........................................................65
SECTION 6.08. Unconditional Right of Noteholders to Receive Principal and Interest.......66
SECTION 6.09. Restoration of Rights and Remedies.........................................66
SECTION 6.10. Rights and Remedies Cumulative.............................................66
SECTION 6.11. Delay or Omission Not Waiver...............................................67
SECTION 6.12. Control by Noteholders.....................................................67
SECTION 6.13. Residual Notes Events of Default...........................................67
SECTION 6.14. Undertaking for Costs......................................................69
SECTION 6.15. Waiver of Stay or Extension Laws...........................................69
SECTION 6.16. Sale of Trust Estate.......................................................69
SECTION 6.17. Rights of Swap Counterparty................................................71
ARTICLE VII THE TRUSTEE.....................................................................71
SECTION 7.01. Certain Duties and Responsibilities........................................71
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 7.02. Notice of Defaults or Events of Default....................................72
SECTION 7.03. Certain Rights of Trustee..................................................72
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes..........................73
SECTION 7.05. May Hold Notes.............................................................73
SECTION 7.06. Money Held in Trust........................................................73
SECTION 7.07. Compensation, Reimbursement, etc...........................................73
SECTION 7.08. Corporate Trustee Required; Eligibility....................................74
SECTION 7.09. Resignation and Removal; Appointment of Successor..........................74
SECTION 7.10. Acceptance of Appointment by Successor.....................................75
SECTION 7.11. Merger, Conversion, Consolidation or Succession to Business................76
SECTION 7.12. Co-trustees and Separate Trustees..........................................76
SECTION 7.13. Acceptance by Trustee......................................................77
SECTION 7.14. Preferential Collection of Claims Against the Issuer.......................78
SECTION 7.15. Reports by Trustee to Noteholders..........................................78
SECTION 7.16. No Proceedings.............................................................78
ARTICLE VIII COVENANTS......................................................................78
SECTION 8.01. Payment of Principal and Interest and Swap Payments........................78
SECTION 8.02. Maintenance of Office or Agency; Chief Executive Office....................78
SECTION 8.03. Money for Payments to be Held in Trust.....................................79
SECTION 8.04. Corporate Existence; Merger; Consolidation, etc............................80
SECTION 8.05. Protection of Trust Estate; Further Assurances.............................80
SECTION 8.06. Reserved...................................................................81
SECTION 8.07. Performance of Obligations; Assignment and ServicingAgreement..............81
SECTION 8.08. Negative Covenants.........................................................82
SECTION 8.09. Information as to Issuer...................................................83
SECTION 8.10. Payment of Taxes...........................................................83
SECTION 8.11. Indemnification............................................................83
SECTION 8.12. Commission Reports; Reports to Trustee; Reports to Noteholders.............84
ARTICLE IX SUPPLEMENTAL INDENTURES..........................................................84
SECTION 9.01. Supplemental Indentures Without Consent of Noteholders.....................84
SECTION 9.02. Supplemental Indentures with Consent of Noteholders........................85
SECTION 9.03. Execution of Supplemental Indentures.......................................86
SECTION 9.04. Effect of Supplemental Indentures..........................................86
SECTION 9.05. Reference in Notes to Supplemental Indentures..............................86
SECTION 9.06. Compliance with Trust Indenture Act........................................86
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE X SATISFACTION AND DISCHARGE........................................................87
SECTION 10.01. Satisfaction and Discharge of Indenture....................................87
SECTION 10.02. Application of Trust Money.................................................88
ARTICLE XI MISCELLANEOUS....................................................................88
SECTION 11.01. Trust Indenture Act Controls...............................................88
SECTION 11.02. Communication by Noteholders with Other Noteholders........................88
SECTION 11.03. Location of Leases.........................................................88
SECTION 11.04. Officers' Certificate and Opinion of Counsel as to Conditions Precedent....88
SECTION 11.05. Statements Required in Certificate or Opinion..............................89
SECTION 11.06. Nonpetition................................................................89
SECTION 11.07. Income Tax Characterization................................................90
SECTION 11.08. Non-Recourse...............................................................90
SECTION 11.09. Subordination of Interests of Noteholders..................................90
SECTION 11.10. Transfer Restrictions on Class E and Class R Notes.........................91
SCHEDULES
SCHEDULE 1 Leases
EXHIBITS
EXHIBIT A Forms of Notes and Form of Trustee's Certificate of Authentication
EXHIBIT B Form of Investor Letter
</TABLE>
vi
<PAGE>
INDENTURE
This INDENTURE dated as of April 1, 2000, is among COPELCO CAPITAL
RECEIVABLES LLC, a Delaware limited liability company (herein called the
"Issuer"), MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking
corporation, 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 $908,713,673 in aggregate
principal amount of its Lease-Backed Notes, and $96,024,273 in aggregate
principal amount of its Lease Residual-Backed-Notes, Series 2000-A, consisting
of $185,926,071 aggregate principal amount of 6.50728% Class A-1 Lease-Backed
Notes (the "Class A-1 Notes"), $139,444,553 aggregate principal amount of
one-month LIBOR Class A-2a Lease-Backed Notes (the "Class A-2a Notes"),
$139,444,553 aggregate principal amount of variable Class A-2b Lease-Backed
Notes (the Class A-2b Notes" and, together with the Class A-2a Notes, the "Class
A-2 Notes"), $255,648,438 aggregate principal amount of 7.12% Class A-3
Lease-Backed Notes (the "Class A-3 Notes"), $237,055,741 aggregate principal
amount of 7.22% Class A-4 Lease-Backed Notes (the "Class A-4 Notes"), together
with the Class A-1 Notes, Class A-2a Notes, Class A-2b Notes and Class A-3
Notes, the "Class A Notes"), $18,592,607 aggregate principal amount of 7.30%
Class B Lease-Backed Notes (the "Class B Notes"), $18,592,607 aggregate
principal amount of 7.39% Class C Lease-Backed Notes (the "Class C Notes"),
$27,888,911 aggregate principal amount of 7.87% Class D Lease-Backed Notes (the
"Class D Notes"), $25,564,835 aggregate principal amount of 9.820% 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"), $71,459,924 aggregate principal amount
of 7.565%, Class R-1 Residual Notes (the "Class R-1 Notes"), and $24,564,349
aggregate principal amount of 8.438% 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.
<PAGE>
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by
the holders thereof, it is mutually covenanted and agreed, for the benefit of
all Noteholders and the Swap Counterparty, as follows:
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee on the Issuance Date, for the
benefit and security of the Noteholders and the Swap Counterparty, 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 payments due or to become due on the
Leases during April 2000, 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, (g) all rights, remedies, claims,
powers and privileges under or with respect to the Swap Documents and (h) 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 amounts
due from the Issuer to the Swap Counterparty under, and in respect of, the Swap
Documents, in accordance with the terms of the Swap Documents, (iii) the payment
of all other sums payable under this Indenture with respect to the Notes and
(iv) 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 and the Swap Counterparty 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 the Indenture.
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.
APRIL INTEREST PAYMENT: an amount equal to $4,905,631.14 which is the
amount of interest which will accrue on the Receivable Notes from the Issuance
Date to May 18, 2000.
ASSIGNMENT AND SERVICING AGREEMENT: the Assignment and Servicing Agreement
dated as of April 1, 2000 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.
3
<PAGE>
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,
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) any amounts paid by the Swap Counterparty to the Issuer pursuant
to the Swap Documents; (h) Termination Payments other than Residual Prepayments;
(i) 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).
BANKRUPTCY CODE: the United States Bankruptcy Code of 1978 (11 U.S.C., et
seq.), as amended from time to time
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-2A NOTES: beneficial interests in the Class A-2a 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.
4
<PAGE>
BOOK-ENTRY CLASS B NOTES: beneficial interests in the Class B Notes, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
BOOK-ENTRY CLASS C NOTES: beneficial interests in the Class C Notes, the
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.05.
BOOK-ENTRY CLASS D NOTES: beneficial interests in the Class D
Notes, the ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 2.05.
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 either the Corporate Trust
Office or 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.
CEDE & CO.: 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: 85.000% (approximately).
CLASS A PRINCIPAL PAYMENT: shall equal (a) while the Class A-1 Notes are
outstanding, 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)
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the Discounted Present Value of the Performing Leases as of the applicable
Determination Date, and (b) after the Class A-1 Notes have been paid in full,
(i) prior to the March 2001 Payment Date, the amount necessary to reduce the
aggregate outstanding principal amount on the Class A Notes (excluding the Class
A-2b Notes) to the Class A Target Investor Principal Amount less amounts, if
any, on deposit in the Class A Principal Payment Account and (ii) on or after
the March 2001 Payment Date, the amount necessary to reduce the aggregate
outstanding principal amount on the Class A Notes (after giving effect to any
principal modifications related to the Class A-2b Notes pursuant to Section
3.11) to the Class A Target Investor Principal Amount.
CLASS A PRINCIPAL PAYMENT ACCOUNT: the account by that name established and
maintained by the Trustee pursuant to Section 3.01.
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: $185,926,071.
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 6.50728% 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: Cede & Co. or a holder of a Definitive Class A-1
Note.
CLASS A-1 NOTES: as defined in the Recitals hereto.
CLASS A-2A SHORTFALL: has the meaning assigned to such term in Section
3.11.
CLASS A-2 FUNDING ACCOUNT: the account by that name established and
maintained by the Trustee pursuant to Section 3.01.
CLASS A-2A INITIAL PRINCIPAL AMOUNT: $139,444,553.
CLASS A-2B INCREASE: has the meaning assigned to such term in Section 3.11.
CLASS A-2A NOTE INTEREST RATE: with respect to any Interest Accrual Period,
the rate at which interest accrues on the Class A-2a Notes, which rate shall be
equal to one-month LIBOR per annum; PROVIDED that, in the event the Class A-2a
Notes
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are not paid in full by the Payment Date in March 2001, such rate shall be LIBOR
plus .20% per annum; provided further that, in the event the Swap is terminated
and no replacement swap is entered into, such rate shall be a fixed rate of
6.75% per annum.
CLASS A-2A NOTE OWNER: with respect to a Book-Entry Class A-2a Note, the
Person who is the beneficial owner of such Book-Entry Class A-2a 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-2A NOTEHOLDER: Cede & Co. or a holder of a Definitive Class A-2a
Note.
CLASS A-2A NOTES: as defined in the Recitals hereto.
CLASS A-2A SHORTFALL: has the meaning assigned to such term in Section
3.11.
CLASS A-2B INCREASE: has the meaning assigned to such term in Section 3.11
CLASS A-2B INITIAL PRINCIPAL AMOUNT: $139,444,553.
CLASS A-2B NOTE INTEREST RATE: with respect to any Interest Accrual Period,
the rate at which interest accrues on the Class A-2b Notes, which rate shall be
equal to (i) on or prior to the Payment Date in March 2001, a rate equal to the
net interest income earned on the Eligible Investments maintained by the Trustee
in the Class A-2 Funding Account which amount shall be paid pursuant to Section
3.08 and (ii) after (a) the Payment Date in March 2001 and (b) payment in full
of the Class A-2a Notes, at a rate equal to LIBOR plus .20%, PROVIDED that, in
the event the Swap is terminated and no replacement swap is entered into, such
rate shall be a fixed rate of 6.95% per annum.
CLASS A-2B NOTEHOLDER: a holder of a Class A-2b Note.
CLASS A-2B NOTES: as defined in the Recitals hereto.
CLASS A-3 INITIAL PRINCIPAL AMOUNT: $255,648,348.
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 7.12% 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 with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
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<PAGE>
CLASS A-3 NOTEHOLDER: Cede & Co. 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: $237,055,741.
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 7.22% 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: Cede & Co. or a holder of a Definitive Class A-4
Note.
CLASS A-4 NOTES: as defined in the Recitals hereto.
CLASS B INITIAL PRINCIPAL AMOUNT: $18,592,607.
CLASS B FLOOR: with respect to each Payment Date, an amount equal to the
total of (a) 3.25% 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 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
7.30% 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: Cede & Co. or a holder of a Definitive Class B Note.
CLASS B NOTES: as defined in the Recitals hereto.
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CLASS B PERCENTAGE: 2.5000% (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: $18,592,607.
CLASS C FLOOR: With respect to each Payment Date, the amount equal to the
total of (a) 2.20% 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.
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
7.39% 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: Cede & Co. or a holder of a Definitive Class C Note.
CLASS C NOTES: as defined in the Recitals hereto.
CLASS C PERCENTAGE: 2.500% (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.
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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: $27,888,911.
CLASS D FLOOR: with respect to each Payment Date, an amount equal to the
total of (a) 1.80% 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
7.87% per annum.
CLASS D NOTE OWNER: with respect to a Book-Entry Class D Note, the Person
who is the beneficial owner of such Book-Entry Class D Note, as reflected on the
books of the Clearing Agency, or on the books of a Person maintaining an account
with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
CLASS D NOTEHOLDER: Cede & Co. or a holder of a Definitive Class D Note.
CLASS D NOTES: as defined in the Recitals hereto.
CLASS D PERCENTAGE: 3.7500% (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: $25,564,835.
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CLASS E FLOOR: With respect to each Payment Date, an amount equal to the
total of (a) 1.20% 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
9.820% per annum.
CLASS E NOTEHOLDER: a holder of a Class E Note.
CLASS E NOTES: as defined in the Recitals hereto.
CLASS E PERCENTAGE: 3.4375% (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.
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: $71,459,924.
CLASS R NOTEHOLDER: at any time, any Person in whose name a Class R Note is
registered in the Note Register.
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
7.565% 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
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with such Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency).
CLASS R-1 NOTEHOLDER: Cede & Co. or a holder of a Definitive Class R-1
Note.
CLASS R-2 INITIAL PRINCIPAL AMOUNT: $24,564,349.
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
8.438% per annum.
CLASS R-2 NOTEHOLDER: Cede & Co. 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.
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 One M&T Plaza, 7th Floor, Buffalo, New York 14203, or at such other
address as the Trustee may designate from time to time by notice to the
Noteholders, the Swap Counterparty, the Issuer and Copelco.
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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 plus
amounts, if any, in the Class A Principal Account and the Class A-2 Funding
Account.
CUT-OFF DATE: the opening of business on March 28, 2000.
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.
DISCOUNT RATE: with respect to any Determination Date, 7.987%, which equals
the sum of (a) the weighted-average interest rate (or its swapped rate) of the
Class A-1 Notes, the Class A-2a Notes, the Class A-2b Notes, the Class A-3
Notes, the Class A-4 Notes, the Class B Notes, the Class C Notes, the Class D
Notes and the Class E Notes on the Issuance Date, each weighted by (i) the Class
A-1 Initial Principal Amount, the Class A-2a Initial Principal Amount, the Class
A-2b Initial Principal Amount, the Class A-3 Initial Principal Amount, the Class
A-4 Initial Principal Amount, the Class B Initial Principal Amount, the Class C
Initial Principal Amount, 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 to optional redemption) of
each Class of Notes (for the Class A-2b Notes, the weighted average life shall
be computed assuming the Class A-2b Notes are funded on the March 2001 Payment
Date), as applicable, 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 (except for payments on the Leases due or to become due
during April
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2000, 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 (except for any payments due or
to become due during April 2000 and 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.
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;
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<PAGE>
(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
Moody's and S&P;
(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 (which have the highest short-term credit ratings available from
Moody's and S&P), 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 Moody's and S&P at the
time of such investment; provided that, commercial paper issued by Variable
Funding Capital Corporation held by the Trustee in the Class A-2 Funding
Account maintained by the Trustee pursuant to Section 3.08 shall constitute
an Eligible Investment so long as Variable Funding Capital Corporation is
rated "P-1" by Moody's and "A-1" by S&P;
(e) money market funds that redeem their shares on demand, invest only
in other Eligible Investments, and are rated "P-1"/"Aaa" by Moody's and
"AAAm" or "AAA-G" by S&P;
(f) demand notes payable on demand issued by an institution rated
"P-1" by Moody's, and "A-1+" by S&P;
(g) funding agreements or guaranteed investment contracts provided by
issuers rated "P-1" by Moody's and "A-1+" by S&P which provide, by their
terms, for receipt by the trustee on or prior to the next Payment Date of a
predetermined fixed dollar amount which cannot vary or change; and
(h) such other investments as may be approved by S&P and Moody's.
EQUIPMENT: each item of personal property, together with any replacement
parts, additions, and repairs thereto, any replacements thereof, and any
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<PAGE>
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.
FIRST UNION: First Union Securities, Inc.
FITCH: Fitch IBCA, Inc. and any successor thereto.
GOVERNMENTAL AUTHORITY: Any court or federal or state regulatory body,
administrative agency or other tribunal or other governmental instrumentality.
GRANT: grant, bargain, convey, assign, transfer, mortgage, pledge, create
and grant a security interest in and right of set-off against, deposit, set over
and confirm. The Grant of the Trust Estate effected by 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.
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 $111,656,132. Initial ADRB means the sum of the discounted
present value of 150% of the Booked Residual Values of all Leases, as of the
Cut-Off Date, discounted monthly at one twelfth the Residual Discount Rate.
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INITIAL BOOKED RESIDUAL VALUE: $103,536,126.
INITIAL PAYMENT DATE: June 19, 2000.
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 Class A-2a Notes and the Class A-2b Notes (except as otherwise
provided in Section 3.08 with respect to the Class A-2b 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-3 Notes, the Class A-4 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: April 20, 2000.
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
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
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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.
LIBOR BUSINESS DAY: any day other than (i) a Saturday or a Sunday or (ii) a
day on which banking institutions in the city of London, England are required or
authorized to be closed.
LIBOR: the London interbank offered rate for one-month Eurodollar deposits
appearing on the Telerate Screen Page 3750.
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.
MOODY'S: Moody's 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-2a Note
Interest Rate, the Class A-2b Note Interest Rate, the Class A-3 Note Interest
Rate, the Class A-4 Interest Rate, the Class B Note Interest Rate, the Class C
Note Interest Rate, 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-2A PRINCIPAL AMOUNT: the aggregate principal amount of
the Class A-2a Notes Outstanding at any time.
OUTSTANDING CLASS A-2B PRINCIPAL AMOUNT: the aggregate principal amount of
the Class A-2b Notes Outstanding at any time as such amount may be modified
pursuant to Section 3.11.
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 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
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Leases as of the related Determination Date over (b) the Outstanding
Principal Amount 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; PROVIDED that, with respect to
the Class A-1 Notes, if the Class A-1 Notes have not been paid in full on or
before the April 2001 Payment Date, the Payment Date for the Class A-1 Notes in
May 2001 shall be May 14, 2001.
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 First Union.
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: S&P, Moody's and Fitch.
RECEIVABLE ASSETS: all Granted Assets, but excluding Residual Realizations
and amounts on deposit in the Liquidity Reserve Account.
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.
REFERENCE BANK RATE: as defined in Section 2.13.
REPLACEMENT SWAP COUNTERPARTY: as defined in Section 3.12.
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REQUIRED DEPOSIT DATE: as defined in Section 3.03(a).
REQUIRED LIQUIDITY RESERVE: (i) From the Cut-Off Date until the March 2003
Payment Date, 12.75% of the Initial ADRB and thereafter, (ii) the greater of (a)
2.00% of the Initial ADRB and (b) 12.75% of the outstanding principal balance of
the Class R. Notes.
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) 1.00% of the
Discounted Present Value of the Leases as of the Cut-Off Date 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 ASSETS: the Residual Realizations and amounts on deposit in the
Liquidity Reserve Account.
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 8.565%. 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
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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.
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.
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S&P: Standard & Poor's Ratings Services, a division of the McGraw Hill
Companies, Inc.
STATED MATURITY: The stated maturity date with respect to the Class A-1
Notes is the Payment Date in May 2001 (the "Class A-1 Stated Maturity Date"),
the stated maturity date with respect to the Class A-2a Notes is the Payment
Date in March 2001 (the "Class A-2a Stated Maturity Date"), the stated maturity
date with respect to the Class A-2b Notes is the Payment Date in April 2002 (the
"Class A-2b Stared Maturity Date"), the stated maturity date with respect to the
Class A-3 Notes is the Payment Date in August 2003 (the "Class A-3 Stated
Maturity Date"), the stated maturity date with respect to Class the A-4 Notes is
the Payment Date in August 2005 (the "Class A-4 Stated Maturity Date"), the
stated maturity date with respect to the Class B Notes is the Payment Date in
March 2006 (the "Class B Stated Maturity Date"), the stated maturity date with
respect to the Class C Notes is the Payment Date in May 2006 (the "Class C
Stated Maturity Date"), the stated maturity date with respect to the Class D
Notes is the Payment Date in May 2006 (the "Class D Stated Maturity Date"), the
stated maturity date with respect to the Class E Notes is the Payment Date in
April 2008 (the "Class E Stated Maturity Date"), the stated maturity date with
respect to the Class R-1 Notes is Payment Date in November 2005 (the "Class R-1
Stated Maturity Date") and the stated maturity date with respect to the Class
R-2 Notes is the Payment Date in September 2006 (the "Class R-2 Stated Maturity
Date," together with the Class A-1 Stated Maturity Date, the Class A-2a Stated
Maturity Date, the Class A-2b Stated Maturity Date, the Class A-3 Stated
Maturity Date, the Class A-4 Stated Maturity Date, the Class B Stated Maturity
Date, the Class C Stated Maturity Date, 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.
SWAP: that certain rate swap transaction governed by the Swap Documents.
SWAP COUNTERPARTY: First Union National Bank, a national banking
association, or its permitted successors and assigns under the Swap Documents.
SWAP COUNTERPARTY TERMINATION PAYMENT: as defined in Section 3.03(b).
SWAP DOCUMENTS: the ISDA Master Agreement dated as of April 20, 2000
between the Issuer and the Swap Counterparty, including the schedule thereto and
confirmations thereunder, as the same may be amended from time to time as
permitted therein and herein, in each case to the extent relating to the Swap.
TELERATE SCREEN PAGE 3750: means the display designated as page 3750 on the
Telerate Service (or such other page as may replace page 3750 on that service
for the purpose of displaying London interbank offered rates of major banks).
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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 Class A
Principal Payment Account, the Class A-2 Funding 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 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.
TRUSTEE FEE LETTER: that certain fee letter agreement dated as of the date
hereof between Copelco and the Trustee.
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 First Union dated as of April 14, 2000.
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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 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
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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.
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.
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(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 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. For so long as the Swap
Documents are in effect, the Swap Counterparty shall receive notice of all of
the aforementioned requests, demands, authorizations, directions, notices,
consents, waivers or Acts of Noteholders and copies of all such other documents.
Any such request, demand, authorization, direction, notice, consent, waiver, Act
of Noteholders, or other document shall be sent or delivered to the following
addresses:
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(a) if to the Trustee, at the Corporate Trust Office, Attention Corporate
Trust Administration (Number for telecopy: (716) 842-4474), 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: Nicholas Antonaccio (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 Standard & Poor's Rating Group, a
division of McGraw Hill Companies, Inc., 55 Water Street, New York, NY 10041,
Attention: Asset-Backed Surveillance Group, to Fitch IBCA, Inc., 1 State Street
Plaza, New York, NY 10004, Attention: ABS Surveillance, and to Moody's Investors
Service, Inc., 99 Church Street, New York, New York 10007, Attention: ABS
Monitoring Department.
(e) if to the Swap Counterparty, to First Union National Bank, 301 South
College Street, Charlotte, North Carolina NC0601; Attention: Bruce Young, Senior
Vice President.
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 notice or report is required to be delivered pursuant to
any provision of this Indenture,
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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 and other papers of the Issuer, to make copies thereof
and extracts therefrom, to cause
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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 $185,926,071 principal amount of Class A-1
Notes, $139,444,553 principal amount of Class A-2a Notes, $139,444,553 principal
amount of Class A-2b Notes, $255,648,348 principal amount of Class A-3 Notes,
$237,055,741 principal amount of Class A-4 Notes, $18,592,607 principal amount
of Class B Notes, $18,592,607 principal amount of Class C Notes, $27,811,911
principal amount of Class D Notes, $25,564,835 principal amount of Class E
Notes, $71,459,924 principal amount of Class R-1 Notes, and $24,564,349
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 $908,713,673 of Receivable Notes
and $96,024,273 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), 3.08 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 ten percent (10%) 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-2a Notes, Class A-2b
Notes, Class A-3 Notes, Class A-4 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
(and except as otherwise provided with respect to the Class A-2b Notes in
Section 3.08), at the Class A-1 Interest Rate, Class A-2a Interest Rate, Class
A-2b Interest Rate, Class A-3 Interest Rate, Class A-4 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-2a
Notes, Class A-2b Notes, Class A-3 Notes, Class A-4 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, Class A-2a Notes and the Class A-2b Notes (after the Payment Date in
March 2001), 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 and, with respect to
the Class A-2b Notes, prior to the Payment Date in March 2001, Section 3.08, 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
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distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Indenture.
Payments of principal and interest on the Class A-1 Notes shall be made pro rata
among all Outstanding Class A-1 Notes, without preference or priority of any
kind.
(f) All Class A-2a 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-2a Notes shall be made pro
rata among all Outstanding Class A-2a Notes, without preference or priority of
any kind.
(g) All Class A-2b 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,
PROVIDED that, if the Class A-2a Notes are not paid in full on the Payment Date
in March 2001, the principal amount of the Class A-2b Notes shall be subject to
adjustment in accordance with Section 3.11. Payments of principal and interest
on the Class A-2b Notes shall be made pro rata among all Outstanding Class A-2b
Notes, without preference or priority of any kind.
(h) 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.
(i) 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.
(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
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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.
(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,
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notwithstanding that such individual ceases to hold such office prior to the
authentication and delivery of such Note or did not hold such office at the date
of such Note.
(c) No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein,
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder. Each Note shall be dated the date of
its authentication.
(d) The Notes may from time to time be executed by the Issuer and delivered
to the Trustee for authentication together with a 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 A-2b Note or 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 A-2b Notes or the Class E Notes is proposed,
the Trustee will require, in order to assure compliance with such laws, that the
Class A-2b Noteholder's, 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 A-2b Notes, Class E Notes or Class R Notes to a
transferee referred to in the preceding
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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 A-2b
Notes, 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 A-2b Notes, 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,
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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 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
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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 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
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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.
(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
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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 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-1, CLASS A-2A, CLASS A-3,
CLASS A-4, CLASS B NOTES, CLASS C NOTES, CLASS D NOTES AND CLASS R NOTES.
Each of the Class A-1 Notes, Class A-2a Notes, Class A-3 Notes, Class A-4
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-2a Notes, Class A-3 Notes, Class A-4 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 Cede & Co., the
nominee of The Depository Trust Company, as the initial Clearing Agency, and no
Class A-1 Note Owner, Class A-2a Note Owner, Class A-3 Note Owner, Class A-4
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-2a Notes,
Definitive Class A-3 Notes, Definitive Class A-4 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-2a Notes, Class A-3 Notes, Class
A-4 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-2a Notes, Class A-3 Notes, Class A-4 Notes, Class B
Notes, Class C
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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-2a Notes, Class A-3 Notes,
Class A-4 Notes, Class B Notes, Class C Notes, Class D Notes and Class R 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-2a Notes, Class A-3 Notes, Class A-4 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-2a Notes, Class A-3 Notes, Class A-4 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-2a Notes, Class A-3 Notes, Class A-4 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-2a Notes, Class A-3 Notes, Class A-4 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-2a Noteholders, Class A-3 Noteholders, Class A-4 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-2a Note Owners, Class A-3 Note Owners, Class A-4 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-1 NOTES, CLASS A-2A NOTES, CLASS A-3
NOTES, CLASS A-4 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-2a
Notes, Class A-3 Notes, Class A-4 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-2a Notes, Class
A-3 Notes, Class A-4 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-2a Note Owners, Class A-3 Note Owners, Class A-4 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-2a Notes,
Class A-3 Notes, Class A-4 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-2a
Notes, Class A-3 Notes, Class A-4 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-2a Notes, Class A-3 Notes, Class A-4 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-2a Note Owners, Class A-3 Note Owners, Class A-4 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-2a Note Owners, Class A-3 Note Owners, Class A-4 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-2a Notes, Class A-3 Notes, Class A-4 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-2a Note Owners, Class A-3
Note Owners, Class A-4 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-2a Notes, Class A-3 Notes, Class A-4 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 herein to obligations imposed upon or to be performed by the Clearing
Agency shall be deemed to be imposed
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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 as the owner of such Note for the purpose of receiving
payment of principal of and
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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.
SECTION 2.13. CALCULATION OF THE LIBOR RATE.
With respect to each Payment Date, LIBOR for the Class A-2a Notes (and
after the Payment Date in March 2001, the Class A-2b Notes) shall be established
by the Trustee and as to any Interest Accrual Period, LIBOR will equal the
London interbank offered rate for Eurodollar deposits for one month which
appears on the Telerate Screen page 3750 as of 11:00 A.M., London time, on the
second LIBOR Business Day prior to the first day of such Interest Accrual Period
except with respect to the First Issuance Date, in which case LIBOR has been set
as of April 14, 2000. If such rate does not appear on such page (or such other
page as may replace that page on that service, or if
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such service is no longer offered, such other service for displaying LIBOR as
may be selected by the Trustee), the rate will be the Reference Bank Rate. The
"Reference Bank Rate" will be determined on the basis of the rates at which
deposits in U.S. Dollars are offered by the reference banks (which shall be
three major banks that are engaged in transactions in the London interbank
market, selected by the Trustee) as of 11:00 A.M., London time, on the day that
is two LIBOR Business Days prior to the immediately preceding Payment Date to
prime banks in the London interbank market for a period of one month in amounts
approximately equal to the principal amount of the Class A-2a Notes (and after
the Payment Date in March 2001, the Class A-2b Notes) then outstanding (or an
appropriate standard size amount). The Trustee will request the principal London
office of each of the reference banks to provide a quotation of its rate. If at
least two such quotations are provided, the rate will be the arithmetic mean of
the quotations. If on such date fewer than two quotations are provided as
requested, the rate will be the arithmetic mean of the rates quoted by one or
more major banks in New York City, selected by the Trustee, as of 11:00 A.M.,
New York City time, on the first day of the relevant Interest Accrual Period
date for loans in U.S. Dollars to leading European banks for a period of one
month in amounts approximately equal to the principal amount of the Class A-2a
Notes (and after the Payment Date in March 2001, the Class A-2b Notes) then
outstanding. If no such quotations can be obtained, the rate will be LIBOR for
the prior Payment Date. The Trustee shall provide the Swap Counterparty with
notice as to the calculation of the LIBOR rate for each Interest Accrual Period.
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 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. On
or before the Issuance Date, the Trustee shall establish the Class A Principal
Payment Account in the name of the Trustee for the benefit of the Class A-2a
Noteholders, which account shall be an Eligible Account maintained at the
Corporate Trust Office. On or before the Issuance Date, the Trustee shall
establish the Class A-2 Funding Account in the name of the Trustee for the
benefit of the Class A-2a and Class A-2b Noteholders, which account shall be an
Eligible Account maintained at the Corporate Trust Office.
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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, the Liquidity Reserve Account, the
Class A Principal Payment Account or the Class A-2 Funding 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 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, the Liquidity Reserve Account, the Class A
Principal Payment Account or the Class A-2 Funding 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
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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, the Liquidity Reserve Account, the Class A
Principal Payment Account or the Class A-2 Funding 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.
(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
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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.
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);
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(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) any amounts paid by the Swap Counterparty to the Issuer
pursuant to the Swap Documents;
(ix) Termination Payments (other than Residual Prepayments) to the
extent the Issuer does not reinvest such Termination Payments in Additional
Leases; and
(x) 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, (x) Available Funds on deposit in the Collection Account, (y) the
amounts, if any, deposited into the Collection Account from the Reserve Account
in accordance with the provisions of Section 3.05 and (z) the amounts, if any,
deposited into the Collection Account from the Class A Principal Payment Account
on the Payment Date in March 2001 in accordance with the provisions of Section
3.07(c) 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 Swap Counterparty any amounts due under the Swap
Documents, other than amounts due to the Swap Counterparty following a
termination of the Swap following a downgrade of or a default by the Swap
Counterparty (the "Swap Counterparty Termination Payment");
(ii) to pay the Servicing Fee;
(iii) to pay the Trustee Fee (if not paid by Copelco pursuant to the
Trustee Fee Letter);
(iv) to reimburse unreimbursed Servicer Advances in respect of a prior
Payment Date;
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(v) concurrently and pro rata: (a) to make Interest Payments on the
Class A-1 Notes; (b) to make Interest Payments on the Class A-2a Notes; (c)
to make Interest Payments on the Class A-2b Notes (beginning with the April
2001 Payment Date); (d) to make Interest Payments on the Class A-3 Notes;
(e) to make Interest Payments on the Class A-4 Notes;
(vi) to make Interest Payments on the Class B Notes;
(vii) to pay the Swap Counterparty the balance of the Swap
Counterparty Termination Payment but, if a replacement swap has been
entered into, not more than the product of (A) (1) 6.75% minus (2) the
assumed fixed rate for any replacement swap quoted at the time by the Swap
Counterparty as provided in the Swap Documents, (B) the Outstanding
Principal Amount of the Class A-2a Notes until the Payment Date in March
2001 and the Outstanding Principal Amounts of the Class A-2a and Class A-2b
Notes thereafter and (C) the number of days in the applicable Interest
Accrual Period divided by 360.
(viii) to make Interest Payments on the Class C Notes;
(ix) to make Interest Payments on the Class D Notes;
(x) to make Interest Payments on the Class E Notes;
(xi) to make the Class A Principal Payment as follows:
a) prior to the Payment Date in March 2001, (i) to the Class
A-1 Noteholders, until the Outstanding Principal Amount on the
Class A-1 Notes is reduced to zero, and then (ii) the balance, if
any, to the Class A Principal Payment Account;
b) on the Payment Date in March 2001 and thereafter: (i) to
the Class A-1 Noteholders, until the Outstanding Principal Amount
on the Class A-1 Notes is reduced to zero, then (ii) to the Class
A-2a Noteholders, after taking into account any Principal Payment
from the Class A-2 Funding Account pursuant to Section 3.08,
until the Outstanding Principal Amount on the Class A-2a Notes is
reduced to zero, then (iii) to the Class A-2b Noteholders, until
the Outstanding Principal Amount of the Class A-2b Notes is
reduced to zero, then (iv) to the Class A-3 Noteholders, until
the Outstanding Principal Amount on the Class A-3 Notes is
reduced to zero, and finally (v) to the Class A-4 Noteholders,
until the Outstanding Principal Amount on the Class A-4 Notes is
reduced to zero; PROVIDED that, the Class A-2b Noteholders will
have no rights to such payments to the extent that amounts in the
Class A-2 Funding Account are insufficient to fully pay principal
on the Class A-2a Notes;
(xii) to pay the Class B Principal Payment to the Class B Noteholders;
(xiii) to pay the Class C Principal Payment to the Class C
Noteholders;
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(xiv) to pay the Class D Principal Payment to the Class D Noteholders;
(xv) to pay the Class E Principal Payment to the Class E Noteholders;
(xvi) 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 (x) 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;
(xvii) to pay the Swap Counterparty the balance of the Swap
Counterparty Termination Payment;
(xviii) 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
(xix) 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 (except for any
payments due or to become due during April 2000) received that were due since
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.
(d) On the Issuance Date, the Servicer shall transfer the April Interest
Payment to the Trustee and the Trustee shall deposit the April Interest Payment
into the Collection Account.
(e) Notwithstanding the foregoing, if on any Payment Date, the aggregate
amounts on deposit in the Collection Account and the Reserve Account are greater
than or equal to the sum of (i) the aggregate outstanding principal balance of
the Class A Notes, Class B Notes, Class C Notes, Class D Notes and Class E
Notes, (ii) the accrued and unpaid Interest Payments, (iii) the accrued and
unpaid Servicing Fee and (iv) the unreimbursed Servicer Advances, the amount on
deposit in the Reserve Account shall be deposited in the Collection Account and
applied to pay in full the Class A Notes, Class B Notes, Class C Notes, Class D
Notes and Class E Notes.
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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 (if not paid by Copelco Capital
pursuant to the Trustee Fee Letter);
(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;
(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.
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SECTION 3.05. THE RESERVE ACCOUNT.
(a) On the Issuance Date, the Issuer has made an initial deposit of
$9,296,303.56 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)(xiv) (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, PROVIDED that, in the event payments on
the Leases may not be used to make payments on the Notes due to the imposition
of the automatic stay under Section 362 of the Bankruptcy Code or other similar
applicable provision in the event of a bankruptcy or insolvency case relative to
Copelco Capital, amounts in the Reserve Account shall only be used to make
interest payments on the Notes and principal payments at Stated Maturity of the
Notes.
(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 and the Swap
Counterparty 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.
(e) If on any Payment Date, the aggregate amount on deposit in the
Collection Account and the Reserve Account is greater than or equal to the sum
of (i) the aggregate outstanding principal balance of the Class A Notes, Class B
Notes, Class C Notes, Class D Notes and Class E Notes, (ii) payments to the Swap
Counterparty under the Swap Documents, (iii) the accrued and unpaid Interest
Payments, (iv) the accrued and unpaid Servicing Fee and (v) the unreimbursed
Servicer Advances, the Trustee shall transfer the amount on deposit in the
Reserve Account to the Collection Account and the Servicer shall apply such
amount to pay in full the Class A Notes, Class B Notes, Class C Notes, Class D
Notes and Class E Notes.
SECTION 3.06. THE LIQUIDITY RESERVE ACCOUNT.
(a) On the Issuance Date, the Issuer has made an initial deposit of
$14,236,156.83 into the Liquidity Reserve Account for the sole benefit of the
Class R
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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.
(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. THE CLASS A PRINCIPAL PAYMENT ACCOUNT.
(a) On each Payment Date prior to the Payment Date in March 2001 after the
Class A-1 Notes have been paid in full, the Servicer shall transfer to the
Trustee for deposit into the Class A Principal Payment Account the balance of
the Class A Principal Payment payable to the Class A Noteholders after making
all payments in accordance with Section 3.03(b).
(b) All amounts on deposit in the Class A Principal Payment Account shall
be maintained by the Trustee in trust for and for the benefit of the Class A
Noteholders.
(c) By 12:00 noon, New York City time, one Business Day preceding the
Payment Date in March 2001, the amount of funds on deposit in the Class A
Principal Payment Account shall be transferred by the Trustee, not later than
the end of such Business Day, from the Class A Principal Payment Account to
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the Collection Account to be applied in accordance with the priorities set forth
in Section 3.03(b)(xi)(b) on the March 2001 Payment Date.
SECTION 3.08. THE CLASS A-2 FUNDING ACCOUNT.
(a) On the Issuance Day, the proceeds from the issuance of the Class A-2b
Notes will be deposited in the Class A-2 Funding Account.
(b) All amounts on deposit in the Class A-2 Funding Account shall be
maintained by the Trustee in trust for and for the benefit of the Class A-2a
Noteholders and the Class A-2b Noteholders.
(c) The Trustee shall invest all amounts on deposit in the Class A-2
Funding Account in Eligible Investments, as directed by the Servicer, which
mature no later than one Business Day prior to the Payment Date in March 2001.
(d) On each Payment Date prior to the Payment Date in March 2001, the
Trustee shall withdraw from the Class A-2 Funding Account and transfer to the
Servicer for payment to the Class A-2b Noteholders, the aggregate amount of net
interest income, if any, earned on the Eligible Investments maintained by the
Trustee in the Class A-2 Funding Account during the applicable interest Accrual
Period as the Class A-2b Interest Payment for such Payment Date (it being
understood that, given the term of such Eligible Investments, such net
investment income may not be available on every Payment Date prior to the
Payment Date in March 2001).
(e) On the Payment Date in March 2001 (and on each Payment Date thereafter
if necessary), the amount of funds on deposit in the Class A-2 Funding Account
shall be transferred by the Trustee to the Servicer for application in the
following order of priority:
(i) to make a Principal Payment on the Class A-2a Notes until the
Outstanding Principal Amount of the Class A-2a Notes has been reduced to
zero;
(ii) to pay the Class A-2b Notes, as the Class A-2b Interest Payment
for such Payment Date, an amount equal to the net investment income, if
any, earned on the Eligible Investments maintained by the Trustee in the
Class A-2 Funding Account; and
(iii) to deposit into the Collection Account for application, any
excess.
SECTION 3.09. REPORTS BY TRUSTEE; NOTICES OF CERTAIN PAYMENTS.
(a) The Trustee shall within two Business Days after the request of the
Issuer, the Servicer, the Swap Counterparty 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.
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(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, the Swap Counterparty, 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-2a Notes, Class A-2b Notes, Class A-3 Notes, Class A-4 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-2a Notes, Class A-2b Notes, Class A-3 Notes, Class A-4 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, the Reserve
Account, the Class A Principal Payment Account and the Class A-2 Funding
Account, in each case after giving effect to all of the withdrawals and
applications or transfers required on or before such Payment Date pursuant
to Sections 3.02, 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;
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(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 3.09
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 3.10. 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 3.09 hereof, the Servicer is
required to furnish to the Trustee from time to time certain information and
make various calculations which are relevant to the performance of the Trustee's
duties in this Article Three and in Article Four of this Indenture. The Trustee
shall be entitled to rely in good faith on such information or calculations in
the performance of its duties hereunder (i) unless and until a Responsible
Officer of the Trustee has actual knowledge, or is advised by any Noteholder
(either in writing or orally with prompt written or telecopied confirmation),
that such information or calculations is or are incorrect, or (ii) unless there
is a manifest error in any such information.
SECTION 3.11. MODIFICATIONS TO CLASS A-2B NOTES
(a) To the extent that on the Payment Date in March 2001 or on any Payment
Date thereafter, the amounts on deposit in the Class A-2 Funding Account are not
sufficient to fully pay the Outstanding Principal Amount of the Class A-2a Notes
pursuant to Section 3.08, the Outstanding Principal Amount of Class A-2b Notes
shall be written-down in an amount equal to the difference between the
Outstanding Principal Amount of the Class A-2a Notes and the amount then on
deposit in the Class A Funding Account (such deficiency, the "Class A-2a
Shortfall").
(b) On each Payment Date after application of the write-down of the Class
A-2b Notes in the amount of the Class A-2a Shortfall, Interest Payments on the
Class A-2b Notes shall be based on the written-down Outstanding Class A-2b
Principal Amount.
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(c) An Event of Default pursuant to Section 6.01 shall not be deemed to
have occurred as a result of a write-down of the Class A-2b Notes pursuant to
this Section 3.11.
(d) On each Payment Date after application of the write-down of the
Outstanding Class A-2b Principal Amount in the amount of the Class A-2a
Shortfall on the Payment Date in March 2001, to the extent any recoveries are
realized on the Eligible Investments maintained by the Trustee in the Class A-2
Funding Account, the Outstanding Principal Amount of the Class A-2b Notes shall
be increased by the amount of such recoveries which are used to make a Principal
Payment on the Class A-2a Notes or are deposited in the Collection Account
pursuant to Section 3.08(e) (the "Class A-2b Increase"). After such Payment Date
the Class A-2b Notes shall receive interest based on the Outstanding Class A-2b
Principal Amount Notes as modified by the Class A-2b Increase.
(e) In the event that the foregoing provisions providing for the
modification of the Class A-2b Notes in the amount of the Class A-2a Shortfall
are not enforced, or are otherwise set aside or disregarded by a court of
competent jurisdiction, the principal balance of the Class A-2b Notes shall be
deemed subordinate in an amount equal to the Class A-2a Shortfall to the claims
and rights (including any rights with respect to post-petition interest) of all
of the Notes in right of payment and priority. The Class A-2b Noteholders are
hereby deemed to agree that this subordination provision constitutes a
subordination agreement for purposes of Section 510(a) of the Bankruptcy Code.
SECTION 3.12. SWAP TERMINATION; SUCCESSOR SWAP COUNTERPARTY.
The Issuer shall not terminate the Swap if such termination would result in
a default on any Class of Notes. In the event of termination of the Swap or the
Swap Documents, the Issuer may enter into a replacement swap agreement with a
successor swap counterparty ("Replacement Swap Counterparty") and such
Replacement Swap Counterparty shall be subject to the same terms and conditions
as the Swap Counterparty under this Indenture. The appointment of a Replacement
Swap Counterparty shall require confirmation from the Rating Agencies then
rating the Notes that such appointment will not result in the downgrading or
withdrawal of the ratings then assigned to the Notes.
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)
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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.
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
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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.
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 Principal Payments at the Stated Maturity of the
relevant Receivable Notes (except in the case of the Class A-2a Notes), or
Interest Payments on the Receivable Notes when such become due and payable;
(b) default in making Principal Payments due on the Class A-2a Notes at the
Stated Maturity of the Class
A-2b Notes;
(c) 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
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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
(d) 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
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
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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) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Issuer for the whole amount of
principal and interest remaining unpaid.
(d) In exercising its rights and obligations under this Section 6.03, the
Trustee may sell the 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
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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.
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
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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 -- to pay the Swap Counterparty any amount due pursuant to the
Swap Documents;
third -- 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;
fourth -- first, pro-rata to the payment of all accrued and unpaid
interest on the Outstanding Class A-1 Principal Amount, Outstanding Class
A-2a Principal Amount, Outstanding Class A-3 Principal Amount and
Outstanding Class A-4 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-2a Note Interest
Rate, Class A-2b Note Interest Rate, Class A-3 Note Interest Rate and Class
A-4 Note Interest Rate, respectively, second, to the payment of all accrued
and unpaid interest on the Outstanding 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 and the Outstanding Class A-2a
Principal Amount pro rata, seventh to the payment of the outstanding Class
A-2b Principal Amount, Outstanding Class A-3 Principal Amount and
Outstanding Class A-4 Principal Amount pro-rata, eighth, to the payment of
the
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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;
fifth -- 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;
sixth -- to the payment of amounts then due the Trustee hereunder;
seventh -- 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
eighth -- 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.
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
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(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.
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
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employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Noteholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Noteholders, as the
case may be.
SECTION 6.12. CONTROL BY NOTEHOLDERS.
Except as may otherwise be provided in this Indenture, until such time as
the conditions specified in Sections 10.01(i) and (ii) have been satisfied in
full, the holders of 66-2/3% of the then Outstanding Principal Amount of the
Notes shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee. Notwithstanding the foregoing,
(i) no such direction shall be in conflict with any rule of law or with
this Indenture;
(ii) the Trustee shall not be required to follow any such direction which
the Trustee reasonably believes might result in any personal liability on the
part of the Trustee for which the Trustee is not adequately indemnified; and
(iii) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with any such direction; PROVIDED that the Trustee
shall give notice of any such action to each Noteholder and the Swap
Counterparty.
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
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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 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;
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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 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 and the
Swap Counterparty 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.
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(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 balance of all amounts
payable to the Swap Counterparty and in respect of the Swap and the Swap
Documents, 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;
(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
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this Indenture and to institute judicial proceedings for the collection of any
deficiency remaining thereafter.
SECTION 6.17. RIGHTS OF SWAP COUNTERPARTY.
Nothing herein shall be deemed to restrict the rights of the Swap
Counterparty to take such action as it deems necessary to protect its interests
under this Indenture and the Swap Documents.
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:
(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;
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(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 the Swap Counterparty and 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 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
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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.
SECTION 7.07. COMPENSATION, REIMBURSEMENT, ETC.
The Issuer hereby agrees:
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(a) the Trustee shall be entitled to a fee payable once per annum in the
amount of $8,500, as specified in the Trustee Fee Letter, provided that, of such
amount, the amount of $7,721.31 shall be deemed paid to the Trustee for acting
as trustee of Receivable Notes (the "Trustee Fee") and the amount of $778.69
shall be deemed paid to the Trustee for acting as trustee of the Residual Notes
("Residual Trustee Fee").
(b) except as otherwise expressly provided herein (and only to the extent
not paid by Copelco pursuant to the Trustee Fee Letter), 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(d)), 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 "A-" from S&P and Baa3 from Moody's.
If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
This Indenture shall always have a Trustee who satisfies the requirements
of Section 310(a)(1) of the Trust Indenture Act. The Trustee is subject to the
provisions of Section 310(b) of the Trust Indenture Act regarding
disqualification of a trustee upon acquiring any conflicting interest.
SECTION 7.09. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 7.10.
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(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 the Swap Counterparty and 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 the Swap Counterparty or any
Noteholder who has been a Noteholder for at least six months fails to comply
with Section 310(b) of the Trust Indenture Act, such Noteholder may petition any
court of competent jurisdiction, for the removal of the Trustee and the
appointment of a successor Trustee.
SECTION 7.10. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuer and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Issuer or the
successor Trustee, such retiring Trustee shall, upon payment of its charges and
expenses, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Issuer shall execute any and all instruments for more fully and
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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.
(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
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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 other Granted Assets conveyed by the Issuer in trust, for the use and
benefit of all Noteholders subject to the terms and provisions hereof.
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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 June 18 of each year, following the date of this Indenture beginning June
18, 2001, 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 AND SWAP PAYMENTS.
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.
(b) The Issuer will duly and punctually pay all amounts due and payable to
the Swap Counterparty under the Swap Documents.
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
Mount Laurel, New Jersey; 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 BE HELD IN TRUST.
(a) All payments of amounts due and payable with respect to any Notes or other
obligations secured by the Indenture 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.
(d) The Issuer will be qualified to do business in all states where the
failure to do so would have a material adverse effect on the Noteholders.
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;
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(ii) maintain or preserve the Lien of this Indenture or carry out more
effectively the purposes hereof;
(iii) publish notice of, or protect the validity of, any Grant made or
to be made by this Indenture and perfect the security interest contemplated
hereby in favor of the Trustee in each of the Leases, in the Equipment and
all other property included in the 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 and the Swap
Counterparty 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, the Swap Counterparty and the Noteholders thereof, and shall
specify
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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.
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
including the Swap;
(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.
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SECTION 8.09. INFORMATION AS TO ISSUER.
The Issuer shall deliver to the Trustee and, the Trustee shall deliver to
each Rating Agency and to each holder of outstanding Notes (and, upon the
request of any Noteholder, to any prospective transferee of any Notes):
(a) Notice of Event of Default - immediately upon becoming aware of the
existence of any condition or event which constitutes a Default or an Event of
Default, a written notice describing its nature and period of existence and what
action the Issuer is taking or proposes to take with respect thereto; and
(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.
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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); 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;
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(ii) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein; or
(iii) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or to better assure, convey and
confirm unto the Trustee any property subject or required to be subjected
to the lien of this Indenture; provided such action pursuant to this
Section 9.01(a) shall not adversely affect the interests of the Noteholders
in any respect or result in the reduction or withdrawal of the then current
ratings of the outstanding Notes.
(b) The Trustee shall promptly deliver to each Noteholder, the Swap
Counterparty 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
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(v) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the 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) Notwithstanding the foregoing, no supplemental indenture may be entered
into, or any action taken by any party hereto, which materially affects the
interests of the Swap Counterparty unless the Swap Counterparty consents to the
terms of such supplemental indenture.
(c) 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).
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing any supplemental indenture (a) pursuant to Article 9.01 of
this Indenture or (b) pursuant to Section 9.02 of this Indenture without the
consent of each holder of the Notes to the execution of the same, the Trustee
shall be entitled to receive, and (subject to Section 7.01) shall be, fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any supplemental
indenture which affects the Trustee's own rights, duties, projections, or
immunities under this Indenture or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes, and every
Noteholder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 9.05. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
such supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
SECTION 9.06. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment, supplement or waiver to this Indenture or the Notes shall
comply with the Trust Indenture Act as then in effect.
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ARTICLE X
SATISFACTION AND DISCHARGE
SECTION 10.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(i) 100 days shall have elapsed since either
(A) all Notes theretofore authenticated and delivered (other
than (1) Notes which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.04 and
(2) Notes for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 8.03(c)) have been delivered to the Trustee
for cancellation; or
(B) the final installments of principal on all such Notes
not theretofore delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated
Maturity, as applicable, within one year,
and the Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the
Trustee for cancellation, for principal and interest to the date
of such deposit (in the case of Notes which have become due and
payable) or to the Stated Maturity thereof;
(ii) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer for the benefit of the Noteholders; and
(iii) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
At such time, the Trustee shall deliver to the Issuer or, upon 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.
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(b) Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Sections 7.07 and 8.11, and, if
money shall have been deposited with the Trustee pursuant to Section
10.01(i)(B), the obligations of the Trustee under Section 10.02 and Section
8.03(c) shall survive.
(c) The Trustee shall provide prompt written notice to each Rating Agency
of any satisfaction and discharge of this Indenture pursuant to this Article 10.
SECTION 10.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 8.03(c), all money deposited with the
Trustee pursuant to Sections 10.01 and 8.03 shall be held in trust and applied
by it, in accordance with the provisions of the Notes and this Indenture, to the
payment to the Persons entitled thereto.
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 and the Swap Counterparty 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:
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(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.
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 Class R-1 Noteholder
and Class R-2 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 Receivable 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.
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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.
SECTION 11.08. NON-RECOURSE.
Except as otherwise provided in Section 6.06, (i) the Receivable
Noteholders shall not at any time have any recourse on the Receivable Notes or
under this Indenture against the Issuer (other than the Receivable Assets) and
(ii) the Class R Noteholders shall not at any time have any recourse on the
Class R Notes or under this Indenture against the Issuer (other than the
Residual Assets).
SECTION 11.09. SUBORDINATION OF INTERESTS OF NOTEHOLDERS.
(a) Notwithstanding any term of this Indenture, but except as provided in
Section 6.06 hereof, the Issuer and the Trustee agree and, by its holding of a
Receivable Note, each Receivable Noteholder will be deemed to agree that, to the
extent the Receivable Noteholders are deemed to have any interest or claim to
any assets of the Issuer other than the Receivable Assets including, but not
limited to, amounts deposited into the Collection Account pursuant to Section
3.03, such Receivable Noteholder's claim or interest shall be subordinate to the
claims or rights (including any rights with respect to post-petition interest)
of such other debtholders to those assets. In addition, each Noteholder agrees
that this agreement to subordinate its claim or interest constitutes a
subordination agreement for purposes of Section 510(a) of the Bankruptcy Code.
(b) Notwithstanding any term of this Indenture, the Issuer and the Trustee
agree and, by its holding of a Class R Note, each Class R Noteholder will be
deemed to agree that, to the extent that the Class R Noteholders are deemed to
have any interest or claim to any assets of the Issuer other than Residual
Assets including, but not limited to, amounts deposited into the Residual
Account pursuant to Section 3.04 and the Liquidity Reserve Account pursuant to
Section 3.06, such Class R Noteholder's claim or interest shall be subordinate
to the claims or rights (including any rights with respect to post-petition
interest) of such other debtholders to those assets. In addition, each
Noteholder agrees that this agreement to subordinate its claim or interest
constitutes a subordination agreement for purposes of Section 510(a) of the
Bankruptcy Code.
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SECTION 11.10. TRANSFER RESTRICTIONS ON CLASS E AND CLASS R NOTES.
No Class E Note or Class R Note may be sold or transferred (including,
without limitation, by pledge or hypothecation) if the sale or transfer thereof
increases the number of the sum of (a) the number of holders of the Class E
Notes, (b) the number of holders of the Class R Notes, and (c) the number of
holders of membership interests in the Issuer, to more than 99.
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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: /s/ NICHOLAS ANTONACCIO
-------------------------------------
Name: Nicholas Antonaccio
Title: EVP & CFO
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By: /s/ RUSSELL T. WHITLEY
-------------------------------------
Name: Russell T. Whitley
Title: Assistant Vice President
COPELCO CAPITAL, INC., as Servicer
By: /s/ NICHOLAS ANTONACCIO
-------------------------------------
Name: Nicholas Antonaccio
Title: EVP & CFO
[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 CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
6.50728% CLASS A-1 LEASE-BACKED NOTE, SERIES 2000-A
CUSIP NO. ________
No. R-1 $_______
Copelco Capital Receivables LLC, a limited liability company duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ______________________ ($________), payable in monthly
installments beginning on June 19, 2000, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance at
the rate of 6.50728% 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 June 2000 Payment Date, since April 20,
2000.
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 June 19, 2000 either by check to the registered
address of the Holder of this Class A-1 Note as of the relevant Record Date or
by wire transfer to an account at a bank in the United States as the Holder
shall specify, as provided more fully in the Indenture; provided, that the final
payment of principal and interest in respect of the Notes shall be
<PAGE>
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 May 2001,
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 " 6.50728% Class A-1 Lease-Backed Notes, Series
2000-A" (herein called the "Class A-1 Notes") limited in aggregate principal
amount of $_______, issued under the Indenture, dated as of April 1, 2000
(herein called the "Indenture"), among the Issuer, Copelco Capital, Inc., as
Servicer, and Manufacturers and Traders Trust Company, 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
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: April 20, 2000
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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
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-2a NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
ONE-MONTH LIBOR CLASS A-2a LEASE-BACKED NOTE, SERIES
CUSIP NO. _______
No. R-1 $_______
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of __________________________ ($________), payable in monthly
installments beginning on June 19, 2000, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of one-month LIBOR per annum, subject to the terms of the Indenture,
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 June 19, 2000 Payment Date, since April 20, 2000.
Principal and interest on this Class A-2a 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 June 19, 2000 either by check to the registered
address of the Holder of this Class A-2a 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-2a Notes is the Payment Date in March
2001, on which date the Outstanding Principal Amount of the Class A-2a 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-2a
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class A-2a Note is one of a duly authorized issue of Class A Notes of
the Issuer designated as its Class A-2a Lease-Backed Notes, Series 2000-A
(herein called the "Class A-2a Notes") limited in aggregate principal amount of
$_______, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital Receivables LLC, as
Servicer, and Manufacturers and Traders Trust Company, 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-2a 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-2a 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-2a Notes (but not less than all the
Class A-2a 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-2a Note shall terminate.
By accepting this Class A-2a 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-2a Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Class A-2a Note and of any Class A-2a 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-2a Note or any Class A-2a Note.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Class A-2a Note is registrable in the Note Register,
upon surrender of this Class A-2a 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-2a Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Class A-2a 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-2a Notes are exchangeable for
a like aggregate principal amount of Class A-2a 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-2a Note is registered as the owner
hereof for all purposes, whether or not this Class A-2a 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-2a 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: April 20, 2000
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-2a Notes referred to in the within mentioned
Indenture.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By:
----------------------------------
Authorized Officer
A-2-4
<PAGE>
ASSIGNMENT FORM
If you the holder want to assign this Class A-2a Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class A-2a 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-2a 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-2a 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-2a 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-2a Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
A-2a Note.
A-2-5
<PAGE>
CLASS A-2b NOTE
NO TRANSFER OF ANY CLASS A-2b 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 A-2b 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 A-2b 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 A-2b NOTE WITHOUT REGISTRATION.
COPELCO CAPITAL RECEIVABLES LLC
VARIABLE CLASS A-2b LEASE-BACKED NOTE, SERIES 2000-A
CUSIP No. ________
No. R-1 $________
Copelco Capital Receivables LLC, a limited liability company duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay __________________________, or registered
assigns, the
<PAGE>
principal sum of ___________________________________ ($_______), 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 a) prior to the Payment Date in March 2001, at a rate
equal to the amount of net interest income earned on Eligible Investments
maintained by the Trustee in the Class A-2 Funding Account and b) after the
Payment Date in March 2001 and after payment in full of the Class A-2a Notes, at
a rate of LIBOR plus .20% per annum, subject to the terms of the Indenture,
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 June 2000 Payment Date, since April 20, 2000.
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 June 19, 2000, either by check to the registered
address of the Holder of this Class A-2b 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 A-2b Notes shall be payable to the Holder of
this Class A-2b Note only upon presentation and surrender of this Class A-2b
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-2b Notes is the Payment Date in April
2002 on which date the Outstanding Principal Amount of the Class A-2b 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-2b
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Class A-2b Note is one of a duly authorized issue of Class A-2b Notes
of the Issuer designated as its Class A-2b Lease-Backed Notes, Series 2000-A
(herein called the "Class A-2b Notes"), limited in aggregate principal amount of
$________, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital, Inc., as Servicer, and
Manufacturers and Traders Trust Company, 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-2b 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 A-2b Notes (but not less than all the
Class A-2b Notes) may be declared due and payable in the manner and with the
effect provided in the
a-2b-2
<PAGE>
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-2b Note shall terminate.
By accepting this Class A-2b 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 A-2b Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Class A-2b Note and of any Class A-2b 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-2b Note or any
Class A-2b Note.
No sale or transfer of this Class A-2b 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 A-2b 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 A-2b Note is registrable in the Note Register,
upon surrender of this Class A-2b 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-2b Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Class A-2b Notes are issuable only in registered form without coupons
in minimum denominations of $1,000,000. As provided in the Indenture and
A-2b-3
<PAGE>
subject to certain limitations therein set forth, Class A-2b Notes are
exchangeable for a like aggregate principal amount of Class A-2b 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-2b Note is registered as the owner
hereof for all purposes, whether or not this Class A-2b 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-2b 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-2b-4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: April 20, 2000
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-2b Notes referred to in the within mentioned
Indenture.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By: ____________________________________________
Authorized Officer
A-2b-5
<PAGE>
ASSIGNMENT FORM
If you the holder want to assign this Class A-2b Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Class A-2b 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-2b 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-2b 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-2b 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-2b Note and the signed "power of attorney" in separate
envelopes. For added protection, use certified or registered mail for a Class
A-2b Note.
A-2b-6
<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 CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
7.12% CLASS A-3 LEASE-BACKED NOTE, SERIES 2000-A
CUSIP NO._______
No. R-1 $_________
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of __________________________ ($________), payable in monthly
installments beginning on June 19, 2000 in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of 7.12% 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 June 19, 2000, 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 August
2003, 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 "7.12% Class A-3 Lease-Backed Notes, Series 2000-A"
(herein called the "Class A-3 Notes") limited in aggregate principal amount of
$________, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital Receivables LLC, as
Servicer, and Manufacturers and Traders Trust Company, 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: April 20, 2000
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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
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 CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
7.22% CLASS A-4 LEASE-BACKED NOTE, SERIES 2000-A
CUSIP NO. __________
No. R-1 $_________
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _________________________ ($_______), payable in monthly
installments beginning on June 19, 2000, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of 7.22% 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 June 19, 2000, 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 August
2005, 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 "7.22% Class A-4 Lease-Backed Notes, Series 2000-A"
(herein called the "Class A-4 Notes") limited in aggregate principal amount of
$_________, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital Receivables LLC, as
Servicer, and Manufacturers and Traders Trust Company, 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 the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes at
A-4-2
<PAGE>
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: April 20, 2000
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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
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 B NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
7.30% CLASS B LEASE-BACKED NOTE, SERIES 2000-A
CUSIP NO. ________
No. R-1 $________
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ______________________ ($________), payable in monthly
installments beginning on June 19, 2000, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of 7.30 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 June 19, 2000, 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 March 2006, 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 "7.30% Class B Lease-Backed Notes, Series 2000-A"
(herein called the "Class B Notes") limited in aggregate principal amount of
$________, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital Receivables LLC, as
Servicer, and Manufacturers and Traders Trust Company, 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: April 20, 2000
OPELCO 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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
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 CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
7.39% CLASS C LEASE-BACKED NOTE, SERIES 2000-A
CUSIP NO. ________
No. R-1 $________
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ________________________ ($_______), payable in monthly
installments beginning on June 19, 2000 in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of 7.39% per annum, until the full amount of principal hereof is
otherwise paid or made available for payment and shall be computed on the basis
of twelve 30-day months and a year of 360 days.
Principal and interest on this Class C Note shall be paid on the 18th day
of each month (or, if such day is not a Business Day, the next succeeding
Business Day), commencing June 19, 2000, 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 May 2006,
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 "7.39% Class C Lease-Backed Notes, Series 2000-A"
(herein called the "Class C Notes") limited in aggregate principal amount of
$________, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital Receivables LLC, as
Servicer, and Manufacturers and Traders Trust Company, 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: April 20, 2000
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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
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 CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUIRED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
COPELCO CAPITAL RECEIVABLES LLC
7.87% CLASS D LEASE-BACKED NOTE, SERIES 2000-A
CUSIP NO. ________
No. R-1 $_______
Copelco Capital Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ________________ ($_______), payable in monthly installments
beginning on June 19, 2000, in accordance with the Indenture. Interest will
accrue on the unpaid principal hereof from the date of issuance, at the rate of
7.87% 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 June 19, 2000, 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 May 2006,
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 "7.87% Class D Lease-Backed Notes, Series 2000-A"
(herein called the "Class D Notes") limited in aggregate principal amount of
$________, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital Receivables LLC, as
Servicer, and Manufacturers and Traders Trust Company, 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: April 20, 2000
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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
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.
NO CLASS E NOTE MAY BE SOLD OR TRANSFERRED (INCLUDING, WITHOUT LIMITATION,
BY PLEDGE OR HYPOTHECATION) IF THE SALE OR TRANSFER THEREOF INCREASES THE
NUMBER OF THE SUM OF (A) THE NUMBER OF HOLDERS OF THE CLASS E NOTES, (B)
THE NUMBER OF HOLDERS OF THE CLASS R NOTES, AND (C) THE NUMBER OF HOLDERS
OF MEMBERSHIP INTERESTS IN THE ISSUER, TO MORE THAN 99.
<PAGE>
COPELCO CAPITAL RECEIVABLES LLC
9.820% CLASS E LEASE-BACKED NOTE
CUSIP No. ________
No. R-1 $________
Copelco Capital Receivables LLC, a limited liability company duly organized
and existing under the laws of Delaware (herein called the "Issuer", which term
includes any successor Person under the Indenture referred to herein), for value
received, hereby promises to pay __________________________, or registered
assigns, the principal sum of ___________________________________ ($_______),
payable in monthly installments beginning on June 19, 2000, in accordance with
the Indenture. Interest will accrue on the unpaid principal hereof from the date
of issuance, at the rate of 9.820% 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 June 19, 2000, 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 the Payment Date in April 2008,
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 "9.820% Class E Lease-Backed Notes, Series 2000-A"
(herein called the "Class E Notes"), limited in aggregate principal amount of
$________, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital, Inc., as Servicer, and
Manufacturers and Traders Trust Company 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
E-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 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.
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
E-3
<PAGE>
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.
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: April 20, 2000
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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
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
7.565% 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 June 19, 2000 in accordance with the Indenture. Interest will
accrue on the unpaid principal hereof from the date of issuance, at the rate of
7.565% 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 June 19, 2000, 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 Payment Date in November 2005
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 "7.565% Class R-1 Lease-Backed Notes, Series 2000-A"
(herein called the "Class R-1 Notes"), limited in aggregate principal amount of
$________, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital, Inc., as Servicer, and
Manufacturers and Traders Trust Company, 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
R-1-2
<PAGE>
Holders and of the terms upon which the Class R-1 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-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
R-1-3
<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-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: April 20, 2000
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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
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
8.438% 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 June 19, 2000, in accordance with the Indenture.
Interest will accrue on the unpaid principal hereof from the date of issuance,
at the rate of 8.438% 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 June 19, 2000, 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 the Payment Date in November
2006 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 "8.438% Class R-2 Lease-Backed Notes, Series 2000-A"
(herein called the "Class R-2 Notes"), limited in aggregate principal amount of
$_______, issued under the Indenture, dated as of April 1, 2000 (herein called
the "Indenture"), among the Issuer, Copelco Capital, Inc., as Servicer, and
Manufacturers and Traders Trust Company 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.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
Dated: April 20, 2000
OPELCO 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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
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
First Union Securities Inc.
One First Union Center, TW-9
Charlotte, NC 28288-0610
Ladies and Gentlemen:
We propose to purchase $_________ in original aggregate principal amount of
Copelco Capital Receivables LLC _____% Class A-2b, E R-1 R-2 Lease-Backed Notes,
Series 2000-A, (the "Notes"). The Notes were issued pursuant to an Indenture
(the "Indenture"), dated as of April 1, 2000 among Copelco Capital Receivables
LLC, as Issuer, Manufacturers and Traders Trust Company, 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
<PAGE>
economic risk of investment in the Notes.
_____ (c) an "accredited investor" as defined in Rule _____ 501
promulgated under the 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 theNotes.
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,
B-2
<PAGE>
a "Benefit Plan"), and is not acting on behalf of or investing the assets of a
Benefit Plan, 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
April 20, 2000
To the parties listed on Schedule I hereto
Re: COPELCO CAPITAL RECEIVABLES LLC, SERIES 2000-A
Ladies and Gentlemen:
We have acted as counsel for the underwriters and as special counsel to
Copelco Capital Receivables LLC (the "Issuer") in connection with the issuance
by the Issuer of $883,148,838 aggregate principal amount of $185,926,071
6.50728% Class A-1 Lease-Backed Notes, Series 2000-A, $139,444,553 aggregate
principal amount of one-month LIBOR Class A-2a Lease-Backed Notes, Series
2000-A, $139,444,553 aggregate principal amount of variable Class A-2b
Lease-Backed Notes, Series 2000-A, $255,648,348 aggregate principal amount of
7.12% Class A-3 Lease-Backed Notes, Series 2000-A, $237,055,741 aggregate
principal amount of 7.22% Class A-4 Lease-Backed Notes, Series 2000-A
(collectively, the "Class A Notes"), $18,592,607 aggregate principal amount of
7.30% Class B Lease-Backed Notes, Series 2000-A (the "Class B Notes"),
$18,592,607 aggregate principal amount of 7.39% Class C Lease-Backed Notes,
Series 2000-A (the "Class C Notes"), $27,888,911 aggregate principal amount of
7.87% Class D Lease-Backed Notes, Series 2000-A (the "Class D Notes"),
$25,564,835 aggregate principal amount of 9.820% Class E Lease-Backed Notes,
Series 1999-B (the "Class E Notes"), $71,459,924 aggregate principal amount of
7.565% Class R-1 Lease Residual Backed Notes, Series 2000-A, and $24,564,349
aggregate principal amount of 8.438% Class R-2 Lease Residual Backed Notes
(collectively, the "Class R Notes") pursuant to an Indenture, dated as of April
1, 2000 (the "Indenture"), among the Issuer, Manufacturers and Traders Trust
Company, as trustee (the "Trustee"), and Copelco Capital, Inc. ("Copelco"), as
Servicer. 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 hereinafter referred to as
the "Notes."
In connection with this opinion we have examined (i) the Indenture; (ii)
the Assignment and Servicing Agreement, dated as of April 1, 2000 (the
"Assignment and Servicing Agreement") between Copelco and the Issuer; (iii) the
Certificate of Incorporation of Copelco; (iv) the By-Laws of Copelco; (v) copies
of certain resolutions adopted by the Board of Directors of Copelco; (vi) the
Certificate of Formation of the Issuer; (vii) the Limited Liability Company
Agreement of the Issuer; (viii) copies of certain resolutions adopted by the
members of the Issuer; (ix) the Underwriting Agreement, dated April 14, 2000,
among Copelco, the Issuer and First Union Securities, Inc. ("First Union"), as
the representative of the underwriters; (x) the Placement Agent
<PAGE>
Agreement, dated April 14, 2000, among Copelco, the Issuer and First Union, as
representative of the placement agents, relating to the Class E Notes and the
Class R Notes (the "Placement Agent Agreement"); (xi) the Placement Agent
Agreement, dated April 14, 2000, among Copelco, the Issuer and First Union
relating to the Class A-2b Notes (the "Class A-2b Notes Placement Agent
Agreement); (xii) the Registration Statement on Form S-3 (No. 333-79903) with
respect to the Offered Notes, filed with the Securities and Exchange Commission
on December 22, 1999, together with all amendments thereto (the "Registration
Statement"), the Prospectus dated December 22, 1999 included in the Registration
Statement and the Prospectus Supplement dated as of April 14, 2000 relating to
the Offered Notes (such Prospectus and Prospectus Supplement, together, the
"Prospectus"); (xiii) the Private Placement Memorandum, dated April 14, 2000
with respect to the Class E Notes (the "Class E Private Placement Memorandum");
(xiv) the Private Placement Memorandum, dated April 14, 2000 with respect to the
Class R Notes (the "Class R Private Placement Memorandum" together with the
Class E Private Placement Memorandum, the "Private Placement Memoranda"); (xv)
the ISDA Master Agreement dated as of April 20, 2000 (the "Master Agreement")
between the Issuer and First Union National Bank, including the schedule thereto
and confirmations thereunder (collectively, the "Swap Documents"); and (xvi)
originals or copies, certified or otherwise identified to our satisfaction, of
all such other records of Copelco, the Issuer, and such other documents,
certificates and records as we have deemed necessary or appropriate as a basis
for the opinions set forth herein.
In our examination, we have assumed the genuineness of all documents
submitted to us as originals, the conformity of all documents submitted to us as
certified or photostatic copies of the original documents and the authenticity
of such documents. We have assumed for purposes of our opinions hereinafter set
forth that each of the Underwriting Agreement, the Placement Agent Agreement,
the Class A-2b Notes Placement Agent Agreement the Assignment and Servicing
Agreement, the Notes, the Swap Documents and the Indenture (the "Agreements")
has been duly authorized, executed and delivered by all parties thereto, and
that each signatory has full power, authority and legal right to execute and
deliver the Agreements and to perform its obligations thereunder. We understand
that, insofar as such matters relate to Copelco and the Issuer, you have
received the opinion of Dilworth Paxon LLP.
We express no opinion as to the effect of the laws of any jurisdiction
other than the laws of the State of New York and the Federal laws of the United
States of America.
Based upon the foregoing and subject to the qualifications set forth
herein, we are of the opinion that:
1. Each of the Assignment and Servicing Agreement, the Indenture, the
Placement Agent Agreement, the Class A-2b Notes Placement Agent Agreement
and the Underwriting Agreement constitutes the legal, valid and binding
obligation of Copelco, enforceable against Copelco in accordance with its
terms, except in each case as may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws of
general applicability affecting the enforcement of creditors' rights
2
<PAGE>
and (ii) the application of general principles of equity (including the
availability of equitable remedies), including, without limitation,
concepts of materiality, reasonableness, public policy, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law) and (iii) with respect to rights of indemnity thereunder, limitations
of public policy under applicable securities laws.
2. Each of the Assignment and Servicing Agreement, the Underwriting
Agreement, the Placement Agent Agreement, the Class A-2b Notes Placement
Agent Agreement, the Notes and the Indenture constitutes the legal, valid
and binding obligations of the Issuer, enforceable against the Issuer in
accordance with their terms, except in each case as may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws of general applicability affecting the enforcement of
creditors' rights and (ii) the application of general principles of equity
(including the availability of equitable remedies), including, without
limitation, concepts of materiality, reasonableness, public policy, good
faith and fair dealing (regardless of whether considered in a proceeding in
equity or at law) and subject to the qualification that, if certain
provisions contained in the Indenture are held to be unenforceable, such
unenforceability will not (subject to the limitations on enforceability set
forth above) render the Indenture invalid as a whole or substantially
interfere with the realization of the principal benefits and/or security
provided thereby and (iii) with respect to rights of indemnity thereunder,
limitations of public policy under applicable securities laws.
3. The Swap Documents constitute the legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in accordance
with their terms, except as may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws of
general applicability affecting the enforcement of creditors' rights and
(ii) the application of general principles of equity (including the
availability of equitable remedies), including, without limitation,
concepts of materiality, reasonableness, public policy, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law) and subject to the qualification that, if certain provisions contained
in the limitations on enforceability set forth above) render the Indenture
invalid as a whole or substantially interfere with the realization of the
principal benefits and/or security provided thereby and (iii) with respect
to rights of indemnity thereunder, limitations of public policy under
applicable securities laws.
With respect to the foregoing opinion No. 3, we express no
opinion as to
(1) the enforceability against the Issuer of Section 6 of the
Master Agreement in circumstances in which the Market Quotation (as
defined in the Master Agreement) approach to the calculation of an
early termination settlement payment would exceed the actual damages
resulting from early termination as provided therein; and
(2) the prohibition on transfers in Section 7(a) of the Master
Agreement in any case in which its operation would conflict with
Section 9-318(4) of the Uniform Commercial Code as in effect in the
State of New York.
3
<PAGE>
4. The Issuer is not, and will not as a result of the offer and sale
of the Notes become, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
5. It is not necessary in connection with the issuance of the Class
A-2b Notes, the Class E Notes and the Class R Notes to the purchasers
thereof in the manner contemplated in the Placement Agent Agreement and the
Indenture to register the Class A-2b Notes, the Class E Notes or the Class
R Notes under the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations promulgated thereunder.
6. The statements in the Prospectus under the heading "Material
Federal Income Tax Considerations," to the extent that they constitute
matters of New York or federal law or legal conclusions with respect
thereto, have been reviewed by us and constitute a fair and accurate
summary with respect to those consequences or aspects that are discussed.
7. The statements in the Prospectus under the heading "ERISA
Considerations" to the extent that they constitute matters of New York law
or federal law, or legal conclusions with respect thereto, have been
reviewed by us and constitute a fair and accurate summary with respect to
those consequences or aspects that are discussed.
8. The Indenture, when executed and delivered, will have been duly
qualified under the Trust Indenture Act of 1939, as amended.
9. The statements made in the Prospectus under the heading
"Description of the Notes," insofar as such statements purport to summarize
certain provisions of the Offered Notes, the Indenture and the Assignment
and Servicing Agreement, provide a fair and accurate summary of such
provisions.
10. The Registration Statement is effective under the Act and, to the
best of our knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the Commission.
11. The Registration Statement and the Prospectus (other than the
financial statements and other financial and statistical information
included therein, as to which no opinion is rendered), as of their
respective dates, complied as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder.
12. Subject to the assumptions and qualifications set forth below, it
is our opinion that, to the extent governed by the laws of the State of New
York or the State of New Jersey, the Indenture operates to grant a valid
security interest in the Issuer's interest in the Swap and the Swap
Documents to the Trustee, which pledge would be a valid perfected first
priority security interest with respect to the Issuer's right, title and
interest in and to all rights, remedies, claims, powers and privileges of
the Issuer under, or with respect to, the Swap and the Swap Documents.
4
<PAGE>
For purposes of the foregoing opinion we have assumed:
1. The UCC-1 financing statements (the "Financing Statements") with
respect to the Swap and the Swap Documents naming the Issuer a debtor and
the Trustee as secured party will be properly filed in the appropriate
filing offices in the State of New Jersey.
2. The search results from the State of New Jersey through March 9,
2000 with respect to the Issuer (the "Search Results") are accurate and
complete, that no financing statements relating to the Swap or the Swap
Documents have been filed since the date of the Search Results and that the
representations and warranties of the Issuer contained in the Indenture and
in certain certificates delivered in connection herewith are accurate.
The foregoing opinion is also subject to the following qualifications:
1. We express no opinion as to the priority of any security interest
over (a) any lien, claim or other interest that arises by operation of law
(including judgment liens or liens arising under the Employee Retirement
Income Security Act of 1974, as amended) or does not require any filing in
order to take priority over any security interest which is perfected by
filing, and (b) any claim or lien in favor of any government or any agency
or instrumentality thereof (including federal tax liens).
2. In the case of proceeds, the rights and continuation of security
interests and of the perfection thereof are limited to the extent set forth
in Section 9-306 of the UCC.
3. We call your attention to the fact that (i) Article 9 of the UCC
requires the filing of continuation statements within the period of six
months prior to the expiration of five years from the date of the original
filings in order to maintain the effectiveness of the filings referred to
in this opinion, (ii) the effectiveness of any such filing will be
terminated with respect to the Issuer, (a) more than four months after the
Issuer changes its name, identity or corporate structure so as to make the
Financing Statements seriously misleading, unless new appropriate financing
statements indicating the new name, identity or corporate structure of the
Issuer, are properly filed before the expiration of such four months and
(b) four months after the Issuer changes its chief executive office to a
new jurisdiction. We note, however, that the Indenture requires the Issuer
to record and file such financing statements and continuation statements
with respect thereto as are necessary to perfect and maintain perfection of
the Trustee's security interest in the Granted Assets and to notify the
Trustee in the event it changes its name, identity or corporate structure
or relocates its chief executive office to a new jurisdiction.
Based upon our participation in the preparation of the Registration
Statement and the Prospectus and our review and discussion of the contents with
officers and representatives of Copelco, no facts have come to our attention
which lead us to believe that the Prospectus and the Registration Statement as
of their respective dates and
5
<PAGE>
as of the date hereof (other than the financial statements and other financial
and statistical data contained therein (including the prepayment assumptions
used in the preparation thereof), as to which we are not called upon to express
any belief), contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Our opinion contained herein is rendered only as of the date hereof, and we
undertake no obligation to update this letter or the opinions contained herein
after the date hereof.
This letter is furnished by us in connection with the issuance of the
referenced Notes occurring on the date hereof and is solely for the benefit of
the addressees hereto, and is not to be used, circulated, quoted or otherwise
referred to for any other purpose without our express written permission.
Very truly yours,
/s/ DEWEY BALLANTINE LLP
------------------------------
6
<PAGE>
SCHEDULE I
Copelco Capital, Inc.
One International Boulevard
Mahwah, New Jersey 07430
Copelco Capital Receivables LLC
700 East Gate Drive
Mt. Laurel, New Jersey 08054-5405
First Union Securities, Inc.
One First Union Center, TW-9
Charlotte, NC 28288-0610
Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Variable Funding Capital Corporation
C/o First Union Securities, Inc.
One First Union Center, TW-6
Charlotte, North Carolina 28288
First Union National Bank
One First Union Center, TW-6
Charlotte, North Carolina 28288
April 20, 2000
To the parties listed on Schedule I hereto
Re: COPELCO CAPITAL RECEIVABLES LLC, SERIES 2000-A
Ladies and Gentlemen:
We have acted as special tax counsel in connection with the issuance and
delivery of certain lease-backed notes denominated as the Copelco Capital
Receivables LLC, Lease-Backed Notes, Class A-1, Class A-2a, Class A-2b, Class 3,
Class 4 Class B, Class C, Class D (collectively, the "Senior Notes"), Class E,
and Class R (collectively, the "Notes"). The Notes will be issued pursuant to an
indenture, dated as of April 1, 2000 (the "Indenture"), among Copelco Capital
Receivables LLC , as issuer (the "Issuer"), Copelco Capital, Inc., as servicer,
(in such capacity, the "Servicer"), and Manufacturers and Traders Trust Company,
a New York banking corporation, as indenture trustee (the "Indenture Trustee").
Pursuant to the Indenture, the Leases and the Residual Realizations will be
pledged by the Issuer to the Indenture Trustee for the benefit of the
Noteholders. Capitalized terms used herein, unless otherwise defined, shall have
the meanings set forth in the Indenture.
As special tax counsel, we have examined such documents as we have deemed
appropriate for the purposes of rendering the opinions set forth below,
including an executed copy of the Indenture and the exhibits attached thereto.
In addition, we have relied upon certain representations and presentations of
factual data provided to us by the Underwriter and Copelco regarding the
economic substance of the transaction.
In our examination we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents.
You have asked for our opinion concerning the tax treatment of the Notes
for federal income tax purposes. Although no transaction closely comparable to
the transactions contemplated by the Indenture has been the subject of any
Treasury regulation, revenue ruling, or judicial decision, subject to the
assumptions and qualifications set forth below, it is our opinion that, for
federal income tax purposes (i) the Senior Notes and the Class R Notes will be
treated as indebtedness; (ii) although not free from doubt, the Class E Notes
should be treated as indebtedness; and (iii) assuming no election on Form 8832
or a successor form is made to the contrary, the Issuer will not be treated as
an association (or a publicly traded partnership) taxable as a corporation.
<PAGE>
April 20, 2000
Page 2
Our opinion is based, in part, upon (i) the agreement of the Issuer, the
Servicer, the Indenture Trustee and the Noteholders to treat the Notes for
federal, state, local, foreign, and any other tax purposes as indebtedness (and
assumed compliance with such agreement) and (ii) our conclusion that the federal
income tax treatment of the Notes will be determined based on the economic
substance of the transaction resulting from the Indenture. Our analysis is based
on the provisions of the Internal Revenue Code of 1986, as amended, the Treasury
Regulations promulgated thereunder as in effect on the date hereof and on
existing judicial and administrative interpretations thereof. These authorities
are subject to change and to differing interpretations, which could apply
retroactively. The opinion of special tax counsel is not binding on the courts
or the Internal Revenue Service (the "IRS"). No ruling on any issue discussed
above will be sought from the IRS.
We express no opinion on any matter not discussed in this letter. This
opinion is rendered as of the Issuance Date, for the sole benefit of the
addressees hereof and it may not be relied on by any other party or quoted
without our express consent in writing.
Very truly yours,
/s/ DEWEY BALLANTINE LLP
----------------------------
<PAGE>
SCHEDULE I
Copelco Capital Receivables LLC
East Gate Center
700 East Gate Drive
Mount Laurel, New Jersey 08054-5400
Copelco Capital, Inc.
One International Boulevard
Mahwah, NJ 07430
First Union Securities, Inc.
One First Union Center
TW-9
Charlotte, North Carolina 28288
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
Standard & Poor's Rating Services,
a division of the McGraw Hill Companies
55 Broadway
New York, New York 10041
Moody's Investor's Service, Inc.
99 Church Street
New York, New York 10007
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
COPELCO CAPITAL, INC.,
TRANSFEROR AND SERVICER
AND
COPELCO CAPITAL RECEIVABLES LLC
ISSUER
-------------------------
ASSIGNMENT AND SERVICING AGREEMENT
Dated as of April 1, 2000
-------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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 MANUFACTURERS AND TRADERS TRUST COMPANY, AS TRUSTEE, UNDER THE
INDENTURE DATED AS OF April 1, 2000, 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..............................................9
2.08 Title to Properties.............................................9
2.09 Transactions Legal and Authorized...............................9
2.10 Governmental Consent...........................................10
2.11 Taxes..........................................................10
2.12 Compliance with Law............................................10
2.13 ERISA .........................................................10
2.14 Ability to Perform.............................................11
2.15 Ordinary Course; No Insolvency.................................11
2.16 Assets and Liabilities.........................................11
2.17 Fair Consideration.............................................11
2.18 Ability to Pay Debts...........................................12
2.19 Bulk Transfer Provisions.......................................12
2.20 Transfer Taxes.................................................12
2.21 Principal Executive Office.....................................12
2.22 Servicing Provisions Customary.................................12
2.23 Nonconsolidation...............................................13
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
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3.04 Costs of Servicing; Servicing Fee; Administrative Expenses.....17
3.05 Other Transactions.............................................18
SECTION 4. SERVICER ADVANCES AND TRANSFEROR'S SUPPORT.....................18
4.01 Late Lease Payments............................................18
4.02 Early Termination Leases.......................................18
4.03 Indemnification................................................19
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.............23
6.03 Servicer Not to Resign or Be Removed...........................23
6.04 Financial and Business Information.............................23
6.05 Officers' Certificates.........................................25
6.06 Inspection.....................................................25
6.07 Servicer Records...............................................25
SECTION 7. THE TRANSFEROR.................................................26
7.01 Merger or Consolidation of the Transferor......................26
7.02 Control of Issuer..............................................26
7.03 Financial and Business Information.............................26
7.04 Officers' Certificates.........................................27
7.05 Inspection.....................................................28
7.06 Books and Records..............................................28
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.........................................32
SECTION 9. SUBSTITUTION AND ADDITION OF LEASES............................32
9.01 Substitution and Addition......................................32
9.02 Procedure......................................................33
9.03 Objection and Purchase.........................................34
9.04 Transferor's and Servicer's Subsequent Obligations.............34
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SECTION 10. ASSIGNMENT....................................................35
10.01 Assignment to Trustee.........................................35
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......................................36
11.03 Further Assurances; Financing Statements......................36
SECTION 12. DEFINITIONS...................................................37
SECTION 13. INTER-COMPANY LOANS...........................................43
13.01 Inter-Company Loans...........................................43
SECTION 14. MISCELLANEOUS.................................................43
14.01 Continuing Obligations........................................43
14.02 GOVERNING LAW.................................................43
14.03 Successors and Assigns........................................43
14.04 Modification..................................................43
14.05 No Proceedings................................................44
14.06 Notices.......................................................44
14.07 Counterparts..................................................44
14.08 Nonpetition Covenant..........................................44
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 April 1,
2000, 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 (excluding all payments due or to become due during April 2000) and the
April 2000 Interest Payment. 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 6.50728%
Class A-1 Lease-Backed Notes, Series 2000-A in the aggregate principal amount of
$185,926,071 (the "Class A-1 Notes"), one class of one-month LIBOR Class A-2a
Lease-Backed Notes, Series 2000-A in the aggregate principal amount of
$139,444,553 (the "Class A-2a Notes"), one class of variable rate Class A-2b
Lease-Backed Notes, Series 2000-A in the aggregate principal amount of
$139,444,553 (the "Class A-2b Notes" and, together with the Class A-2a Notes,
the Class A-2 Notes), one class of 7.12% Class A-3 Lease-Backed Notes, Series
2000-A in the aggregate principal amount of $255,648,348 (the "Class A-3 Notes")
one class of 7.22% Class A-4 Lease-Backed Notes, Series 2000-A in the aggregate
principal amount of $237,055,741 (the "Class A-4 Notes"); together with the
Class A-1 Notes, the Class A-2 Notes and the Class A-3 Notes (the "Class A
Notes"), one class of 7.30% Class B Leased-Backed Notes, Series 2000-A (the
"Class B Notes"), in the aggregate principal amount of $18,592,607 one class of
7.39% Class C Lease-Backed Notes, Series 2000-A, in the aggregate principal
amount of $18,592,607 (the "Class C Notes"), one class of 7.87% Class D
Leased-Backed Notes, Series 2000-A in the aggregate principal amount of
$27,888,911 (the "Class D Notes"), one class of 9.820% Class E Lease-Backed
Notes, Series 2000-A, in the aggregate principal amount of $25,564,835 (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 7.565% Class
R-1 Residual Notes, Series 2000-A in the aggregate principal amount of
$71,459,924 (the "Class R-1 Notes") and one class of 8.438% Class R-2 Residual
Notes, Series 2000-A in the aggregate principal amount of $24,564,349 (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 and for
the benefit of the Swap Counterparty, 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.
<PAGE>
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 on the Leases since the
Cut Off Date, but excluding any payments thereunder due or to become due during
April 2000) and the April Interest Payment.
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 (other than any payments on the Leases due
or to become due during April 2000), 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 excluding any payments due or to become due during April
2000 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 excluding any payments
due or to become due during April 2000 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 excluding any payments due or to become due during
April 2000 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 (other
2
<PAGE>
than any payments on the Leases due or to become due during April 2000),
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 excluding any
payments due or to become due during April 2000, Casualty Payments, 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 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 and for the benefit of the Swap Counterparty, 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 and the
Swap Counterparty.
(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 and the Swap Counterparty
shall mark conspicuously each original contractual document with a Lessee, and
its master data processing records evidencing each
3
<PAGE>
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.
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 December 31, 1999 and December 31,
1998, and the related
4
<PAGE>
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, 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.
(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
December 31, 1999 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 other than payments due or to
become due in April 2000), (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 other than payments due or to become
due in April 2000) 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.
5
<PAGE>
(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 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
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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
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.
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(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 $103,536,126.
(t) As of the Cut-Off Date, the final lease payment on each Lease was due
and payable on or prior to March 28, 2000.
(u) Each Lease agreement is "chattel paper" within the meaning of The
Uniform Commercial Code as in effect in the states of New York and New Jersey.
(v) As of the Cut Off date, no more than 2% of the Leases are Leases not
originated by the Transferor.
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 disclosed 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
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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.
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 other than
payments due or to become due in April 2000) 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 other than payments due or to become
due in April 2000) 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.
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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.
(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;
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(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.
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
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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.
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 and the Swap Counterparty harmless, on an after-tax basis, from and
against any and all such Transfer Taxes (it being understood that the holders of
the Notes, the Swap Counterparty 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.
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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 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 contribution and transfer to the Issuer of
the Leases and the Lease Receivables as a capital contribution for financial
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 other than
payments due or to become due in April 2000) 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)
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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 and the Swap Counterparty,
subject at all times to the provisions of the Indenture, without regard to any
relationship 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
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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 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
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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.
(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 April 30, 2007.
(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
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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.
(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
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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. 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
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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, the Swap Counterparty and each
holder of the Notes (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 (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
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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 other than payments due or
to become due in April 2000) and the Equipment, other than those naming the
Transferor or the Issuer as the owner of the Leases or the Trustee as secured
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
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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, 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 each 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
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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.
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 December 31, 2000 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.
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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 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:
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(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
(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
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(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 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.
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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.
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
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(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 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.
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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.
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, Class A Principal Payment Account, the Class A
Funding 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
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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 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;
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(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.
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
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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 the Rating Agencies 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
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 3.04 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, the Swap Counterparty and to each holder of the Notes in the
manner provided in the Indenture.
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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:
(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 April 30, 2007.
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(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.
(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
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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 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 9.01 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
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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 Swap
Counterparty, 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.
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
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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 and the Swap
Documents, 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 other than payments due
or to become due in April 2000) and each item of Equipment at any time subject
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 or the Swap Documents, 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.
11.04 RIGHTS OF THE SWAP COUNTERPARTY
Notwithstanding anything herein to the contrary, so long as the Swap or the
Swap Documents remain in full force and effect, the parties hereto shall deliver
to the Swap Counterparty all notices, reports or other documents delivered
hereunder and the Swap Counterparty shall have the right to request any
information, and shall have all rights of inspection available to the Trustee or
the Noteholders hereunder.
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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.
April Interest Payment -- 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.
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 Funding Account -- Section 1.01 of the Indenture.
Class A Principal Payment Account -- Section 1.01 of the Indenture.
Class A Notes -- the Issuer's Class A-1 Notes, Class A-2a Notes, Class A-2b
Notes, Class A-3 Notes and Class A-4 Notes.
Class A-1 Notes -- the Issuer's 6.50728% Class A-1 Lease-Backed Notes,
Series 2000-A.
Class A-2a Notes -- the Issuer's one-month LIBOR Class A-2a Lease-Backed
Notes, Series 2000-A.
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Class A-2b Notes -- the Issuer's variable rate Class A-2b Lease-Backed
Notes, Series 2000-A.
Class A-3 Notes -- the Issuer's 7.12% Class A-3 Lease-Backed Notes, Series
2000-A.
Class A-4 Notes -- the Issuer's 7.22% Class A-4 Lease-Backed Notes, Series
2000-A.
Class B Notes -- the Issuer's 7.30% Class B Lease-Backed Notes, Series
2000-A.
Class C Notes -- the Issuer's 7.39% Class C Lease-Backed Notes, Series
2000-A.
Class D Notes -- the Issuer's 7.87% Class D Lease-Backed Notes, Series
2000-A.
Class E Notes -- the Issuer's 9.820% Class E Lease-Backed Notes, Series
2000-A.
Class R Notes -- the Issuer's Class R-1 Notes and Class R-2 Notes.
Class R-1 Notes -- the Issuer's 7.565% Class R-1 Lease-Backed Notes, Series
2000-A.
Class R-2 Notes -- the Issuer's 8.438% Class R-2 Lease-Backed Notes, Series
2000-A.
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 March 28, 2000.
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.
38
<PAGE>
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.
Fitch -- Fitch IBCA, Inc. and any successor thereto.
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 April 1, 2000, 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 -- Section 1.01 of the Indenture.
Issuer -- Copelco Capital Receivables LLC, a Delaware limited liability
company.
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.
39
<PAGE>
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).
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.
40
<PAGE>
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 Manufacturers and Traders Trust Company 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 -- Section 1.01 of the Indenture.
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-1 Notes, Class A-2a, Class A-3, Class A-4 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.
41
<PAGE>
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.
Swap -- Section 1.01 of the Indenture.
Swap Documents -- Section 1.01 of the Indenture.
Swap Counterparty -- 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 -- Manufacturers and Traders Trust Company, and any successor
thereto, as trustee under the Indenture.
Underwriting Agreement -- the Underwriting Agreement dated April 14, 2000
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.
42
<PAGE>
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 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 (a) the written consent of the party against whom
such waiver, modification or amendment is claimed (b) 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) and (c) the Rating
Agencies confirming that such modification, waiver or amendment will not result
in a withdrawal or downgrade of the then current ratings of the Notes.
43
<PAGE>
Notwithstanding the foregoing, no waiver, modification or amendment to the terms
of this Assignment and Servicing Agreement which materially affects the
interests of the Swap Counterparty may be made unless the Swap Counterparty has
given its prior written consent to the terms of such waiver, modification or
amendment.
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: Stephen Shippie 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.
44
<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:/s/ NICHOLAS ANTONACCIO
-------------------------------------------------
Name: Nicholas Antonaccio
Title: EVP & CFO
COPELCO CAPITAL RECEIVABLES LLC
By: COPELCO MANAGER, INC.,
as Manager
By:/s/ NICHOLAS ANTONACCIO
--------------------------------------------------
Name: Nicholas Antonaccio
Title: EVP & CFO
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.
MANUFACTURERS AND TRADERS TRUST COMPANY,
as Trustee
By: /s/ RUSSELL T. WHITLEY
--------------------------------------
Name: Russell T. Whitley
Title: Assistant Vice President
[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 MANUFACTURERS AND TRADERS TRUST COMPANY, AS
TRUSTEE, UNDER AN INDENTURE DATED AS OF APRIL 1, 2000, 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 April 1, 2000, 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>
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Date of Loan Rate Paid or Prepaid Amount Made By
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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-2a Interest Paid ____%
C/3 Class A-2b Interest Paid ____%
C/3 Class A-3 Interest Paid ____%
C/4 Class A-4 Interest Paid ____%
C/5 Class B Interest Paid ____%
C/6 Class C Interest Paid ____%
C/7 Class D Interest Paid ____%
C/8 Class E Interest Paid ____%
C/9 Beginning Class A-1 Note Balance
C/10 Class A-1 Note Value Target (___% of 1/9)
C/11 Class A-1 Principal Paid
C/12 Beginning Class A-2 Note Balance
C/13 Class A-2a Note Value
C/15 Class A-2b Note Value
C/14 Ending Class A-2 Note Balance
C/15 Class A-2a Principal Paid
C/18 Class A-2b Principal Paid
C/16 Beginning Class A-3 Note Balance
C/17 Class A-3 Note Value
C/18 Ending Class A-3 Note Balance
C/19 Class A-3 Principal Paid
C/20 Beginning Class A-4 Note Balance
C/21 Class A-4 Note Value
C/22 Class A-4 Principal Paid
C/23 Ending Class A-4 Note Balance
C/24 Beginning Class B Note Balance
C/25a Class B Note Value Target (__% of 1/9)
C/25b Class B Note Value Floor (__% of $__________ + Cum. Losses-C/12-6/4)
C/26 Class B Principal Paid
C/27 Ending Class B Note Balance
C-3
<PAGE>
C/28 Beginning Class C Note Balance
C/29a Class C Note Value Target (__% of 1/9)
C/29b Class C Note Value Floor (__% of $__________ + Cum. Losses-6/4)
C/30 Class C Principal Paid
C/31 Ending Class C Note Balance
C/32 Beginning Class D Note Balance
C/33 Class D Note Value Target (__% of 1/9)
C/34 Class D Note Value Floor (__% of $__________ + Cum. Losses-6/4)
C/35 Class D Principal Paid
C/36 Ending Class D Note Balance
C/37 Beginning Class E Note Balance
C/38 Class E Note Value Target (__% of 1/9)
C/39 Class E Note Value Floor (__% of $__________ + Cum. Losses-6/4)
C/40 Class E Principal Paid
C/41 Ending Class E Note Balance
C/42 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
CONSENT OF INDEPENDENT AUDITORS
Copelco Capital Receivables LLC:
We consent to the inclusion in the registration statement (No. 333-79903) of
Copelco Capital Receivables LLC (the "Registrant") and in the Prospectus
Supplement of the Registrant, dated April 14, 2000 (the "Prospectus
Supplement"), of our report dated April 7, 2000 on the balance sheet of the
Registrant as of December 31, 1999, and to the reference to our firm under the
heading "Experts" in the Prospectus Supplement.
KPMG LLP
New York, New York
Dated: April 27, 2000
