EXHIBIT 4.1
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DVI RECEIVABLES XI, L.L.C.
ISSUER
AND
U.S. BANK TRUST NATIONAL ASSOCIATION,
TRUSTEE
AMENDED AND RESTATED INDENTURE
Dated as of December 1, 1999
$283,750,000 in aggregate principal amount of Asset-Backed Notes consisting of:
$39,800,000 6.72375% ASSET BACKED NOTES, SERIES 2000-1, CLASS A-1
$39,000,000 7.265% ASSET BACKED NOTES, SERIES 2000-1, CLASS A-2
$83,000,000 7.550% ASSET BACKED NOTES, SERIES 2000-1, CLASS A-3
$95,625,000 7.780% ASSET BACKED NOTES, SERIES 2000-1, CLASS A-4
$4,387,000 7.760% ASSET BACKED NOTES, SERIES 2000-1, CLASS B
$8,775,000 7.860% ASSET BACKED NOTES, SERIES 2000-1, CLASS C
$5,850,000 8.340% ASSET BACKED NOTES, SERIES 2000-1, CLASS D
$7,313,000 10.680% ASSET BACKED NOTES, SERIES 2000-1, CLASS E
TABLE OF CONTENTS
Page
RECITALS OF THE ISSUER ....................................................................................1
GRANTING CLAUSE ....................................................................................2
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 Definitions.........................................................................3
SECTION 1.02 Compliance Certificates.............................................................3
SECTION 1.03 Form of Documents Delivered to Trustee..............................................3
SECTION 1.04 Acts of Noteholders, etc............................................................4
SECTION 1.05 Notices.............................................................................5
SECTION 1.06 Notice to Noteholders; Waiver.......................................................6
SECTION 1.07 Table of Contents, Headings, etc....................................................6
SECTION 1.08 Successors and Assigns..............................................................6
SECTION 1.09 Severability Clause.................................................................6
SECTION 1.10 Benefits of Amended and Restated Indenture..........................................7
SECTION 1.11 Governing Law.......................................................................7
SECTION 1.12 Legal Holidays......................................................................7
SECTION 1.13 Execution in Counterparts...........................................................7
SECTION 1.14 Inspection..........................................................................7
SECTION 1.15 Survival of Representations and Warranties..........................................8
SECTION 1.16 Incorporation by Reference to Trust Indenture Act...................................8
SECTION 1.17 Communications by Noteholders with Other Noteholders................................8
SECTION 1.18 Statements Required in Officer's Certificate........................................8
SECTION 1.19 When Treasury Securities are Disregarded............................................8
SECTION 1.20 Rules by Trustee....................................................................9
SECTION 1.21 No Adverse Interpretation of Other Agreements.......................................9
SECTION 1.22 No Recourse Against Others..........................................................9
SECTION 1.23 Independence of Covenants...........................................................9
SECTION 1.24 Consent to Jurisdiction.............................................................9
SECTION 1.25 No Bankruptcy Petition.............................................................10
SECTION 1.26 Voting Rights of Class F Instruments...............................................10
SECTION 1.27 Indebtedness Treatment.............................................................10
ARTICLE II
THE NOTES
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SECTION 2.01 General Provisions.................................................................11
SECTION 2.02 Global Notes.......................................................................12
SECTION 2.03 Execution, Authentication, Delivery and Dating.....................................15
SECTION 2.04 Registration, Transfer and Exchange................................................16
SECTION 2.05 Mutilated, Destroyed, Lost and Stolen Notes........................................18
SECTION 2.06 Delivery of Class F Instruments....................................................18
SECTION 2.07 Payment of Interest and Principal; Rights Preserved................................20
SECTION 2.08 Persons Deemed Owners..............................................................20
SECTION 2.09 Cancellation.......................................................................20
SECTION 2.10. Noteholder Lists; Communications to Noteholders....................................20
SECTION 2.11. ERISA Deemed Representations.......................................................21
ARTICLE III
ACCOUNTS; INVESTMENT OF MONEYS; COLLECTION
AND APPLICATION OF MONEYS; REPORTS
SECTION 3.01 Accounts; Investments by Trustee...................................................22
SECTION 3.02 Reserved...........................................................................24
SECTION 3.03 Collection of Moneys...............................................................24
SECTION 3.04 Collection Account.................................................................25
SECTION 3.05 Class A Distribution Sub-Account; Class B Distribution Sub-
Account; Class C Distribution Sub-Account; Class D Distribution
Sub-Account; Class E Distribution Sub-Account; Class F
Distribution Sub-Account...........................................................29
SECTION 3.06 Reserved...........................................................................31
SECTION 3.07 Reserved...........................................................................31
SECTION 3.08 Reserve Account....................................................................31
SECTION 3.09 Reports; Notices of Certain Payments...............................................32
SECTION 3.10. Trustee May Rely on Certain Information from Contributor and
Servicer...........................................................................32
ARTICLE IV
CONTRACTS AND EQUIPMENT
SECTION 4.01 Representations and Warranties of the Issuer.......................................34
SECTION 4.02 Purchase upon Breach; Amended and Restated Contribution and
Servicing Agreement................................................................34
SECTION 4.03 Release of Contracts and Equipment Following Substitution or
Purchase...........................................................................35
SECTION 4.04 Release of Contracts and Equipment Upon Final Contract Payment.....................35
SECTION 4.05 Execution of Documents.............................................................36
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ARTICLE V
SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER
SECTION 5.01 Servicer Events of Default.........................................................37
SECTION 5.02 Substitute Servicer................................................................37
SECTION 5.03 Notification to Noteholders and Rating Agencies....................................37
ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.01 Events of Default..................................................................38
SECTION 6.02 Acceleration of Maturity; Rescission and Annulment.................................39
SECTION 6.03 Other Remedies.....................................................................40
SECTION 6.04 Trustee May File Proofs of Claim...................................................40
SECTION 6.05 Trustee May Enforce Claims Without Possession of Notes.............................41
SECTION 6.06 Application of Money Collected.....................................................42
SECTION 6.07 Limitation on Suits................................................................43
SECTION 6.08 Unconditional Right of Noteholders to Receive Payment..............................44
SECTION 6.09 Restoration of Rights and Remedies.................................................44
SECTION 6.10. Rights and Remedies Cumulative.....................................................45
SECTION 6.11 Delay or Omission Not Waiver.......................................................45
SECTION 6.12 Control by Noteholders.............................................................45
SECTION 6.13 Waiver of Defaults and Events of Default...........................................45
SECTION 6.14 Waiver of Stay or Extension Laws...................................................46
SECTION 6.15 Sale of Trust Property.............................................................46
SECTION 6.16 Undertaking for Costs..............................................................47
ARTICLE VII
THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities................................................47
SECTION 7.02 Notice of Defaults or Events of Default............................................48
SECTION 7.03 Certain Rights of Trustee..........................................................49
SECTION 7.04 Trustee's Disclaimer...............................................................50
SECTION 7.05 Money Held in Trust................................................................50
SECTION 7.06 Compensation, Reimbursement, etc...................................................50
SECTION 7.07 Eligibility; Disqualification......................................................51
SECTION 7.08 Resignation and Removal; Appointment of Successor..................................51
SECTION 7.09 Acceptance of Appointment by Successor.............................................52
SECTION 7.10. Merger, Conversion, Consolidation or Succession to Business........................53
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SECTION 7.11 Co-trustees and Separate Trustees..................................................53
SECTION 7.12 Trustee to Hold Contracts..........................................................54
SECTION 7.13 Financing Statements...............................................................55
SECTION 7.14 Trustee to Act; Appointment of Successor...........................................55
SECTION 7.15 Reports by Trustee to Holders......................................................55
SECTION 7.16 Preferential Collection of Claims Against Issuer...................................56
ARTICLE VIII
COVENANTS
SECTION 8.01 Payment of Principal and Interest..................................................57
SECTION 8.02 Maintenance of Office or Agency; Chief Executive Office............................57
SECTION 8.03 Money for Payments to Noteholders to Be Held in Trust..............................57
SECTION 8.04 Issuer Existence; etc..............................................................58
SECTION 8.05 Protection of Trust Property; Further Assurances...................................59
SECTION 8.06 Compliance Certificates............................................................60
SECTION 8.07 Performance of Obligations; Amended and Restated Contribution
and Servicing Agreement............................................................60
SECTION 8.08 Negative Covenants.................................................................61
SECTION 8.09 Information as to the Issuer.......................................................62
SECTION 8.10. Payment of Taxes and Other Claims..................................................63
SECTION 8.11 Indemnification....................................................................63
SECTION 8.12 Contract Files to Trustee..........................................................64
SECTION 8.13 Payment Advices....................................................................64
ARTICLE IX
AMENDMENTS AND SUPPLEMENTAL AMENDED AND RESTATED INDENTURES
SECTION 9.01 Amendments and Supplemental Indentures.............................................65
SECTION 9.02 Execution of Amendments and Supplemental Indentures................................65
SECTION 9.03 Effect of Amendments and Supplemental Indentures...................................66
SECTION 9.04 Reference in Notes to Amendments and Supplemental Indentures.......................66
SECTION 9.05 Compliance with Trust Indenture Act................................................66
SECTION 9.06 Revocation and Effect of Consents..................................................66
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01 Optional Redemption; Election to Redeem............................................67
SECTION 10.02 Notice to Trustee..................................................................67
SECTION 10.03 Notice of Redemption or Partial Redemption by the Issuer...........................67
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SECTION 10.04 Deposit of the Redemption Price or Partial Redemption Price........................68
SECTION 10.05 Notes Payable on Redemption Date...................................................68
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Amended and Restated Indenture.......................70
SECTION 11.02 Application of Trust Money.........................................................71
SECTION 11.03 Reinstatement......................................................................71
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SCHEDULES
Schedule 1 - Contract Schedule
EXHIBITS
Exhibit A-1 - Form of Class A-1 Note
Exhibit A-2 - Form of Class A-2 Note
Exhibit A-3 - Form of Class A-3 Note
Exhibit A-4 - Form of Class A-4 Note
Exhibit B - Form of Class B Note
Exhibit C - Form of Class C Note
Exhibit D - Form of Class D Note
Exhibit E - Form of Class E Note
Exhibit F - Form of Class F Instrument
Exhibit G - Investment Letter
Exhibit H - Reserved
Exhibit I - Tax Certificate
APPENDICES
Appendix I - Defined Terms
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AMENDED AND RESTATED INDENTURE
This AMENDED AND RESTATED INDENTURE ("AMENDED AND RESTATED
INDENTURE") dated as of December 1, 1999, is between DVI RECEIVABLES XI, L.L.C.,
a Delaware limited liability company (herein called the "ISSUER"), and U.S. BANK
TRUST NATIONAL ASSOCIATION, a national banking association, as trustee (herein
called the "TRUSTEE").
RECITALS OF THE ISSUER
The Issuer has duly authorized the issuance of $39,800,000 in
aggregate principal amount of its 6.72375% Asset Backed Notes, Series 2000-1,
Class A-1 (the "CLASS A-1 NOTES"), $39,000,000 in aggregate principal amount of
its 7.265% Asset Backed Notes, Series 2000-1, Class A-2 (the "CLASS A-2 NOTES"),
$83,000,000 in aggregate principal amount of its 7.550% Asset Backed Notes,
Series 2000-1, Class A-3 (the "CLASS A-3 NOTES"), $95,625,000 in aggregate
principal amount of its 7.780% Asset Backed Notes, Series 2000-1, Class A-4 (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"), $4,387,000 in aggregate principal
amount of its 7.760% Asset Backed Notes, Series 2000-1, Class B (the "CLASS B
NOTES") $8,775,000 in aggregate principal amount of its 7.860% Asset Backed
Notes, Series 2000-1, Class C (the "CLASS C NOTES"), $5,850,000 in aggregate
principal amount of its 8.340% Asset Backed Notes, Series 2000-1, Class D (the
"CLASS D NOTES") and $7,313,000 in aggregate principal amount of its 10.680%
Asset Backed Notes, Series 2000-1, Class E (the "CLASS E NOTES" and together
with the Class A Notes, the Class B Notes, the Class C Notes and the Class D
Notes, the "OFFERED NOTES"), of substantially the tenor hereinafter set forth,
and to provide therefor the Issuer has duly authorized the execution and
delivery of this Amended and Restated Indenture.
Subsequent to the execution and delivery of this Amended and
Restated Indenture, the Issuer may, subject to the restrictions described
herein, enter into a Supplement directing the issuance of a sixth class of
securities (the "CLASS F INSTRUMENTS", and together with the Offered Notes, the
"NOTES") which will be subordinate to the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes.
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 Amended and Restated Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS AMENDED AND RESTATED INDENTURE
WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the holders thereof, it is mutually covenanted and agreed, for the
benefit of all Noteholders, as follows:
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee, for the benefit and
security of the Noteholders and the Trustee as their interests appear herein,
all of the Issuer's right, title and interest in and to the Trust Property. The
Issuer also hereby assigns to the Trustee, for the benefit of the Noteholders
and the Trustee, its security interest in the Equipment (which shall be a first
priority perfected security interest in Equipment other than with respect to
Equipment relating to a Secured Equipment Note or Finance Lease and for which
the Original Equipment Cost is less than $25,000) subject to the underlying
equipment lease related to the Contracts and all of the Issuer's rights in all
income, payments and proceeds related thereto. The Grants of the Trust Property
effected by this Amended and Restated 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 Contract Payments in respect
of the Contracts and all other moneys payable thereunder, to give and receive
notices and other communications, to recover on the Equipment pursuant thereto,
to make waivers, amendments or other agreements, to exercise all rights and
options, to bring judicial proceedings in the name of the Issuer or otherwise,
to terminate a Contract pursuant to the terms thereof, enforce all rights and
remedies of the Issuer with respect to the duties, covenants, obligations,
indemnities, representations and warranties of the Contributor and the Servicer
under the Amended and Restated Contribution and Servicing Agreement, and
generally to do and receive anything that the Issuer is or may be entitled to do
or receive thereunder or with respect thereto. Such Grants are 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 between
any Note of the same class and any other Note of the same class by reason of
differences in time of issuance or otherwise, except as otherwise may be
provided in this Amended and Restated Indenture or any Supplement, (ii) the
payment of all other sums payable under this Amended and Restated Indenture and
(iii) compliance with the provisions of this Amended and Restated Indenture and
any Supplement with respect to the Notes.
The Trustee acknowledges such Grants, accepts the trusts
hereunder in accordance with the provisions hereof, and agrees to perform the
duties herein required to the best of its ability and to the end that the
interests of the Noteholders may be adequately and effectively protected as
hereinafter provided.
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 DEFINITIONS.
For purposes of this Amended and Restated Indenture,
capitalized terms used herein but not otherwise defined shall have the
respective meaning assigned to such terms in Appendix I hereto.
SECTION 1.02 COMPLIANCE CERTIFICATES.
Upon any application or request by the Issuer to the Trustee
to take any action under any provision of this Amended and Restated Indenture or
any Supplement, other than any request that (i) the Trustee authenticate the
Notes specified in such request, (ii) the Trustee invest moneys in the
Collection Account or the Reserve Account pursuant to the written directions
specified in such request, or (iii) the Trustee pay moneys due and payable to
the Issuer hereunder to the Issuer's beneficial owner or other assignee
specified in such request, the Trustee may require the Issuer to furnish to the
Trustee an Officer's Certificate stating that all conditions precedent, if any,
provided for in this Amended and Restated Indenture or any Supplement relating
to the proposed action 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
Amended and Restated Indenture or any Supplement, no additional certificate 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 Officer's Certificate 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 Authorized Officer or Authorized Officers
of the Managing Member as to such factual matters unless such Authorized Officer
or counsel of the Managing Member 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.
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Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Amended and Restated Indenture or any Supplement,
they may, but need not, be consolidated and form one instrument.
Wherever in this Amended and Restated Indenture or any
Supplement, 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).
SECTION 1.04 ACTS OF NOTEHOLDERS, ETC.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Amended and Restated Indenture
or any Supplement 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, with a copy (or if
expressly required an original) to the Issuer and the Servicer. 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
Amended and Restated Indenture or any Supplement and (subject to Section 7.01)
conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section 1.04.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the holder of any Note shall bind every future
holder of the same Note and the holder of every Note issued upon the
registration of transfer thereof or in exchange therefor 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 Amended and
Restated Indenture and any Supplement, each Noteholder irrevocably appoints the
Trustee hereunder as the special attorney-
4
in-fact for such Noteholder vested with full power on behalf of such Noteholder
to effect and enforce the rights of such Noteholder pursuant hereto and the
provisions hereof for the benefit of such Noteholder.
(e) Each holder of a Note, by acceptance of such Note, agrees
to treat such Note as indebtedness for federal, state and local income or
franchise tax purposes.
SECTION 1.05 NOTICES.
Any request, demand, authorization, direction, notice,
consent, waiver, Act of Noteholders, or other document provided or permitted by
this Amended and Restated Indenture or any Supplement 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 if in writing and telexed, telecopied
(with the original of the telexed or telecopied material sent to the recipient
by overnight courier on the day of the telex or telecopy), mailed, first-class
postage prepaid, or hand delivered. Unless otherwise specifically provided
herein, no such request, demand, authorization, direction, notice, consent,
waiver, Act of Noteholders or other document shall be effective until received
and any provision hereof requiring the making, giving, furnishing, or filing of
the same on any date shall be interpreted as requiring the same to be sent or
delivered in such fashion that it will be received on such date. Any such
request, demand, authorization, direction, notice, consent, waiver, Act of
Noteholders, or other document shall be sent or delivered to the following
addresses:
(i) if to the Trustee, at the Corporate Trust Office,
Attention: Structured Finance, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ (Number for telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; Number for telephonic
confirmation: (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) if to the Issuer, Attention: Securitization
Manager, at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Number for
telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; Number for telephonic confirmation: (215)
230-6375) or at any other address previously furnished in writing to
the Trustee, the Servicer or the Contributor by the Issuer;
(iii) if to the Contributor, Attention: Securitization
Manager, at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Number for
telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; Number for telephonic confirmation: (215)
489-8015) or at any other address previously furnished in writing to
the Trustee, the Issuer and the Servicer by the Contributor;
(iv) if to the Servicer, Attention: Servicing Manager,
at ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Number for telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇; Number for telephonic confirmation: (▇▇▇) ▇▇▇-▇▇▇▇) or
at any other address previously furnished in writing to the Trustee,
the Issuer and the Contributor by the Servicer;
(v) if to Moody's, at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ABS Monitoring Department (Number for telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇), or at any other address or telecopy number previously
furnished in writing to the Trustee, the Issuer and the Servicer by
Moody's; or
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(vi) if to Fitch IBCA, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Group (Number for telecopy: (212)
635-0476), or at any other address or telecopy number previously
furnished in writing to the Trustee, the Issuer and the Servicer by
Fitch IBCA.
SECTION 1.06 NOTICE TO NOTEHOLDERS; WAIVER.
(a) Where this Amended and Restated Indenture or any
Supplement 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 sent by private courier or confirmed telecopy (with a
copy of the telecopied material sent to the recipient by overnight courier on
the day of the telecopy) to each Noteholder affected by such event or to whom
such report is required to be mailed, at such Noteholder's 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 Amended and
Restated Indenture or any Supplement 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 Amended and Restated Indenture or any
Supplement, 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 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and the Article and Section headings are
for convenience only and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 1.08 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Amended and Restated
Indenture by the Issuer or the Trustee shall bind its respective successors and
permitted assigns, whether so expressed or not.
SECTION 1.09 SEVERABILITY CLAUSE.
In case any provision in this Amended and Restated Indenture,
any Supplement or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
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SECTION 1.10 BENEFITS OF AMENDED AND RESTATED INDENTURE.
Nothing in this Amended and Restated Indenture, any Supplement
or in the Notes, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any separate trustee or
co-trustee appointed under Section 7.11 and the holders of Notes, any benefit or
any legal or equitable right, remedy or claim under this Amended and Restated
Indenture.
SECTION 1.11 GOVERNING LAW.
THIS AMENDED AND RESTATED INDENTURE, ANY SUPPLEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
THIS AMENDED AND RESTATED INDENTURE IS SUBJECT TO THE TRUST INDENTURE ACT OF
1939, AS AMENDED FROM TIME TO TIME, AS IN EFFECT ON ANY RELEVANT DATE (THE
"TIA") AND SHALL BE GOVERNED THEREBY OR CONSTRUED IN ACCORDANCE THEREWITH.
SECTION 1.12 LEGAL HOLIDAYS.
In any case where any Payment Date or the Stated Maturity Date
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 Amended and Restated Indenture or of the Notes) such payment shall be
made on the next succeeding Business Day, and no interest shall accrue for the
intervening period.
SECTION 1.13 EXECUTION IN COUNTERPARTS.
This Amended and Restated 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 1.14 INSPECTION.
The Issuer agrees that, on reasonable prior notice, it will
permit the representatives of the Trustee or any Noteholder, during the Issuer's
normal business hours, to examine all of the books of account, records, reports
and other papers of the Issuer, to make copies thereof and extracts therefrom,
to cause such books to be audited by independent accountants selected by the
Issuer and reasonably acceptable to the Trustee or such Noteholder, as the case
may be, and to discuss its affairs, finances and accounts with its officers,
employees and independent accountants with an Authorized Officer of the
Transferor (as sole beneficiary of the Issuer) present (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 Amended and Restated Indenture, the Amended and Restated Contribution
and Servicing Agreement, the other Transaction Documents, or any of the other
documents referred to herein or therein. Any expense incident to the exercise by
the Trustee or any Noteholder during the continuance of any Default or Indenture
Event of Default of any right under this Section 1.14 shall be borne by the
Issuer, but any expense due to the exercise of a right
7
by any such Person prior to the occurrence of a Default or Indenture Event of
Default shall be borne by such Person.
SECTION 1.15 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations, warranties and certifications of the
Issuer made in this Amended and Restated Indenture or in any certificate or
other writing delivered by the Issuer pursuant hereto shall survive the
authentication and delivery of the Notes hereunder, but unless explicitly
provided to the contrary, they are made only as of the Closing Date.
SECTION 1.16 INCORPORATION BY REFERENCE TO TRUST
INDENTURE ACT.
The provisions of TIA Sections 310 through 317 inclusive that
impose duties on any Person (including the provisions automatically deemed
included herein unless expressly excluded by the provisions of this Amended and
Restated Indenture) are a part of and govern this Amended and Restated
Indenture, whether or not physically contained herein.
If any provision of this Amended and Restated Indenture
limits, qualifies or conflicts with another provision which is required to be
included in this Amended and Restated Indenture by the TIA, the required
provision of the TIA shall control.
SECTION 1.17 COMMUNICATIONS BY NOTEHOLDERS WITH OTHER
NOTEHOLDERS.
A Noteholder may communicate with other Noteholders pursuant
to TIA Section 312(b) with respect to their rights under this Amended and
Restated Indenture or the Notes. The Issuer, the Trustee and anyone else shall
have the protection of Section 312(c) of the TIA.
SECTION 1.18 STATEMENTS REQUIRED IN OFFICER'S
CERTIFICATE.
Each Officer's Certificate with respect to compliance with a
condition or covenant provided for in this Amended and Restated Indenture shall
include:
(i) a statement that the Person making such
certification has read such covenant or condition;
(ii) a brief statement as to the nature and scope of
the examination or investigation upon which the statements contained in
such certificate are based;
(iii) a statement that, in the opinion of such Person, he
or she 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
(iv) a statement as to whether or not, in the opinion of
such Person, such covenant or condition has been complied with.
SECTION 1.19 WHEN TREASURY SECURITIES ARE DISREGARDED.
8
In determining whether the Noteholders of the required
principal amount of Notes have concurred in any direction, waiver or consent
hereunder, Notes owned by the Issuer or any other obligor on the Notes or by any
Affiliate of the Issuer or such obligor related thereto shall be disregarded,
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 of the Trustee actually knows are so owned shall be so
disregarded. Notes so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the reasonable satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer or any other obligor upon the Notes or any Affiliate
of the Issuer or such obligor.
SECTION 1.20 RULES BY TRUSTEE.
The Trustee may make reasonable rules for action by or at a
meeting of Noteholders.
SECTION 1.21 NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS.
This Amended and Restated Indenture may not be used to
interpret another indenture, loan or debt agreement of the Issuer or an
Affiliate of the Issuer. Any such indenture, loan or debt agreement may not be
used to interpret this Amended and Restated Indenture.
SECTION 1.22 NO RECOURSE AGAINST OTHERS.
All liability described in the Notes of any director, officer,
employee or member, as such, of the Issuer is waived and released.
SECTION 1.23 INDEPENDENCE OF COVENANTS.
All covenants and agreements in this Amended and Restated
Indenture shall be given independent effect so that if any particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or otherwise be within the limitations of, another
covenant shall not avoid the occurrence of a Default or an Indenture Event of
Default if such action is taken or condition exists.
SECTION 1.24 CONSENT TO JURISDICTION.
Each of the Issuer and the Trustee irrevocably submits to the
jurisdiction of any New York State or Federal court sitting in the Borough of
Manhattan in the City of New York over any suit, action or proceeding arising
out of or relating to this Amended and Restated Indenture or any Note. Each of
the Issuer and the Trustee irrevocably waives, to the fullest extent permitted
by laws, any objection which it may have to the laying of the venue of any such
suit, action or proceeding brought in such a court and any claim that any such
suit, action or proceeding brought in such a court has been brought in any
inconvenient forum. Each of the Issuer and the Trustee agrees that final
judgment in any such suit, action or proceeding brought in such a court shall be
conclusive and binding upon the Issuer or the Trustee, as the case may be, and
may be enforced in the courts of New York (or any other courts to the
jurisdiction of which the Issuer or the Trustee, as the case may be, is subject)
by a suit upon such judgment, provided that service of process is effected upon
the Issuer as permitted
9
by law; PROVIDED, HOWEVER, that each of the Issuer and the Trustee does not
waive, and the foregoing provisions of this sentence shall not constitute or be
deemed to constitute a waiver of, (i) any right to appeal any such judgment, to
seek any stay or otherwise to seek reconsideration or review of any such
judgment or (ii) any stay of execution or levy pending an appeal from, or a
suit, action or proceeding for reconsideration or review of, any such judgment.
SECTION 1.25 NO BANKRUPTCY PETITION.
Notwithstanding any provision contained herein, each of the
Noteholders and the Trustee covenants and agrees that prior to the date which is
one year and one day after the payment in full of all Notes issued by the
Issuer, it will not institute against, or join any other Person in instituting
against, the Issuer or its Managing Member any bankruptcy, reorganization,
receivership, arrangement, insolvency or liquidation proceedings, or other
similar proceedings under any federal or state bankruptcy or similar law. The
Issuer represents, warrants, and covenants that it and has obtained, and will in
the future obtain, a no-petition agreement from each and every Person that
enters into any agreement of any kind with the Issuer or its Managing Member.
This Section 1.25 shall survive the termination of this Amended and Restated
Indenture.
SECTION 1.26 VOTING RIGHTS OF CLASS F INSTRUMENTS.
Upon the irrevocable payment in full of all of the Class A
Notes, the Class B Notes the Class C Notes, the Class D Notes and the Class E
Notes, all voting and consent rights otherwise granted to the Class A
Noteholders, the Class B Noteholders, the Class C Noteholders, the Class D
Noteholders and the Class E Noteholders shall be exercised by the requisite
percentage of holders of the Class F Instruments, if any.
SECTION 1.27 INDEBTEDNESS TREATMENT.
This Amended and Restated Indenture and the Notes have been
structured with the intention that the Notes will qualify under applicable tax
law as indebtedness. Each Noteholder agrees to treat the Notes for purposes of
federal, state and local income or franchise taxes (and any other tax imposed on
or measured by income) as indebtedness and to cause any Person acquiring an
interest in a Note by, through or under it to acknowledge the characterization
of the Notes as indebtedness and to agree to treat the Notes as indebtedness for
such tax purposes.
10
ARTICLE II
THE NOTES
SECTION 2.01 GENERAL PROVISIONS.
(a) The Notes issuable hereunder shall be issued as registered
Notes without coupons in no more than five classes as from time to time shall be
authorized by the Issuer. The Notes of all classes shall be known and entitled
generally as the "DVI Receivables XI, L.L.C. Asset-Backed Notes, Series 2000-1"
The Notes of each class shall have further particular designation as the Issuer
may adopt for each class, and each Note issued hereunder shall bear upon the
face thereof the designation so adopted for the class to which it belongs. The
Trustee is hereby authorized and directed upon the written order of the Issuer
to authenticate and deliver Notes to be issued hereunder in five classes, and,
with respect to the Class A Notes only, in four tranches, entitled "6.72375%
Asset-Backed Notes, Series 2000-1, Class A-1", "7.2650% Asset-Backed Notes,
Series 2000-1, Class A-2", "7.550% Asset- Backed Notes, Series 2000-1 Class
A-3", "7.780% Asset-Backed Notes, Series 2000-1 Class A-4", "7.760% Asset-Backed
Notes, Series 2000-1, Class B", "7.860% Asset-Backed Notes, Series 2000-1, Class
C", "8.340% Asset-Backed Notes, Series 2000-1, Class D" and "10.680%
Asset-Backed Notes, Series 2000-1, Class E", respectively. The Issuer may issue
in accordance with Section 2.06 hereof, the Class F Instruments which will be
subordinate to the Class A Notes, the Class B Notes, the Class C Notes, the
Class D Notes and the Class E Notes by entering into a Supplement. The form of
each class of Offered Notes and of the Trustee's certificate of authentication
shall be in substantially the forms set forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇,
▇, ▇ and E hereto, with such appropriate insertions, omissions, substitutions,
and other variations as are required or permitted by this Amended and Restated
Indenture. The aggregate principal amount of Notes which may be authenticated
and delivered under this Amended and Restated Indenture is limited to
$283,750,000 except for Notes authenticated and delivered upon registration of,
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section
2.04, 2.05, or 9.04. The Notes shall be issuable only in registered form and
only in denominations of at least $500,000 and integral multiples of $1,000
thereof; PROVIDED that the foregoing shall not restrict or prevent the transfer
or issuance in accordance with Section 2.04 or 2.05 of any Note having a
remaining outstanding principal amount of less than $500,000; PROVIDED, FURTHER,
that a single Note of each Class may be issued in a different amount as may be
necessary so that the Notes of such Class evidence the full initial principal
balance thereof. The Class F Instruments, if any, shall be issued in the minimum
denominations indicated in the related Supplement.
(b) The aggregate amount of principal due and payable on each
class of Notes on each Payment Date shall be equal to the sum of (i) Monthly
Principal for such class and (ii) any other due and unpaid principal for such
class. Except (i) for optional redemption pursuant to Section 10.01, (ii) for
Prepayment Amounts or Partial Prepayment Amounts or (iii) 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).
(c) Interest and principal on the Notes shall be payable on
each Payment Date commencing with the Initial Payment Date to Noteholders of
record on the Record Date. Interest on the Notes is required to be paid to
Noteholders in an amount equal to the Monthly Interest plus Overdue Interest.
Interest on the Notes shall be computed on the basis of a 360-day year
consisting
11
of twelve 30-day months PROVIDED that for Class A-1, interest shall be computed
using the actual number of days elapsed over a 360-day year.
(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 and then to the
principal thereof.
(e) All Notes of the same class issued under this Amended and
Restated Indenture or any Supplement shall be in all respects equally and
ratably entitled to the benefits hereof and thereof 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 Amended and
Restated Indenture or any Supplement. Payments of principal and interest on
Notes of the same class shall be made pro rata among all outstanding Notes of
such class, without preference or priority of any kind.
(f) The Issuer, the Trustee and each Class A, Class B, Class
C, Class D and Class E Noteholder by acceptance of its Class A, Class B, Class
C, Class D or Class E Note, respectively, (and any Person that is a beneficial
owner of any interest in a Class A, Class B, Class C, Class D or Class E Note,
respectively, by virtue of such Person's acquisition of a beneficial interest
therein) agrees to treat such Note(s) for purposes of federal, state and local
income or franchise taxes (and any other tax imposed on or measured by income)
as indebtedness. Each Class A, Class B, Class C, Class D and Class E Noteholder
agrees that it will cause any Person acquiring an interest in a Class A, Class
B, Class C, Class D or Class E Note through it to acknowledge the Class A, Class
B, Class C, Class D or Class E Notes', respectively, characterization as
indebtedness and to agree to comply with this Amended and Restated Indenture as
to treatment of such Notes as indebtedness for such tax purposes.
SECTION 2.02 GLOBAL NOTES.
(a) Initially, the Class A Notes, the Class B Notes, the Class
C Notes and the Class D Notes shall be issued in the form of one or more Public
Global Notes and the Class E Notes shall be issued in the form of one or more
Rule 144A Global Note(s) which (i) shall represent, and shall be denominated in
an aggregate amount equal to, the aggregate principal amount of all Class A
Notes, the Class B Notes, the Class C Notes, the Class D Notes and the Class E
Notes to be issued hereunder, (ii) shall be delivered as one or more Notes held
by the Book Entry Custodian, or, if appointed to hold such Notes as provided
below, the Depositary shall be registered in the name of the Depositary or its
nominee, (iii) shall be substantially in the form of the Note specified pursuant
to Section 2.01, with such changes therein as may be necessary to reflect that
each such Note is a global security, and (iv) shall each bear a legend
substantially to the effect included in the form of the face of the Notes as set
forth in Exhibits ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇, ▇, ▇ and E hereto. Notwithstanding
anything in any Transaction Document to the contrary, no Class E Note shall be
purchased by a Person who is not a U.S. Person, as defined herein and no Class E
Note shall be purchased by a Person who is not a "qualified institutional buyer"
as defined in Rule 144A of the Securities Act.
(b) Notwithstanding any other provisions of this Section 2.02
or of Section 2.04, unless and until a Global Note is exchanged in whole for
Notes in definitive form, a Global Note may be transferred, in whole, but not in
part, and in the manner provided in this Section 2.02, only by the
12
Depositary to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary selected or approved by the Issuer or
to a nominee of such successor Depositary or in the manner specified in Section
2.02(c). The Depositary shall order the Note Registrar to authenticate and
deliver the following Book-Entry Notes: with respect to the E Notes only, a Rule
144A Global Note having an aggregate initial Outstanding principal balance equal
to the Initial Class Note Balance of such Class, and, with respect to the Class
A Notes, the Class B Notes, the Class C Notes and the Class D Notes only, a
Public Global Note, having an initial Outstanding principal balance equal to
zero. Note Owners shall hold their respective Ownership Interests in and to such
Notes through the book-entry facilities of the Depositary. Without limiting the
foregoing, Class A, Class B, Class C and Class D Note Owners shall hold their
respective Ownership Interests, if any, in Public Global Notes only through
Depositary Participants, Euroclear or Clearstream Banking, Luxembourg.
(c) If (i) the Depositary for the Notes represented by one or
more Global Notes at any time notifies the Issuer that it is unwilling or unable
to continue as Depositary of the Notes or if at any time the Depositary shall no
longer be a clearing agency registered under the Exchange Act and any other
applicable statute or regulation, and a successor Depositary is not appointed or
approved by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such condition, as the case may be, (ii) the Trustee, at the
direction of Noteholders evidencing not less than 66 2/3% of the Voting Rights,
elects to terminate the book-entry system through the Depositary or (iii) after
an Indenture Event of Default or a Servicer Event of Default, Noteholders
representing more than 50% of the Voting Rights advise the Depositary, or
Book-Entry Custodian, as the case may be, in writing that the continuation of a
book-entry system through the Depositary, or the Book-Entry Custodian, as the
case may be, is no longer in such Noteholder's best interest upon the request of
such Noteholder, but only with respect to the interests of such Noteholder, the
Issuer will promptly execute, and the Trustee, upon receipt of an Officer's
Certificate evidencing such determination by the Issuer, will promptly
authenticate and make available for delivery, Notes in definitive form without
coupons, in authorized denominations and in an aggregate principal amount equal
to the principal amount of the Global Note or Notes then outstanding in exchange
for such Global Note or Notes and this Section 2.02 shall no longer be
applicable to the Notes. Upon the exchange of the Global Notes for such Notes in
definitive form without coupons, in authorized denominations, such Global Notes
shall be canceled by the Trustee. Such Notes in definitive form issued in
exchange of the Global Notes pursuant to this Section 2.02(c) shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee may conclusively rely on any such
instructions furnished by the Depositary and shall not be liable for any delay
in delivery of such instructions. The Trustee shall make such Notes available
for delivery to the Persons in whose names such Notes are so registered.
(d) As long as the Notes outstanding are represented by one or
more Global Notes:
(i) the Note Registrar and the Trustee may deal with
the Depositary for all purposes (including the payment of principal of
and interest on the Notes) as the authorized representative of the Note
Owners;
(ii) the rights of Note Owners shall be exercised only
through the Depositary and shall be limited to those established by law
and agreements between such Note Owners
13
and the Depositary and/or the Depositary Participants. Unless and until
Definitive Notes are issued, the Depositary will make book-entry
transfers among the Depositary Participants and receive and transmit
payments of principal of and interest on the Notes to such Depositary
Participants; and
(iii) whenever this Amended and Restated Indenture
requires or permits actions to be taken based upon instructions or
directions of Holders of Notes evidencing a specified percentage of the
Voting Rights, the Depositary shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Note Owners and/or Depositary Participants owning or
representing, respectively, such required percentage of the beneficial
interest in the Notes (or Class of Notes) and has delivered such
instruction to the Trustee.
(e) If Notes are to be issued in global form other than as
Global Notes, the provisions governing such Notes shall be specified pursuant to
an Officer's Certificate with respect thereto and by an indenture supplemental
hereto.
(f) Whenever a notice or other communication to the
Noteholders is required under this Amended and Restated Indenture, unless and
until Notes have been issued in definitive form to Note Owners, the Trustee
shall give all such notices and communications to the Depositary.
(g) The Trustee is hereby initially appointed as the
Book-Entry Custodian and hereby agrees to act as such in accordance with the
agreement that it has with the Depositary authorizing it to act as such. The
Book-Entry Custodian may, and, if it is no longer qualified to act as such, the
Book-Entry Custodian shall, appoint, by written instrument delivered to the
Issuer and the Depositary, any other transfer agent (including the Depositary or
any successor Depositary) to act as Book-Entry Custodian under such conditions
as the predecessor Book-Entry Custodian and the Depositary or any successor
Depositary may prescribe, PROVIDED that the predecessor Book-Entry Custodian
shall not be relieved of any of its duties or responsibilities by reason of any
such appointment of other than the Depositary. If the Trustee resigns or is
removed in accordance with the terms hereof, the successor Trustee or, if it so
elects, the Depositary shall immediately succeed to its predecessor's duties as
Book- Entry Custodian. The Issuer shall have the right to inspect, and to obtain
copies of, any Notes held as Book-Entry Notes by the Book-Entry Custodian.
(h) The provisions of this Section 2.02(h) shall apply to all
transfers of Definitive Notes, if any, issued in respect of Ownership Interests
in the Rule 144A Global Notes.
(1) No transfer of any Class of Note or interest therein shall
be made unless that transfer is made pursuant to an effective
registration statement under the Securities Act, and effective
registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification. If a transfer of any Definitive Note is to be made
without registration under the Securities Act (other than in connection
with the initial issuance thereof or a transfer thereof by the
Depositary or one of its Affiliates), then the Note Registrar shall
refuse to register such transfer unless it receives (and upon receipt,
may conclusively rely upon) either: (i) a certificate from such
Noteholder substantially in the form attached as Exhibit G hereto or
such other certification reasonably acceptable to the
14
Trustee and a certificate from such Noteholder's prospective transferee
substantially in the form attached as Exhibit G hereto or such other
certification reasonably acceptable to the Trustee; or (ii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer
may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Issuer or any
Affiliate thereof that is a trust or of the Depositary, the Servicer,
the Trustee or the Note Registrar in their respective capacities as
such), together with the written certification(s) as to the facts
surrounding such transfer from the Noteholder desiring to effect such
transfer and/or such Noteholder's prospective transferee on which such
Opinion of Counsel is based. If such a transfer of any interest in a
Book-Entry Note is to be made without registration under the Securities
Act, the transferor will be deemed to have made each of the
representations and warranties set forth on Exhibit G hereto in respect
of such interest as if it was evidenced by a Definitive Note and the
transferee will be deemed to have made each of the representations and
warranties set forth in either Exhibit G hereto in respect of such
interest as if it was evidenced by a Definitive Note. None of the
Depositary, the Trustee or the Note Registrar is obligated to register
or qualify any Class of Notes under the Securities Act or any other
securities law or to take any action not otherwise required under this
Amended and Restated Indenture to permit the transfer of any Note or
interest therein without registration or qualification. Any Noteholder
or Note Owner desiring to effect such a transfer shall, and does hereby
agree to, indemnify the Depositary, the Trustee and the Note Registrar
against any liability that may result if the transfer is not so exempt
or is not made in accordance with such federal and state laws.
SECTION 2.03 EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
(a) The Notes shall be executed manually or by facsimile
signature on behalf of the Issuer by an Authorized Officer of the Issuer.
(b) Any Note bearing the signature of an individual who was at
the time of execution thereof a proper authorized signatory of the Issuer shall
bind the Issuer, notwithstanding that such individual did not hold such office
at the date of such Note.
(c) No Note shall be entitled to any benefit under this
Amended and Restated Indenture or any Supplement 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 an Issuer Request
to the Trustee directing the authentication and delivery of such Notes and
thereupon the same shall be authenticated and delivered by the Trustee in
accordance with such Issuer Request.
All Notes and the interest thereon shall be nonrecourse
obligations of the Issuer and shall be payable from and secured by the Trust
Property. The Notes shall never constitute obligations of the Trustee, the
Contributor, the Servicer, the Transferor, the Managing Member or of any
shareholder
15
or any Affiliate of such parties (other than any Affiliate that guarantees any
Notes) or any officers, directors, employees or agents of any thereof, and no
recourse may be had under or upon any obligation, covenant or agreement of this
Amended and Restated Indenture, any Supplement or of any Notes, or for any claim
based thereon or otherwise in respect thereof, against any incorporator or
against any past, present, or future owner, partner of an owner or any officer,
employee or director thereof or of any successor entity, or any other Person,
either directly or through the Issuer, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly agreed that this Amended and Restated Indenture
and the obligations issued hereunder are solely obligations of the Issuer, and
that no such personal liability whatever shall attach to, or is or shall be
incurred by, any other Person under or by reason of this Amended and Restated
Indenture, any Supplement or any Notes or implied therefrom, or for any claim
based thereon or in respect thereof, all such liability and any and all such
claims being hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Amended and Restated Indenture and the
issue of such Notes. Except as provided in any Supplement, no Person other than
the Issuer shall be liable for any obligation of the Issuer under this Amended
and Restated Indenture or any Note or any losses incurred by any Noteholder.
SECTION 2.04 REGISTRATION, 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.
(b) Upon surrender for registration of transfer of any Note at
the Corporate Trust Office, 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 the same class, of any authorized
denominations and of a like aggregate original principal amount.
(c) 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 Amended and Restated
Indenture and any Supplement, as the Notes surrendered upon such registration of
transfer or exchange.
(d) Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by 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.
(e) No service charge shall be made for any registration of
transfer or exchange of Notes but the Issuer or the Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
but this provision shall not apply to any exchange pursuant to Section 9.04 not
involving any transfer.
16
(f) If Notes are issued or exchanged in definitive form under
Section 2.02, such Notes will not be registered by the Trustee unless each
prospective initial Noteholder acquiring a Note, each prospective transferee
acquiring a Note and each prospective owner (or transferee thereof) of a
beneficial interest in Notes acquiring such beneficial interest provides the
Servicer, the Issuer, the Trustee and any successor Servicer with a
representation that the statements in either subsections (1) or (2) of Section
2.11 is an accurate representation as to all sources of funds to be used to pay
the purchase price of the Notes.
(g) No transfer of a Note shall be deemed effective unless the
registration and prospectus delivery requirements of Section 5 of the Securities
Act of 1933, as amended, and any applicable state securities laws are complied
with, or such transfer is exempt from the registration and prospectus delivery
requirements under said Securities Act and laws. In the event that a transfer is
to be made without registration or qualification, such Noteholder's prospective
transferee shall deliver to the Trustee an investment letter substantially in
the form of Exhibit G hereto (the "INVESTMENT LETTER"). The Trustee is not under
any obligation to register the Notes under said Act or any other securities law
or to bear any expense with respect to such registration by any other Person or
monitor compliance of any transfer with the securities laws of the United States
regulations promulgated in connection thereto or ERISA unless the Notes are
issued or exchanged in definitive form under Section 2.02.
(h) No Class E Noteholder shall transfer, sell, assign, pledge
or otherwise grant a security interest in ("TRANSFER"), a Class E Note to any
Person that is not a United States person within the meaning of section
7701(a)(30) of the Code. In the event of any Transfer with respect to a Class E
Note, the Trustee shall require, in addition to any other applicable
requirements set forth in this Amended and Restated Indenture, including without
limitation, the delivery of the Investment Letter, (A) the purchaser to execute
a Tax Certificate in substantially the form attached as Exhibit I hereto
certifying to the transferor and the Trustee as to the matters set forth therein
and (B) the transferee to certify, in form and substance reasonably acceptable
to the Trustee, that (1) the transferee is acquiring the Class E Note for its
own behalf and is not acting as agent or custodian for any other person or
entity in connection with such acquisition and (2) the transferee is a United
States person within the meaning of section 7701(a)(30) of the Code.
In addition, no Class E Noteholder shall Transfer a Class E
Note to any Person that is a grantor trust, partnership or S corporation (each a
"PASS-THROUGH ENTITY") if substantially all of the value of the assets of the
Pass-Through Entity is attributable to the Pass-Through Entity's ownership
interest in securities of the Issuer other than the Class A, Class B, Class C
and Class D Notes, nor may the Class E Notes be Transferred or sold to any
Person if, for the purposes of Section 7704 of the Code and the Treasury
regulations promulgated thereunder, after giving effect to such Transfer the
Issuer would be treated under the Code (by virtue of calculating the aggregate
number, Class E Noteholders and holders of the Class F Instrument (if issued))
as being owned by more than 100 persons. In the event of any Transfer with
respect to a Class E Note, the Trustee shall require, in addition to any other
applicable requirements set forth in this Agreement, including without
limitation, the delivery of the Investment Letter, (A) the purchaser to execute
a Tax Certificate substantially in the form attached as Exhibit I hereto in form
and substance reasonably acceptable to the Trustee certifying to the transferor
and the Trustee as to the matters set forth therein and (B) the transferee to
certify, in form and substance reasonably acceptable to the Trustee, that (1)
the transferee is acquiring the Class E Note for its own
17
behalf and is not acting as agent or custodian for any other person or entity in
connection with such acquisition and (2) the transferee is (x) not a
Pass-through Entity or (y) is a Pass-through Entity but after giving effect to
such purchase of such Class E Note by such person, substantially all of the
value of the assets of the Pass-Through Entity is not attributable to the
Pass-Through Entity's ownership interest in the Class E Notes.
SECTION 2.05 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
therefor a replacement Note of the same class, 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 the same class, of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
(c) In case the final installment of principal on any such
mutilated, destroyed, lost or stolen Note has become or will at the next Payment
Date become due and payable, the Issuer in its discretion may, instead of
issuing a replacement Note, pay such Note.
(d) Upon the issuance of any replacement Note under this
Section, the Issuer or the Trustee may require the payment 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 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 Amended and Restated Indenture and any
Supplement equally and proportionately with any and all other Notes of the same
class, duly issued hereunder.
(f) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.06 DELIVERY OF CLASS F INSTRUMENTS.
(a) The Issuer may issue the Class F Instruments upon delivery
to the Trustee of the following: (i) a Supplement in form reasonably
satisfactory to the Trustee executed by the Issuer, the Trustee and any other
applicable party and specifying the items provided in Section 2.06(c) and any
other terms (the "PRINCIPAL TERMS"), (ii) any related credit enhancement
agreements as contemplated by such Supplement, (iii) written confirmation from
each Rating Agency that the issuance of such Class F Instruments will not result
in a Ratings Effect with respect to any class of Notes; PROVIDED,
18
HOWEVER, that no such written confirmation shall be required if the Class F
Instruments are issued on the Closing Date, (iv) such other closing documents,
certificates and Opinions of Counsel as may be required by this Amended and
Restated Indenture or the applicable Supplement and (v) an Officer's Certificate
from the Issuer stating that each of the conditions to the issuance of the Class
F Instruments set forth in this Section 2.06 have been satisfied. In no event
shall the Issuer issue a Class F Instrument to the order of the Issuer or an
Affiliate.
(b) Any such Class F Instrument shall be substantially in the
form of Exhibit F hereto and shall bear, upon its face, the designation for such
class to which it belongs so selected by the Issuer and set forth in the related
Supplement. All Class F Instruments shall be identical in all respects except
for the denominations thereof and shall be equally and ratably entitled among
themselves to the benefits of this Amended and Restated Indenture and any
Supplement thereof without preference, priority or distinction on account of the
actual title or times of authentication and delivery, all in accordance with the
terms and provisions of this Amended and Restated Indenture and such Supplement.
Notwithstanding anything contained in any Supplement, such Class F Instruments,
if any, shall be subordinate to the Class A Notes, the Class B Notes, the Class
C Notes, the Class D Notes and the Class E Notes, and no Class F Instruments
shall adversely affect the method of allocating Available Funds to Class A
Notes, the Class B Notes, the Class C Notes, the Class D Notes or the Class E
Notes for any period or alter or affect the manner or timing of distributions to
the Class A, Class B, Class C, Class D or Class E Noteholders or the rights or
priority of such holders in and to the Trust Property.
(c) Any Supplement relating to Class F Instruments shall
define or provide for, but shall not be limited to, the following Principal
Terms: (i) the name or designation of the Class F Instruments, (ii) the initial
balance of the Class F Instrument (or method for calculating such amount), (iii)
the rate of interest applicable to such Class F Instrument (or formula for the
determination thereof, which may provide that such rate is a floating rate),
(iv) the Class F Percentage, (v) the Stated Maturity Date, (vi) the Redemption
Price, if any, (vii) the Payment Dates and the date or dates from which interest
shall accrue and (viii) if the Class F Instruments are entitled to receive less
than the entire amount distributable to the Issuer or its designee pursuant to
Section 3.04(b)(xiii), the amount that the Class F Instruments are entitled to
receive; PROVIDED that no such Supplement shall conflict with the terms of this
Amended and Restated Indenture in any respect.
(d) The Issuer will not issue, sell, assign, pledge or
otherwise grant a security interest in, the Class F Instruments without an
Opinion of Counsel acceptable in form and substance to the Trustee and addressed
to the Trustee delivered by outside counsel to the Issuer to the effect that for
federal income tax purposes (i) such issuance, sale, assignment, pledge or grant
of a security interest in the Class F Instruments will not affect the tax
characterization of any of the Class A Notes, Class B Notes, Class C Notes or
Class D Notes as indebtedness or Class E Notes as indebtedness or partnership
interests, (ii) such issuance, sale, assignment, pledge or grant of a security
interest in the Class F Instruments will not constitute a deemed reissuance of
the Class A Notes, the Class B Notes, the Class C Notes, the Class D Notes or
the Class E Notes under Treasury Regulations ss.1.1001-3 and (iii) such
issuance, sale, assignment, pledge or grant of a security interest in the Class
F Instruments will not prevent the income from the Trust Property from being
properly included in the consolidated federal income tax return of the DVI
Group.
19
SECTION 2.07 PAYMENT OF INTEREST AND PRINCIPAL; RIGHTS
PRESERVED.
(a) Any installment of interest or principal payable on any
Note that is 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
immediately available 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 therefor 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 for the payment of the final installment of
principal on such Note.
SECTION 2.08 PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration or
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Noteholder as the owner of such Note for the purpose of receiving
payment of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer, the
Trustee nor any agent of the Issuer or the Trustee shall be affected by notice
to the contrary.
SECTION 2.09 CANCELLATION.
All Notes surrendered for registration of transfer or exchange
or 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
Amended and Restated Indenture. All cancelled Notes held by the Trustee may be
disposed of in the normal course of its business or as directed by an Issuer
Order.
SECTION 2.10. NOTEHOLDER LISTS; COMMUNICATIONS TO
NOTEHOLDERS.
(a) 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. If the Trustee is not the Note Registrar, the Issuer
or other obligor, if any, shall furnish to the Trustee at least three Business
Days prior to each Record Date 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.
20
(b) If any Noteholder (herein referred to as an "APPLICANT")
applies in writing to the Trustee, and such application states that the
applicant desires to communicate with other Noteholders with respect to their
rights under this Amended and Restated Indenture or under the Notes, then the
Trustee shall, within three Business Days after the receipt of such application,
afford such applicant(s) access to the information preserved at the time by the
Trustee in accordance with Section 2.10(a).
(c) Every Noteholder, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Noteholders in accordance with Section 2.10(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 2.10(b).
SECTION 2.11. ERISA DEEMED REPRESENTATIONS
Each prospective initial Noteholder acquiring Notes, each
prospective transferee acquiring the Notes, and each prospective owner (or
transferee thereof) of a beneficial interest in Notes (each a "PROSPECTIVE
OWNER") will be deemed to have represented by such purchase to the Issuer, the
Trustee, the Servicer and any successor Servicer that either (1) it is not a
plan within the meaning of Section 3(3) of ERISA or Section 4975 of the Code
("PLAN") and is not directly or indirectly acquiring the Notes on behalf of, as
investment manager of, as named fiduciary of, as trustee of, or with the assets
of a Plan; or (2) the acquisition and holding of the Notes will not give rise to
a prohibited transaction under Section 406(a) of ERISA or Section 4975 of the
Code for which a statutory or administrative exemption is unavailable.
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ARTICLE III
ACCOUNTS; INVESTMENT OF MONEYS; COLLECTION
AND APPLICATION OF MONEYS; REPORTS
SECTION 3.01 ACCOUNTS; INVESTMENTS BY TRUSTEE.
(a) The Servicer, pursuant to a Lock-Box Agreement, shall
establish a Lock-Box Account, which account shall be an Eligible Deposit
Account, in the name of the Trustee for the benefit of the Noteholders. Each
Lock-Box Account shall be a segregated account initially established and
maintained with First Union National Bank, First National Bank of Chicago or
such other Lock-Box Bank as the Servicer may select; PROVIDED, HOWEVER, that the
Servicer (i) shall give the Trustee and the Rating Agencies written notice of
any change in the location of a Lock-Box Account and (ii) shall give at least 10
days' prior written notice of the new location to each Obligor.
In addition, on or before the Closing Date, the
Trustee shall establish in the name of the Trustee for the benefit of the
Noteholders and the Issuer to the extent of their interests therein as provided
in this Amended and Restated Indenture and in the Amended and Restated
Contribution and Servicing Agreement, the following accounts, which accounts
shall be trust accounts maintained at the Corporate Trust Office:
(i) Collection Account;
(ii) Distribution Account; and
(iii) Reserve Account.
Each of such accounts shall be established and maintained as an Eligible Deposit
Account. In addition, the Trustee shall establish a sub-account to the
Distribution Account for each Class of Notes (such sub-accounts the "CLASS A
DISTRIBUTION SUB-ACCOUNT," the "CLASS B DISTRIBUTION SUB-ACCOUNT," the "CLASS C
DISTRIBUTION SUB-ACCOUNT" the "CLASS D DISTRIBUTION SUB-ACCOUNT," the "CLASS E
DISTRIBUTION SUB-ACCOUNT" and, if necessary, the "CLASS F DISTRIBUTION
SUB-ACCOUNT"). 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 written direction of the Servicer
and the provisions of this Amended and Restated 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 Property as herein provided, subject to withdrawal by the Trustee in
accordance with, and for the purposes specified in the written direction of the
Servicer pursuant to the provisions of, this Amended and Restated Indenture.
The Collection Account shall be comprised of more than one
such Eligible Deposit Account, but shall, for the purposes of the Transaction
Documents, be deemed to be one account. Funds shall be withdrawn equally from
each such Eligible Account that constitutes the Collection Account to make all
payments from the Collection Account in accordance with the terms and conditions
of this Amended and Restated Indenture.
22
(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 written instructions of the
Servicer. Unless otherwise advised in writing by the Servicer, the Trustee shall
assume that any amount remitted to it is to be deposited into the Collection
Account pursuant to Section 3.03(b). 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 Property 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) The Trustee shall have no right of set-off with respect to
any Lock-Box Account, the Collection Account, the Reserve Account, the
Distribution Account, the Class A Distribution Sub- Account, the Class B
Distribution Sub-Account, the Class C Distribution Sub-Account, the Class D
Distribution Sub-Account, the Class E Distribution Sub-Account, the Class F
Distribution Sub- Account or any investment therein, or any Trust Property,
including collections or proceeds with respect thereto regardless of when or how
held by the Trustee and whether or not commingled.
(d) So long as no Default or Indenture Event of Default shall
have occurred and be continuing, the amounts in the Collection Account and the
Reserve Account shall be invested and reinvested by the Trustee pursuant to a
Servicer Order in one or more Eligible Investments. Subject to the restrictions
on the maturity of investments set forth in Section 3.01(f), each such Servicer
Order may authorize the Trustee to make the specific Eligible Investments set
forth therein, to make Eligible Investments from time to time consistent with
the general instructions set forth therein, or to make specific Eligible
Investments pursuant to instructions received in writing or by telegraph or
facsimile transmission from the employees or agents of the Servicer identified
therein, in each case in such amounts as such Servicer Order shall specify. The
Issuer, and any Class F Instrumentholder, agrees to report as income for
financial reporting and tax purposes (to the extent reportable) all investment
earnings on amounts in the Collection Account and the Reserve Account.
(e) In the event that either (i) the Servicer shall have
failed to give investment directions to the Trustee by 12:00 P.M. New York time
on any Business Day on which there may be uninvested cash or (ii) a Default or
Indenture Event of Default shall have occurred and be continuing, then the
Trustee shall invest and reinvest the funds then in the Collection Account, the
Reserve Account, as the case may be, to the fullest extent practicable in one or
more Eligible Investments as specified in paragraph (vii) of the definition of
Eligible Investments. All investments made by the Trustee shall mature no later
than the maturity date therefor permitted by Section 3.01(f).
(f) No investment of any amount held in the Collection Account
or the Reserve Account shall mature later than the second Business Day
immediately preceding the Payment Date which is scheduled to occur immediately
following the date of investment; all such investments shall be held to
maturity. All income or other gains from the investment of moneys deposited in
the Collection Account or the Reserve Account shall be deposited by the Trustee
in such account immediately upon receipt. Any net loss of principal (determined
on a month by month basis) resulting
23
from such investment of amounts in the Collection Account or the Reserve Account
shall be charged to the Issuer, and the Issuer shall reimburse such account for
such loss within three Business Days.
(g) Any investment of any funds in the Collection Account or
the Reserve Account, 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 (in its capacity as such) for the benefit of the
Noteholders or in the name of a nominee of the Trustee;
(ii) the investment earnings of any investment shall be
credited to the account for which such investment was made;
(iii) 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
(iv) 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) The Trustee shall not in any way be held liable by reason
of any insufficiency in the Collection Account or the Reserve Account, resulting
from losses on investments made in accordance with the provisions of this
Section 3.01 (but the institution serving as Trustee shall at all times remain
liable for its own debt obligations, if any, constituting part of such
investments). The Trustee shall not be liable for any investment losses or any
liquidation prior to its maturity or any investment made by it in accordance
with this Section 3.01 on the grounds that it could have made a more favorable
investment.
SECTION 3.02 RESERVED.
SECTION 3.03 COLLECTION OF MONEYS.
(a) Except as otherwise expressly provided herein, the Trustee
may demand payment or delivery of, and shall receive and collect, directly and
without intervention or assistance of any fiscal agent or other intermediary,
all money and other property payable to or receivable by the Trustee pursuant to
this Amended and Restated Indenture. The Trustee shall apply all such money
received by it as provided in this Amended and Restated Indenture. Except as
otherwise expressly provided in this Amended and Restated Indenture, if any
default occurs in the making of any payment or performance under any agreement
or instrument that is part of the Trust Property, the Trustee may take such
action as may be appropriate to enforce such payment or performance, including
the institution and prosecution of appropriate proceedings. Notwithstanding the
foregoing, the Trustee shall not be obligated to act as Servicer prior to its
being appointed Successor Servicer. Any such action shall be without prejudice
to any right to claim a Default or Event of Default under this Amended and
Restated Indenture and any right to proceed thereafter as provided in Article
VI. If at any time the Issuer shall receive any payment on or in respect of any
Contract or Equipment (including any Residual
24
Payment), it shall hold such payment in trust for the benefit of the Trustee and
the Noteholders, shall segregate such payment from the other property of the
Issuer, and shall, within two Business Days of receipt, deliver such payment in
immediately available funds to the Trustee.
(b) If at any time the Trustee shall receive any payment on or
in respect of any Contract or Equipment (including any Residual Payment), it
shall, within two Business Days of receipt, deposit such payment by it into the
Collection Account in accordance with the written direction of the Servicer.
(c) If at any time the Trustee shall receive any Residual
Payment in respect of any Contract, it shall hold such Residual Payment in trust
for the benefit of the Contributor and deposit such Residual Payment as
instructed in writing by the Servicer, including, without limitation, as the
Servicer may so instruct as contemplated in Section 3.04(a)(v) hereof or to such
other designee or account as the Servicer instructs.
SECTION 3.04 COLLECTION ACCOUNT.
(a) The Trustee shall deposit the following into the
Collection Account in accordance with the written instructions delivered to the
Trustee by the Servicer:
(i) promptly upon receipt, each Contract Payment or
Servicer Advance received by the Trustee, including all Contract
Payments deposited with the Trustee by the Contributor on the Closing
Date;
(ii) promptly upon receipt, the proceeds of any purchase
of Contracts and Equipment pursuant to Section 4.02 of this Amended and
Restated Indenture;
(iii) promptly upon receipt, each Prepayment Amount or
Partial Prepayment Amount received by the Trustee and any amounts
remitted by the Contributor in connection with any substitution of
Contracts;
(iv) promptly upon receipt, any amount required to be
deposited in the Collection Account pursuant to this Amended and
Restated Indenture;
(v) promptly upon receipt, each Residual Payment
received by the Trustee;
(vi) promptly upon receipt, any proceeds received by the
Trustee pursuant to any insurance policy covering Equipment or any
other amounts received by the Trustee relating to a Contract or
Equipment; and
(vii) promptly upon receipt, any amounts the Trustee
receives pursuant to Section 3.03 of this Amended and Restated
Indenture.
(b) Unless the Notes have been declared due and payable
pursuant to Section 6.02 hereof and moneys collected by the Trustee are being
applied in accordance with Section 6.06 hereof, the Trustee shall by 3:00 P.M.,
New York City time, on each Payment Date disburse all Available
25
Funds deposited in the Collection Account (including any investment income with
respect to monies on deposit in the Collection Account) in the amounts required,
and in the following order of priority in accordance with the Monthly Servicer
Report:
(i) to the Servicer, the Servicing Fee due to the
Servicer on such Payment Date and if the Servicer is no longer DVI, and
the Servicer has, in its good faith and reasonable business judgment,
deemed the Servicing Fee to be commercially unreasonable, then, to the
Servicer, the amount agreed upon between the then Servicer and the
Trustee, each in their good faith and commercially reasonable judgment,
as necessary to make the Servicing Fee commercially reasonable and to
cover the reasonable costs in transferring the servicing obligations;
(ii) to the Servicer, any unreimbursed Nonrecoverable
Advances or Servicer Advances previously made with respect to
Delinquent Contracts in accordance with Section 5.01 of the Amended and
Restated Contribution and Servicing Agreement;
(iii) first, to the Class A Distribution Sub-Account, in
the following order of priority, the sum of: (A) the Class A-1 Monthly
Interest; and (B) the Class A-1 Overdue Interest, if any; second, to
the Class A Distribution Sub-Account, in the following order of
priority, the sum of: (A) the Class A-2 Monthly Interest; and (B) the
Class A-2 Overdue Interest, if any; third, to the Class A Distribution
Sub-Account, in the following order of priority, the sum of: (A) the
Class A-3 Monthly Interest; and (B) the Class A-3 Overdue Interest, if
any; and fourth, to the Class A Distribution Sub-Account, in the
following order of priority, the sum of: (A) the Class A-4 Monthly
Interest; and (B) the Class A-4 Overdue Interest, if any;
(iv) to the Class B Distribution Sub-Account, in the
following order of priority, in the sum of:
(A) the Class B Monthly Interest; and
(B) the Class B Overdue Interest, if
any;
(v) to the Class C Distribution Sub-Account, in
the following order of priority, the sum of:
(A) the Class C Monthly Interest; and
(B) the Class C Overdue Interest, if
any;
(vi) to the Class D Distribution Sub-Account, in
the following order of priority, in the sum of:
(A) the Class D Monthly Interest; and
(B) the Class D Overdue Interest, if
any;
26
(vii) to the Class E Distribution Sub-Account, in
the following order of priority, the sum of:
(A) the Class E Monthly Interest; and
(B) the Class E Overdue Interest, if
any;
(viii) PROVIDED that no Amortization Event shall have
occurred and be continuing, to the Class A Distribution Sub-Account, in
the following order of priority, the sum of:
(A) the Class A-1 Overdue Principal, if
any;
(B) the Class A-1 Monthly Principal;
(C) the Class A-2 Overdue Principal, if
any;
(D) the Class A-2 Monthly Principal;
(E) the Class A-3 Overdue Principal, if
any;
(F) the Class A-3 Monthly Principal;
(G) the Class A-4 Overdue Principal, if
any; and
(H) the Class A-4 Monthly Principal;
(ix) PROVIDED that no Amortization Event shall have
occurred and be continuing, to the Class B Distribution Sub-Account, in
the following order of priority, the sum of:
(A) the Class B Overdue Principal, if
any; and
(B) the Class B Monthly Principal;
(x) PROVIDED that no Amortization Event shall have
occurred and be continuing, to the Class C Distribution Sub-Account, in
the following order of priority, the sum of:
(A) the Class C Overdue Principal, if
any; and
(B) the Class C Monthly Principal;
(xi) PROVIDED that no Amortization Event shall have
occurred and be continuing, to the Class D Distribution Sub-Account, in
the following order of priority, the sum of:
27
(A) the Class D Overdue Principal, if
any; and
(B) the Class D Monthly Principal;
(xii) PROVIDED that no Amortization Event shall have
occurred and be continuing, to the Class E Distribution Sub-Account, in
the following order of priority, the sum of:
(A) the Class E Overdue Principal, if
any; and
(B) the Class E Monthly Principal;
(xiii) PROVIDED that no Amortization Event shall
have occurred and be continuing, to the Reserve Account, the Reserve
Account Deposit Amount;
(xiv) if an Amortization Event shall have occurred
and is continuing and is not subject to a continuing waiver from
Noteholders evidencing not less than 662/3% of the Voting Rights, in
the following order of priority:
FIRST, to the Class A Distribution
Sub-Account the amount necessary to reduce the Class
A-1 Note Balance to zero; then, to the Class A
Distribution Sub- Account, the amount necessary to
reduce the Class A-2 Note Balance to zero; then, to
the Class A Distribution Sub-Account, the amount
necessary to reduce the Class A-3 Note Balance to
zero; and then, to the Class A Distribution Sub-
Account, the amount necessary to reduce the Class A-4
Note Balance to zero; PROVIDED, HOWEVER, that upon
the occurrence of a Subordination Deficiency Event,
after the Class A-1 Note Balance has been reduced to
zero and the Class A-2 Note Balance has been reduced
to zero, then the Class A-3 Note Balance and the
Class A-4 Note Balance will be paid on a PRO RATA,
PARI PASSU basis; and
SECOND, to the Class B Distribution
Sub-Account the amount necessary to reduce the Class
B Note Balance to zero; and
THIRD, to the Class C Distribution
Sub-Account the amount necessary to reduce the Class
C Note Balance to zero;
FOURTH, to the Class D Distribution
Sub-Account the amount necessary to reduce the Class
D Note Balance to zero; and
FIFTH, to the Class E Distribution
Sub-Account the amount necessary to reduce the Class
E Note Balance to zero;
(xv) any remaining Available Funds on deposit in the
Collection Account shall be paid to DVI Receivables Corp. VIII, as sole
member of the Issuer, or, if the Class F Instrument has been issued, to
the Class F Distribution Sub-Account.
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Noteholders evidencing not less than 662/3% of the Voting Rights shall have the
ability to waive or defer any Amortization Event by written notice delivered to
the Trustee. If at any time any amount or portion thereof previously distributed
pursuant to this Section 3.04(b) 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 3.04(b)
such amount or portion thereof shall be deemed not to have been previously so
distributed. The Trustee shall make the disbursements in accordance with the
Monthly Servicer Report on each Payment Date to the extent of Available Funds
for such Payment Date.
(c) If on any Payment Date, the Available Funds on deposit in
the Collection Account (the "DEPOSITED AVAILABLE FUNDS") are less than the sum
necessary to make the payments required pursuant to Section 3.04(b), clauses
(iii) through (xii) inclusive and clause (xiv), each as applicable (the sum of
such payments, the "PRIORITY PAYMENTS"), then the Trustee shall withdraw from
the Reserve Account, to the extent that such funds are on deposit in the Reserve
Account and after taking into account payments to be made pursuant to clauses
(i) and (ii) of Section 3.04(b), and either (A) if an automatic stay under
Section 362(a) of the Bankruptcy Code has not been applied to the Trust
Property, deposit into the Distribution Account for payment on such Payment Date
funds equal to the amount of the Priority Payments less any Deposited Available
Funds for payment in accordance with Section 3.04(b)(iii) through and including
(xii) and (xiv) hereof, as applicable or (B) if an automatic stay under Section
362(a) of the Bankruptcy Code has been applied to the Trust Property, deposit
into the Distribution Account for payment on such Payment Date funds equal to
the amount of payments required pursuant to Section 3.04(b), clauses (iii)
through (vii) less any Deposited Available Funds for payment in accordance with
Section 3.04(b)(iii) through and including (vii) hereof, as applicable (the
amount calculated pursuant to Clause (A) or (B), as applicable, the "AVAILABLE
RESERVE ACCOUNT FUNDS").
SECTION 3.05 CLASS A DISTRIBUTION SUB-ACCOUNT; CLASS B
DISTRIBUTION SUB-ACCOUNT; CLASS C DISTRIBUTION SUB-ACCOUNT; CLASS D DISTRIBUTION
SUB-ACCOUNT; CLASS E DISTRIBUTION SUB-ACCOUNT; CLASS F DISTRIBUTION SUB-ACCOUNT.
(a) On each Payment Date in accordance with the Monthly
Servicer Report the Trustee shall pay to the Class A Noteholders, from the
amounts then on deposit in the Class A Distribution Sub- Account and allocated
pursuant to Section 3.04 hereof, first to the Class A-1 Noteholders, the Class
A-2 Noteholders, the Class A-3 Noteholders and the Class A-4 Noteholders, PRO
RATA among the Noteholders of each such Class, in the following order of
priority:
(i) the Class A-1 Monthly Interest;
(ii) the Class A-1 Overdue Interest, if
any;
(iii) the Class A-2 Monthly Interest;
(iv) the Class A-2 Overdue Interest, if
any;
(v) the Class A-3 Monthly Interest;
(vi) the Class A-3 Overdue Interest, if
any;
(vii) the Class A-4 Monthly Interest; and
(viii) the Class A-4 Overdue Interest, if
any;
29
second, to the Class A-1 Noteholders, Class A-2 Noteholders,
the Class A-3 Noteholders and the Class A-4 Noteholders, PRO RATA among the
Noteholders of each such Class, in the following order of priority:
(i) the Class A-1 Overdue Principal, if
any;
(ii) the Class A-1 Monthly Principal;
(iii) any additional Class A-1 principal
payable pursuant to the Amended and
Restated Indenture;
(iv) the Class A-2 Overdue Principal, if
any;
(v) the Class A-2 Monthly Principal;
(vi) any additional Class A-2 principal
payable pursuant to the Amended and
Restated Indenture;
(vii) the Class A-3 Overdue Principal, if
any;
(viii) the Class A-3 Monthly Principal;
(ix) any additional Class A-3 principal
payable pursuant to the Amended and
Restated Indenture;
(x) the Class A-4 Overdue Principal, if
any;
(xi) the Class A-4 Monthly Principal; and
(xii) any additional Class A-4 principal
payable under the Amended and
Restated Indenture;
PROVIDED, HOWEVER, that in the event that a Subordination Deficiency Event has
occurred and is continuing, after the Class A-1 Note Balance has been reduced to
zero, and the Class A-2 Note Balance has been reduced to zero, the Class A-3
Note Balance and the Class A-4 Note Balance will be paid on a PRO RATA, PARI
PASSU basis.
(b) On each Payment Date in accordance with the Monthly
Servicer Report the Trustee shall pay to the Class B Noteholders, PRO RATA among
the Noteholders of such Class, the amount then on deposit in the Class B
Distribution Sub-Account and allocated pursuant to Section 3.04 hereof. Such
payments to the Class B Noteholders shall be made in the following order of
priority:
(i) the Class B Monthly Interest;
(ii) the Class B Overdue Interest, if
any;
(iii) the Class B Overdue Principal, if
any;
(iv) the Class B Monthly Principal; and
(v) any additional principal payable to
the Class B Noteholders pursuant to
the Amended and Restated Indenture.
(c) On each Payment Date in accordance with the Monthly
Servicer Report the Trustee shall pay to the Class C Noteholders, PRO RATA among
the Noteholders of such Class, the amount then on deposit in the Class C
Distribution Sub-Account and allocated pursuant to Section 3.04 hereof. Such
payments to the Class C Noteholders shall be made in the following order of
priority:
(i) the Class C Monthly Interest;
(ii) the Class C Overdue Interest, if
any;
(iii) the Class C Overdue Principal, if
any;
30
(iv) the Class C Monthly Principal; and
(v) any additional principal payable to
the Class C Noteholders pursuant to
the Amended and Restated Indenture.
(d) On each Payment Date in accordance with the Monthly
Servicer Report the Trustee shall pay to the Class D Noteholders, PRO RATA among
the Noteholders of such Class, the amount then on deposit in the Class D
Distribution Sub-Account and allocated pursuant to Section 3.04 hereof. Such
payments to the Class D Noteholders shall be made in the following order of
priority:
(i) the Class D Monthly Interest;
(ii) the Class D Overdue Interest, if
any;
(iii) the Class D Overdue Principal, if
any;
(iv) the Class D Monthly Principal; and
(v) any additional principal payable to
the Class D Noteholders pursuant to
the Amended and Restated Indenture.
(e) On each Payment Date in accordance with the Monthly
Servicer Report the Trustee shall pay to the Class E Noteholders, PRO RATA among
the Noteholders of such Class, the amount then on deposit in the Class E
Distribution Sub-Account and allocated pursuant to Section 3.04 hereof. Such
payments to the Class E Noteholders shall be made in the following order of
priority:
(i) the Class E Monthly Interest;
(ii) the Class E Overdue Interest, if
any;
(iii) the Class E Overdue Principal, if
any;
(iv) the Class E Monthly Principal; and
(v) any additional principal payable to
the Class E Noteholders pursuant to
the Amended and Restated Indenture.
(f) If the Class F Instruments have been issued, on each
Payment Date in accordance with the Monthly Servicer Report the Trustee shall
distribute to the Class F Instrumentholders, PRO RATA among all holders of Class
F Instruments, the amount then on deposit in the Class F Distribution Sub-
Account in the priority set forth in the Supplement.
SECTION 3.06 RESERVED.
SECTION 3.07 RESERVED.
SECTION 3.08 RESERVE ACCOUNT.
(a) On each Payment Date the Trustee shall promptly deposit
into the Reserve Account all amounts required to be deposited into the Reserve
Account and actually received by the Trustee pursuant to this Amended and
Restated Indenture. The obligation of the Trustee to deposit amounts into the
Reserve Account in accordance with the terms of this Amended and Restated
Indenture shall be limited to the deposit of amounts in the Collection Account
pursuant to Section 3.04(b) hereof. The Trustee shall not have any
responsibility to determine the amount or adequacy of funds on deposit in the
Reserve Account, or the amount of any deposits to or withdrawals from the
Reserve Account. The
31
Issuer, or Class F Instrumentholder, if any, by its acceptance of the Class F
Instrument, agrees to treat such assets (and all earnings thereon) (the "RESERVE
ACCOUNT PROPERTY") as its assets (and earnings) for federal, state and local tax
purposes and not to sell, transfer or otherwise dispose of its interest therein.
(b) On each Payment Date, the Trustee shall, on the basis of
the Monthly Servicer Report, deposit in the Reserve Account, pursuant to Section
3.04(b), an amount equal to the Reserve Account Deposit Amount. If on any
Payment Date, Deposited Available Funds are less than the Priority Payments, the
Trustee shall withdraw from the Reserve Account the excess of the Priority
Payments over the Available Funds in accordance with Section 3.04(c) hereof. On
each Payment Date, if, after giving effect to all deposits and withdrawals
therefrom on such Payment Date, the balance in the Reserve Account is greater
than the Reserve Account Requirement, the Trustee shall release and, at the
instruction of the Servicer, shall pay the amount (such amount, a "RESERVE
ACCOUNT WITHDRAWAL") of the excess to the Issuer or its designee, or Class F
Instrumentholder, if any. Amounts properly paid to the Issuer or its designee,
or Class F Instrumentholder, if any, pursuant to this Section 3.08, either
directly from the Distribution Account without deposit in the Reserve Account or
from the Reserve Account, shall be deemed released from the Trust Property, and
the Issuer or its designee, or Class F Instrumentholder, if any, shall not in
any event thereafter be required to refund any such paid amounts.
(c) With respect to the Reserve Account Property, the Issuer
and the Trustee agree that any Reserve Account Property that is held in deposit
accounts shall be held solely in the name of the Trustee, on behalf of the
Noteholders. Each such deposit account shall be subject to the exclusive custody
and control of the Trustee, and the Trustee shall have sole signature authority
with respect thereto.
(d) Upon termination of this Amended and Restated Indenture,
any amounts on deposit in the Reserve Account, after payment of amounts due to
the Class A Noteholders, the Class B Noteholders, the Class C Noteholders, the
Class D Noteholders, the Class E Noteholders upon the Managing Member's written
request to the Trustee, shall be paid to the Managing Member (as sole beneficial
owner of the Issuer), or Class F Instrumentholders, if any.
SECTION 3.09 REPORTS; NOTICES OF CERTAIN PAYMENTS.
(a) Following each payment to the Noteholders, the Trustee
shall mail to the Issuer, Cede & Co. and the Rating Agencies, and make available
to each Noteholder, the Monthly Servicer Report furnished to the Trustee by the
Servicer on the Determination Date prior to such Payment Date (or if such report
has not been received, a written statement to such effect).
(b) The Trustee shall deliver to the Servicer, and within two
Business Days after the request of the Issuer, deliver to the Issuer a written
statement setting forth the amounts on deposit in the Collection Account and the
Reserve Account, and identifying the investments included therein.
SECTION 3.10. TRUSTEE MAY RELY ON CERTAIN INFORMATION FROM
CONTRIBUTOR AND SERVICER.
Pursuant to the Amended and Restated Contribution and
Servicing Agreement, the Contributor and the Servicer are 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
32
III and in Article IV of this Amended and Restated Indenture. The Trustee shall
be entitled to rely conclusively in good faith on any such information and
calculations in the performance of its duties hereunder, (i) unless and until a
Responsible Officer of the Trustee has actual knowledge that such information or
calculations is or are incorrect, or (ii) unless there is a manifest error in
any such information; PROVIDED that the Trustee shall verify the mathematical
accuracy of the Class A-1 Monthly Principal, the Class A-2 Monthly Principal,
the Class A-3 Monthly Principal, the Class A-4 Monthly Principal, the Class B
Monthly Principal, the Class C Monthly Principal, the Class D Monthly Principal,
the Class E Monthly Principal, the Class A-1 Monthly Interest, the Class A-2
Monthly Interest, the Class A-3 Monthly Interest, the Class A-4 Monthly
Interest, the Class B Monthly Interest, the Class C Monthly Interest, the Class
D Monthly Interest and the Class E Monthly Interest to be paid on each Payment
Date.
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ARTICLE IV
CONTRACTS AND EQUIPMENT
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF THE
ISSUER.
The Issuer hereby restates and incorporates herein each of the
representations and warranties, IN MUTATIS MUTANDIS, set forth in Section 2.03
and Section 2.04 of the Amended and Restated Contribution and Servicing
Agreement. The Trustee shall rely on such representations and warranties in
accepting the Contracts and the other Trust Property in trust and authenticating
the Notes. Such representations and warranties shall speak as of the Closing
Date.
SECTION 4.02 PURCHASE UPON BREACH; AMENDED AND RESTATED
CONTRIBUTION AND SERVICING AGREEMENT.
The Issuer shall inform the Trustee promptly, in writing, upon
the discovery of a breach of any of the Contributor's representations and
warranties set forth in Section 2 of the Amended and Restated Contribution and
Servicing Agreement. With respect to any breach of the Contributor's
representations and warranties set forth in Section 2 of the Amended and
Restated Contribution and Servicing Agreement, which materially and adversely
affects the interest of the Noteholders in such Contract or Contracts, the
Issuer shall cause the Contributor to either (a) replace such Contract and the
related Equipment with a Substitute Contract in accordance with the provisions
of Section 5.03 of the Amended and Restated Contribution and Servicing Agreement
(and for the Transferor to receive from the Contributor and transfer to the
Issuer such Substitute Contract) or (b) purchase from the Transferor (which
Transferor shall purchase from the Issuer and resell to the Contributor) the
Contract and the security interest in the related Equipment that are affected by
such breach, unless, in each such instance such breach has been cured, or waived
in all respects by Noteholders evidencing more than 50% of the Voting Rights,
within 90 days following the Issuer's discovery or receipt of notice of such
breach. In the event of a repurchase of a Contract, the Issuer and the Managing
Member (as sole beneficial owner of the Issuer) shall cause the Contributor to
remit to the Trustee (upon written notice to the Trustee thereof) the Repurchase
Amount of such Contract (or, if such Contract is then a Defaulted Contract, an
amount equal to the Repurchase Amount as of the date such Contract first became
a Defaulted Contract, together with interest thereon at the Discount Rate from
the date such Contract first became a Defaulted Contract to the end of the month
in which the repurchase is to be made). The Trustee shall, to the extent
received, deposit such Repurchase Amounts and any cash received in connection
with a substitution in the Collection Account on or prior to 11:00 a.m. New York
City time on the second Business Day after receipt thereof. The sole remedy of
the Trustee or the Noteholders against the Contributor with respect to a breach
of a representation or a warranty set forth in Section 2 of the Amended and
Restated Contribution and Servicing Agreement, and against the Issuer or the
Transferor with respect to a breach under this agreement or the Amended and
Restated Subsequent Contract Transfer Agreement (the "SCTA") by reason of such
breach by the Contributor, shall be to require the Contributor to purchase or
substitute Contracts pursuant to the Amended and Restated Contribution and
Servicing Agreement, PROVIDED that the limitation contained in this sentence
shall not otherwise limit the rights of any such Person under Section 5.02 of
the Amended and Restated Contribution and Servicing Agreement. In the event that
the Contributor fails to purchase or substitute for any Contract that it is
required to substitute or repurchase pursuant to the Amended and Restated
Contribution and Servicing Agreement, the Trustee,
34
upon the written direction of the Noteholders, shall enforce the Issuer's and
the Transferor's rights against the Contributor under and in accordance with the
terms of the Amended and Restated Contribution and Servicing Agreement, and the
SCTA, as assigned to the Trustee, to require the purchase or replacement of the
Contract.
SECTION 4.03 RELEASE OF CONTRACTS AND EQUIPMENT FOLLOWING
SUBSTITUTION OR PURCHASE.
In the event that (i) the Contributor shall have substituted a
Substitute Contract and a security interest in the Equipment subject thereto for
a Predecessor Contract and a security interest in the Equipment subject thereto
in accordance with Section 7 of the Amended and Restated Contribution and
Servicing Agreement, or (ii) the Contributor shall have purchased a Contract and
a security interest in the related Equipment in accordance with Section 5.03 of
the Amended and Restated Contribution and Servicing Agreement, the Predecessor
Contract or the repurchased Contract, as applicable, and the security interest
in the Equipment subject thereto, shall be released from the lien of this
Amended and Restated Indenture when the Trustee shall have (i) in the case of
the purchase of a Contract, deposited in the Collection Account all amounts
received pursuant to Section 5.03 of the Amended and Restated Contribution and
Servicing Agreement, (ii) in the case of a Substitute Contract, received a fully
executed original of the Substitute Contract Transfer Form and the Contract File
with respect to such Substitute Contract plus any cash amount delivered as
provided in Section 7.01(d) of the Amended and Restated Contribution and
Servicing Agreement, (iii) received written certification from an Authorized
Officer of the Servicer that there are no unreimbursed Servicer Advances with
respect to such Contract and (iv) delivered to the Contributor acknowledgment of
its receipt of the related Contract Files. If there are such unreimbursed
amounts, any proceeds received with respect to such Predecessor Contract or
repurchased Contract, as applicable, and the security interest in the related
Equipment shall be applied hereunder only to the extent necessary to repay such
Servicer Advances (and clause (iii) of the foregoing sentence shall be deemed
satisfied) and to reimburse the Collection Account for any other amounts drawn
thereon and the balance of such proceeds, if any, shall be paid to, or as
directed by, the Contributor.
In connection with the substitution of a Contract, if the
Discounted Contract Balance of such Substitute Contract is less than the
Discounted Contract Balance of the Predecessor Contract, the Contributor shall,
on the date of substitution, deposit an amount equal to such difference into the
Collection Account.
SECTION 4.04 RELEASE OF CONTRACTS AND EQUIPMENT UPON
FINAL CONTRACT PAYMENT.
(a) In the event that the Trustee shall have received written
certification from an Authorized Officer of the Servicer that the Trustee has
received from amounts paid by the Obligor or from the proceeds of the Equipment
subject to any Contract (i) the final Contract Payment due and payable under any
Contract (including, if applicable, any Purchase Option Payment paid by the
Obligor) or (ii) a Prepayment Amount in respect of any Contract and, following
such final Contract Payment or Prepayment Amount, no further payments on, or in
respect of, such Contract are or will be due and payable, such Contract and the
Equipment subject thereto shall be released from the lien of this Amended and
Restated Indenture except if a Restricting Event or an Amortization Event shall
have occurred and then be continuing.
35
(b) If a Restricting Event or Amortization Event shall have
occurred and then be continuing, then each Contract and the security interest in
all Equipment (except for security interests relating to Equipment subject to a
conditional sales agreement or an equipment note) which would otherwise be
released from the lien of this Amended and Restated Indenture pursuant to this
Section 4.04 shall instead remain subject to such lien and all of the provisions
of this Amended and Restated Indenture, including, without limitation, Article
VI hereof.
SECTION 4.05 EXECUTION OF DOCUMENTS.
The Trustee shall promptly execute and deliver such documents
(which shall be furnished to the Trustee by the Issuer) and take such other
actions as the Issuer, by Issuer Request, may reasonably request to fully
effectuate the release from this Amended and Restated Indenture of any Contract
and the security interest relating to Equipment required to be so released
pursuant to Sections 4.03 and 4.04 hereof.
36
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 under Section 10.01 of the Amended and Restated Contribution and
Servicing Agreement, the Trustee shall, upon the written request of Noteholders
evidencing not less than 66 2/3% of the Voting Rights give written notice to the
Servicer of the termination of all of the rights and obligations of the Servicer
(but none of the Contributor's obligations thereunder, which shall survive any
such termination) under the Amended and Restated Contribution and Servicing
Agreement and the Trustee shall act as successor Servicer in accordance with
Section 10 of the Amended and Restated Contribution and Servicing Agreement.
SECTION 5.02 SUBSTITUTE SERVICER.
Notwithstanding the provisions of Section 5.01, the Trustee
may, if it shall be unwilling or unable to act as the Successor Servicer in
accordance with Section 5.01, appoint a Successor Servicer in accordance with
the provisions of Section 10.03 of the Amended and Restated Contribution and
Servicing Agreement.
SECTION 5.03 NOTIFICATION TO NOTEHOLDERS AND RATING
AGENCIES.
Upon any termination of the Servicer or appointment of a
Successor Servicer, the Trustee shall give prompt notice of such termination,
resignation, discharge, removal or appointment, together with the conditions of
default, if applicable, to the Rating Agencies and each Noteholder in the manner
provided herein.
37
ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
"INDENTURE EVENT OF DEFAULT," wherever used herein, means any
one of the following (whatever the reason for such Indenture 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):
(i) default in the payment of (A) any interest payment
on any outstanding Class A Note, Class B Note, Class C Note, Class D
Note or Class E Note when it becomes due and payable, or (B) the then
outstanding principal balance of the Class A-1 Notes on the Class A-1
Stated Maturity Date, of the Class A-2 Note on the Class A-2 Stated
Maturity Date, of the Class A-3 Note on the Class A-3 Stated Maturity
Date, of the Class A-4 Note on the Class A-4 Stated Maturity Date, of
the Class B Notes on the Class B Stated Maturity Date, of the Class C
Notes on the Class C Stated Maturity Date, of the Class D Notes on the
Class D Stated Maturity Date or of the Class E Notes on the Class E
Stated Maturity Date or (C) any payment of principal of or interest on
any outstanding Note when it becomes due and payable to the extent that
sufficient Available Funds were on deposit in the Collection Account
and to the extent that sufficient Available Reserve Account Funds are
on deposit in the Reserve Account with respect to such Payment Date;
(ii) default in the performance, or breach, of any
covenant set forth in Section 8.04, 8.07(c) or 8.08;
(iii) default in the performance, or breach, of any
covenant of the Issuer in the Notes or this Amended and Restated
Indenture (other than a covenant described in (ii) above), or of any
party to the Amended and Restated Contribution and Servicing Agreement,
or the other Transaction Documents and continuance of such default or
breach for a period of 30 days after the earliest of (A) any officer of
the Transferor or the Issuer first acquiring knowledge thereof, (B) the
Trustee's giving written notice thereof to the Issuer or (C) the holder
of any Note giving written notice thereof to the Issuer;
(iv) if any representation or warranty of the Issuer,
the Transferor or the Contributor made in this Amended and Restated
Indenture, the SCTA or the Amended and Restated Contribution and
Servicing Agreement, respectively, or any other writing provided to the
Noteholders in connection with the foregoing documents 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 Contributor in Section 2.03 or
2.04 of the Amended and Restated Contribution and Servicing Agreement,
with respect to any of the Contracts or the security interest in the
Equipment subject thereto shall not constitute an Indenture Event of
Default if the Contributor substitutes one or more Substitute Contracts
and the security interest in the Equipment subject thereto for such
Contract and a security interest in the related Equipment in accordance
with Section 7.01 of the Amended and Restated
38
Contribution and Servicing Agreement, or repurchases a Contract and the
security interest in the related Equipment in accordance with Section
5.03 of the Amended and Restated Contribution 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 Issuer
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 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 90 consecutive
days; or
(vi) 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 company action by the Issuer in furtherance of any such
action.
SECTION 6.02 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
(a) If an Indenture Event of Default occurs and is continuing,
of which a Responsible Officer of the Issuer written notice (PROVIDED that such
written notice need not have been received by the Trustee in connection with a
payment default as described in Section 6.01(i)), then and in every such case
the Trustee with the consent of Noteholders evidencing not less than 662/3% of
the Voting Rights may declare the unpaid principal amount of all the Notes to be
due and payable immediately, by a notice in writing to the Issuer, and upon any
such declaration such principal amount shall become immediately due and payable
together with all accrued and unpaid interest thereon, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Issuer.
(b) At any time after such a declaration of acceleration has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, Noteholders
evidencing not less than 662/3% of the Voting Rights, by written notice to the
Issuer and the Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Issuer has paid or deposited with the Trustee a
sum sufficient to pay:
39
(A) all sums paid or advanced, together with
interest thereon, by the Trustee hereunder and the reasonable
compensation, expenses, disbursements, and advances, if any,
of the Trustee, its agents and counsel;
(B) all principal of any Notes which have
become due otherwise than by such declaration of acceleration,
and interest thereon from the date when the same first became
due at the applicable Note Rate; and
(C) all interest which has become due with
respect to the Notes;
(ii) all Indenture Events of Default, other than the
non-payment of the aggregate principal amount of the Notes which has
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 6.13; and
(iii) the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction.
No such rescission shall affect any subsequent Indenture Event of Default or
impair any right consequent thereon.
SECTION 6.03 OTHER REMEDIES.
(a) If an Indenture Event of Default occurs and is continuing
of which a Responsible Officer of the Trustee has received written notice
(PROVIDED that such written notice need not have been received by the Trustee in
the case of a payment default as described in Section 6.01(i)), the Trustee
shall give notice to each Noteholder as set forth in Section 7.02. The Trustee
shall then take such action, if any, as may be directed by Noteholders
evidencing not less than 662/3% of the Voting Rights.
(b) Following any acceleration of the Notes, the Trustee shall
have all of the rights, powers and remedies with respect to the Trust Property
as are available to secured parties under the Uniform Commercial Code or other
applicable law or as are otherwise available to it under applicable law to
protect and enforce the rights and remedies of the Trustee and the Noteholders
hereunder and under the other Transaction Documents; PROVIDED that, so long as
the Offered Notes are outstanding, the Trustee, in acting during the pendency of
an Indenture Event of Default shall act solely on behalf of the holders of the
Offered Notes and shall not take into account any Class F Instruments that may
have been issued in so acting. Such rights, powers and remedies may be exercised
by the Trustee in its own name as trustee of an express trust.
SECTION 6.04 TRUSTEE MAY 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, the Transferor, the
Contributor, the Servicer or any other obligor upon the Notes or the other
obligations secured hereby or relating to the property of the Issuer, the
Transferor, the Contributor, 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
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whether the Trustee shall have made any demand on the Issuer, the Transferor,
the Contributor or the Servicer for the payment of overdue principal or overdue
interest or any such other obligation) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to 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,
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
(iii) unless prohibited by applicable law and
regulations, to vote on behalf of the Noteholders in any election of a
trustee, a standby trustee or Person performing similar functions in
any such proceedings; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee or the Noteholders allowed in any proceedings relative
to the Issuer, its creditors and its property;
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 7.06.
(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, except as aforesaid to vote for the election of a trustee in
bankruptcy or similar Person.
SECTION 6.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF NOTES.
All rights of action and claims under this Amended and
Restated 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.
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SECTION 6.06 APPLICATION OF MONEY COLLECTED.
Any money, securities or property collected by the Trustee
pursuant to this Article, and any moneys, securities or property that may then
be held or thereafter received by the Trustee, shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of the entire amount due on account of principal or interest, upon
presentation of the Notes and surrender thereof:
FIRST, to the payment of all costs and expenses of collection
incurred by the Trustee (including the reasonable fees and
expenses of any counsel to the Trustee) and all other amounts
due the Trustee under Section 7.06 (the parties hereto agree
that when the Trustee renders services following an Indenture
Event of Default under Section 6.01 (v) or (vi), compensation
for such services and expenses in connection therewith are
intended to constitute administrative expenses under
applicable bankruptcy law);
SECOND, to the payment of all unreimbursed Servicer Advances
due to the Servicer;
THIRD, only in the event that DVI is no longer the Servicer,
and the Servicer has, in its good faith and reasonable
business judgment, deemed the Servicing Fee to be commercially
unreasonable, then, to the Servicer, the amount agreed upon
between the then Servicer and the Trustee, each in their good
faith and commercially reasonable judgment, as necessary to
make the Servicing Fee commercially reasonable and to cover
the reasonable costs in transferring the servicing
obligations;
FOURTH, to the payment of all accrued and unpaid interest on
the outstanding Class A Note Balance to the date of payment
thereof, ratably to each Class A Noteholder, without
preference or priority of any kind;
FIFTH, to the payment of all accrued and unpaid interest on
the outstanding Class B Note Balance to the date of payment
thereof, ratably to each Class B Noteholder, without
preference or priority of any kind;
SIXTH, to the payment of all accrued and unpaid interest on
the outstanding Class C Note Balance to the date of payment
thereof, ratably to each Class C Noteholder, without
preference or priority of any kind;
SEVENTH, to the payment of all accrued and unpaid interest on
the outstanding Class D Note Balance to the date of payment
thereof, ratably to each Class D Noteholder, without
preference or priority of any kind;
EIGHTH, to the payment of all accrued and unpaid interest on
the outstanding Class E Note Balance to the date of payment
thereof, ratably to each Class E Noteholder, without
preference or priority of any kind;
NINTH, to the payment of the outstanding Class A-1 Note
Balance, and any other amounts due to the Class A-1
Noteholders, ratably, without preference or priority of any
kind,
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until the Class A-1 Note Balance has been reduced to zero,
then to the payment of the outstanding Class A-2 Note Balance,
and any other amounts due to the Class A-2 Noteholders,
ratably, without preference or priority of any kind, until the
Class A-2 Note Balance has been reduced to zero, then to the
payment of the outstanding Class A-3 Note Balance, and any
other amounts due to the Class A-3 Noteholders, ratably,
without preference or priority of any kind, until the Class
A-3 Note Balance has been reduced to zero, then to the payment
of the outstanding Class A-4 Note Balance, and any other
amounts due to the Class A-4 Noteholders, ratably, without
preference or priority of any kind, until the Class A-4 Note
Balance has been reduced to zero (PROVIDED that a
Subordination Deficiency Event has not occurred and is
continuing, in which case the outstanding Class A-3 Note
Balance and the Class A-4 Note Balance shall be paid PRO RATA
in accordance with their respective outstanding Note
Balances);
TENTH, to the payment of the outstanding Class B Note Balance,
and any other amounts due to the Class B Noteholders ratably,
without preference or priority of any kind;
ELEVENTH, to the payment of the outstanding Class C Note
Balance, and any other amounts due to the Class C Noteholders
ratably, without preference or priority of any kind;
TWELFTH, to the payment of the outstanding Class D Note
Balance, and any other amounts due to the Class D Noteholders
ratably, without preference or priority of any kind;
THIRTEENTH, to the payment of the outstanding Class E Note
Balance, and any other amounts due to the Class E Noteholders
ratably, without preference or priority of any kind;
FOURTEENTH, to the payment of all accrued and unpaid interest
on outstanding Class F Instruments, if any, to the date of
payment thereof, ratably to each Holder of the Class F
Instruments without preference or priority of any kind;
FIFTEENTH, to the payment of the outstanding principal balance
of the Class F Instruments, if any, and any other amounts due
to the Holders of any Class F Instruments ratably, without
preference or priority of any kind;
SIXTEENTH, in the event that DVI is the Servicer, to the
payment of all unreimbursed Servicing Fees due to the
Servicer; and
SEVENTEENTH, to the payment of the remainder, if any, to, or
at the order of, the Issuer.
SECTION 6.07 LIMITATION ON SUITS.
The holder of any Note shall not have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or the
Notes, 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 Indenture Event of Default;
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(ii) the Noteholders evidencing not less than 25% of the
Voting Rights shall have made written request to the Trustee to
institute proceedings in respect of such Indenture Event of Default in
its own name as Trustee hereunder;
(iii) such Noteholder or Noteholders have offered to the
Trustee adequate indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(iv) the Trustee for 30 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(v) so long as any of the Notes remain outstanding, no
direction inconsistent with such written request has been given to the
Trustee during such 30-day period by Noteholders evidencing not less
than 662/3% of the Voting Rights;
it being understood and intended that no one or more Noteholder shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Amended and Restated Indenture to affect, disturb, or prejudice the rights
of any other Noteholder, or to obtain or to seek to obtain priority or
preference over any other Noteholder or to enforce any right under this Amended
and Restated Indenture, except in the manner herein provided. It is further
understood and intended that so long as any portion of the Notes remains
outstanding, the Servicer shall not have any right to institute any proceeding,
judicial or otherwise, with respect to this Amended and Restated Indenture
(other than for the enforcement of Sections 3.04(b) and 4.04) or for the
appointment of a receiver or trustee, or for any other remedy hereunder.
SECTION 6.08 UNCONDITIONAL RIGHT OF NOTEHOLDERS TO
RECEIVE PAYMENT.
Notwithstanding any other provision in this Amended and
Restated Indenture, other than the provisions hereof establishing priorities of
payment or limiting the right to recover amounts due on the Notes to recoveries
from the Trust Property, the holder of any Note shall have the absolute and
unconditional right to receive payment of the principal of and interest on such
Note as such principal and interest becomes due on the Payment Dates for such
payments, including the Stated Maturity Date for the applicable Class, 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 Amended and Restated 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 shall continue as though no such proceeding had been
instituted.
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SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost, or stolen Notes in the last paragraph
of Section 2.05, no right or remedy herein conferred upon or reserved to the
Trustee or to the Noteholders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 6.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any holder of any
Note to exercise any right or remedy accruing upon any Indenture Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Indenture 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 Amended and
Restated Indenture, until such time as the conditions specified in Section 11.01
have been satisfied in full, Noteholders evidencing not less than 662/3% of the
Voting Rights 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 Amended and Restated Indenture;
(ii) the Trustee shall not be required to follow any
such direction which the Trustee believes may be unduly prejudicial to
the rights of another Noteholder not joining in such direction or which
the Trustee believes might result in any personal liability on the part
of the Trustee for which the Trustee is not indemnified to its
reasonable satisfaction; and
(iii) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with any such direction;
PROVIDED that the Trustee shall give notice of any such action to each
Noteholder.
SECTION 6.13 WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
(a) Subject to the provisions of Sections 6.08 and 9.01,
Noteholders evidencing more than 50% of the Voting Rights, may, by one or more
instruments in writing, waive an existing Default or Indenture Event of Default
hereunder and its consequences, except a continuing Indenture Event of Default:
45
(i) in respect of the payment of the principal of or
interest on any outstanding Note (which may only be waived by the
holder of such Note), or
(ii) in respect of a covenant or provision hereof which
under Article IX cannot be modified or amended without the consent of
the holder of each outstanding Note affected (which only may be waived
by the holders of all outstanding Notes affected).
(b) A copy of each waiver pursuant to Section 6.13(a) shall be
furnished by the Issuer to the Trustee. Upon any such waiver, such Indenture
Event of Default shall cease to exist and shall be deemed to have been cured,
for every purpose of this Amended and Restated Indenture; but no such waiver
shall extend to any subsequent or other Indenture Event of Default or impair any
right consequent thereon.
SECTION 6.14 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 Amended and Restated 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 6.15 SALE OF TRUST PROPERTY.
(a) The power to effect any sale of any portion of the Trust
Property pursuant to Section 6.03 shall not be exhausted by any one or more
sales as to any portion of the Trust Property remaining unsold, but shall
continue unimpaired until the entire Trust Property 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.
(b) To the extent permitted by applicable law, the Trustee
shall not in any private sale sell the Trust Property, or any portion thereof,
unless either (i) until such time as the conditions specified in Section
11.01(a) have been satisfied in full, Noteholders evidencing not less than
662/3% of the Voting Rights consent to or direct the Trustee to make such sale;
or (ii) the proceeds of such sale would be not less than the sum of all amounts
due to the Trustee hereunder and the entire unpaid principal amount of all Class
A Notes, Class B Notes, Class C Notes, Class D Notes and Class E Notes then
outstanding 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.
(c) In connection with a sale of all or any portion of the
Trust Property:
(i) any one or more Noteholders or the Trustee 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,
46
in paying the purchase money therefor, 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 such 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 Property 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 Property 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 Property shall be commercially reasonable.
(e) The provisions of this Section 6.15 shall not be construed
to restrict the ability of the Trustee to exercise any rights and powers against
the Issuer or the Trust Property that are vested in the Trustee by this Amended
and Restated Indenture, including, without limitation, the power of the Trustee
to proceed against the collateral subject to the lien of this Amended and
Restated Indenture and to institute judicial proceedings for the collection of
any deficiency remaining thereafter.
SECTION 6.16 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Amended and Restated Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court may in its discretion require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.16 does not apply to a suit by the Trustee, a
suit by a Noteholder pursuant to Sections 6.07 and 6.08, or a suit by any
Noteholder or group of Noteholders of more than 10% in principal amount of all
Class A Notes, Class B Notes, Class C Notes, Class D Notes and Class E Notes
then outstanding.
ARTICLE VII
THE TRUSTEE
SECTION 7.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Indenture Event of
Default:
47
(i) the Trustee undertakes to perform only those duties
that are specifically set forth in this Amended and Restated Indenture
and no others and no covenants or duties shall be implied herein in
connection with 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,
statements, opinions, reports or documents furnished to the Trustee and
conforming to the requirements of this Amended and Restated Indenture.
The Trustee, however, shall examine the same to determine whether or
not they conform to the requirements of this Amended and Restated
Indenture.
(b) If an Indenture Event of Default has occurred and is
continuing, the Trustee shall exercise its rights and powers vested in it by
this Amended and Restated 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 Amended and Restated 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 7.01;
(ii) the Trustee shall not be liable for any error in
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the directions received by it pursuant to Section 6.12 or 6.13;
and
(iv) no provision of this Amended and Restated Indenture
shall require the Trustee to expend or risk its own funds or otherwise
incur any personal 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 indemnity reasonably satisfactory to it against such risk or
liability is not assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Amended and Restated 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 five Business Days after a Responsible Officer receives
written notice or is otherwise notified of the occurrence of any Default or
Indenture Event of Default hereunder or Servicer Event of Default under the
Amended and Restated Contribution and Servicing Agreement, the Trustee
48
shall transmit by certified mail return receipt requested, hand delivery or
overnight courier, to all Noteholders, as their names and addresses appear in
the Note Register, the Issuer, the Servicer, the Rating Agencies and the
Contributor notice of such Default, Indenture Event of Default or Servicer Event
of Default hereunder known to the Trustee, unless such Default, Indenture Event
of Default or Servicer Event of Default shall have been cured or waived.
SECTION 7.03 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 7.01:
(i) the Trustee may rely conclusively 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;
(ii) any request or direction of the Issuer mentioned
herein shall be sufficiently evidenced by an Issuer Request or Issuer
Order and any action of the Issuer may be sufficiently evidenced by an
Issuer Order;
(iii) whenever in the administration of this Amended and
Restated 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
Officer's Certificate;
(iv) the Trustee may consult with counsel as to legal
matters and the advice or opinion of any such counsel selected by the
Trustee with due care shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(v) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Amended and
Restated Indenture at the request or direction of any of the
Noteholders pursuant to this Amended and Restated Indenture, unless
such Noteholders shall have offered to the Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(vi) prior to the occurrence of an Indenture Event of
Default and after the curing or waiving of all Indenture Events of
Default, 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, other than to examine such documents to determine whether
they conform as to form to the requirements of this Amended and
Restated Indenture, unless requested in writing to do so by the
Noteholders evidencing more than 50% of the Voting Rights; PROVIDED
that, if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of
49
the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Amended and Restated Indenture, the
Trustee may require indemnity reasonably satisfactory to it against
such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the
Issuer or, if paid by the Trustee or any predecessor trustee, shall be
promptly repaid by the Issuer upon demand; and
(vii) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent, custodian, nominee or attorney appointed with due care by it
hereunder.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Amended and Restated Indenture (except as against itself), the
SCTA, the Amended and Restated Contribution and Servicing Agreement, or the
Notes and it shall not be responsible for any statement in the Notes other than
its certificate of authentication or in any document used in the sale of the
Notes. The Trustee shall have no responsibility for, or duty, or liability in
connection with performance by the Servicer, and shall have no obligation to
monitor the performance of the Servicer. The Trustee shall not be accountable
for the use or application by the Issuer of the Notes or the proceeds thereof.
SECTION 7.05 MONEY HELD IN TRUST.
Money and investments held by the Trustee or other paying
agent shall be held in trust in one or more Eligible Deposit Accounts as
required hereunder. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with Issuer.
SECTION 7.06 COMPENSATION, REIMBURSEMENT, ETC.
(a) Pursuant to the Amended and Restated Contribution and
Servicing Agreement, the Servicer has agreed:
(i) to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as the Servicer
and the Trustee have agreed in writing prior to the Closing Date (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust), such payment to be
made independent of the other payment obligations of the Servicer
hereunder;
(ii) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all reasonable expenses,
disbursements, and advances incurred or made by the Trustee in
accordance with any provision of this Amended and Restated 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;
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(iii) to pay the Trustee its annual administrative
fee on the Closing Date;
(iv) to pay the reasonable fees and expenses of
Trustee's counsel on the Closing Date; and
(v) to pay the reasonable annual administrative fee
of each Lock-Box Bank.
(b) The Trustee hereby acknowledges and agrees that if the
Servicer fails to pay the amounts set forth in Section 7.06(a) of this Amended
and Restated Indenture, the Trustee will continue to perform its obligations
under this Amended and Restated Indenture, regardless of the Servicer's failure
to pay such amounts, until the appointment of a successor Trustee reasonably
satisfactory to the Noteholders in accordance with Section 7.08 of this Amended
and Restated Indenture; PROVIDED, HOWEVER, that in such event, the Trustee shall
withhold amounts otherwise payable to it pursuant to Section 7.06(a) hereof from
amounts payable to the Servicer pursuant to Section 3.04(b)(i).
SECTION 7.07 ELIGIBILITY; DISQUALIFICATION.
The Trustee hereunder (a) shall at all times be a national
banking association organized and doing business under the laws of the United
States of America or any state thereof authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$100,000,000 or shall be a member of a bank holding system, the aggregate
combined capital and surplus of which is at least $100,000,000, PROVIDED that
unless the Trustee is U.S. Bank Trust National Association, the Trustee, or the
bank holding company system of which the Trustee is a member must have a
long-term unsecured debt rating of at least " A " from the Rating Agencies;
PROVIDED, FURTHER, that if the Trustee is U.S. Bank Trust National Association,
the Trustee, or the bank holding company system of which the Trustee is a
member, shall have a long-term unsecured debt rating of at least "Baa3" from
Moody's, "BBB-" from Duff & ▇▇▇▇▇▇ or "BBB" from Fitch IBCA or a short-term
unsecured rating of "Prime-3" from "Moody's" or "F1" from Fitch IBCA, and (b)
shall be subject to supervision or examination by Federal or state authority
and, in the case of any successor Trustee subject to regulations regarding
fiduciary funds on deposit substantially similar to 12 CFR ss. 9.10(b). If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purpose of this Section 7.07, 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. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.07, the Trustee shall resign immediately in the manner and with the
effect specified in Section 7.08.
SECTION 7.08 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 a successor Trustee reasonably
satisfactory to Noteholders evidencing more than 50% of the Voting Rights under
Section 7.09.
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(b) Subject to Section 7.08(a) 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 Rating Agencies and the
Noteholders at their addresses appearing on the Note Register.
(c) The Trustee may be removed at any time by written notice
from Noteholders evidencing more than 50% of the Voting Rights delivered to the
Trustee and the Issuer. The Issuer, with the consent of Noteholders evidencing
more than 50% of the Voting Rights, may remove the Trustee if:
(i) the Trustee fails to comply with Section
7.07;
(ii) the Trustee is adjudged bankrupt or
insolvent;
(iii) a receiver or other public officer takes
charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
(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 Noteholders evidencing more than 50%
of the Voting Rights 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 as hereinabove 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 to the
Rating Agencies. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
(g) A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
SECTION 7.09 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; PROVIDED that on request of
the Issuer or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, 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
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and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder. Upon request of any such successor Trustee, the
Issuer shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
(b) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article and no reduction in the then current ratings, if
any, on the Notes has occurred as a result of such appointment.
SECTION 7.10. 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.
SECTION 7.11 CO-TRUSTEES AND SEPARATE TRUSTEES.
(a) At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any of the Trust Property 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 Noteholders evidencing more than
50% of the Voting Rights, 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 Property, 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 7.11. If the Issuer does not join in such
appointment within fifteen days after the receipt by it of a request so to do,
or in case an Indenture Event of Default has occurred and is continuing, the
Trustee alone shall have power to make such appointment.
(b) Should any written instrument from the Issuer be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Issuer.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms:
(i) The Notes shall be authenticated and delivered and
all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal
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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
an Issuer Order, may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 7.11, and, in case an
Indenture 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
7.11.
(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 and supervised 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 7.12 TRUSTEE TO HOLD CONTRACTS.
On or prior to the Closing Date, the Contributor, on behalf of
the Issuer, shall deliver to the Trustee (or its designee) the sole original,
manually executed counterpart of each Contract (or, if the original Contract is
in the form of a schedule or supplement to a master lease, all original
counterparts of such schedule or supplement previously in the possession of the
Contributor or the Issuer together with a true and correct copy of such master
lease) that constitutes "chattel paper" or an "instrument," as such terms are
defined in the UCC. The Trustee (or its designee) shall hold such documents
until such time as such Contract is released from the lien of this Amended and
Restated Indenture pursuant to the provisions hereof.
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SECTION 7.13 FINANCING STATEMENTS.
The Trustee shall execute such UCC financing statements and
continuation statements as shall have been prepared by the Servicer and as shall
be necessary and shall furnish the Servicer with such limited powers of attorney
or other documents necessary or appropriate to enable the Servicer to fulfill
its obligations under Section 4 of the Amended and Restated Contribution and
Servicing Agreement and to carry out its servicing and administration duties
under the Amended and Restated Contribution and Servicing Agreement.
SECTION 7.14 TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.
(a) On and after the time the Servicer receives a notice of
termination pursuant to Section 10.02 of the Amended and Restated Contribution
and Servicing Agreement, the Trustee (subject to subsection (b) hereof) shall be
the successor in all respects to the Servicer in its capacity as servicer under
the Amended and Restated Contribution and Servicing Agreement of the Contracts
and, to such extent, shall be subject to all the responsibilities, duties and
liabilities (other than the duty to advance funds and indemnify) relating
thereto placed on the Servicer by the terms and provisions thereof (but not the
obligations of the Contributor contained therein which shall survive any such
termination as provided in Section 10.02 thereof) and shall be entitled to
receive from the Issuer the Servicing Fee and other servicing compensation
provided for in Section 4.04 of the Amended and Restated Contribution and
Servicing Agreement; 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) The Trustee may, if it is unwilling or unable to act as
the successor Servicer, give notice of such fact to each Noteholder and (i)
appoint a successor Servicer with a net worth of at least $15,000,000 and
reasonably acceptable to Noteholders evidencing more than 50% of the Voting
Rights and whose regular business includes the servicing of a similar type of
contracts and the financing of medical diagnostic imaging equipment, as the
successor Servicer under the Amended and Restated Contribution and Servicing
Agreement, to assume all of the rights and obligations of the Servicer
thereunder, including, without limitation, the Servicer's right thereunder to
receive the Servicing Fee (but not the obligations of the Contributor contained
therein) or, (ii) if no such institution is so appointed, petition a court of
competent jurisdiction to appoint an institution meeting such criteria as the
Servicer thereunder. Pending appointment of a successor Servicer under the
Amended and Restated Contribution and Servicing Agreement, the Trustee shall act
in such capacity as hereinabove provided. In connection with such appointment
and assumption, the Trustee shall cause such successor Servicer to enter into a
servicing agreement substantially in the form of the Amended and Restated
Contribution and Servicing Agreement, except that such agreement shall not
include any of the Contributor's representations, warranties or obligations and
the Trustee may make arrangements for the compensation of such successor
Servicer out of payments on Contracts and the related Contracts as it and such
successor Servicer shall agree; PROVIDED, HOWEVER, that no such compensation
shall be in excess of that provided in Section 4.04 of the Amended and Restated
Contribution and Servicing Agreement.
SECTION 7.15 REPORTS BY TRUSTEE TO HOLDERS.
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If required by the TIA, within 60 days after each Payment Date
beginning with June 14, 2000, the Trustee shall mail to each Noteholder a brief
report dated as of such Payment Date that complies with TIA Section 313(a).
SECTION 7.16 PREFERENTIAL COLLECTION OF CLAIMS AGAINST
ISSUER.
The Trustee is subject to and shall comply with TIA Section
311(a), excluding any creditor relationship listed in TIA Section 311(b).
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ARTICLE VIII
COVENANTS
SECTION 8.01 PAYMENT OF PRINCIPAL AND INTEREST.
The Issuer will duly and punctually pay the principal of and
interest on the Notes in accordance with the terms of the Notes and this Amended
and Restated Indenture. An installment of interest shall be considered paid on
the date it is due if the Trustee holds on that date money designated for and
sufficient to pay the installment.
SECTION 8.02 MAINTENANCE OF OFFICE OR AGENCY; CHIEF
EXECUTIVE OFFICE.
(a) The Issuer will maintain in the Commonwealth of
Pennsylvania an office or agency where notices and demands to or upon the Issuer
in respect of the Notes and this Amended and Restated Indenture may be served.
(b) The chief executive office of the Issuer, and the office
at which the Issuer maintains its records with respect to the Contracts, the
Equipment, and the transactions contemplated hereby, is located in Doylestown,
Pennsylvania. The Issuer will not change the location of such office without
giving the Trustee and each Noteholder at least 60 days' prior written notice
thereof.
SECTION 8.03 MONEY FOR PAYMENTS TO NOTEHOLDERS TO BE HELD
IN TRUST.
(a) All payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection Account
pursuant to Section 3.04(b) or Section 6.06 shall be made on behalf of the
Issuer by the Trustee, and no amounts so withdrawn from the Collection Account
for payments of Notes shall be paid over to the Issuer under any circumstances
except as provided in this Section 8.03.
(b) In making payments hereunder, the Trustee will:
(i) allocate all sums received for payment to the
Noteholders on each Payment Date in accordance with the terms of this
Amended and Restated Indenture;
(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, in each case, consistent with the
treatment of the Notes as indebtedness.
57
(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 two 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, and all liability of the Trustee with respect to such trust
money shall thereupon cease.
SECTION 8.04 ISSUER EXISTENCE; ETC.
(a) The Issuer will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
Delaware limited liability company and the rights, licenses and franchises of
the Issuer, and will obtain and preserve its qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Amended and Restated Indenture,
the Notes, or any of the Contracts.
(b) The Issuer shall at all times observe and comply in all
material respects with (i) its limited liability company operating agreement as
in effect on the date hereof, (ii) all laws, regulations and court orders
applicable to it, (iii) all requirements of law in the declaration and payment
of any distributions on its Units, and (iv) all requisite and appropriate
formalities (including, without limitation, obtaining the consent of the
Managing Member as its sole beneficial owner to authorize Issuer action as
required, and as otherwise required by law) in the management of its business
and affairs and the conduct of the transactions contemplated hereby, by the SCTA
and by the Amended and Restated Contribution and Servicing Agreement. The SCTA
limits the Issuer's activities to the purchases of assets, issuance of
securities, and activities incidental thereto. No Affiliate of the Issuer pays
the expenses of the Issuer except as contemplated in the Transaction Documents,
and no Affiliate of the Issuer guarantees any obligation of the Issuer. Other
than the purchase, contribution, substitution or sale of assets, the Issuer has
no intercorporate transactions with DVI.
(c) The Issuer will, at all times: (i) maintain (A) financial
books and records separate from those of any other Person and (B) minutes of its
meetings and other proceedings of its member(s); (ii) continuously maintain the
resolutions, agreements and other instruments underlying the transactions
contemplated hereby, by the SCTA and by the Amended and Restated Contribution
and Servicing Agreement, as official records of the Issuer; (iii) act solely in
its name to maintain an arm's-length relationship with the Contributor and its
Affiliates; (iv) pay all of its operating expenses and liabilities from its own
funds; (v) maintain an office and telephone number separate from that of the
Contributor, the Managing Member and the Transferor, (vi) maintain its assets
separately from the assets of the Contributor and (vii) characterize the
Contributor, the Managing Member and the Transferor as separate entities in any
report, tax return, financial statement, other accounting or business
transaction.
(d) The Issuer shall conduct its business solely in its own
name so as to not mislead others as to the identity of the trust with which
those others are concerned, and particularly will avoid the appearance of
conducting business on behalf of the Contributor or any of its Affiliates or
that the assets of the Issuer are available to pay the creditors of the
Contributor or any of its Affiliates. Without limiting the generality of the
foregoing, all oral and written communications, including, without limitation,
letters, invoices, purchase orders, contracts, statements and loan applications,
will be made solely in the name of the Issuer.
58
(e) The Issuer will be operated so as not to be substantively
consolidated for bankruptcy purposes with the Contributor.
(f) Reserved.
(g) The Issuer will not amend its limited liability company
operating agreement without the prior consent of Noteholders evidencing more
than 50% of the Voting Rights.
(h) The Issuer shall also comply with the other applicable
provisions of TIA Section 314.
SECTION 8.05 PROTECTION OF TRUST PROPERTY; FURTHER
ASSURANCES.
The Issuer will from time to time execute and deliver all such
supplements and amendments hereto and all such UCC 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 Property;
(ii) maintain or preserve the lien of this Amended and
Restated Indenture or carry out more effectively the purposes hereof;
(iii) publish notice of, or protect the validity of, any
Grant or assignment made or to be made by this Amended and Restated
Indenture and perfect the security interest contemplated hereby in
favor of the Trustee in the Contracts and any security interest in the
related Equipment;
(iv) enforce or cause the Servicer to enforce any of
the Contracts; or
(v) preserve and defend title to any Contract
(including the right to receive all payments due or to become due
thereunder subsequent to the applicable Cut-Off Date), the security
interest of the Trustee in the Equipment, or other property included in
the Trust Property and preserve and defend the rights of the Trustee
and the Noteholders in such Contract (including the right to receive
all payments due or to become due thereunder subsequent to the
applicable Cut-Off Date), 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 UCC financing statement,
continuation statement or other document or instrument 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.
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SECTION 8.06 COMPLIANCE CERTIFICATES.
The Issuer will deliver to the Trustee and the Rating
Agencies, within 90 days after the end of each fiscal year, an Officer's
Certificate of the Managing Member, as sole owner of the beneficial interests of
the Issuer, stating, in addition to the statements required by Section 1.18, as
to each signer thereof, that
(i) a review of the activities of the Issuer during
such year and of performance under this Amended and Restated Indenture
has been made under such officers' supervision,
(ii) to the best of such officers' knowledge, based on
such review, (a) the Issuer has fulfilled all of its obligations under
this Amended and Restated Indenture throughout such year and (b) the
Servicer has fulfilled all of the Servicer's obligations under the
Amended and Restated Contribution and Servicing Agreement, and
(iii) whether the officer knows of any Defaults by the
Issuer under this Amended and Restated Indenture throughout such year
or, if there has been a Default in the fulfillment of any such
obligation, specifying each such Default known to him and the nature
and status thereof and the nature of the action taken with respect
thereto.
SECTION 8.07 PERFORMANCE OF OBLIGATIONS; AMENDED AND
RESTATED CONTRIBUTION AND SERVICING AGREEMENT.
(a) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this Amended and Restated Indenture, any
Supplement, the Notes, its limited liability company operating agreement, the
Note Purchase Agreement, the Underwriting Agreements and any other applicable
Transaction Documents.
(b) The Issuer will clearly ▇▇▇▇ its books and records to
reflect each assignment and transfer of a Contract and the security interest in
the Equipment subject thereto from the Transferor.
(c) If the Managing Member, as sole member of the Issuer,
shall have actual knowledge of the occurrence of a default under either the
Amended and Restated Contribution and Servicing Agreement or the SCTA, the
Issuer shall promptly notify the Trustee and the Noteholders thereof, and shall
specify in such notice the action, if any, the Issuer is taking in respect of
such default. Unless consented to by Noteholders evidencing more than 50% of the
Voting Rights, the Issuer may not waive any default under or amend the Amended
and Restated Contribution and Servicing Agreement.
(d) The Issuer shall, and shall cause the Contributor to,
update any information required to be provided pursuant to Rule 144A(d) (4) of
the Securities Act to subsequent purchasers of the Class E Notes to prevent such
information from becoming materially false and materially misleading in a manner
adverse to any Noteholder.
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SECTION 8.08 NEGATIVE COVENANTS.
The Issuer will not:
(i) sell, transfer, exchange or otherwise dispose of
any portion of the Trust Property except as expressly permitted by this
Amended and Restated Indenture or any Supplement; PROVIDED THAT nothing
contained herein shall prohibit the transfer by the Issuer of amounts
payable to the Issuer pursuant to Section 3.04(b);
(ii) 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
Property;
(iii) seek dissolution or liquidation in whole or in part
or reorganization of its business or affairs;
(iv) (A) permit the validity or effectiveness of this
Amended and Restated Indenture or any Grant hereby to be impaired, or
permit the lien of this Amended and Restated Indenture to be amended,
hypothecated, subordinated, terminated or discharged, or permit any
Person to be released from any covenants or obligations under this
Amended and Restated Indenture, except as may be expressly permitted
hereby, (B) 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 Property or any part thereof or any interest
therein or the proceeds thereof other than the lien of this Amended and
Restated Indenture and the rights of Obligors, or (C) permit the lien
of this Amended and Restated Indenture not to constitute a valid first
priority perfected security interest in the Contracts and a valid
security interest in the Equipment;
(v) engage in any business or activity in violation of
the provisions contained in its limited liability company operating
agreement;
(vi) at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or
extension law or other law that would prohibit or forgive the Issuer
from paying all or any portion of the principal of or interest on the
Notes as contemplated herein or in the Notes, wherever enacted, now or
at any time hereafter in force, or that may affect the covenants or the
performance of this Amended and Restated Indenture; and (to the extent
that it may lawfully do so) the Issuer 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;
(vii) merge or consolidate with any other Person unless
(i) the entity surviving such merger or consolidation is a Person
organized under the laws of the United States or any jurisdiction
thereof, (ii) the surviving entity, if not the Issuer, shall execute
and deliver to the Servicer and the Trustee, in form and substance
satisfactory to each of them, (x) an instrument expressly assuming all
of the obligations of the Issuer hereunder, and (y) an opinion of
counsel to the effect that such Person is a Person of the type
described in the preceding clause (i), has
61
effectively assumed the obligations of the Issuer hereunder, that all
conditions precedent provided for in this Amended and Restated
Indenture relating to such transaction have been complied with, that in
the opinion of such counsel, all UCC financing statements and
continuation statements and amendments thereto have been executed and
filed that are necessary fully to preserve and protect the interest of
the Trustee in the Trust Property, and reciting the details of such
filings, or stating that no such action shall be necessary to preserve
and protect such interest, (iii) the Issuer shall deliver to the
Trustee a letter from each Rating Agency to the effect that such
transaction will not, in and of itself, result in a downgrading of the
rating for the Notes and (iv) immediately after giving effect to such
transaction, no event of default under any Transaction Document, and no
event which, after notice or lapse of time, or both, would become an
event of default, shall have occurred and be continuing. The Issuer and
any surviving entity, if not the Issuer, will keep all of its material
assets within the United States at all times. The Issuer will not make
any material change in its business;
(viii) 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 Contract or any other instrument
included in the Trust Property other than any such release occasioned
by the early termination of a Contract after receipt of the Prepayment
Amount, or which would result in the amendment, hypothecation,
subordination, termination, or discharge of, or impair the validity or
effectiveness of, any Contract or such other instrument, except as
expressly provided in this Amended and Restated Indenture or the
Amended and Restated Contribution and Servicing Agreement; or
(ix) issue any other securities (other than the Notes
and the Class F Instruments) unless it shall have received from the
Rating Agencies a written confirmation that the issuance of such
securities will not result in a Ratings Effect with respect to any
class of Notes.
SECTION 8.09 INFORMATION AS TO THE ISSUER.
The Issuer shall file with the Trustee and the Rating
Agencies:
(a) within 15 days after filing with the Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may by rules
and regulations prescribe) which the Managing Member (as settlor of the Issuer)
is required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act.
(b) immediately upon becoming aware of the existence of any
condition or event which constitutes a Default or an Indenture 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;
(c) promptly upon the Issuer's becoming aware of:
(i) any proposed or pending investigation of it by any
governmental authority or agency, or
62
(ii) any pending or proposed court or administrative
proceeding
which involves or may involve the possibility, individually or in the aggregate,
of materially and adversely affecting the properties, business, 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; and
(d) with reasonable promptness, any other data and information
which may be reasonably requested from time to time.
SECTION 8.10. PAYMENT OF TAXES AND OTHER CLAIMS.
The Issuer will pay or discharge or cause to be paid or
discharged, before any penalty accrues from the failure to so pay or discharge,
(1) all taxes, assessments and governmental charges levied or imposed upon the
Issuer or upon the income, profits or property (including any property that is
part of the Trust Property) of the Issuer and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Issuer; PROVIDED, HOWEVER, that the Issuer shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim the amount, applicability or validity of which is being
contested in good faith by appropriate proceedings and for which adequate
provision has been made or where the failure to effect such payment or discharge
is not adverse in any material respect to the Noteholders.
SECTION 8.11 INDEMNIFICATION.
The Issuer agrees to indemnify and hold harmless the Trustee
(which shall include its directors, officers, employees and agents) and each
Noteholder (each an "INDEMNIFIED PARTY") against any and all liabilities,
losses, damages, penalties, costs and expenses (including the fees and expenses
of counsel and the costs of defense and legal fees and expenses) which may be
incurred or suffered by such Indemnified Party without negligence, bad faith 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, by the SCTA or by the Amended and Restated Contribution 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, except to the extent otherwise provided
in Section 6.06, all amounts payable pursuant to this Section 8.11 shall be
fully subordinated to amounts payable under the Class A Notes, the Class B
Notes, the Class C Notes, the Class D Notes and the Class E Notes to the extent
that any amounts otherwise due and payable under the terms of this Amended and
Restated Indenture have not been fully paid. In every circumstance where the
Issuer has agreed to indemnify or hold harmless the Noteholders for legal fees,
counsel fees and related costs and expenses, it is understood and agreed, and
the Noteholders by their acceptance of their respective Notes agree, that such
indemnification and holding harmless is limited to the reasonable fees, related
costs and expenses of the Noteholders Counsel only. The provisions of this
Section 8.11 shall survive the termination of this Amended and Restated
Indenture.
63
SECTION 8.12 CONTRACT FILES TO TRUSTEE.
On or prior to the Closing Date or each Substitute Date, as
applicable, the Contributor, on behalf of the Issuer, shall deliver to the
Trustee the original counterpart of each Contract that constitutes "chattel
paper" or an "instrument," as such terms are defined in the UCC.
SECTION 8.13 PAYMENT ADVICES.
Each payment by the Issuer or the Servicer to the Trustee
pursuant to any of the provisions of the Transaction Documents shall be
accompanied by written advice containing sufficient information to identify the
Contract and/or Equipment to which such payment relates, the Section of the
Transaction Documents pursuant to which such payment is made, and the proper
application pursuant to the provisions of the applicable Transaction Document of
the amounts being paid.
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ARTICLE IX
AMENDMENTS AND SUPPLEMENTAL AMENDED AND RESTATED INDENTURES
SECTION 9.01 AMENDMENTS AND SUPPLEMENTAL INDENTURES.
This Amended and Restated Indenture or the Notes may be
amended from time to time by the parties hereto, without the consent of any of
the Noteholders, (i) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein or to
make any other provisions with respect to matters or questions arising under
this Amended and Restated Indenture or the Notes which shall not be materially
inconsistent with the provisions of this Amended and Restated Indenture or the
Notes, PROVIDED THAT such action shall not adversely affect in any respect the
interests of any Noteholder or (ii) to make any change to comply with the TIA or
any amendment thereto, or to comply with any requirement of the Commission in
connection with the qualification of the Amended and Restated Indenture under
the TIA.
This Amended and Restated Indenture or the Notes may also be
amended from time to time by the parties hereto with the consent of the Holders
of Notes evidencing more than 662/3% of the Voting Rights (and with prior
written notice to the Rating Agency) for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Amended
and Restated Indenture or the Notes or of modifying in any manner the rights of
the Holders of Notes; PROVIDED, HOWEVER, that no amendment to this Amended and
Restated Indenture or any supplemental indenture may (i) cause a reduction in
the then current ratings, if any, of the Notes, (ii) increase or reduce in any
manner the amount of, or accelerate or delay the timing of collections of
payments on the related Contracts or distributions that are required to be made
for the benefit of such Noteholders, (iii) reduce the aforesaid percentage of
the Notes of such series which is required to consent to any such amendment or
waiver, or (iv) release any of the Trust Property from the lien hereof (except
as otherwise permitted herein) or modify Section 2.06, 3.04, 6.06, 6.08, 6.13 or
9.01, without the consent of each affected Noteholder. The Issuer shall furnish
to the Rating Agencies copies of all amendments to and supplements to this
Amended and Restated Indenture.
It shall not be necessary for the consent of the Noteholders
under this Section 9.01 to approve the particular form of any proposed amendment
or supplement, but it shall be sufficient if such consent approves the substance
thereof.
SECTION 9.02 EXECUTION OF AMENDMENTS AND SUPPLEMENTAL
INDENTURES.
In executing any amendment to this Amended and Restated
Indenture, the Notes or any supplemental indenture pursuant to Section 9.01 of
this Amended and Restated Indenture, the Trustee shall be entitled to receive,
and (subject to Section 7.01) shall be fully protected in relying upon (i) an
Officer's Certificate stating that all conditions precedent for entering into
such amendment or supplemental indenture as set forth in the Amended and
Restated Indenture have been met and (ii) an Opinion of Counsel stating that the
execution of such amendment to this Amended and Restated Indenture, the Note, or
any supplemental indenture is authorized or permitted by this Amended and
Restated Indenture. The Trustee may, but shall not be obligated to, enter into
any supplemental indenture which affects
65
the Trustee's own rights, duties, protections, or immunities under this Amended
and Restated Indenture or otherwise.
SECTION 9.03 EFFECT OF AMENDMENTS AND SUPPLEMENTAL
INDENTURES.
Upon the execution of any amendment to this Amended and
Restated Indenture, the Notes or any supplemental indenture under this Article,
this Amended and Restated Indenture, the Notes or any supplemental indenture
shall be modified in accordance therewith, and such amendment or supplemental
indenture shall form a part of this Amended and Restated Indenture, the Notes or
any supplemental indenture for all purposes, and every Noteholder of Notes
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.04 REFERENCE IN NOTES TO AMENDMENTS AND
SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
amendment to this Amended and Restated Indenture or 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
amendment or 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 amendment or supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
outstanding Notes.
SECTION 9.05 COMPLIANCE WITH TRUST INDENTURE ACT.
The Issuer hereby covenants and agrees that every amendment or
supplement to this Amended and Restated Indenture or the Notes shall comply with
the TIA as then in effect.
SECTION 9.06 REVOCATION AND EFFECT OF CONSENTS.
Subject to this Amended and Restated Indenture, each
amendment, waiver or instrument evidencing other action shall become effective
in accordance with its terms. Until an amendment, waiver or other action becomes
effective, a consent to it by a Noteholder is a continuing consent by the
Noteholder even if notation of the consent is not made on any Note.
The Issuer may, but shall not be obligated to, fix a record
date for the purpose of determining the Noteholders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then those Persons
who were Noteholders at such record date (or their duly designated proxies), and
only those Persons, shall be entitled to consent to such amendment, supplement
or waiver or to revoke any consent previously given, whether or not such Persons
continue to be Noteholders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date.
66
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01 OPTIONAL REDEMPTION; ELECTION TO REDEEM.
(a) The Notes may be redeemed in part by the Issuer at the
Partial Redemption Price on any Payment Date on which the outstanding Pool B
Aggregate Discounted Contract Balance is less than 20% of the outstanding Pool B
Aggregate Discounted Contract Balance as of the Closing Date. The Notes may be
redeemed by the Issuer, in whole but not in part, at the Redemption Price on any
Payment Date on which the Pool A Aggregate Discounted Contract Balance is less
than 10% of the Pool A Aggregate Discounted Contract Balance as of the Closing
Date and the Pool B Aggregate Discounted Contract Balance is less than 20% of
the Pool B Aggregate Discounted Contract Balance as of the Closing Date. The
Issuer, by an Authorized Officer of the Managing Member, shall set the
Redemption Date and the Redemption Record Date and give notice thereof to the
Trustee. Notice of redemption or partial redemption having been given as
provided in the Amended and Restated Indenture, the Notes shall, on the
applicable Redemption Date, become due and payable at the Redemption Price or
Partial Redemption Price, as applicable. The respective Noteholders shall be
paid the Redemption Price or Partial Redemption Price, as applicable, by the
Trustee to the extent of Available Funds on deposit in the Collection Account,
and upon presentation and surrender of the Notes on behalf of the Issuer;
PROVIDED, HOWEVER, that installments of principal and interest which are due on
or prior to the Redemption Date shall be payable to the respective Noteholders
registered as such on the relevant Record Dates or Redemption Record Dates, as
applicable, according to their terms.
(b) The Issuer, by order of an Authorized Officer of the
Managing Member, shall set the Redemption Date and the Redemption Record Date
and give notice thereof to the Trustee pursuant to Section 10.02.
SECTION 10.02 NOTICE TO TRUSTEE.
In the case of any redemption or partial redemption pursuant
to Section 10.01, the Issuer shall, at least 20 days prior to the Redemption,
notify the Trustee and the Rating Agencies of such Redemption Date and the
principal amount of Notes to be redeemed in part. The notice shall be
accompanied by an Officer's Certificate stating that the redemption or partial
redemption complies with the provisions of this Amended and Restated Indenture.
SECTION 10.03 NOTICE OF REDEMPTION OR PARTIAL REDEMPTION
BY THE ISSUER.
Notice of redemption or partial redemption pursuant to Section
10.01 shall be given by first class mail, postage prepaid, mailed at least 15
days but not more than 60 days prior to the applicable Redemption Date, to each
holder of a Note, at its address in the Note Register.
67
All notices of redemption or partial redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price or Partial Redemption
Price, as applicable;
(3) that on the Redemption Date, the Redemption
Price or Partial Redemption Price, as
applicable, will become due and payable upon
each such Note, and that interest on the
redeemed portion of such Note shall cease to
accrue if payment is made on such date;
(4) the private placement number or CUSIP
number, if any, of the Notes;
(5) Corporate Trust Office where Notes are to be
surrendered for payment of the Redemption
Price; and
(6) the Redemption Record Date.
Notice of redemption or partial redemption, as applicable, of
Notes shall be given by the Issuer, by order of an Authorized Officer of the
Transferor, or, at the request of such Authorized Officer of the Managing
Member, by the Trustee in the name and at the expense of the Issuer. Failure to
give notice of redemption or partial redemption, as applicable, or any defect
therein, to any holder of a Note shall not impair or affect the validity of the
redemption or partial redemption, as applicable, of any other Note. If a private
placement number or CUSIP number is listed in such notice or printed on the
Note, the notice may state that no representation is made as to the correctness
or accuracy of such private placement number or CUSIP number.
SECTION 10.04 DEPOSIT OF THE REDEMPTION PRICE OR PARTIAL
REDEMPTION PRICE.
On or before the Business Day immediately preceding any
Redemption Date, the Issuer shall deposit with the Trustee an amount of monies
sufficient to pay the Redemption Price or Partial Redemption Price, as
applicable, of all Notes outstanding on such Redemption Date (less any portion
of such payment to be made from monies in the Collection Account).
SECTION 10.05 NOTES PAYABLE ON REDEMPTION DATE.
(a) Notice of redemption in full having been given as provided
in Section 10.03, the Notes shall, on the applicable Redemption Date, become due
and payable at the Redemption Price and on such Redemption Date (unless the
Issuer shall default in the payment of the Redemption Price) such Notes shall
cease to bear interest. The Noteholders shall be paid the Redemption Price by
the Trustee on behalf of the Issuer; PROVIDED, HOWEVER, that installments of
principal and interest which are due on or prior to the Redemption Date shall be
payable to the Noteholders registered as such on the relevant Record Dates
according to their terms and the provisions of Section 2.07. If the Holders of
any Note called for redemption in full shall not be so paid upon surrender, the
principal and interest shall, until paid, bear interest from the Redemption Date
at the related Note Rate.
68
(b) Notice of partial redemption having been given as provided
in Section 10.03, that portion of the Notes shall, on the applicable Redemption
Date, become due and payable at the Partial Redemption Price and on such
Redemption Date (unless the Issuer shall default in the payment of the
Redemption Price) such Notes shall continue to bear interest only on the
principal balances remaining outstanding. The Noteholders shall be paid the
Partial Redemption Price by the Trustee on behalf of the Issuer; PROVIDED,
HOWEVER, that installments of principal and interest which are due on or prior
to the Redemption Date shall be payable to the Noteholders registered as such on
the relevant Record Dates according to their terms and the provisions of Section
2.07. If the holders of any Note called for partial redemption shall not be so
paid, the principal and interest shall, until paid, bear interest from the
Redemption Date at the related Note Rate.
69
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 SATISFACTION AND DISCHARGE OF AMENDED AND
RESTATED INDENTURE.
(a) This Amended and Restated Indenture shall cease to be of
further effect (except as to any surviving rights herein expressly provided
for), and the Trustee, on demand of and at the expense of the Issuer, shall
execute proper instruments and certifications acknowledging satisfaction and
discharge of this Amended and Restated Indenture, when:
(i) either:
(A) all Notes theretofore authenticated and
delivered (other than (x) Notes which have been destroyed,
lost, or stolen and which have been replaced or paid as
provided in Section 2.05 and (y) 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 irrevocably paid and 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 Date within one year,
and the Issuer has 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 Date 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
Officer's Certificate of the Managing Member stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Amended and Restated Indenture have been complied
with.
At such time, the Trustee shall deliver to the Issuer or, upon Issuer Order, its
assignee, all cash, securities and other property held by it as part of the
Trust Property other than funds deposited with the Trustee pursuant to Section
11.01(a)(i)(B) for the payment and discharge of the Notes and a certificate from
a Responsible Officer certifying the satisfaction and discharge of this Amended
and Restated Indenture.
70
(b) Notwithstanding the satisfaction and discharge of this
Amended and Restated Indenture, the obligations of the Issuer under Sections
7.06 and 8.11, and, if money shall have been deposited with the Trustee pursuant
to Section 11.01(a)(i)(B), the obligations of the Trustee under Section 11.02
and Section 8.03(c) shall survive.
SECTION 11.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of Section 8.03(c), all money
deposited with the Trustee pursuant to Sections 11.01 and 8.03 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Amended and Restated Indenture, to the payment to the Persons entitled thereto
of the principal and interest for whose payment such money has been deposited
with the Trustee.
SECTION 11.03 REINSTATEMENT.
If the Trustee is unable to apply any money in accordance with
Section 11.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's obligations under this
Amended and Restated Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to Section 11.01 until such time as the
Trustee is permitted to apply all such money in accordance with Section 11.01.
71
AMENDED AND RESTATED INDENTURE
DATED AS OF DECEMBER 1, 1999
IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Indenture to be duly executed, all as of the day and year
first above written.
DVI RECEIVABLES XI, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SCHEDULE 1
CONTRACT SCHEDULE
[See Tab 4]
EXHIBIT A-1
TO AMENDED AND RESTATED INDENTURE
---------------------------------
[FORM OF CLASS A-1 NOTES]
NO BENEFICIAL OWNERS OF THIS NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT
OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED NOTES HAVE BEEN DELIVERED
PURSUANT TO THE TERMS OF THE AMENDED AND RESTATED INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE AMENDED AND RESTATED INDENTURE REFERRED
TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BY ACCEPTANCE OF THIS NOTE, THE HOLDER AND ANY BENEFICIAL OWNER AGREES
TO TREAT THIS NOTE AS INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES.
BY ITS ACCEPTANCE HEREOF, THE HOLDER AND ANY BENEFICIAL OWNER IS DEEMED
TO HAVE REPRESENTED TO THE ISSUER, THE TRUSTEE, THE SERVICER AND ANY SUCCESSOR
SERVICER THAT EITHER (1) IT IS NOT A PLAN WITHIN THE MEANING OF SECTION 3(3) OF
ERISA OR SECTION 4975 OF THE CODE ("PLAN") AND IT IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THE CLASS A-1 NOTES ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH THE ASSETS OF A PLAN; OR (2) THE
ACQUISITION AND HOLDING OF THE CLASS A-1 NOTES WILL NOT GIVE RISE TO A
PROHIBITED TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
No. 1 Principal Amount $__________
Due: _____________ CUSIP No. ___________
_______% ASSET-BACKED NOTE, SERIES 2000-1, CLASS ▇-▇
▇-▇-▇
▇▇▇ RECEIVABLES XI, L.L.C., a Delaware limited liability
company (the "ISSUER"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of ___________ _______ and 00/100
Dollars ($__________) in monthly installments equal to the sum of (i) the Class
A-1 Monthly Principal, (ii) the Class A-1 Overdue Principal and (iii) any other
principal that may be due hereon pursuant to the Amended and Restated Indenture
during an Amortization Event together with (i) the Class A-1 Monthly Interest
and (ii) the Class A-1 Overdue Interest due thereon on the fourteenth day of
each month (or if such date is not a Business Day, the next succeeding Business
Day, commencing _________, ____ (each, a "PAYMENT DATE"), and not later than
_____________, all remaining principal and interest (computed on the basis of a
360-day year of actual number of days elapsed) are due and payable in their
entirety as set forth in the Amended and Restated Indenture.
Payments of principal and interest on this Note shall be made
on each Payment Date in such coin or currency of the United States of America as
at such time is legal tender for payment of public and private debts to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Record Date, or Redemption Record Date, as
applicable, for such Payment Date, which shall be the last Business Day of the
month preceding the month in which the Payment Date occurs (or in the case of
the initial Payment Date, the Closing Date), by wire transfer of immediately
available 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. The holder hereof shall surrender this Note at the
principal Corporate Trust Office of the Trustee for the final installment of
principal of this Note.
This Note is one of a duly authorized issue of Class A-1 Notes
of the Issuer designated as its _______% Asset-Backed Notes, Series 2000-1,
Class A-1 with aggregate principal amount of $__________ and to be issued under
an Amended and Restated Indenture, dated as of December 1, 1999 (herein called
the "AMENDED AND RESTATED INDENTURE"), between the Issuer and U.S. Bank Trust
National Association, as trustee (herein called the "TRUSTEE", which term
includes any successor trustee under the Amended and Restated Indenture), to
which Amended and Restated 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 of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Trust Property secures the Notes equally and
ratably without prejudice, priority, or distinction between any Note of the same
tranche and any other Note of the same tranche by reason of difference in time
of issuance or otherwise, and also secures the payment of certain other amounts
and certain other obligations as set forth in the Amended and Restated
Indenture. This Note is issued under and is subject to the terms, provisions and
conditions of the Amended and Restated Indenture, to which Amended and Restated
Indenture the Holder of this Note by virtue of the acceptance hereof assents and
by which such Holder is bound.
Each Class A-1 Noteholder by acceptance of its Class A-1 Note
(and any Person which is a beneficial owner of any interest in a Class A-1 Note,
by virtue of such Persons' acquisition of a beneficial interest therein) agrees
to treat the Class A-1 Notes (or beneficial interest therein) for purposes of
federal, state and local income or franchise taxes and any other tax imposed on
or measured by income, as indebtedness. Each Class A-1 Noteholder agrees that it
will cause any Person acquiring an interest
A-1-2
in a Class A-1 Note through it to acknowledge the Class A-1 Notes'
characterization as indebtedness and to treat the Class A-1 Notes as
indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Class A-1 Notes,
each prospective transferee acquiring a Class A-1 Note, and each prospective
owner (or transferee thereof) of a beneficial interest in a Class A-1 Note (each
a "Prospective Owner") will be deemed to have represented by such purchase to
the Issuer, the Trustee, the Servicer and any successor Servicer that either (1)
it is not a plan within the meaning of Section 3(3) of ERISA or Section 4975 of
the Code ("Plan") and is not directly or indirectly acquiring the Class A-1 Note
on behalf of, as investment manager of, as named fiduciary of, as trustee of, or
with the assets of a Plan; or (2) the acquisition and holding of the Class A-1
Note will not give rise to a prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code for which a statutory or administrative
exemption is unavailable.
If an Indenture Event of Default or Amortization Event shall
occur and be continuing, the Notes may be declared due and payable in the manner
and with the effect provided in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture and subject
to the limitations set forth therein and above, 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 designated by the Issuer
pursuant to the Amended and Restated Indenture, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Trustee 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 original aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes may be redeemed in part by the Issuer at the partial
redemption price set forth in the Amended and Restated Indenture on any Payment
Date on which the outstanding Pool B Aggregate Discounted Contract Balance is
less than 20% of the Pool B Aggregate Discounted Contract Balance on the Closing
Date in the manner provided in the Amended and Restated Indenture. The Notes may
be redeemed by the Issuer, in whole but not in part, at the redemption price set
forth in the Amended and Restated Indenture on any Payment Date on which the
Pool A Aggregate Discounted Contract Balance is less than 10% of the Pool A
Aggregate Discounted Contract Balance as of the Closing Date and the Pool B
Aggregate Discounted Contract Balance is less than 20% of the Pool B Aggregate
Discounted Contract Balance as of the Closing Date in the manner provided in the
Amended and Restated Indenture.
The Notes are issuable only in registered form without coupons
in denominations as provided in the Amended and Restated Indenture and subject
to certain limitations therein set forth. 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.
Prior to due presentment of this Class A-1 Note for
registration of transfer, the Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Class A-1 Note be overdue,
and neither the Issuer, the Trustee nor any such agent shall be affected by
notice to the contrary.
A-1-3
This Class A-1 Note and the Amended and Restated Indenture may
be amended or supplemented as set forth in the Amended and Restated Indenture.
By accepting this Class A-1 Note, the holder hereof
irrevocably appoints the Trustee under the Amended and Restated Indenture as the
special attorney-in-fact for the holder vested with full power on behalf of the
holder to effect and enforce the rights of such holder and the provisions of the
Amended and Restated Indenture for the benefit of the holder. The preceding
provision in no way shall limit the right of the holder hereof to demand payment
hereunder or bring an action to enforce payment hereof.
All capitalized terms used in this Class A-1 Note which are
defined in the Amended and Restated Indenture and not otherwise defined herein
shall have the meanings assigned to them in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture, this Class
A-1 Note and the Amended and Restated Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflict of laws principles thereof.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Class A-1 Note shall not be
entitled to any benefit under the Amended and Restated Indenture or be valid or
obligatory for any purpose.
This Class A-1 Note does not purport to summarize the Amended
and Restated Indenture and reference is made to the Amended and Restated
Indenture for information with respect to interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the Amended and Restated Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank Trust National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
A-1-4
IN WITNESS WHEREOF, DVI RECEIVABLES XI, L.L.C. has caused this
instrument to be duly executed.
DVI RECEIVABLES XI, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:
-----------------------------
Name:
Title:
Dated:____________________
This is one of the Notes
referred to in the within
mentioned Amended and Restated Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:
---------------------------------
Authorized Signatory
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO AMENDED AND RESTATED INDENTURE
---------------------------------
[FORM OF CLASS A-2 NOTES]
NO BENEFICIAL OWNERS OF THIS NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT
OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED NOTES HAVE BEEN DELIVERED
PURSUANT TO THE TERMS OF THE AMENDED AND RESTATED INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE AMENDED AND RESTATED INDENTURE REFERRED
TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BY ACCEPTANCE OF THIS NOTE, THE HOLDER AND ANY BENEFICIAL OWNER AGREES
TO TREAT THIS NOTE AS INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES.
BY ITS ACCEPTANCE HEREOF, THE HOLDER AND ANY BENEFICIAL OWNER IS DEEMED
TO HAVE REPRESENTED TO THE ISSUER, THE TRUSTEE, THE SERVICER AND ANY SUCCESSOR
SERVICER THAT EITHER (1) IT IS NOT A PLAN WITHIN THE MEANING OF SECTION 3(3) OF
ERISA OR SECTION 4975 OF THE CODE ("PLAN") AND IT IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THE CLASS A-2 NOTES ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH THE ASSETS OF A PLAN; OR (2) THE
ACQUISITION AND HOLDING OF THE CLASS A-2 NOTES WILL NOT GIVE RISE TO A
PROHIBITED TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
No. 1 Principal Amount $__________
Due: _____________ CUSIP No. ___________
_____% ASSET-BACKED NOTE, SERIES 2000-1, CLASS ▇-▇
▇-▇-▇
▇▇▇ RECEIVABLES XI, L.L.C., a limited liability company (the
"ISSUER"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of _____________ and 00/100 Dollars
($__________) in monthly installments equal to the sum of (i) the Class A-2
Monthly Principal, (ii) the Class A-2 Overdue Principal and (iii) any other
principal that may be due hereon pursuant to the Amended and Restated Indenture
during an Amortization Event together with (i) the Class A-2 Monthly Interest
and (ii) the Class A-2 Overdue Interest due thereon on the fourteenth day of
each month (or if such date is not a Business Day, the next succeeding Business
Day, commencing _____ ________ (each, a "PAYMENT DATE"), and not later than
_____________, all remaining principal and interest (computed on the basis of a
360-day year of twelve 30-day months) are due and payable in their entirety as
set forth in the Amended and Restated Indenture.
Payments of principal and interest on this Note shall be made
on each Payment Date in such coin or currency of the United States of America as
at such time is legal tender for payment of public and private debts to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Record Date, or Redemption Record Date, as
applicable, for such Payment Date, which shall be the last Business Day of the
month preceding the month in which the Payment Date occurs (or in the case of
the initial Payment Date, the Closing Date), by wire transfer of immediately
available 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. The holder hereof shall surrender this Note at the
principal Corporate Trust Office of the Trustee for the final installment of
principal of this Note.
This Note is one of a duly authorized issue of Class A-2 Notes
of the Issuer designated as its _____% Asset-Backed Notes, Series 2000-1, Class
A-2 with aggregate principal amount of $__________ and to be issued under an
Amended and Restated Indenture, dated as of December 1, 1999 (herein called the
"AMENDED AND RESTATED INDENTURE"), between the Issuer and U.S. Bank Trust
National Association, as trustee (herein called the "TRUSTEE", which term
includes any successor trustee under the Amended and Restated Indenture), to
which Amended and Restated 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 of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Trust Property secures the Notes equally and
ratably without prejudice, priority, or distinction between any Note of the same
tranche and any other Note of the same tranche by reason of difference in time
of issuance or otherwise, and also secures the payment of certain other amounts
and certain other obligations as set forth in the Amended and Restated
Indenture. This Note is issued under and is subject to the terms, provisions and
conditions of the Amended and Restated Indenture, to which Amended and Restated
Indenture the Holder of this Note by virtue of the acceptance hereof assents and
by which such Holder is bound.
Each Class A-2 Noteholder by acceptance of its Class A-2 Note
(and any Person which is a beneficial owner of any interest in a Class A-2 Note,
by virtue of such Persons' acquisition of a beneficial interest therein) agrees
to treat the Class A-2 Notes (or beneficial interest therein) for purposes of
federal, state and local income or franchise taxes and any other tax imposed on
or measured by income, as indebtedness. Each Class A-2 Noteholder agrees that it
will cause any Person acquiring an interest
A-2-2
in a Class A-2 Note through it to acknowledge the Class A-2 Notes'
characterization as indebtedness and to treat the Class A-2 Notes as
indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Class A-2 Notes,
each prospective transferee acquiring a Class A-2 Note, and each prospective
owner (or transferee thereof) of a beneficial interest in a Class A-2 Note (each
a "Prospective Owner") will be deemed to have represented by such purchase to
the Issuer, the Trustee, the Servicer and any successor Servicer that either (1)
it is not a plan within the meaning of Section 3(3) of ERISA or Section 4975 of
the Code ("Plan") and is not directly or indirectly acquiring the Class A-2
Notes on behalf of, as investment manager of, as named fiduciary of or with the
assets of a Plan; or (2) the acquisition and holding of the Class A-2 Notes will
not give rise to a nonexempt prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code for which a statutory or administrative
exemption is unavailable.
If an Indenture Event of Default or Amortization Event shall
occur and be continuing, the Notes may be declared due and payable in the manner
and with the effect provided in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture and subject
to the limitations set forth therein and above, the transfer of this Class A-2
Note is registrable in the Note Register, upon surrender of this Class A-2 Note
for registration of transfer at the office or agency designated by the Issuer
pursuant to the Amended and Restated Indenture, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Trustee duly executed by, the holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-2 Notes, of authorized
denominations and for the same original aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes may be redeemed in part by the Issuer at the partial
redemption price set forth in the Amended and Restated Indenture on any Payment
Date on which the outstanding Pool B Aggregate Discounted Contract Balance is
less than 20% of the Pool B Aggregate Discounted Contract Balance on the Closing
Date in the manner provided in the Amended and Restated Indenture. The Notes may
be redeemed by the Issuer, in whole but not in part, at the redemption price set
forth in the Amended and Restated Indenture on any Payment Date on which the
Pool A Aggregate Discounted Contract Balance is less than 10% of the Pool A
Aggregate Discounted Contract Balance as of the Closing Date and the Pool B
Aggregate Discounted Contract Balance is less than 20% of the Pool B Aggregate
Discounted Contract Balance as of the Closing Date in the manner provided in the
Amended and Restated Indenture.
The Notes are issuable only in registered form without coupons
in denominations as provided in the Amended and Restated Indenture and subject
to certain limitations therein set forth. 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.
Prior to due presentment of this Class A-2 Note for
registration of transfer, the Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Class A-2 Note be overdue,
and neither the Issuer, the Trustee nor any such agent shall be affected by
notice to the contrary.
A-2-3
This Class A-2 Note and the Amended and Restated Indenture may
be amended or supplemented as set forth in the Amended and Restated Indenture.
By accepting this Class A-2 Note, the holder hereof
irrevocably appoints the Trustee under the Amended and Restated Indenture as the
special attorney-in-fact for the holder vested with full power on behalf of the
holder to effect and enforce the rights of such holder and the provisions of the
Amended and Restated Indenture for the benefit of the holder. The preceding
provision in no way shall limit the right of the holder hereof to demand payment
hereunder or bring an action to enforce payment hereof.
All capitalized terms used in this Class A-2 Note which are
defined in the Amended and Restated Indenture and not otherwise defined herein
shall have the meanings assigned to them in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture, this Class
A-2 Note and the Amended and Restated Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflict of laws principles thereof.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Class A-2 Note shall not be
entitled to any benefit under the Amended and Restated Indenture or be valid or
obligatory for any purpose.
This Class A-2 Note does not purport to summarize the Amended
and Restated Indenture and reference is made to the Amended and Restated
Indenture for information with respect to interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the Amended and Restated Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank Trust National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
A-2-4
IN WITNESS WHEREOF, DVI RECEIVABLES XI, L.L.C. has caused this
instrument to be duly executed.
DVI RECEIVABLES XI, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name:
Title:
Dated:____________________
This is one of the Notes
referred to in the within
mentioned Amended and Restated Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO AMENDED AND RESTATED INDENTURE
---------------------------------
[FORM OF CLASS A-3 NOTES]
NO BENEFICIAL OWNERS OF THIS NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT
OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED NOTES HAVE BEEN DELIVERED
PURSUANT TO THE TERMS OF THE AMENDED AND RESTATED INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE AMENDED AND RESTATED INDENTURE REFERRED
TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BY ACCEPTANCE OF THIS NOTE, THE HOLDER AND ANY BENEFICIAL OWNER AGREES
TO TREAT THIS NOTE AS INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES.
BY ITS ACCEPTANCE HEREOF, THE HOLDER AND ANY BENEFICIAL OWNER IS DEEMED
TO HAVE REPRESENTED TO THE ISSUER, THE TRUSTEE, THE SERVICER AND ANY SUCCESSOR
SERVICER THAT EITHER (1) IT IS NOT A PLAN WITHIN THE MEANING OF SECTION 3(3) OF
ERISA OR SECTION 4975 OF THE CODE ("PLAN") AND IT IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THE CLASS A-3 NOTES ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH THE ASSETS OF A PLAN; OR (2) THE
ACQUISITION AND HOLDING OF THE CLASS A-3 NOTES WILL NOT GIVE RISE TO A
PROHIBITED TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE
FOR WHICH A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
No. 1 Principal Amount $__________
Due: ____________ CUSIP No. ___________
A-3-1
_____% ASSET-BACKED NOTE, SERIES 2000-1, CLASS ▇-▇
▇▇▇ RECEIVABLES XI, L.L.C., a Delaware limited liability
company (the "ISSUER"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of _________
_____________________________ and 00/100 Dollars ($__________) in monthly
installments equal to the sum of (i) the Class A-3 Monthly Principal, (ii) the
Class A-3 Overdue Principal and (iii) any other principal that may be due hereon
pursuant to the Amended and Restated Indenture during an Amortization Event
together with (i) the Class A-3 Monthly Interest and (ii) the Class A-3 Overdue
Interest due thereon on the fourteenth day of each month or if such date is not
a Business Day, the next succeeding Business Day, commencing _________________
(each, a "PAYMENT DATE"), and not later than ____________, all remaining
principal and interest (computed on the basis of a 360-day year of twelve 30-day
months) are due and payable in their entirety as set forth in the Amended and
Restated Indenture.
Payments of principal and interest on this Note shall be made
on each Payment Date in such coin or currency of the United States of America as
at such time is legal tender for payment of public and private debts to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Record Date, or Redemption Record Date, as
applicable, for such Payment Date, which shall be the last Business Day of the
month preceding the month in which the Payment Date occurs (or in the case of
the initial Payment Date, the Closing Date), by wire transfer of immediately
available 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. The holder hereof shall surrender this Note at the
principal Corporate Trust Office of the Trustee for the final installment of
principal of this Note.
This Note is one of a duly authorized issue of Class A-3 Notes
of the Issuer designated as its _____% Asset-Backed Notes, Series 2000-1, Class
A-3 with aggregate principal amount of $__________ and to be issued under an
Amended and Restated Indenture, dated as of December 1, 1999 (herein called the
"AMENDED AND RESTATED INDENTURE"), between the Issuer and U.S. Bank Trust
National Association, as trustee (herein called the "TRUSTEE", which term
includes any successor trustee under the Amended and Restated Indenture), to
which Amended and Restated 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 of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Trust Property secures the Notes equally and
ratably without prejudice, priority, or distinction between any Note of the same
tranche and any other Note of the same tranche by reason of difference in time
of issuance or otherwise, and also secures the payment of certain other amounts
and certain other obligations as set forth in the Amended and Restated
Indenture. This Note is issued under and is subject to the terms, provisions and
conditions of the Amended and Restated Indenture, to which Amended and Restated
Indenture the Holder of this Note by virtue of the acceptance hereof assents and
by which such Holder is bound.
Each Class A-3 Noteholder by acceptance of its Class A-3 Note
(and any Person which is a beneficial owner of any interest in a Class A-3 Note,
by virtue of such Persons' acquisition of a beneficial interest therein) agrees
to treat the Class A-3 Notes (or beneficial interest therein) for purposes
A-3-2
of federal, state and local income or franchise taxes and any other tax imposed
on or measured by income, as indebtedness. Each Class A-3 Noteholder agrees that
it will cause any Person acquiring an interest in a Class A-3 Note through it to
acknowledge the Class A-3 Notes' characterization as indebtedness and to treat
the Class A-3 Notes as indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Class A-3 Notes,
each prospective transferee acquiring a Class A-3 Note, and each prospective
owner (or transferee thereof) of a beneficial interest in a Class A-3 Note (each
a "Prospective Owner") will be deemed to have represented by such purchase to
the Issuer, the Trustee, the Servicer and any successor Servicer that either (1)
it is not a plan within the meaning of Section 3(3) of ERISA or Section 4975 of
the Code ("Plan") and is not directly or indirectly acquiring the Class A-3 Note
on behalf of, as investment manager of, as named fiduciary of, as trustee of, or
with the assets of a Plan; or (2) the acquisition and holding of the Class A-3
Note will not give rise to a prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code for which a statutory or administrative
exemption is unavailable.
If an Indenture Event of Default or Amortization Event shall
occur and be continuing, the Notes may be declared due and payable in the manner
and with the effect provided in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture and subject
to the limitations set forth therein and above, 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 designated by the Issuer
pursuant to the Amended and Restated Indenture, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Trustee 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 original aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes may be redeemed in part by the Issuer at the partial
redemption price set forth in the Amended and Restated Indenture on any Payment
Date on which the outstanding Pool B Aggregate Discounted Contract Balance is
less than 20% of the Pool B Aggregate Discounted Contract Balance on the Closing
Date in the manner provided in the Amended and Restated Indenture. The Notes may
be redeemed by the Issuer, in whole but not in part, at the redemption price set
forth in the Amended and Restated Indenture on any Payment Date on which the
Pool A Aggregate Discounted Contract Balance is less than 10% of the Pool A
Aggregate Discounted Contract Balance as of the Closing Date and the Pool B
Aggregate Discounted Contract Balance is less than 20% of the Pool B Aggregate
Discounted Contract Balance as of the Closing Date in the manner provided in the
Amended and Restated Indenture.
The Notes are issuable only in registered form without coupons
in denominations as provided in the Amended and Restated Indenture and subject
to certain limitations therein set forth. 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.
Prior to due presentment of this Class A-3 Note for
registration of transfer, the Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Person in whose name this Note
A-3-3
is registered as the owner hereof for all purposes, whether or not this Class
A-3 Note be overdue, and neither the Issuer, the Trustee nor any such agent
shall be affected by notice to the contrary.
This Class A-3 Note and the Amended and Restated Indenture may
be amended or supplemented as set forth in the Amended and Restated Indenture.
By accepting this Class A-3 Note, the holder hereof
irrevocably appoints the Trustee under the Amended and Restated Indenture as the
special attorney-in-fact for the holder vested with full power on behalf of the
holder to effect and enforce the rights of such holder and the provisions of the
Amended and Restated Indenture for the benefit of the holder. The preceding
provision in no way shall limit the right of the holder hereof to demand payment
hereunder or bring an action to enforce payment hereof.
All capitalized terms used in this Class A-3 Note which are
defined in the Amended and Restated Indenture and not otherwise defined herein
shall have the meanings assigned to them in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture, this Class
A-3 Note and the Amended and Restated Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflict of laws principles thereof.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Class A-3 Note shall not be
entitled to any benefit under the Amended and Restated Indenture or be valid or
obligatory for any purpose.
This Class A-3 Note does not purport to summarize the Amended
and Restated Indenture and reference is made to the Amended and Restated
Indenture for information with respect to interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the Amended and Restated Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank Trust National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
A-3-4
IN WITNESS WHEREOF, DVI RECEIVABLES XI, L.L.C. has caused this
instrument to be duly executed.
DVI RECEIVABLES XI, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name:
Title:
Dated:______________________
This is one of the Notes
referred to in the within
mentioned Amended and Restated Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO AMENDED AND RESTATED INDENTURE
---------------------------------
[FORM OF CLASS A-4 NOTES]
NO BENEFICIAL OWNERS OF THIS NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT
OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED NOTES HAVE BEEN DELIVERED
PURSUANT TO THE TERMS OF THE AMENDED AND RESTATED INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE AMENDED AND RESTATED INDENTURE REFERRED
TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BY ACCEPTANCE OF THIS NOTE, THE HOLDER AND ANY BENEFICIAL OWNER AGREES
TO TREAT THIS NOTE AS INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES.
BY ITS ACCEPTANCE HEREOF, THE HOLDER AND ANY BENEFICIAL OWNER IS DEEMED
TO HAVE REPRESENTED TO THE ISSUER, THE TRUSTEE, THE SERVICER AND ANY SUCCESSOR
SERVICER THAT EITHER (1) IT IS NOT A PLAN WITHIN THE MEANING OF SECTION 3(3) OF
ERISA OR SECTION 4975 OF THE CODE ("PLAN") AND IT IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THE CLASS A-4 NOTES ON BEHALF OF, AS INVESTMENT MANAGER OR, AS NAMED
FIDUCIARY OF OR WITH THE ASSETS OF A PLAN; OR (2) THE ACQUISITION AND HOLDING OF
THE CLASS A-4 NOTES WILL NOT GIVE RISE TO A PROHIBITED TRANSACTION UNDER SECTION
406(a) OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH A STATUTORY OR
ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
No. 1 Principal Amount $__________
Due: ____________ CUSIP No. ___________
A-4-1
_____% ASSET-BACKED NOTE, SERIES 2000-1, CLASS ▇-▇
▇▇▇ RECEIVABLES XI, L.L.C., a Delaware limited liability
company (the "ISSUER"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of _________ _______ and 00/100 Dollars
($__________) in monthly installments equal to the sum of (i) the Class A-4
Monthly Principal, (ii) the Class A-4 Overdue Principal and (iii) any other
principal that may be due hereon pursuant to the Amended and Restated Indenture
during an Amortization Event together with (i) the Class A-4 Monthly Interest
and (ii) the Class A-4 Overdue Interest due thereon on the fourteenth day of
each month or if such date is not a Business Day, the next succeeding Business
Day, commencing ______________ (each, a "PAYMENT DATE"), and not later than
____________, all remaining principal and interest (computed on the basis of a
360-day year of twelve 30-day months) are due and payable in their entirety as
set forth in the Amended and Restated Indenture.
Payments of principal and interest on this Note shall be made
on each Payment Date in such coin or currency of the United States of America as
at such time is legal tender for payment of public and private debts to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Record Date, or Redemption Record Date, as
applicable, for such Payment Date, which shall be the last Business Day of the
month preceding the month in which the Payment Date occurs (or in the case of
the initial Payment Date, the Closing Date), by wire transfer of immediately
available 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. The holder hereof shall surrender this Note at the
principal Corporate Trust Office of the Trustee for the final installment of
principal of this Note.
This Note is one of a duly authorized issue of Class A-4 Notes
of the Issuer designated as its _____% Asset-Backed Notes, Series 2000-1, Class
A-4 with aggregate principal amount of $__________ and to be issued under an
Amended and Restated Indenture, dated as of December 1, 1999 (herein called the
"AMENDED AND RESTATED INDENTURE"), between the Issuer and U.S. Bank Trust
National Association, as trustee (herein called the "TRUSTEE", which term
includes any successor trustee under the Amended and Restated Indenture), to
which Amended and Restated 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 of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Trust Property secures the Notes equally and
ratably without prejudice, priority, or distinction between any Note of the same
tranche and any other Note of the same tranche by reason of difference in time
of issuance or otherwise, and also secures the payment of certain other amounts
and certain other obligations as set forth in the Amended and Restated
Indenture. This Note is issued under and is subject to the terms, provisions and
conditions of the Amended and Restated Indenture, to which Amended and Restated
Indenture the Holder of this Note by virtue of the acceptance hereof assents and
by which such Holder is bound.
Each Class A-4 Noteholder by acceptance of its Class A-4 Note
(and any Person which is a beneficial owner of any interest in a Class A-4 Note,
by virtue of such Persons' acquisition of a beneficial interest therein) agrees
to treat the Class A-4 Notes (or beneficial interest therein) for purposes of
federal, state and local income or franchise taxes and any other tax imposed on
or measured by income,
A-4-2
as indebtedness. Each Class A-4 Noteholder agrees that it will cause any Person
acquiring an interest in a Class A-4 Note through it to acknowledge the Class
A-4 Notes' characterization as indebtedness and to treat the Class A-4 Notes as
indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Class A-4 Notes,
each prospective transferee acquiring a Class A-4 Note, and each prospective
owner (or transferee thereof) of a beneficial interest in a Class A-4 Note (each
a "Prospective Owner") will be deemed to have represented by such purchase to
the Issuer, the Trustee, the Servicer and any successor Servicer that either (1)
it is not a plan within the meaning of Section 3(3) of ERISA or Section 4975 of
the Code ("Plan") and is not directly or indirectly acquiring the Class A-4
Notes on behalf of, as investment manager of, as named fiduciary of or with the
assets of a Plan; or (2) the acquisition and holding of the Class A-4 Notes will
not give rise to a prohibited transaction under Section 406(a) of ERISA or
Section 4975 of the Code for which a statutory or administrative exemption is
unavailable.
If an Indenture Event of Default or Amortization Event shall
occur and be continuing, the Notes may be declared due and payable in the manner
and with the effect provided in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture and subject
to the limitations set forth therein and above, 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 designated by the Issuer
pursuant to the Amended and Restated Indenture, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the
Trustee 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 original aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes may be redeemed in part by the Issuer at the partial
redemption price set forth in the Amended and Restated Indenture on any Payment
Date on which the outstanding Pool B Aggregate Discounted Contract Balance is
less than 20% of the Pool B Aggregate Discounted Contract Balance on the Closing
Date in the manner provided in the Amended and Restated Indenture. The Notes may
be redeemed by the Issuer, in whole but not in part, at the redemption price set
forth in the Amended and Restated Indenture on any Payment Date on which the
Pool A Aggregate Discounted Contract Balance is less than 10% of the Pool A
Aggregate Discounted Contract Balance as of the Closing Date and the Pool B
Aggregate Discounted Contract Balance is less than 20% of the Pool B Aggregate
Discounted Contract Balance as of the Closing Date in the manner provided in the
Amended and Restated Indenture.
The Notes are issuable only in registered form without coupons
in denominations as provided in the Amended and Restated Indenture and subject
to certain limitations therein set forth. 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.
Prior to due presentment of this Class A-4 Note for
registration of transfer, the Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Person in whose name this Note
A-4-3
is registered as the owner hereof for all purposes, whether or not this Class
A-4 Note be overdue, and neither the Issuer, the Trustee nor any such agent
shall be affected by notice to the contrary.
This Class A-4 Note and the Amended and Restated Indenture may
be amended or supplemented as set forth in the Amended and Restated Indenture.
By accepting this Class A-4 Note, the holder hereof
irrevocably appoints the Trustee under the Amended and Restated Indenture as the
special attorney-in-fact for the holder vested with full power on behalf of the
holder to effect and enforce the rights of such holder and the provisions of the
Amended and Restated Indenture for the benefit of the holder. The preceding
provision in no way shall limit the right of the holder hereof to demand payment
hereunder or bring an action to enforce payment hereof.
All capitalized terms used in this Class A-4 Note which are
defined in the Amended and Restated Indenture and not otherwise defined herein
shall have the meanings assigned to them in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture, this Class
A-4 Note and the Amended and Restated Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflict of laws principles thereof.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Class A-4 Note shall not be
entitled to any benefit under the Amended and Restated Indenture or be valid or
obligatory for any purpose.
This Class A-4 Note does not purport to summarize the Amended
and Restated Indenture and reference is made to the Amended and Restated
Indenture for information with respect to interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the Amended and Restated Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank Trust National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
A-4-4
IN WITNESS WHEREOF, DVI RECEIVABLES XI, L.L.C. has caused this
instrument to be duly executed.
DVI RECEIVABLES XI, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name:
Title:
Dated:___________________
This is one of the Notes
referred to in the within
mentioned Amended and Restated Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By:
----------------------------------
Authorized Signatory
Name:
Title:
A-4-5
EXHIBIT B
TO AMENDED AND RESTATED INDENTURE
---------------------------------
[FORM OF CLASS B NOTES]
NO BENEFICIAL OWNERS OF THIS NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT
OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED NOTES HAVE BEEN DELIVERED
PURSUANT TO THE TERMS OF THE AMENDED AND RESTATED INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE AMENDED AND RESTATED INDENTURE REFERRED
TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BY ACCEPTANCE OF THIS NOTE, THE HOLDER AND ANY BENEFICIAL OWNER AGREES
TO TREAT THIS NOTE AS INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES.
BY ITS ACCEPTANCE HEREOF, THE HOLDER AND ANY BENEFICIAL OWNER IS DEEMED
TO HAVE REPRESENTED TO THE ISSUER, THE TRUSTEE, THE SERVICER AND ANY SUCCESSOR
SERVICER THAT EITHER (1) IT IS NOT A PLAN WITHIN THE MEANING OF SECTION 3(3) OF
ERISA OR SECTION 4975 OF THE CODE ("PLAN") AND IT IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THE CLASS B NOTES ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH THE ASSETS OF A PLAN; OR (2) THE
ACQUISITION AND HOLDING OF THE CLASS B NOTES WILL NOT GIVE RISE TO A PROHIBITED
TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
No. 1 Principal Amount $_________
Due: ____________ CUSIP No. ___________
B-1
_____% ASSET-BACKED NOTE, SERIES 2000-1, CLASS B
DVI RECEIVABLES XI, L.L.C., a Delaware limited liability
company (the "ISSUER"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of ____________________________________
and 00/100 Dollars ($_________) in monthly installments equal to the sum of (i)
the Class B Monthly Principal, (ii) the Class B Overdue Principal and (iii) any
other principal that may be due hereon pursuant to the Amended and Restated
Indenture during an Amortization Event together with (i) the Class B Monthly
Interest and (ii) the Class B Overdue Interest due thereon on the fourteenth day
of each month (or if such date is not a Business Day, the next succeeding
Business Day, commencing _______________ (each, a "PAYMENT DATE"), and not later
than ______, ____, all remaining principal and interest (computed on the basis
of a 360-day year of twelve 30-day months) are due and payable in their entirety
as set forth in the Amended and Restated Indenture.
Payments of principal and interest on this Note shall be made
on each Payment Date in such coin or currency of the United States of America as
at such time is legal tender for payment of public and private debts to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Record Date, or Redemption Record Date, as
applicable, for such Payment Date, which shall be the last Business Day of the
month preceding the month in which the Payment Date occurs (or in the case of
the initial Payment Date, the Closing Date), by wire transfer of immediately
available 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. The holder hereof shall surrender this Note at the
principal Corporate Trust Office of the Trustee for the final installment of
principal of this Note.
This Note is one of a duly authorized issue of Class B Notes
of the Issuer designated as its _____% Asset-Backed Notes, Series 2000-1, Class
B with aggregate principal amount of $_________ and to be issued under an
Amended and Restated Indenture, dated as of December 1, 1999 (herein called the
"AMENDED AND RESTATED INDENTURE"), between the Issuer and U.S. Bank Trust
National Association, as trustee (herein called the "TRUSTEE", which term
includes any successor trustee under the Amended and Restated Indenture), to
which Amended and Restated 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 of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Trust Property secures the Notes equally and
ratably without prejudice, priority, or distinction between any Note of the same
class and any other Note of the same class by reason of difference in time of
issuance or otherwise, and also secures the payment of certain other amounts and
certain other obligations as set forth in the Amended and Restated Indenture.
This Note is issued under and is subject to the terms, provisions and conditions
of the Amended and Restated Indenture, to which Amended and Restated Indenture
the Holder of this Note by virtue of the acceptance hereof assents and by which
such Holder is bound.
Each Class B Noteholder by acceptance of its Class B Note (and
any Person which is a beneficial owner of any interest in a Class B Note, by
virtue of such Persons' acquisition of a beneficial interest therein) agrees to
treat the Class B Notes (or beneficial interest therein) for purposes of
federal,
B-2
state and local income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness. Each Class B Noteholder agrees that it will
cause any Person acquiring an interest in a Class B Note through it to
acknowledge the Class B Notes' characterization as indebtedness and to agree to
comply with the Amended and Restated Indenture as to treatment of the Class B
Notes as indebtedness for such tax purpose.
Each prospective initial Noteholder acquiring Class B Notes,
each prospective transferee acquiring the Class B Notes, and each prospective
owner (or transferee thereof) of a beneficial interest in Class B Notes (each a
"Prospective Owner") will be deemed to have represented by such purchase to the
Issuer, the Trustee, the Servicer and any successor Servicer that either (1) it
is not a plan within the meaning of Section 3(3) of ERISA or Section 4975 of the
Code ("Plan") and is not directly or indirectly acquiring the Class B Notes on
behalf of, as investment manager of, as named fiduciary of, as trustee of, or
with the assets of a Plan; or (2) the acquisition and holding of the Class B
Notes will not give rise to a prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code for which a statutory or administrative
exemption is unavailable.
If an Indenture Event of Default or Amortization Event shall
occur and be continuing, the Notes may be declared due and payable in the manner
and with the effect provided in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture and subject
to the limitations set forth therein and above, the transfer of this Note is
registrable in the Note Register, upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Amended and Restated Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
original aggregate principal amount, will be issued to the designated transferee
or transferees.
The Notes may be redeemed in part by the Issuer at the partial
redemption price set forth in the Amended and Restated Indenture on any Payment
Date on which the outstanding Pool B Aggregate Discounted Contract Balance is
less than 20% of the Pool B Aggregate Discounted Contract Balance on the Closing
Date in the manner provided in the Amended and Restated Indenture. The Notes may
be redeemed by the Issuer, in whole but not in part, at the redemption price set
forth in the Amended and Restated Indenture on any Payment Date on which the
Pool A Aggregate Discounted Contract Balance is less than 10% of the Pool A
Aggregate Discounted Contract Balance as of the Closing Date and the Pool B
Aggregate Discounted Contract Balance is less than 20% of the Pool B Aggregate
Discounted Contract Balance as of the Closing Date in the manner provided in the
Amended and Restated Indenture.
The Notes are issuable only in registered form without coupons
in denominations as provided in the Amended and Restated Indenture and subject
to certain limitations therein set forth. 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.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Note is registered
B-3
as the owner hereof for all purposes, whether or not this Note be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
This Note and the Amended and Restated Indenture may be
amended or supplemented as set forth in the Amended and Restated Indenture.
By accepting this Note, the holder hereof irrevocably appoints
the Trustee under the Amended and Restated Indenture as the special
attorney-in-fact for the holder vested with full power on behalf of the holder
to effect and enforce the rights of such holder and the provisions of the
Amended and Restated Indenture for the benefit of the holder. The preceding
provision in no way shall limit the right of the holder hereof to demand payment
hereunder or bring an action to enforce payment hereof.
All capitalized terms used in this Note which are defined in
the Amended and Restated Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture, this Note
and the Amended and Restated Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
conflict of laws principles thereof.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Amended and Restated Indenture or be valid or obligatory
for any purpose.
This Class B Note does not purport to summarize the Amended
and Restated Indenture and reference is made to the Amended and Restated
Indenture for information with respect to interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the Amended and Restated Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank Trust National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
B-4
IN WITNESS WHEREOF, DVI RECEIVABLES XI, L.L.C. has caused this
instrument to be duly executed.
DVI RECEIVABLES XI, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name:
Title:
Dated:_____________________
This is one of the Notes
referred to in the within
mentioned Amended and Restated Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
B-5
EXHIBIT C
TO AMENDED AND RESTATED INDENTURE
---------------------------------
[FORM OF CLASS C NOTES]
NO BENEFICIAL OWNERS OF THIS NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT
OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED NOTES HAVE BEEN DELIVERED
PURSUANT TO THE TERMS OF THE AMENDED AND RESTATED INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE AMENDED AND RESTATED INDENTURE REFERRED
TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BY ACCEPTANCE OF THIS NOTE, THE HOLDER AND ANY BENEFICIAL OWNER AGREES
TO TREAT THIS NOTE AS INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES.
BY ITS ACCEPTANCE HEREOF, THE HOLDER AND ANY BENEFICIAL OWNER IS DEEMED
TO HAVE REPRESENTED TO THE ISSUER, THE TRUSTEE, THE SERVICER AND ANY SUCCESSOR
SERVICER THAT EITHER (1) IT IS NOT A PLAN WITHIN THE MEANING OF SECTION 3(3) OF
ERISA OR SECTION 4975 OF THE CODE ("PLAN") AND IT IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THE CLASS C NOTES ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH THE ASSETS OF A PLAN; OR (2) THE
ACQUISITION AND HOLDING OF THE CLASS C NOTES WILL NOT GIVE RISE TO A PROHIBITED
TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
No. 1 Principal Amount $_________
Due ____________ CUSIP No. ___________
C-1
_____% ASSET-BACKED NOTE, SERIES 2000-1, CLASS C
DVI RECEIVABLES XI, L.L.C., a Delaware limited liability
company (the "ISSUER"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of ___________________________________
and 00/100 Dollars ($_________) in monthly installments equal to the sum of (i)
the Class C Monthly Principal, (ii) the Class C Overdue Principal and (iii) any
other principal that may be due hereon pursuant to the Amended and Restated
Indenture during an Amortization Event together with (i) the Class C Monthly
Interest and (ii) the Class C Overdue Interest due thereon on the fourteenth day
of each month (or if such date is not a Business Day, the next succeeding
Business Day, commencing _______________ (each, a "PAYMENT DATE"), and not later
than ______, ____, all remaining principal and interest (computed on the basis
of a 360-day year of twelve 30-day months) are due and payable in their entirety
as set forth in the Amended and Restated Indenture.
Payments of principal and interest on this Note shall be made
on each Payment Date in such coin or currency of the United States of America as
at such time is legal tender for payment of public and private debts to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Record Date, or Redemption Record Date, as
applicable, for such Payment Date, which shall be the last Business Day of the
month preceding the month in which the Payment Date occurs (or in the case of
the initial Payment Date, the Closing Date), by wire transfer of immediately
available 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. The holder hereof shall surrender this Note at the
principal Corporate Trust Office of the Trustee for the final installment of
principal of this Note.
This Note is one of a duly authorized issue of Class C Notes
of the Issuer designated as its _____% Asset-Backed Notes, Series 2000-1, Class
C with aggregate principal amount of $_________ and to be issued under an
Amended and Restated Indenture, dated as of December 1, 1999 (herein called the
"AMENDED AND RESTATED INDENTURE"), between the Issuer and U.S. Bank Trust
National Association, as trustee (herein called the "TRUSTEE", which term
includes any successor trustee under the Amended and Restated Indenture), to
which Amended and Restated 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 of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Trust Property secures the Notes equally and
ratably without prejudice, priority, or distinction between any Note of the same
class and any other Note of the same class by reason of difference in time of
issuance or otherwise, and also secures the payment of certain other amounts and
certain other obligations as set forth in the Amended and Restated Indenture.
This Note is issued under and is subject to the terms, provisions and conditions
of the Amended and Restated Indenture, to which Amended and Restated Indenture
the Holder of this Note by virtue of the acceptance hereof assents and by which
such Holder is bound.
Each Class C Noteholder by acceptance of its Class C Note (and
any Person which is a beneficial owner of any interest in a Class C Note, by
virtue of such Persons' acquisition of a beneficial interest therein) agrees to
treat the Class C Notes (or beneficial interest therein) for purposes of
federal,
C-2
state and local income or franchise taxes and any other tax imposed on or
measured by income, as indebtedness. Each Class C Noteholder agrees that it will
cause any Person acquiring an interest in a Class C Note through it to
acknowledge the Class C Notes' characterization as indebtedness and to agree to
comply with the Amended and Restated Indenture as to treatment of the Class C
Notes as indebtedness for such tax purpose.
Each prospective initial Noteholder acquiring Class C Notes,
each prospective transferee acquiring the Class C Notes, and each prospective
owner (or transferee thereof) of a beneficial interest in Class C Notes (each a
"Prospective Owner") will be deemed to have represented by such purchase to the
Issuer, the Trustee, the Servicer and any successor Servicer that either (1) it
is not a plan within the meaning of Section 3(3) of ERISA or Section 4975 of the
Code ("Plan") and is not directly or indirectly acquiring the Class C Notes on
behalf of, as investment manager of, as named fiduciary of, as trustee of, or
with the assets of a Plan; or (2) the acquisition and holding of the Class C
Notes will not give rise to a prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code for which a statutory or administrative
exemption is unavailable.
If an Indenture Event of Default or Amortization Event shall
occur and be continuing, the Notes may be declared due and payable in the manner
and with the effect provided in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture and subject
to the limitations set forth therein and above, the transfer of this Note is
registrable in the Note Register, upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Amended and Restated Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
original aggregate principal amount, will be issued to the designated transferee
or transferees.
The Notes may be redeemed in part by the Issuer at the partial
redemption price set forth in the Amended and Restated Indenture on any Payment
Date on which the outstanding Pool B Aggregate Discounted Contract Balance is
less than 20% of the Pool B Aggregate Discounted Contract Balance on the Closing
Date in the manner provided in the Amended and Restated Indenture. The Notes may
be redeemed by the Issuer, in whole but not in part, at the redemption price set
forth in the Amended and Restated Indenture on any Payment Date on which the
Pool A Aggregate Discounted Contract Balance is less than 10% of the Pool A
Aggregate Discounted Contract Balance as of the Closing Date and the Pool B
Aggregate Discounted Contract Balance is less than 20% of the Pool B Aggregate
Discounted Contract Balance as of the Closing Date in the manner provided in the
Amended and Restated Indenture.
The Notes are issuable only in registered form without coupons
in denominations as provided in the Amended and Restated Indenture and subject
to certain limitations therein set forth. 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.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Note is registered
C-3
as the owner hereof for all purposes, whether or not this Note be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
This Note and the Amended and Restated Indenture may be
amended or supplemented as set forth in the Amended and Restated Indenture.
By accepting this Note, the holder hereof irrevocably appoints
the Trustee under the Amended and Restated Indenture as the special
attorney-in-fact for the holder vested with full power on behalf of the holder
to effect and enforce the rights of such holder and the provisions of the
Amended and Restated Indenture for the benefit of the holder. The preceding
provision in no way shall limit the right of the holder hereof to demand payment
hereunder or bring an action to enforce payment hereof.
All capitalized terms used in this Note which are defined in
the Amended and Restated Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture, this Note
and the Amended and Restated Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
conflict of laws principles thereof.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Amended and Restated Indenture or be valid or obligatory
for any purpose.
This Class C Note does not purport to summarize the Amended
and Restated Indenture and reference is made to the Amended and Restated
Indenture for information with respect to interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the Amended and Restated Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank Trust National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
C-4
IN WITNESS WHEREOF, DVI RECEIVABLES XI, L.L.C. has caused this
instrument to be duly executed.
DVI RECEIVABLES XI, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name:
Title:
Dated:_________________
This is one of the Notes
referred to in the within
mentioned Amended and Restated Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
C-5
EXHIBIT D
TO AMENDED AND RESTATED INDENTURE
---------------------------------
[FORM OF CLASS D NOTES]
NO BENEFICIAL OWNERS OF THIS NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT
OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED NOTES HAVE BEEN DELIVERED
PURSUANT TO THE TERMS OF THE AMENDED AND RESTATED INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE AMENDED AND RESTATED INDENTURE REFERRED
TO BELOW.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BY ACCEPTANCE OF THIS NOTE, THE HOLDER AND ANY BENEFICIAL OWNER AGREES
TO TREAT THIS NOTE AS INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES.
BY ITS ACCEPTANCE HEREOF, THE HOLDER AND ANY BENEFICIAL OWNER IS DEEMED
TO HAVE REPRESENTED TO THE ISSUER, THE TRUSTEE, THE SERVICER AND ANY SUCCESSOR
SERVICER THAT EITHER (1) IT IS NOT A PLAN WITHIN THE MEANING OF SECTION 3(3) OF
ERISA OR SECTION 4975 OF THE CODE ("PLAN") AND IT IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THE CLASS D NOTES ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH THE ASSETS OF A PLAN; OR (2) THE
ACQUISITION AND HOLDING OF THE CLASS D NOTES WILL NOT GIVE RISE TO A PROHIBITED
TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
No. 1 Principal Amount $_________
Due: ____________ CUSIP No. ___________
D-1
_____% ASSET-BACKED NOTE, SERIES 2000-1, CLASS D
DVI RECEIVABLES XI, L.L.C., a Delaware limited liability
company (the "ISSUER"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of _________________________________
and 00/100 Dollars ($_________) in monthly installments equal to the sum of (i)
the Class D Monthly Principal, (ii) the Class D Overdue Principal and (iii) any
other principal that may be due hereon pursuant to the Amended and Restated
Indenture during an Amortization Event together with (i) the Class D Monthly
Interest and (ii) the Class D Overdue Interest due thereon on the fourteenth day
of each month (or if such date is not a Business Day, the next succeeding
Business Day, commencing _______________ (each, a "PAYMENT DATE"), and not later
than ____________, all remaining principal and interest (computed on the basis
of a 360-day year of twelve 30-day months) are due and payable in their entirety
as set forth in the Amended and Restated Indenture.
Payments of principal and interest on this Note shall be made
on each Payment Date in such coin or currency of the United States of America as
at such time is legal tender for payment of public and private debts to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Record Date, or Redemption Record Date, as
applicable, for such Payment Date, which shall be the last Business Day of the
month preceding the month in which the Payment Date occurs (or in the case of
the initial Payment Date, the Closing Date), by wire transfer of immediately
available 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. The holder hereof shall surrender this Note at the
principal Corporate Trust Office of the Trustee for the final installment of
principal of this Note.
This Note is one of a duly authorized issue of Class D Notes
of the Issuer designated as its _____% Asset-Backed Notes, Series 2000-1, Class
D with aggregate principal amount of $_________ and to be issued under an
Amended and Restated Indenture dated as of December 1, 1999 (herein called the
"AMENDED AND RESTATED INDENTURE"), between the Issuer and U.S. Bank Trust
National Association, as trustee (herein called the "TRUSTEE", which term
includes any successor trustee under the Amended and Restated Indenture), to
which Amended and Restated 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 of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. The Trust Property secures the Notes equally and
ratably without prejudice, priority, or distinction between any Note of the same
class and any other Note of the same class by reason of difference in time of
issuance or otherwise, and also secures the payment of certain other amounts and
certain other obligations as set forth in the Amended and Restated Indenture.
This Note is issued under and is subject to the terms, provisions and conditions
of the Amended and Restated Indenture, to which Amended and Restated Indenture
the Holder of this Note by virtue of the acceptance hereof assents and by which
such Holder is bound.
Each Class D Noteholder by acceptance of its Class D Note (and
any Person which is a beneficial owner of any interest in a Class D Note, by
virtue of such Persons' acquisition of a beneficial interest therein) agrees to
treat the Class D Notes (or beneficial interest therein) for purposes of
federal, state and local income or franchise taxes and any other tax imposed on
or measured by income, as
D-2
indebtedness. Each Class D Noteholder agrees that it will cause any Person
acquiring an interest in a Class D Note through it to acknowledge the Class D
Notes' characterization as indebtedness and to agree to comply with the Amended
and Restated Indenture as to treatment of the Class D Notes as indebtedness for
such tax purpose.
Each prospective initial Noteholder acquiring Class D Notes,
each prospective transferee acquiring the Notes, and each prospective owner (or
transferee thereof) of a beneficial interest in Class D Notes (each a
"Prospective Owner") will be deemed to have represented by such purchase to the
Issuer, the Trustee, the Servicer and any successor Servicer that either (1) it
is not a plan within the meaning of Section 3(3) of ERISA or Section 4975 of the
Code ("Plan") and is not directly or indirectly acquiring the Notes on behalf
of, as investment manager of, as named fiduciary of, as trustee of, or with the
assets of a Plan; or (2) the acquisition and holding of the Class D Notes will
not give rise to a prohibited transaction under Section 406(a) of ERISA or
Section 4975 of the Code for which a statutory or administrative exemption is
unavailable.
If an Indenture Event of Default or Amortization Event shall
occur and be continuing, the Notes may be declared due and payable in the manner
and with the effect provided in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture and subject
to the limitations set forth therein and above, the transfer of this Note is
registrable in the Note Register, upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Amended and Restated Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
original aggregate principal amount, will be issued to the designated transferee
or transferees.
The Notes may be redeemed in part by the Issuer at the partial
redemption price set forth in the Amended and Restated Indenture on any Payment
Date on which the outstanding Pool B Aggregate Discounted Contract Balance is
less than 20% of the Pool B Aggregate Discounted Contract Balance on the Closing
Date in the manner provided in the Amended and Restated Indenture. The Notes may
be redeemed by the Issuer, in whole but not in part, at the redemption price set
forth in the Amended and Restated Indenture on any Payment Date on which the
Pool A Aggregate Discounted Contract Balance is less than 10% of the Pool A
Aggregate Discounted Contract Balance as of the Closing Date and the Pool B
Aggregate Discounted Contract Balance is less than 20% of the Pool B Aggregate
Discounted Contract Balance as of the Closing Date in the manner provided in the
Amended and Restated Indenture.
The Notes are issuable only in registered form without coupons
in denominations as provided in the Amended and Restated Indenture and subject
to certain limitations therein set forth. 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.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Note is registered
D-3
as the owner hereof for all purposes, whether or not this Note be overdue, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary.
This Note and the Amended and Restated Indenture may be
amended or supplemented as set forth in the Amended and Restated Indenture.
By accepting this Note, the holder hereof irrevocably appoints
the Trustee under the Amended and Restated Indenture as the special
attorney-in-fact for the holder vested with full power on behalf of the holder
to effect and enforce the rights of such holder and the provisions of the
Amended and Restated Indenture for the benefit of the holder. The preceding
provision in no way shall limit the right of the holder hereof to demand payment
hereunder or bring an action to enforce payment hereof.
All capitalized terms used in this Note which are defined in
the Amended and Restated Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture, this Note
and the Amended and Restated Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
conflict of laws principles thereof.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Amended and Restated Indenture or be valid or obligatory
for any purpose.
This Class D Note does not purport to summarize the Amended
and Restated Indenture and reference is made to the Amended and Restated
Indenture for information with respect to interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the Amended and Restated Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank Trust National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
D-4
IN WITNESS WHEREOF, DVI RECEIVABLES XI, L.L.C. has caused this
instrument to be duly executed.
DVI RECEIVABLES XI, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name:
Title:
Dated:_______________
This is one of the Notes
referred to in the within
mentioned Amended and Restated Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------
Authorized Signatory
D-5
EXHIBIT E
TO AMENDED AND RESTATED INDENTURE
---------------------------------
[FORM OF CLASS E NOTES]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO TRUSTEE OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BY ACCEPTANCE OF THIS NOTE, THE HOLDER AND ANY BENEFICIAL OWNER AGREES
TO TREAT THIS NOTE AS INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES.
THIS NOTE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT") OR THE SECURITIES LAW OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS NOTE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
2.04 OF THE AMENDED AND RESTATED INDENTURE REFERRED TO HEREIN.
BY ITS ACCEPTANCE HEREOF, THE HOLDER AND ANY BENEFICIAL OWNER IS DEEMED
TO HAVE REPRESENTED TO THE ISSUER, THE TRUSTEE, THE SERVICER AND ANY SUCCESSOR
SERVICER THAT EITHER (1) IT IS NOT A PLAN WITHIN THE MEANING OF SECTION 3(3) OF
ERISA OR SECTION 4975 OF THE CODE ("PLAN") AND IT IS NOT DIRECTLY OR INDIRECTLY
ACQUIRING THE CLASS E NOTES ON BEHALF OF, AS INVESTMENT MANAGER OF, AS NAMED
FIDUCIARY OF, AS TRUSTEE OF, OR WITH THE ASSETS OF A PLAN; OR (2) THE
ACQUISITION AND HOLDING OF THE CLASS E NOTES WILL NOT GIVE RISE TO A PROHIBITED
TRANSACTION UNDER SECTION 406(a) OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
THIS CLASS E NOTE MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS (i) SUCH TRANSFEREE IS A "UNITED STATES PERSON" AS DEFINED IN SECTION
7701(a)(30) OF THE CODE; (ii) (A) SUCH TRANSFEREE IS NOT A GRANTOR TRUST,
PARTNERSHIP OR S CORPORATION FOR UNITED STATES FEDERAL INCOME TAX PURPOSES OR
(B) SUCH TRANSFEREE IS A GRANTOR TRUST, PARTNERSHIP OR S CORPORATION FOR UNITED
STATES FEDERAL INCOME TAX PURPOSES, BUT AFTER GIVING EFFECT TO SUCH TRANSFER OF
CLASS E NOTES TO SUCH TRANSFEREE,
E-1
SUBSTANTIALLY ALL OF THE VALUE OF THE INTEREST OF AN OWNER OF THE TRANSFEREE IN
THE TRANSFEREE WILL NOT BE ATTRIBUTABLE TO THE PASS-THROUGH ENTITY'S OWNERSHIP
INTEREST IN SECURITIES ISSUED BY THE ISSUER OTHER THAN THE CLASS A, CLASS B AND
CLASS C NOTES AND (ii) FOR THE PURPOSES OF SECTION 7704 OF THE CODE AND THE
TREASURY REGULATIONS PROMULGATED THEREUNDER, AFTER SUCH TRANSFER THE ISSUER
WOULD NOT BE TREATED AS HAVING MORE THAN 100 PARTNERS.
No. 1 Principal Amount $_________
Due: ____________ CUSIP No. ___________
_____% ASSET-BACKED NOTE, SERIES 2000-1, CLASS E
DVI RECEIVABLES XI, L.L.C., a Delaware limited liability
company (the "ISSUER"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of
___________________________________________ and 00/100 Dollars ($_________) in
monthly installments equal to the sum of (i) the Class E Monthly Principal, (ii)
the Class E Overdue Principal and (iii) any other principal that may be due
hereon pursuant to the Amended and Restated Indenture during an Amortization
Event together with (i) the Class E Monthly Interest and (ii) the Class E
Overdue Interest due thereon on the fourteenth day of each month (or if such
date is not a Business Day, the next succeeding Business Day, commencing
_______________ (each, a "PAYMENT DATE"), and not later than ____________, all
remaining principal and interest (computed on the basis of a 360-day year of
twelve 30-day months) are due and payable in their entirety as set forth in the
Amended and Restated Indenture.
THE RIGHTS TO RECEIVE PAYMENTS WITH RESPECT TO THIS CLASS E
NOTE ARE SUBORDINATE TO THE PRIOR PAYMENT IN FULL ON EACH PAYMENT DATE OF
CERTAIN AMOUNTS DUE AND PAYABLE ON THE CLASS A NOTES, THE CLASS B NOTES, THE
CLASS C NOTES AND THE CLASS D NOTES AS PROVIDED IN THE AMENDED AND RESTATED
INDENTURE.
Payments of principal and interest on this Note shall be made
on each Payment Date in such coin or currency of the United States of America as
at such time is legal tender for payment of public and private debts to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on the Record Date or Redemption Date, as applicable,
for such Payment Date, which shall be the last Business Day of the month
preceding the month in which the Payment Date occurs (or in the case of the
initial Payment Date, the Closing Date), by wire transfer of immediately
available 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. The holder hereof shall surrender this Note at the
principal Corporate Trust Office of the Trustee for the final installment of
principal of this Note.
This Note is one of a duly authorized issue of Class E Notes
of the Issuer designated as its _____% Asset-Backed Notes, Series 2000-1, Class
E with aggregate principal amount of $_________ and to be issued under an
Amended and Restated Indenture dated as of December 1, 1999
E-2
(herein called the "AMENDED AND RESTATED INDENTURE"), between the Issuer and
U.S. Bank Trust National Association, as trustee (herein called the "TRUSTEE",
which term includes any successor trustee under the Amended and Restated
Indenture), to which Amended and Restated 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 of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. The Trust Property secures the
Notes equally and ratably without prejudice, priority, or distinction between
any Note of the same class and any other Note of the same class by reason of
difference in time of issuance or otherwise, and also secures the payment of
certain other amounts and certain other obligations as set forth in the Amended
and Restated Indenture. This Note is issued under and is subject to the terms,
provisions and conditions of the Amended and Restated Indenture, to which
Amended and Restated Indenture the Holder of this Note by virtue of the
acceptance hereof assents and by which such Holder is bound.
The Issuer, the Trustee and each Class E Noteholder by
acceptance of its Class E Note (and any Person that is a beneficial owner of any
interest in a Class E Note, by virtue of such Person's acquisition of a
beneficial interest therein) agrees to treat the Class E Notes for purposes of
federal, state and local income or franchise taxes (and any other tax imposed on
or measured by income) as indebtedness. Each Class E Noteholder agrees that it
will cause any Person acquiring an interest in a Class E Note through it to
acknowledge the Class E Notes' characterization as indebtedness and to agree to
comply with this Amended and Restated Indenture as to treatment of the Class E
Notes as indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Notes, each
prospective transferee acquiring the Class E Notes, and each prospective owner
(or transferee thereof) of a beneficial interest in Class E Notes (each a
"Prospective Owner") will be deemed to have represented by such purchase to the
Issuer, the Trustee, the Servicer and any successor Servicer that either (1) it
is not a plan within the meaning of Section 3(3) of ERISA or Section 4975 of the
Code ("Plan") and is not directly or indirectly acquiring the Class E Notes on
behalf of, as investment manager of, as named fiduciary of, as trustee of, or
with the assets of a Plan; or (2) the acquisition and holding of the Class E
Notes will not give rise to a prohibited transaction under Section 406(a) of
ERISA or Section 4975 of the Code for which a statutory or administrative
exemption is unavailable.
If an Indenture Event of Default or Amortization Event shall
occur and be continuing, the Notes may be declared due and payable in the manner
and with the effect provided in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture and subject
to the limitations set forth therein and above, the transfer of this Note is
registrable in the Note Register, upon surrender of this Note for registration
of transfer at the office or agency designated by the Issuer pursuant to the
Amended and Restated Indenture, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
original aggregate principal amount, will be issued to the designated transferee
or transferees.
E-3
The Notes may be redeemed in part by the Issuer at the partial
redemption price set forth in the Amended and Restated Indenture on any Payment
Date on which the outstanding Pool B Aggregate Discounted Contract Balance is
less than 20% of the Pool B Aggregate Discounted Contract Balance on the Closing
Date in the manner provided in the Amended and Restated Indenture. The Notes may
be redeemed by the Issuer, in whole but not in part, at the redemption price set
forth in the Amended and Restated Indenture on any Payment Date on which the
Pool A Aggregate Discounted Contract Balance is less than 10% of the Pool A
Aggregate Discounted Contract Balance as of the Closing Date and the Pool B
Aggregate Discounted Contract Balance is less than 20% of the Pool B Aggregate
Discounted Contract Balance as of the Closing Date in the manner provided in the
Amended and Restated Indenture.
The Notes are issuable only in registered form without coupons
in denominations as provided in the Amended and Restated Indenture and subject
to certain limitations therein set forth. 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.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note and the Amended and Restated Indenture may be
amended or supplemented as set forth in the Amended and Restated Indenture.
By accepting this Note, the holder hereof irrevocably appoints
the Trustee under the Amended and Restated Indenture as the special
attorney-in-fact for the holder vested with full power on behalf of the holder
to effect and enforce the rights of such holder and the provisions of the
Amended and Restated Indenture for the benefit of the holder. The preceding
provision in no way shall limit the right of the holder hereof to demand payment
hereunder or bring an action to enforce payment hereof.
All capitalized terms used in this Note which are defined in
the Amended and Restated Indenture and not otherwise defined herein shall have
the meanings assigned to them in the Amended and Restated Indenture.
As provided in the Amended and Restated Indenture, this Note
and the Amended and Restated Indenture shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to the
conflict of laws principles thereof.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Amended and Restated Indenture or be valid or obligatory
for any purpose.
This Class E Note does not purport to summarize the Amended
and Restated Indenture and reference is made to the Amended and Restated
Indenture for information with respect to interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights, duties and
immunities of the Trustee. Copies of the Amended and Restated Indenture and all
amendments thereto will be
E-4
provided to any Noteholder, at its expense, upon a written request to the
Trustee, U.S. Bank Trust National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
E-5
IN WITNESS WHEREOF, DVI RECEIVABLES XI, L.L.C. has caused this
instrument to be duly executed.
DVI RECEIVABLES XI, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name:
Title:
Dated:__________________
This is one of the Notes
referred to in the within
mentioned Amended and Restated Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee
By:
------------------------------------
Authorized Signatory
E-6
EXHIBIT F
TO AMENDED AND RESTATED INDENTURE
---------------------------------
[FORM OF CLASS F INSTRUMENT TO BE PROVIDED WITH ANY
SUPPLEMENT PURSUANT TO WHICH CLASS F INSTRUMENTS ARE ISSUED]
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EXHIBIT G
TO AMENDED AND RESTATED INDENTURE
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INVESTMENT LETTER
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_______________, 200_
DVI Receivables XI, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: $ % Asset-Backed Notes, Series 2000-1, Class
CUSIP Number
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Ladies and Gentlemen:
___________________________ (the "SELLER") intends to transfer
$_____________ in aggregate principal amount of the captioned Notes to
_____________________ (the "PURCHASER").
1. In connection with such transfer, and in accordance with
Section 2.04 of the Amended and Restated Indenture, dated as of December 1, 1999
(the "AMENDED AND RESTATED INDENTURE"; all capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the Amended and
Restated Indenture), between DVI Receivables XI, L.L.C. (the "ISSUER") and U.S.
Bank Trust National Association, not in its individual capacity but solely as
Trustee (the "TRUSTEE"), pursuant to which the Notes were issued, the Seller
hereby certifies to you the following facts: Neither the Seller nor anyone
acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Notes, any interest in the Notes or any other similar security
to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Notes, any interest in the Notes or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action
which would constitute a distribution of the Notes under the Securities Act of
1933, as amended (the "1933 ACT"), or under state securities laws, or which
would render the disposition of the Notes a violation of Section 5 of the 1933
Act or applicable state securities laws or require registration pursuant
thereto.
2. The Purchaser warrants and represents to, and covenants
with, the Trustee pursuant to Section 2.04 of the Amended and Restated Indenture
that:
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(a) The Purchaser agrees to be bound, as Noteholder, by all of
the terms, covenants and conditions of the Amended and Restated
Indenture and the Notes, and from and after the date hereof, the
Purchaser assumes for the benefit of each of the Trustee and the Seller
all of the Seller's obligations as Noteholder thereunder;
(b) The Purchaser understands that the Notes have not been and
may never be registered under the 1933 Act or the securities laws of
any state;
(c) The Purchaser is acquiring the Notes for investment for
its own account or the account of another qualified institutional buyer
(within the meaning of Rule 144A under the ▇▇▇▇ ▇▇▇) only and not for
any other person or with a view to the distribution thereof in
violation of applicable securities laws;
(d) The Purchaser considers itself a substantial,
sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of
evaluating the merits and risks of investment in the Notes;
(e) The Purchaser has been furnished with all information
regarding the Notes that it has requested from the Seller or the
Trustee and has been afforded the opportunity to ask all questions it
reasonably desires to ask of the Seller (and all such questions have
been answered to the Purchaser's satisfaction);
(f) Neither the Purchaser nor anyone acting on its behalf has
offered, transferred, pledged, sold or otherwise disposed of the Notes,
any interest in the Notes or any other similar security to, or
solicited any offer to buy or accept a transfer, pledge or other
disposition of the Notes, any interest in the Notes or any other
similar security from, or otherwise approached or negotiated with
respect to the Notes, any interest in the Notes or any other similar
security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or
taken any other action which would constitute a distribution of the
Notes under the 1933 Act or applicable state securities laws or which
would render the disposition of the Notes a violation of Section 5 of
the 1933 Act or applicable state securities laws or require
registration pursuant thereto, nor will it act, nor has it authorized
or will it authorize any person to act, in such manner with respect to
the Notes; and
(g) The Purchaser will strictly comply with the Amended and
Restated Indenture as to treatment of the Class ___ Notes as
indebtedness of the Seller for purposes of federal, state and local
income or franchise taxes and any other tax imposed on or measured by
income.
3. The Purchaser represents and warrants to the Issuer, the
Trustee, the Servicer and any successor Servicer that either (1) it is not a
plan within the meaning of Section 3(3) of ERISA or Section 4975 of the Code
("Plan") and is not directly or indirectly acquiring this Note on behalf of, as
investment manager of, as named fiduciary of, as trustee of, or with the assets
of a Plan; or (2) the acquisition and holding of this Note will not give rise to
a prohibited transaction under Section 406(a) of ERISA or section 4975 of the
Code for which a statutory or administrative exemption is unavailable.
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4. The Purchaser understands and agrees with the Seller that
the Seller is transferring the Notes pursuant to the exemption from registration
under the 1933 Act provided by Rule 144A thereunder ("RULE 144A") and the
Purchaser hereby represents and warrants to the Seller and the Trustee that the
Purchaser is a "qualified institutional buyer" as defined in Rule 144A.
The Purchaser acknowledges that it is familiar with Rule 144A
and understand that you are and will continue to rely on the statements made
herein.
5. This Certification may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed to be an original; such
counterparts, together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Investment
Letter to be executed by their duly authorized officers as of the date first
above written.
__________________________ __________________________________
Seller Purchaser
By:______________________________ By:_______________________________
Its:_____________________________ Its:______________________________
Taxpayer Identification Taxpayer Identification
No.______________________________ No._______________________________
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EXHIBIT H
[Reserved.]
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EXHIBIT I
TAX CERTIFICATE
[With respect to Class E Notes]
The undersigned hereby certifies and represents as follows to the
parties listed in the Amended and Restated Indenture to which this certification
relates with respect to the Class E Notes described therein:
This Tax Certificate ("CERTIFICATE") is delivered in
connection with the acquisition of, transfer to or possession by the
undersigned, whether as beneficial owner (the "BENEFICIAL OWNER"), or nominee on
behalf of the beneficial owner of the above-described Class E Notes.
Each Holder must complete Part I, Part II (if the holder is a
nominee), Part III, Part IV and in all cases sign and otherwise complete this
certificate. Each Holder shall submit with this certificate an IRS Form W-9 (or
any such successor form) to such Holder.
Part I
1. _______________ (Name of beneficial owner) is not a
foreign corporation, foreign partnership, foreign
trust or foreign estate (as those terms are defined
in the Code and Treasury Regulations);
2. The beneficial owner's office address and place of
incorporation (if applicable) is _______________; and
3. The beneficial owner's U.S. employer identification
number is _______________.
Part II - Nominees
If the undersigned is the nominee for the Beneficial Owner,
the undersigned certifies that this certificate has been made in reliance upon
information contained in:
____ an IRS Form W-9
____ a form such as this or substantially similar
provided to the undersigned by an appropriate person and (i) the undersigned
agrees to notify the Trustee at least thirty (30) days prior to the date that
the form relied upon becomes obsolete, and (ii) in connection with a change in
beneficial owners, the undersigned agrees to submit a new Tax Certificate to the
Trustee promptly after such change.
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Part III - Declaration
The undersigned, as the Beneficial Owner or a nominee thereof,
agrees to notify the Trustee within sixty (60) days of the date that the
Beneficial Owner becomes a foreign person. The undersigned understands that this
certificate may be disclosed to the Internal Revenue Service by the Trustee and
any false statement contained therein could be punishable by fines, imprisonment
or both.
Part IV - Representation
The undersigned hereby represents, warrants and agrees that
it:
(1) (a) is purchasing the Class E Note for its own
account and is the sole beneficial owner of such Note;
(b) either (i) is not, for federal income tax
purposes, a partnership, trust, estate or "S Corporation" (as defined in the
Code) (each a "PASS-THROUGH ENTITY") or (ii) is for federal income tax purposes,
a Pass-through Entity, but after giving effect to our purchase of such Note less
than 50 percent of the aggregate value of our assets would consist of Class E
Notes; and
(c) such Note has not been transferred through an
"established securities market" within the meaning of Section 7704(b) of the
Code;
(2) if it is a Pass-through Entity, it covenants that the
portion of its assets consisting of Class E Notes will remain below 50 percent
at all times; and
(3) if it resells or transfers any of the Class E Notes, it
will obtain from each subsequent purchaser or transferee a letter containing the
same representations and agreements as set forth herein.
The undersigned understands and agrees that no initial or subsequent
sale or other transfer of a Class E Note may be made unless such sale or
transfer (i) is accompanied by delivery of a tax statement in the form of this
letter, (ii) is made to a "United States Person" as defined in Section
7701(a)(30) of the code, as certified in such tax statement, and (iii) will not
cause the Issuer to be treated as a publicly traded partnership for United
States federal income tax purposes. Any attempted transfer, assignment,
conveyance, participation or subdivision in contravention of the preceding
restrictions, as reasonably determined by the Trustee, shall be void AB INITIO
and the purported transferor, seller or subdivider of such Class E Note shall
continue to be treated as the Holder of such Note for all purposes of the
Amended and Restated Indenture.
IN WITNESS WHEREOF, the undersigned has caused this
certificate to be executed by its duly authorized officer as of the date first
above written.
________________________________
Purchaser
By:_____________________________
Its:____________________________
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APPENDIX I
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The following definition of terms used in the Amended and
Restated Contribution and Servicing Agreement, the Amended and Restated
Indenture, the Amended and Restated Subsequent Contract Transfer Agreement, any
Note Purchase Agreement and the Underwriting Agreement (each such agreement as
defined herein), unless the context otherwise requires, shall have the following
meanings and such meanings shall be equally applicable to both the singular and
plural forms of such terms:
ACT: means, with respect to any Noteholder, as defined in
Section 1.04(a) of the Amended and Restated Indenture.
AFFILIATE: means, of any specified Person, any other Person
(i) which directly or indirectly controls, or whose directors or officers
directly or indirectly control, or is controlled by, or is under common control
with, such specified Person, (ii) which beneficially owns or holds, or whose
directors or officers beneficially own or hold, 5% or more of any class of the
voting stock (or, in the case of an entity that is not a corporation, 5% of the
equity interest) of such specified Person, or (iii) 5% or more of the voting
stock (or, in the case of an entity that is not a corporation, 5% of the equity
interest) of which is owned or held by such specified Person. The term "control"
as used in the preceding sentence means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract, or
otherwise.
AGGREGATE DISCOUNTED CONTRACT BALANCE: means, with respect to
any date of determination, the sum of the Discounted Contract Balances of all
Contracts.
AGGREGATE NOTE BALANCE: means the sum of (i) the Note Balance
for the Class A Notes, (ii) the Note Balance for the Class B Notes, (iii) the
Note Balance for the Class C Notes, (iv) the Note Balance for the Class D Notes,
(v) the Note Balance for the Class E Notes and (iv) the Note Balance for the
Class F Instrument, if any.
AMENDED AND RESTATED CONTRIBUTION AND SERVICING AGREEMENT:
means the Amended and Restated Contribution and Servicing Agreement dated as of
December 1, 1999 between the Transferor and the Contributor, as the same may be
amended or modified from time to time in accordance with the provisions hereof
and thereof.
AMENDED AND RESTATED INDENTURE: means the Amended and Restated
Indenture between the Issuer and the Trustee dated as of December 1, 1999 and as
from time to time supplemented or amended pursuant to the applicable provisions
thereof.
AMENDED AND RESTATED SUBSEQUENT CONTRACT TRANSFER AGREEMENT:
means the Subsequent Contract Agreement, dated as of December 1, 1999, by and
between the Issuer and the Transferor.
AMORTIZATION EVENT: means the occurrence of any one of the
following events:
(i) The entry by a court having jurisdiction
in the premises of (A) a decree or order for relief in respect
of DVI, Inc. 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 DVI, Inc. a bankrupt or insolvent, or approving as
properly filed a petition servicing reorganization,
arrangement, adjustment, or composition of or in respect of
DVI, Inc. under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator, or other similar official of DVI, Inc.
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 90
consecutive days; or
(ii) The commencement by DVI, Inc. 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 DVI, Inc. 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 DVI,
Inc. or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or DVI,
Inc.'s failure to pay its debts generally as they become due,
or the taking of corporate action by DVI, Inc. in furtherance
of any such action; or
(iii) On and as of any Determination Date,
(x) the quotient of (1) the sum of the Discounted Contract
Balances of all Contracts listed as more than 90 days
delinquent as of the last day of the three immediately
preceding calendar months, divided by (2) three exceeds (y)
the product of (1) 0.08 and (2) the quotient of (A) the sum of
the Aggregate Discounted Contract Balance as of the last day
of the three immediately preceding Collection Periods, divided
by (B) three; or
(iv) As of any Determination Date, the sum
of Discounted Contract Balances of all Contracts that have
been classified as Defaulted Contracts since the Closing Date
(such Discounted Contract Balances to be determined
immediately prior to the classification as a Defaulted
Contract) exceeds the product of (1) 0.06 and (2) the
Aggregate Discounted Contract Balance on the Closing Date.
AUTHORIZED OFFICER: means, with respect to any matter, any
officer of or other Person representing the Issuer, the Transferor, the
Contributor, the Servicer, the Trustee, any Noteholder or any Instrumentholder,
as the case may be, who is authorized to act for that party.
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AVAILABLE FUNDS: means, with respect to each Payment Date, the
excess of (i) all amounts on deposit in the Collection Account on the second
Business Day preceding such Payment Date over (ii) any portion thereof
representing Contract Payments due, or voluntary prepayments deposited therein,
subsequent to the end of the related Collection Period.
AVAILABLE RESERVE ACCOUNT FUNDS: has the meaning set forth in
Section 3.04(c) of the Amended and Restated Indenture.
BALLOON PAYMENT: means, with respect to any Contract, a final
Contract Payment that is at least equal to six times any other Contract Payment
related to such Contract.
BOOK-ENTRY CUSTODIAN: means, the Person appointed pursuant to
the terms of the Amended and Restated Indenture to act in accordance with a
certain Letter of Representations agreement such Person has with DTC, in which
DTC delegates its duties to maintain the Book-Entry Notes to such Person and
authorizes such Person to perform such duties.
BOOK-ENTRY NOTE(S): means each Note for so long as such Note
is registered in the name of its depository or its nominee in accordance with
the terms and conditions of the Amended and Restated Indenture.
BUSINESS DAY: means any day other than a Saturday, a Sunday or
a day on which banking institutions in New York City or in the city in which the
Corporate Trust Office is located are authorized or required by law or executive
order to close.
CAPITAL STOCK: means the Transferor's common stock, $1.00 par
value.
CLASS A DISTRIBUTION SUB-ACCOUNT: means the sub-account or
sub-accounts by that name established and maintained by the Trustee pursuant to
Section 3.01 of the Amended and Restated Indenture.
CLASS A MONTHLY INTEREST: means, for any Payment Date, the sum
of the Class A-1 Monthly Interest, the Class A-2 Monthly Interest, the Class A-3
Monthly Interest and the Class A-4 Monthly Interest.
CLASS A MONTHLY PRINCIPAL: means for any Payment Date the sum
of the Class A-1 Monthly Principal, the Class A-2 Monthly Principal, the Class
A-3 Monthly Principal and the Class A-4 Monthly Principal due or payable on that
Payment Date.
CLASS A NOTE BALANCE: means, as of the Closing
Date,$257,425,000 and thereafter shall equal the Class A Note Balance as of the
Closing Date reduced by all principal payments on all of the Class A Notes.
CLASS A NOTEHOLDER: means, at any time, any Person in whose
name a Class A Note is registered in the Note Register.
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CLASS A NOTES: means any Class A-1 Note, Class A-2 Note, Class
A-3 Note or Class A-4 Note described in Article II of, and authorized by, and
authenticated and delivered under, the Amended and Restated Indenture.
CLASS A OVERDUE INTEREST: means, for any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A Monthly Interest payable
on all prior Payment Dates over (b) the aggregate amount of interest actually
paid to the Class A Noteholders on all prior Payment Dates.
CLASS A OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A Monthly Principal due on
the Class A Notes on all prior Payment Dates over (b) the aggregate amount of
principal actually paid to the Class A Noteholders on all prior Payment Dates.
CLASS A PERCENTAGE: means 88.0%.
CLASS A-1 MONTHLY INTEREST: means, for any Payment Date
(except the Initial Payment Date), the product of (i) the fraction of which the
numerator is the actual number of days elapsed during the related month and the
denominator of which is 360 days and (ii) the Class A-1 Note Rate and (iii) the
Class A-1 Note Balance on the immediately preceding Payment Date (or, with
respect to the Initial Payment Date, the Closing Date) after giving effect to
all principal payments on the Class A-1 Notes on such Payment Date. The Class
A-1 Monthly Interest, with respect to each Payment Date, shall accrue from and
including the prior Payment Date to but excluding such Payment Date, and with
respect to the Initial Payment Date, shall accrue from and including the Closing
Date to but excluding such Initial Payment Date.
CLASS A-1 MONTHLY PRINCIPAL: means (A) with respect to each
Payment Date other than the Class A-1 Stated Maturity Date, until the Class A-1
Note Balance has been reduced to zero, an amount equal to the product of (a) the
Class A Percentage and (b) Monthly Principal; PROVIDED, HOWEVER, that in no
event shall the Class A-1 Monthly Principal due on any Payment Date exceed the
Class A-1 Note Balance as of such Payment Date and (B) on the Class A-1 Stated
Maturity Date, the entire amount of the then-Outstanding Note Balance.
CLASS A-1 NOTE BALANCE: means, as of the Closing Date,
$39,800,000 and thereafter shall equal the Class A-1 Note Balance as of the
Closing Date reduced by all principal payments on all of the Class A-1 Notes.
CLASS A-1 NOTE RATE: means six and 72375/100000 percent
(6.72375%) per annum based upon the actual number of days elapsed.
CLASS A-1 NOTEHOLDER: means, at any time, any Person in whose
name a Class A-1 Note is registered in the Note Register.
CLASS A-1 NOTES: means any Class A-1 Notes described in
Article II of, and authorized by, and authenticated and delivered under, the
Amended and Restated Indenture.
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CLASS A-1 OVERDUE INTEREST: means, for any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A-1 Monthly Interest
payable on all prior Payment Dates over (b) the aggregate amount of interest
actually paid to the Class A-1 Noteholders on all prior Payment Dates.
CLASS A-1 OVERDUE PRINCIPAL: means, as of any Payment Date,
the excess, if any, of (a) the aggregate amount of Class A-1 Monthly Principal
due on the Class A-1 Notes on all prior Payment Dates over (b) the aggregate
amount of principal actually paid to the Class A-1 Noteholders on all prior
Payment Dates.
CLASS A-1 STATED MATURITY DATE: means the Payment Date
occurring on May 14, 2001.
CLASS A-2 MONTHLY INTEREST: means, for any Payment Date
(except the Initial Payment Date), the product of (i) one-twelfth, (ii) the
Class A-2 Note Rate and (iii) the Class A-2 Note Balance on the immediately
preceding Payment Date (or, in the case of the Initial Payment Date, the Closing
Date) after giving effect to all principal payments on the Class A-2 Notes on
such Payment Date. The Class A-2 Monthly Interest shall be calculated on a
twelve month year of thirty days in each month, except for the Initial Payment
Date, for which interest shall accrue from the Closing Date to but excluding
such Initial Payment Date.
CLASS A-2 MONTHLY PRINCIPAL: means (A) prior to the Payment
Date upon which the Class A-1 Note Balance is paid in full, zero, (B) on each
Payment Date after the Class A-1 Note Balance has been reduced to zero and until
the Class A-2 Note Balance has been reduced to zero, the product of (x) the
Class A Percentage and (y) Monthly Principal; PROVIDED HOWEVER, that in no case
shall the Class A-2 Monthly Principal due on any Payment Date exceed the Class
A-2 Note Balance, and (C) on the Class A-2 Stated Maturity Date, the entire
amount of the then outstanding Class A-2 Note Balance.
CLASS A-2 NOTE BALANCE: means, as of the Closing Date,
$39,000,000 and thereafter shall equal the Class A-2 Note Balance as of the
Closing Date reduced by all principal payments on all of the Class A-2 Notes.
CLASS A-2 NOTE RATE: means seven and 265/1000 percent (7.265%)
per annum based upon thirty days elapsed each month in a twelve-month year.
CLASS A-2 NOTEHOLDER: means, at any time, any Person in whose
name a Class A-2 Note is registered in the Note Register.
CLASS A-2 NOTES: means any Class A-2 Notes described in
Article II of, and authorized by, and authenticated and delivered under, the
Amended and Restated Indenture.
CLASS A-2 OVERDUE INTEREST: means, for any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A-2 Monthly Interest
payable on all prior Payment Dates over (b) the aggregate amount of interest
actually paid to the Class A-2 Noteholders on all prior Payment Dates.
CLASS A-2 OVERDUE PRINCIPAL: means, as of any Payment Date,
the excess, if any, of (a) the aggregate amount of Class A-2 Monthly Principal
due on the Class A-2 Notes on all prior
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Payment Dates over (b) the aggregate amount of principal actually paid to the
Class A-2 Noteholders on all prior Payment Dates.
CLASS A-2 STATED MATURITY DATE: means the Payment Date
occurring on December 14, 2002.
CLASS A-3 MONTHLY INTEREST: means, for any Payment Date
(except the Initial Payment Date), the product of (i) one-twelfth, (ii) the
Class A-3 Note Rate and (iii) the Class A-3 Note Balance on the immediately
preceding Payment Date (or, in the case of the Initial Payment Date, the Closing
Date) after giving effect to all principal payments on the Class A-3 Notes on
such Payment Date. The Class A-3 Monthly Interest shall be calculated based upon
a twelve month year of thirty days in each month, except for the Initial Payment
Date, for which interest shall accrue from the Closing Date to but excluding
such Initial Payment Date.
CLASS A-3 MONTHLY PRINCIPAL: means (A) prior to the Payment
Date upon which the Class A-2 Note Balance is paid in full, zero, (B) on each
Payment Date after the Class A-2 Note Balance has been reduced to zero and until
the Class A-3 Note Balance has been reduced to zero, the product of (x) the
Class A Percentage and (y) Monthly Principal; PROVIDED HOWEVER, that in no case
shall the Class A-3 Monthly Principal due on any Payment Date exceed the Class
A-3 Note Balance, and (C) on the Class A-3 Stated Maturity Date, the entire
amount of the then outstanding Class A-3 Note Balance.
CLASS A-3 NOTE BALANCE: means, as of the Closing Date,
$83,000,000 and thereafter shall equal the Class A-3 Note Balance as of the
Closing Date reduced by all principal payments on all of the Class A-3 Notes.
CLASS A-3 NOTE RATE: means seven and 550/1000 percent (7.550%)
per annum based upon thirty days elapsed each month in a twelve-month year.
CLASS A-3 NOTEHOLDER: means, at any time, any Person in whose
name a Class A-3 Note is registered in the Note Register.
CLASS A-3 NOTES: means any Class A-3 Notes described in
Article II of, and authorized by, and authenticated and delivered under, the
Amended and Restated Indenture.
CLASS A-3 OVERDUE INTEREST: means, for any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A-3 Monthly Interest
payable on all prior Payment Dates over (b) the aggregate amount of interest
actually paid to the Class A-3 Noteholders on all prior Payment Dates.
CLASS A-3 OVERDUE PRINCIPAL: means, as of any Payment Date,
the excess, if any, of (a) the aggregate amount of Class A-3 Monthly Principal
due on the Class A-3 Notes on all prior Payment Dates over (b) the aggregate
amount of principal actually paid to the Class A-3 Noteholders on all prior
Payment Dates.
CLASS A-3 STATED MATURITY DATE: means the Payment Date
occurring on July 14, 2004.
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CLASS A-4 MONTHLY INTEREST: means, for any Payment Date
(except the Initial Payment Date), the product of (i) one-twelfth, (ii) the
Class A-4 Note Rate and (iii) the Class A-4 Note Balance on the immediately
preceding Payment Date (or, in the case of the Initial Payment Date, the Closing
Date) after giving effect to all principal payments on the Class A-4 Notes on
such Payment Date. The Class A-4 Monthly Interest shall be calculated based upon
a twelve month year of thirty days in each month, except for the Initial Payment
Date, for which interest shall accrue from the Closing Date to but excluding
such Initial Payment Date.
CLASS A-4 MONTHLY PRINCIPAL: means (A) prior to the Payment
Date upon which the Class A-3 Note Balance is paid in full, zero, (B) on each
Payment Date after the Class A-3 Note Balance has been reduced to zero and until
the Class A-4 Note Balance has been reduced to zero, the product of (x) the
Class A Percentage and (y) Monthly Principal; PROVIDED HOWEVER, that in no case
shall the Class A-4 Monthly Principal due on any Payment Date exceed the Class
A-4 Note Balance, and (C) on the Class A-4 Stated Maturity Date, the entire
amount of the then outstanding Class A-4 Note Balance.
CLASS A-4 NOTE BALANCE: means, as of the Closing Date,
$95,625,000 and thereafter shall equal the Class A-4 Note Balance as of the
Closing Date reduced by all principal payments on all of the Class A-4 Notes.
CLASS A-4 NOTE RATE: means seven and 780/1000 percent (
7.780%) per annum based upon thirty days elapsed each month in a twelve-month
year.
CLASS A-4 NOTEHOLDER: means, at any time, any Person in whose
name a Class A-4 Note is registered in the Note Register.
CLASS A-4 NOTES: means any Class A-4 Notes described in
Article II of, and authorized by, and authenticated and delivered under, the
Amended and Restated Indenture.
CLASS A-4 OVERDUE INTEREST: means, for any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A-4 Monthly Interest
payable on all prior Payment Dates over (b) the aggregate amount of interest
actually paid to the Class A-4 Noteholders on all prior Payment Dates.
CLASS A-4 OVERDUE PRINCIPAL: means, as of any Payment Date,
the excess, if any, of (a) the aggregate amount of Class A-4 Monthly Principal
due on the Class A-4 Notes on all prior Payment Dates over (b) the aggregate
amount of principal actually paid to the Class A-4 Noteholders on all prior
Payment Dates.
CLASS A-4 STATED MATURITY DATE: means the Payment Date
occurring on June 14, 2008.
CLASS B DISTRIBUTION SUB-ACCOUNT: means the sub-account or
sub-accounts by that name established and maintained by the Trustee pursuant to
Section 3.01 of the Amended and Restated Indenture.
CLASS B MONTHLY INTEREST: means, for any Payment Date (except
the Initial Payment Date), the product of (i) one-twelfth, (ii) the Class B Note
Rate and (iii) the Class B Note Balance
7
on the immediately preceding Payment Date (or, in the case of the Initial
Payment Date, the Closing Date) after giving effect to all principal payments on
the Class B Notes on such Payment Date. The Class B Monthly Interest shall be
calculated based upon a twelve month year of thirty days in each month, except
for the Initial Payment Date, for which interest shall accrue from the Closing
Date to but excluding such Initial Payment Date.
CLASS B MONTHLY PRINCIPAL: means (A) on any Payment Date other
than the Class B Stated Maturity Date, the product of (x) the Class B Percentage
and (y) Monthly Principal, and (B) on the Class B Stated Maturity Date, the
entire amount of the then outstanding Class B Note Balance.
CLASS B NOTE BALANCE: means, as of the Closing Date,
$4,387,000 and thereafter shall equal the Class B Note Balance as of the Closing
Date reduced by all principal payments on the Class B Notes.
CLASS B NOTE RATE: means seven and 760/1000 percent (7.760%)
per annum based upon thirty days elapsed each month in a twelve-month year.
CLASS B NOTEHOLDER: means, at any time, any Person in whose
name a Class B Note is registered in the Note Register.
CLASS B NOTES: means any Class B Notes described in Article II
of, and authorized by, and authenticated and delivered under, the Amended and
Restated Indenture.
CLASS B OVERDUE INTEREST: means, for any Payment Date, the
excess, if any, of (a) the aggregate amount of Class B Monthly Interest payable
on all prior Payment Dates over (b) the aggregate amount of interest actually
paid to the Class B Noteholders on all prior Payment Dates.
CLASS B OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class B Monthly Principal due on
the Class B Notes on all prior Payment Dates over (b) the aggregate amount of
principal actually paid to the Class B Noteholders on all prior Payment Dates.
CLASS B PERCENTAGE: means 1.5%.
CLASS B STATED MATURITY DATE: means the Payment Date occurring
on June 14, 2008.
CLASS C DISTRIBUTION SUB-ACCOUNT: means the sub-account or
sub-accounts by that name established and maintained by the Trustee pursuant to
Section 3.01 of the Amended and Restated Indenture.
CLASS C MONTHLY INTEREST: means, for any Payment Date (except
the Initial Payment Date), the product of (i) one-twelfth, (ii) the Class C Note
Rate and (iii) the Class C Note Balance on the immediately preceding Payment
Date (or, in the case of the Initial Payment Date, the Closing Date) after
giving effect to all principal payments on the Class C Note on such Payment
Date. The Class C Monthly Interest shall be calculated based upon a twelve month
year of thirty days in each
8
month, except for the Initial Payment Date, for which interest shall accrue from
the Closing Date to but excluding such Initial Payment Date.
CLASS C MONTHLY PRINCIPAL: means, (A) on any Payment Date
other than the Class C Stated Maturity Date, an amount equal to the product of
(x) the Class C Percentage and (y) the Monthly Principal and (B) on the Class C
Stated Maturity Date, the entire amount of the then outstanding Class C Note
Balance.
CLASS C NOTEHOLDER: means, at any time, any Person in whose
name a Class C Note is registered in the Note Register.
CLASS C NOTE BALANCE: means, as of the Closing Date,
$8,775,000 and thereafter shall equal the Class C Note Balance as of the Closing
Date reduced by all principal payments on the Class C Notes.
CLASS C NOTE RATE: means seven and 860/1000 percent (7.860%)
per annum based upon thirty days elapsed each month in a twelve-month year.
CLASS C NOTES: means any Class C Notes described in Article II
of, and authorized by, and authenticated and delivered under, the Amended and
Restated Indenture.
CLASS C OVERDUE INTEREST: means, for any Payment Date, the
excess, if any, of (a) the aggregate amount of Class C Monthly Interest payable
on all prior Payment Dates over (b) the aggregate amount of interest actually
paid to the Class C Noteholders on all prior Payment Dates.
CLASS C OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class C Monthly Principal due on
the Class C Notes on all prior Payment Dates over (b) the aggregate amount of
principal actually paid to the Class C Noteholders on all prior Payment Dates.
CLASS C PERCENTAGE: means 3.0%.
CLASS C STATED MATURITY DATE: means the Payment Date occurring
on June 14, 2008.
CLASS D DISTRIBUTION SUB-ACCOUNT: means the sub-account or
sub-accounts by that name established and maintained by the Trustee pursuant to
Section 3.01 of the Amended and Restated Indenture.
CLASS D MONTHLY INTEREST: means, for any Payment Date (except
the Initial Payment Date), the product of (i) one-twelfth, (ii) the Class D Note
Rate and (iii) the Class D Note Balance on the immediately preceding Payment
Date (or, in the case of the Initial Payment Date, the Closing Date) after
giving effect to all principal payments on the Class D Notes on such Payment
Date. The Class D Monthly Interest shall be calculated based upon a twelve month
year of thirty days in each month, except for the Initial Payment Date, for
which interest shall accrue from the Closing Date to but excluding such Initial
Payment Date.
9
CLASS D MONTHLY PRINCIPAL: means (A) on any Payment Date other
than the Class D Stated Maturity Date, the product of (x) the Class D Percentage
and (y) Monthly Principal, and (B) on the Class D Stated Maturity Date, the
entire amount of the then outstanding Class D Note Balance.
CLASS D NOTE BALANCE: means, as of the Closing Date,
$5,850,000 and thereafter shall equal the Class D Note Balance as of the Closing
Date reduced by all principal payments on the Class D Notes.
CLASS D NOTE RATE: means eight and 340/1000 percent (8.340%)
per annum based upon thirty days elapsed each month in a twelve-month year.
CLASS D NOTEHOLDER: means at any time, any Person in whose
name a Class D Note is registered in the Note Register.
CLASS D NOTES: means any Class D Notes described in Article II
of, and authorized by, and authenticated and delivered under, the Amended and
Restated Indenture.
CLASS D OVERDUE INTEREST: means, for any Payment Date, the
excess, if any, of (a) the aggregate amount of Class D Monthly Interest payable
on all prior Payment Dates over (b) the aggregate amount of interest actually
paid to the Class D Noteholders on all prior Payment Dates.
CLASS D OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class D Monthly Principal due on
the Class D Notes on all prior Payment Dates over (b) the aggregate amount of
principal actually paid to the Class D Noteholders on all prior Payment Dates.
CLASS D PERCENTAGE: means 2.0%.
CLASS D STATED MATURITY DATE: means the Payment Date occurring
on June 14, 2008.
CLASS E DISTRIBUTION SUB-ACCOUNT: means the sub-account or
sub-accounts by that name established and maintained by the Trustee pursuant to
Section 3.01 of the Amended and Restated Indenture.
CLASS E MONTHLY INTEREST: means, for any Payment Date (except
the Initial Payment Date), the product of (i) one-twelfth, (ii) the Class E Note
Rate and (iii) the Class E Note Balance on the immediately preceding Payment
Date (or, in the case of the Initial Payment Date, the Closing Date) after
giving effect to all principal payments on the Class E Note on such Payment
Date. The Class E Monthly Interest shall be calculated based upon a twelve month
year of thirty days in each month, except for the Initial Payment Date, for
which interest shall accrue from the Closing Date to but excluding such Initial
Payment Date.
CLASS E MONTHLY PRINCIPAL: means, (A) on any Payment Date
other than the Class E Stated Maturity Date, an amount equal to the product of
(x) the Class E Percentage and (y) the
10
Monthly Principal and (B) on the Class E Stated Maturity Date, the entire amount
of the then outstanding Class E Note Balance.
CLASS E NOTEHOLDER: means at any time, any Person in whose
name a Class E Note is registered in the Note Register.
CLASS E NOTE BALANCE: means, as of the Closing Date,
$7,313,000 and thereafter shall equal the Class E Note Balance as of the Closing
Date reduced by all principal payments on the Class E Notes.
CLASS E NOTE RATE: means ten and 680/1000 percent (10.680%)
per annum based upon thirty days elapsed each month in a twelve-month year.
CLASS E NOTES: means any Class E Notes described in Article II
of, and authorized by, and authenticated and delivered under, the Amended and
Restated Indenture.
CLASS E OVERDUE INTEREST: means, for any Payment Date, the
excess, if any, of (a) the aggregate amount of Class E Monthly Interest payable
on all prior Payment Dates over (b) the aggregate amount of interest actually
paid to the Class E Noteholders on all prior Payment Dates.
CLASS E OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class E Monthly Principal due on
the Class E Notes on all prior Payment Dates over (b) the aggregate amount of
principal actually paid to the Class E Noteholders on all prior Payment Dates.
CLASS E PERCENTAGE: means 2.5%.
CLASS E STATED MATURITY DATE: means the Payment Date occurring
on June 14, 2008.
CLASS F DISTRIBUTION SUB-ACCOUNT: means the sub-account or
sub-accounts by that name that may be established and maintained by the Trustee
pursuant to Section 3.01 of the Amended and Restated Indenture.
CLASS F INSTRUMENTS: means any Class F Instruments described
in Article II of the Amended and Restated Indenture, that may be issued from
time to time under the Amended and Restated Indenture and the related
Supplement.
CLASS F INSTRUMENTHOLDER: means at any time, any Person in
whose name a Class F Instrument is registered in the Note Register.
CLOSING DATE: means May 11, 2000.
CODE: means the Internal Revenue Code of 1986, as amended.
COLLECTION ACCOUNT: means the account or accounts by that name
established and maintained by the Trustee pursuant to Section 3.01 of the
Amended and Restated Indenture.
11
COLLECTION PERIOD: means, with respect to each Payment Date
related thereto, the entire calendar month immediately preceding such Payment
Date.
COMMISSION: means the Securities and Exchange Commission.
COMPANY ASSETS: means (i) the Contributed Property related to
the Contracts set forth on each Subsequent Contract Transfer Form other than,
and notwithstanding any other provision to the contrary, any and all ownership
interests of the Company in Equipment, with respect to which the Company shall
instead grant to the Issuer a first priority perfected security interest
therein, (ii) all of the Company's rights and privileges, but none of its
obligations, under the Amended and Restated Contribution and Servicing Agreement
and each Substitute Contract Transfer Form and (iii) all payments, income and
proceeds of the foregoing or relating thereto.
CONTRACT: means each separate noncancelable Finance Lease,
Fair Market Value Lease, Leveraged Lease Loan, Lease Receivable Purchase or
Secured Equipment Note acquired from time to time by the Transferor from the
Contributor, directly or indirectly, pursuant to the Amended and Restated
Contribution and Servicing Agreement. The term shall include any Contract
transferred to the Transferor on the Closing Date or, directly or indirectly,
any Substitution Date in connection with any substitution in accordance with the
Amended and Restated Contribution and Servicing Agreement, respectively.
CONTRACT FILE: means the following documents or instruments
with respect to each Contract:
(i) The executed original counterpart of the Contract
that constitutes "chattel paper" or an "instrument" for purposes of
Section 9-105(1)(b) and 9-305 of the UCC;
(ii) Documents evidencing or related to any insurance
policy with respect to the related Equipment;
(iii) A copy of each delivery and acceptance
certificate with respect to each Contract that is a lease or a copy of
each original invoice for the related Equipment and the receipt of
delivery related thereto with respect to each Contract that is a loan;
(iv) A copy of the financing statement filed with
respect to the related Equipment with evidence of proper recording;
(v) A copy of any related agreement with the vendor,
dealer or manufacturer of the Equipment or with any Person from whom
DVI acquired the Contract and rights in the related Equipment (if
applicable); and
(vi) Copies of such documents that the Servicer or its
Affiliates keep on file indicating that the Equipment is subject to the
interest of the Trustee, in accordance with their customary procedures
relating to the individual Contract, Obligor or Equipment.
12
CONTRACT PAYMENT: means any payment which the Obligor is
required to make pursuant to a Contract after, with respect to the Initial
Contracts, the Cut-off Date, other than (i) certain amounts included in such
payments for which the Contributor is not the ultimate beneficiary thereof,
including, but not limited to, property taxes, sales taxes, manufacturer's
maintenance costs, insurance premiums and supplies and transaction costs and
(ii) Purchase Option Payments.
CONTRACT SCHEDULE: means the schedule of Contracts attached to
the Amended and Restated Contribution and Servicing Agreement and the Amended
and Restated Indenture and as amended from time to time, setting forth the
following information as to each Contract: (i) the Contract Number, (ii) the
Original Equipment Cost, if available, (iii) the Discounted Contract Balance as
of the Cut-off Date, (iv) the Obligor, (v) the State of location of the related
Equipment, (vi) the commencement date and original term of each Contract, (vii)
the remaining term and amount of the Contract Payments for each original
Contract as of the Cut-off Date, (viii) the type of related Equipment, (ix) the
related cash flow schedule, (x) the type of Contract and (xi) the applicable
Pool on such Contracts. The Contract Schedule shall be deemed supplemented and
amended to incorporate therein any Substitute Contracts.
CONTRACT TRANSFER DATE: means any date on or prior to the
Closing Date that, pursuant to the Amended and Restated Contribution and
Servicing Agreement, the Contributor may transfer a Contract to the Transferor.
CONTRIBUTED PROPERTY: means all of the Contributor's right,
title and interest in and to (a) all Contracts, including those listed on the
Contract Schedule delivered by the Contributor to the Transferor and all
Substitute Contracts (including its interest in the proceeds of such Contracts
and including the assignment of the security interest of the Obligor of a
Leveraged Lease Loan in the equipment lease that is subject thereto), including
all payments received on or with respect to such Contracts after the Cut-off
Date but excluding the Retained Interest, and including any Broker Agreement
Rights relating to such Contracts, (b) any documents in the Contract Files
relating to the Contracts listed on the Contract Schedule delivered by the
Contributor to the Transferor, (c) Insurance Policies and Insurance Proceeds
relating to the Contracts (or the related Equipment) listed on the Contract
Schedule delivered by the Contributor to the Transferor, (d) the Equipment
(which shall be either a first priority perfected security interest in Equipment
(other than with respect to Equipment relating to a Secured Equipment Note or
Finance Lease and for which the Original Equipment Cost is less than $25,000)
or, with respect to DVI Fair Market Value Leases, an ownership interest in the
Equipment) and any collateral, including, without limitation, any credit
enhancement (other than accounts receivable of an Obligor), which relates
specifically to a Contract and (e) all payments, income and proceeds of the
foregoing or relating thereto.
CONTRIBUTION DATE: means, with respect to the Initial
Contracts, the Closing Date, and, with respect to any Substitute Contract, the
related Substitution Date.
CONTRIBUTOR: means DVI Financial Services Inc., a corporation
organized and existing under the laws of the State of Delaware, and its
successors.
13
CORPORATE TRUST OFFICE: means the principal corporate trust
office of the Trustee located on the Closing Date at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the Trustee may designate from time
to time by notice to the Noteholders and the Transferor.
CUT-OFF DATE: means for each Initial Contract, April 30, 2000;
and as to any Substitute Contract, the last day of the month prior to the month
in which such Substitute Contract is substituted.
DEFAULT: means any occurrence that is, or with notice or the
lapse of time or both would become, an Indenture Event of Default.
DEFAULTED CONTRACT: means any Contract with respect to which
under the Amended and Restated Contribution and Servicing Agreement, (i) any
Contract Payment (or portion thereof) is delinquent for more than 180 days as of
the last day of the calendar month, (ii) the Servicer has declined to make a
Servicer Advance with respect to any delinquent amounts in accordance with the
Amended and Restated Contribution and Servicing Agreement on the grounds that
such advance would be a Nonrecoverable Advance, (iii) any Contract has been
rejected by or on behalf of the Obligor in a bankruptcy proceeding or (iv) the
Lessor with respect to any Leveraged Lease Loan has rejected the related lease
in a bankruptcy proceeding. For purposes of clause (i), the delinquency of a
Contract Payment shall be measured based on the Contract Payments required to be
made during the term of such Contract as of the date that such Contract became
part of the Trust Property without giving effect to any modifications, (except
those modifications permitted pursuant to Section 4.02 of the Amended and
Restated Contribution and Servicing Agreement) waivers or extensions
subsequently granted by the Servicer.
DEFINITIVE NOTE: a Note issued in definitive form pursuant to
the terms and conditions of Article Two of the Amended and Restated Indenture.
DELINQUENCY CONDITION: shall be deemed to exist on and as of
any Determination Date if (x) the quotient of (1) the sum of the Discounted
Contract Balances of all Contracts listed as more than 90 days delinquent as of
the last day of the three immediately preceding calendar months, divided by (2)
three exceeds (y) the product of (1) 0.06 and (2) the quotient of (A) the sum of
the Aggregate Discounted Contract Balance as of the last day of the three
immediately preceding Collection Periods, divided by (B) three.
DELINQUENT CONTRACT: means, as of any Determination Date, any
Contract (other than a Contract which became a Defaulted Contract prior to such
Determination Date) with respect to which the Obligor has not paid all Contract
Payments due as of the end of the immediately preceding Collection Period. The
delinquency of a Contract Payment shall be measured based on the Contract
Payments required to be made during the term of such Contract as of the date
such Contract became part of the Trust Property without giving effect to any
modifications, waivers or extensions subsequently granted by the Servicer.
DEPOSITARY: means The Depository Trust Company until a
successor depositary shall have become such pursuant to the applicable
provisions of the Amended and Restated Indenture, and thereafter "Depositary"
shall mean or include each Person who is then a Depositary thereunder. For
14
purposes of the Amended and Restated Indenture, unless otherwise specified
pursuant to Section 2.02 thereof, any successor Depositary shall, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Exchange Act, and any other applicable statute or
regulation.
DEPOSITARY PARTICIPANT: means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depositary
effects book-entry transfers and pledges of securities deposited with the
Depositary.
DEPOSITED AVAILABLE FUNDS: has the meaning set forth in
Section 3.04(c) of the Amended and Restated Indenture.
DETERMINATION DATE: means, with respect to any Payment Date,
the third Business Day immediately preceding each Payment Date.
DISCOUNT RATE: means 8.318% per annum.
DISCOUNTED CONTRACT BALANCE: means, with respect to any
Contract, on any date of determination, an amount equal to the sum of (a) the
present value of each remaining Contract Payment to become due under a Contract
before the last day of the month prior to the month of the Stated Maturity Date,
discounted monthly from the last day of the Collection Period in which such
Contract Payment is to become due at a rate equal to one-twelfth (or with
respect to the period from the Closing Date to but excluding the Initial Payment
Date, a fraction, the numerator of which is equal to the number of days from the
Closing Date to but excluding the Initial Payment Date, and the denominator of
which is equal to 360) of the Discount Rate and (b) one hundred percent (100%)
of the unpaid balance, as of such date of determination of Contract Payments due
with respect to such Contract which were not the subject of a Servicer Advance;
PROVIDED, HOWEVER, that, except for purposes of computing the Repurchase Amount
or for computing the Discounted Contract Balance of a Predecessor Contract, (x)
on the date a Contract becomes a Defaulted Contract, the Discounted Contract
Balance for such Contract will be zero and (y) any Purchase Option Payments
shall not be included in the Discounted Contract Balance. For purposes of
calculating the Discounted Contract Balance of a Contract, any Contract Payment
for which the Contributor received on or prior to the Cut-off Date a security
deposit or an advance payment shall be deemed to be zero.
DISTRIBUTION ACCOUNT: means the account or accounts by that
name established and maintained by Trustee pursuant to Section 3.01 of the
Amended and Restated Indenture.
DVI: means DVI Financial Services Inc., a corporation
organized and existing under the laws of the State of Delaware, and its
successors.
DVI FAIR MARKET VALUE LEASE: means a Fair Market Value Lease
originated by DVI.
DVI GROUP: means, as of any relevant date, the affiliated
group within the meaning of section 1504 of the Code of which DVI, Inc., or any
successor thereto, is the common parent, or of which DVI, the Transferor, the
Managing Member and the Issuer are members, and shall mean any group eligible to
file consolidated or combined returns for state, local or foreign tax purposes
15
which includes DVI, the Managing Member and the Transferor, regardless of the
identity of the common parent.
DVI, INC.: means DVI, Inc., a corporation organized and
existing under the laws of the State of Delaware, and its successors.
DUFF & ▇▇▇▇▇▇: means Duff & ▇▇▇▇▇▇ Credit Rating Co. and any
successor.
ELIGIBLE CONTRACT: means any Initial Contract which meets the
Contributor's credit requirements in effect on the Closing Date and satisfies
each of the representations and warranties set forth in Section 2.03 of the
Amended and Restated Contribution and Servicing Agreement and, with respect to
any Substitute Contract, satisfies the requirements of Section 7.01(d) of the
Amended and Restated Contribution and Servicing Agreement on the related
Substitution Date.
ELIGIBLE DEPOSIT ACCOUNT: any one or more of the following
accounts:
(i) a segregated account with an Eligible Institution;
or
(ii) a segregated trust account with the corporate
trust department of a depositary institution organized under the laws
of the United States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign bank) subject
to regulations regarding fiduciary funds on deposit, having corporate
trust powers and acting as a trustee for funds deposited in such
account acceptable to the Rating Agencies.
ELIGIBLE INSTITUTION: means any one or more of the following
institutions: (i) the corporate trust department of the Trustee, or (ii) a
depositary institution organized under the laws of the United States of America
or any one of the states thereof or the District of Columbia acceptable to the
Rating Agencies (or any domestic branch of a foreign bank), which (a)(1) has
either (w) a long-term unsecured debt rating acceptable to the Rating Agencies
or (x) a short-term unsecured debt rating or certificate of deposit rating
acceptable to the Rating Agencies or (2) the parent corporation of which has
either (y) a long-term unsecured debt rating acceptable to the Rating Agencies
or (z) a short-term unsecured debt rating or certificate of deposit rating
acceptable to the Rating Agencies and (b) whose deposits are insured by the
Federal Deposit Insurance Corporation.
ELIGIBLE INVESTMENTS: means any and all of the following:
(i) direct obligations of, and obligations fully
guaranteed for timely payment by, the United States of America, the
Federal Home Loan Mortgage Corporation, the Federal National Mortgage
Association, the Federal Home Loan Banks or any agency or
instrumentality of the United States of America which has a rating of
at least "AAA" by Duff & ▇▇▇▇▇▇ and "Aaa" by Moody's at the time of
such investment the obligations of which are backed by the full faith
and credit of the United States of America;
(ii) (A) demand and time deposits in, certificates of
deposit of, banker's acceptances issued by or federal funds sold by any
depository institution or trust company (including the Trustee or its
agent acting in their respective commercial capacities)
16
incorporated under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
and/or state authorities, so long as at the time of such investment or
contractual commitment providing for such investment, such depository
institution or trust company has a long term unsecured debt rating of
"AA+" by Duff & ▇▇▇▇▇▇ or "A+" by Fitch IBCA, and at least "A1" by
Moody's, and a short term unsecured debt rating in the highest
available rating category of each of the Rating Agencies and provided
that each such investment has an original maturity of no more than 365
days, and (B) any other demand or time deposit or deposit which is
fully insured by the Federal Deposit Insurance Corporation;
(iii) repurchase obligations with a term not to exceed 30
days with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting as
a principal) rated "AA+" by Duff & ▇▇▇▇▇▇ or "A" by Fitch IBCA, at
least "A1" or higher by Moody's or Prime-1 by Moody's and "A" or higher
by S&P; PROVIDED, HOWEVER, that collateral transferred pursuant to such
repurchase obligation must (A) be valued weekly at current market price
plus accrued interest, (B) pursuant to such valuation, equal, at all
times, 105% of the cash transferred by the Trustee in exchange for such
collateral and (C) be delivered to the Trustee or, if the Trustee is
supplying the collateral, an agent for the Trustee, in such a manner as
to accomplish perfection of a security interest in the collateral by
possession of certificated securities;
(iv) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any State thereof which has a long term unsecured
debt rating in the highest available rating category of each of the
Rating Agencies at the time of such investment;
(v) commercial paper having an original maturity of
less than 365 days and issued by an institution having a long term
unsecured debt rating of "AA+" by Duff & ▇▇▇▇▇▇, "A+" by Fitch IBCA or
"A1" by Moody's and a short term unsecured debt rating in the highest
available rating category of each of the Rating Agencies at the time of
such investment;
(vi) a guaranteed investment contract approved in
writing by each of the Rating Agencies and issued by an insurance
company or other corporation having a long term unsecured debt rating
in the highest available rating category of each of the Rating Agencies
at the time of such investment;
(vii) money market funds having ratings in the highest
available rating category of each of the Rating Agencies at the time of
such investment; any such money market funds which provide for demand
withdrawals being conclusively deemed to satisfy any maturity
requirements for Eligible Investments set forth in the Amended and
Restated Indenture; and
(viii) any investment approved in writing by each of the
Rating Agencies.
17
EQUIPMENT: means the underlying equipment subject to a
Contract, which is principally medical diagnostic and therapeutic equipment,
together with the income and proceeds thereof.
ERISA: means the Employee Retirement Income Security Act of
1974, as amended.
EXCHANGE ACT: means the Securities Exchange Act of 1934, as
amended.
EXCLUDED AMOUNTS: means any payments received from an Obligor
in connection with any late charges, taxes, fees or other charges imposed by any
Governmental Authority, any indemnity payments made by an Obligor for the
benefit of the originator or vendor under the related Contract or any payments
collected from an Obligor for the benefit of the originator or vendor which
relate to maintenance payments pursuant to the related Contract or maintenance
agreement, as applicable.
FAIR MARKET VALUE LEASE: means any Contract in the form of a
lease that contains a purchase option based on either (a) a stated non de
minimis percentage of the original cost of the related Equipment or (b) the fair
market value of the related Equipment at the expiration, or earlier termination,
of the Contract. A Fair Market Value Lease is identified as "FMV" on the
Contract Schedule.
FINANCE LEASE: means any Contract in the form of a lease that
contains an end of term purchase option for a nominal amount. A Finance Lease is
identified as "FL" on the Contract Schedule.
FITCH IBCA: means Fitch IBCA, Inc.
GAAP: means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination.
GLOBAL NOTE: means either a Rule 144A Global Note or a Public
Global Note.
GRANT: means to grant, bargain, sell, convey, assign,
transfer, mortgage, pledge, create and perfect a security interest in and right
of set-off against, deposit, set over and confirm.
HOLDER OR NOTEHOLDER: means, at any time, any Person in whose
name a Note is registered in the Note Register.
INDENTURE EVENT OF DEFAULT: as defined in Section 6.01 of the
Amended and Restated Indenture.
INITIAL AGGREGATE DISCOUNTED CONTRACT BALANCE: means an amount
equal to $292,528,909.43.
18
INITIAL CONTRACT: means any Contract acquired by the
Transferor on or prior to the Closing Date as set forth on Schedule 1 of the
Amended and Restated Indenture.
INITIAL PAYMENT DATE: means the initial Payment Date pursuant
to the Transaction Documents, which is contemplated (subject to prepayment
provisions of the Amended and Restated Indenture) to be, when used with respect
to interest on any Note, June 14, 2000, and when used with regard to principal,
with respect to the Class A-1 Notes, the Class B Notes, the Class C Notes, the
Class D Notes or the Class E Notes, June 14, 2000, when used with respect to the
Class A-2 Notes, January 14, 2001, when used with respect to the Class A-3
Notes, August 14, 2001 and when used with respect to the Class A-4 Notes,
February 14, 2003.
INSURANCE POLICY: means, with respect to an item of Equipment,
any insurance policy required to be maintained by the Obligor pursuant to the
related Contract that covers physical damage to the Equipment.
INSURANCE PROCEEDS: means proceeds paid (i) by any insurer
pursuant to any Insurance Policy covering a Contract or (ii) if the Obligor has
self-insured with respect to a Contract, by the Obligor, in either case, net of
reasonable costs of collecting such proceeds not otherwise reimbursed.
INSURED EXPENSES: means expenses covered by any Insurance
Policy.
ISSUER: means DVI Receivables XI, L.L.C., a Delaware limited
liability company.
ISSUER ORDER or ISSUER REQUEST: means a written order or
request delivered to the Trustee and signed in the name of the Issuer by an
Authorized Officer.
LEASE RECEIVABLE PURCHASE: means any Contract in the form of a
purchase by DVI from a lessor of lessor's right, title and interest in Contract
Payments related to an underlying equipment lease and that is secured by the
lessor's rights in the related Equipment. A Lease Receivable Purchase is
identified as "LRP" on the Contract Schedule.
LESSOR: means the Person who is the lessor under the equipment
lease related to a Leveraged Lease Loan or Lease Receivable Purchase.
LEVERAGED LEASE LOAN: means any Contract in the form of a loan
that is (a) made by the Contributor to a lessor of the related Equipment
pursuant to an underlying noncancelable equipment lease and (b) secured by a
pledge by such lessor to the Contributor of all of its right, title and interest
to such noncancelable equipment lease (including such lessor's right to receive
rental payments from the lessee on such equipment lease) and the related
Equipment. A Leveraged Lease Loan is identified as "LL" on the Contract
Schedule.
LOCK-BOX ACCOUNT: means an account designated as such,
established and maintained pursuant to Section 3.01 of the Amended and Restated
Indenture.
LOCK-BOX AGREEMENT: means (i) the agreement dated as of
December 6, 1999, by and between the Contributor and First Union National Bank
or (ii) the agreement dated as of October 5,
19
1994, by and between the Contributor (as assignee of Affiliated Capital
Corporation) and First National Bank of Chicago, pursuant to which a Lock-Box
Account is established and maintained.
LOCK-BOX BANK: means, as of any date, the bank or trust
company at which a Lock- Box Account is established and maintained as of such
date.
MANAGING MEMBER: means DVI Receivables Corp. VIII, a Delaware
corporation.
MONTHLY INTEREST: means as of any Payment Date, the sum of (i)
the Class A Monthly Interest, (ii) the Class B Monthly Interest, (iii) the Class
C Monthly Interest, (iv) the Class D Monthly Interest and (v) the Class E
Monthly Interest.
MONTHLY PRINCIPAL: means, with respect to any Payment Date, an
amount equal to the excess of (a) the Aggregate Discounted Contract Balance at
the close of business on the last day of the second preceding Collection Period
over (b) the Aggregate Discounted Contract Balance at the close of business on
the last day of the immediately preceding Collection Period.
MONTHLY SERVICER REPORT: means the report attached as Exhibit
B to the Amended and Restated Contribution and Servicing Agreement.
MOODY'S: means ▇▇▇▇▇'▇ Investors Service, Inc. and any
successor.
NONRECOVERABLE ADVANCE: means any Servicer Advance previously
made in respect of a Delinquent Contract by the Servicer pursuant to the terms
of the Amended and Restated Contribution and Servicing Agreement, which in the
good faith judgment of the Servicer and pursuant to an Officer's Certificate,
will not be ultimately recoverable by the Servicer from payments by the related
Obligor or disposition of the related Equipment.
NOTE BALANCE: means, as of the Closing Date, $257,425,000 for
the Class A Notes cumulatively (and, with respect to each tranche thereof,
$39,800,000 for the Class A-1 Notes, $39,000,000 for the Class A-2 Notes,
$83,000,000 for the Class A-3 Notes and $95,625,000 for the Class A-4 Notes),
$4,387,000 for the Class B Notes, $8,775,000 for the Class C Notes, $5,850,000
for the Class D Notes and $7,313,000 for the Class E Notes and thereafter shall
equal the Note Balance for such class reduced by all principal payments on such
class of Notes.
NOTE OWNER: means, with respect to a Global Note, the Person
who is the owner of such Global Note, as reflected on the books of the
Depositary, or on the books of a Person maintaining an account with the
Depositary (directly as a Depositary Participant or an indirect participant, in
each case in accordance with the rules of the Depositary).
NOTE PURCHASE AGREEMENT: means any agreement (other than the
Underwriting Agreement) between the Issuer, the Transferor, the Contributor, the
purchaser(s) specified therein and any other parties specified therein, relating
to the purchase of Notes.
NOTE RATE: means the annualized rate of interest on the
relevant class of Notes (Class A-1 Note Rate on the Class A-1 Notes, Class A-2
Note Rate on the Class A-2 Notes, Class A-3 Note
20
Rate on the Class A-3 Notes, Class A-4 Note Rate on the Class A-4 Notes, Class B
Note Rate on the Class B Notes, Class C Note Rate on the Class C Notes, Class D
Note Rate on the Class D Notes, Class E Note Rate on the Class E Notes and the
interest rate set forth in the Supplement for the Class F Instruments).
NOTE REGISTER: as defined in Section 2.04 of the Amended and
Restated Indenture.
NOTEHOLDER OR HOLDER: means, at any time, any Person in whose
name a Note is registered in the Note Register.
NOTEHOLDER COUNSEL: means the single legal counsel as selected
by Noteholders evidencing more than 50% of the Voting Rights.
NOTES: means any of the Class A Notes, Class B Notes, Class C
Notes, Class D Notes or Class E Notes described in Article II of the Amended and
Restated Indenture, and authorized by, and authenticated and delivered under,
the Amended and Restated Indenture or any Supplement.
OBLIGOR: means the obligor under any Contract, including any
guarantor.
OFFERED NOTES: means the Class A Notes, the Class B Notes, the
Class C Notes, the Class D Notes and the Class E Notes.
OFFICER'S CERTIFICATE: means a certificate delivered to the
Trustee and signed by Chairman, the President, a Vice President, the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the relevant
entity.
OPINION OF COUNSEL: means a written opinion of counsel, which
shall be reasonably satisfactory in form and substance to the Person to whom it
is to be delivered. Except as otherwise expressly provided in the Amended and
Restated Indenture, such opinion may be delivered by inside or outside counsel
for the Contributor, the Transferor or the Issuer.
ORIGINAL EQUIPMENT COST: means (i) with respect to each
Contract originated by DVI, the vendor's invoice price of the related Equipment
at the time of origination of the related Contract and (ii) with respect to each
Contract acquired by DVI from others, the amount recorded on DVI's records as
paid by DVI to acquire such Contract and the broker's interest in the related
Equipment.
OUTSTANDING OR OUTSTANDING: means, when used with reference to
the Notes and as of any particular date, any Note theretofore and thereupon
being authenticated and delivered except:
(i) any Note canceled by the Trustee at or before
said date;
(ii) any Note, or portion thereof, for payment of
redemption of which monies equal to the principal amount or redemption price
thereof, as the case may be, with interest to the date of maturity or
redemption, shall have theretofore been irrevocably deposited with the Trustee
(whether upon or prior to maturity or the redemption date of such Note);
21
(iii) any Note in lieu of or in substitution for
which another Note shall have been authenticated and delivered; and
(iv) any Note owned either by the Transferor or by
the Managing Member or any Affiliate of either the Transferor or the Managing
Member (except that, in determining whether the Trustee shall be protected in
relying upon any request, demand, authorization, direction, notice, consent or
waiver of Noteholders under the Amended and Restated Indenture, only Notes which
the Trustee knows to be so owned shall be disregarded).
OVERDUE INTEREST: means, for any Payment Date, the sum of (i)
the Class A Overdue Interest, (ii) the Class B Overdue Interest, (iii) the Class
C Overdue Interest, (iv) the Class D Overdue Interest and (v) the Class E
Overdue Interest.
OWNERSHIP INTEREST: means an ownership interest in a Global
Note.
PARTIAL PREPAYMENT AMOUNT: means, with respect to the
Collection Period and a Contract for which the Obligor has requested to make a
voluntary partial prepayment and for which no Substitute Contract has been
provided, an amount equal to the excess, if any, of (A) the difference between
(i) the Discounted Contract Balance of such Contract as of the first day of such
Collection Period together with one month of interest thereon at the Discount
Rate and (ii) the Discounted Contract Balance of such Contract as of the first
day of such Collection Period calculated based on the amount of each Contract
Payment payable by the Obligor after giving effect to the reduction of such
Contract Payment which will result from such partial prepayment, minus (B) any
Contract Payments actually received by the Servicer with respect to the prepaid
portion of such Contract for the current Collection Period on or before the date
of such partial prepayment.
PARTIAL REDEMPTION PRICE: with respect to any Offered Note,
and as of any date of partial redemption fixed by the Issuer, an amount equal to
the sum of (x) the product of (i) the quotient of (A) the aggregate Discounted
Contract Balance of the Contracts in Pool B as of such date of partial
redemption, divided by (B) the Aggregate Discounted Contract Balance as of such
date of partial redemption and (ii) the outstanding Note Balance of such Offered
Note and (y) interest accrued thereon to, but not including, such Redemption
Date at the applicable Note Rate.
PAYMENT DATE: means the fourteenth day of each month (or if
such date is not a Business Day, the immediately succeeding Business Day),
commencing June 14, 2000.
PERSON: means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust
(including any beneficiary thereof), unincorporated organization or government
or any agency or political subdivision thereof.
PLACEMENT AGENT: means ▇▇▇▇▇▇ Brothers Inc.
PLAN: means an "employee benefit plan" within the meaning of
Section 3(3) of ERISA or a "plan" within the meaning of Section 4975(e)(1) of
the Code.
POOL: means either Pool A or Pool B.
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POOL A: means the Contracts identified on the Contract
Schedule as constituting Pool A and the other Trust Property related thereto.
POOL A AGGREGATE DISCOUNTED CONTRACT BALANCE: means, with
respect to any date of determination, the sum of the Discounted Contract
Balances of all Contracts in Pool A.
POOL A NON-PERFORMING CONTRACT SUBSTITUTION: shall have the
meaning ascribed thereto in Section 7.01(a)(1) of the Amended and Restated
Contribution and Servicing Agreement.
POOL A PREPAID CONTRACT SUBSTITUTION: shall have the meaning
ascribed thereto in Section 7.01(a)(2) of the Amended and Restated Contribution
and Servicing Agreement.
POOL B: means the Contracts identified on the Contract
Schedule as constituting Pool B and the other Trust Property related thereto.
POOL B AGGREGATE DISCOUNTED CONTRACT BALANCE: means, with
respect to any date of determination, the sum of the Discounted Contract
Balances of all Contracts in Pool B.
POOL B GENERAL CONTRACT SUBSTITUTION: shall have the meaning
ascribed thereto in Section 7.01(b)(1) of the Amended and Restated Contribution
and Servicing Agreement.
POOL B PREPAID CONTRACT SUBSTITUTION: shall have the meaning
ascribed thereto in Section 7.01(b)(2) of the Amended and Restated Contribution
and Servicing Agreement.
PREDECESSOR NOTES: means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purpose of this definition, any
Note authenticated and delivered under Section 2.05 of the Amended and Restated
Indenture 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).
PREDECESSOR CONTRACT: means, with respect to any Substitute
Contract acquired by the Transferor by substitution pursuant to Section 7 of the
Amended and Restated Contribution and Servicing Agreement and by the Issuer by
substitution pursuant to Section 7 of the Amended and Restated Subsequent
Contract Transfer Agreement, the Contract or Contracts for which such Substitute
Contract or any intervening Substitute Contract has been substituted.
PREPAYMENT AMOUNT: means, with respect to any Contract, the
sum of (1) the Discounted Contract Balance as of the first day of the Collection
Period preceding such prepayment, together with one month of interest thereon at
the Discount Rate, (2) any unreimbursed Servicer Advances with respect to such
Contract and (3) any Contract Payments due and outstanding under such Contract
that are not the subject of a Servicer Advance.
PRINCIPAL TERMS: as defined in Section 2.06(b) of the Amended
and Restated Indenture.
23
PRIORITY PAYMENTS: shall have the meaning ascribed thereto in
Section 3.04(c) of the Amended and Restated Indenture.
PROSPECTUS SUPPLEMENT: means the prospectus supplement, dated
May 8, 2000, relating to the Class A Notes, the Class B Notes, the Class C Notes
and the Class D Notes.
PUBLIC GLOBAL NOTE: means a Book-Entry Note evidencing all or
part of an issuance of the Class A Notes, Class B Notes, Class C Notes or Class
D Notes to which the provisions of Article II of the Amended and Restated
Indenture shall apply.
PURCHASE OPTION PAYMENT: means as specified in each Contract,
any payment made by the Obligor to purchase the Equipment covered thereby,
including any funds received in respect of either (w) an end of term purchase
option for $1, (x) an end of term option to purchase the Equipment at a stated
percentage of the original cost of the Equipment, (y) an option to purchase the
Equipment at the fair market value of the Equipment determined at the end of the
Contract term or (z) an end of term option to extend the term of the lease for
another immediately successive twelve month period upon the expiration of which
the lessee will own the equipment.
RATING AGENCIES: means, when used in the singular, any one of,
and, when used in the plural, each of Fitch IBCA and Moody's.
RATINGS EFFECT: means a reduction or withdrawal of a rating on
a class of Notes by a Rating Agency.
RECORD DATE: means, with respect to any Payment Date relating
to any Definitive Note, the fifth Business Day immediately preceding such
Payment Date, and, with respect to any Payment Date relating to any Book-Entry
Note, the Business Day immediately preceding such Payment Date.
RECOVERIES: means, with respect to any Contract, any cash sale
proceeds, vendor recourse, payments under personal and other guaranties,
litigation judgments and the present value (calculated at the implicit yield on
each of the Defaulted Contracts) of re-lease rents.
REDEMPTION DATE: means, with respect to any redemption or
partial redemption of Notes, a date fixed pursuant to Section 10.01 of the
Amended and Restated Indenture.
REDEMPTION PRICE: means, with respect to any Note, and as of
any redemption date fixed by the Issuer, the sum of (x) the outstanding Note
Balance of such Note, and (y) interest accrued thereon to, but not including,
such Redemption Date at the applicable Note Rate.
REDEMPTION RECORD DATE: means, with respect to any redemption
of Notes, a date fixed pursuant to Section 10.01 of the Amended and Restated
Indenture.
RELATED PERSON: means any Person (whether or not incorporated)
which is under common control with the Contributor within the meaning of Section
414(b) or (c) of the Code, or of Section 4001(b) of ERISA.
24
REPORTABLE EVENT: means any of the events set forth in Section
4043(b) 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(3) of ERISA.
REPURCHASE AMOUNT: means, with respect to any Contract, the
sum of (1) the Discounted Contract Balance as of the first day of the Collection
Period preceding such repurchase, together with one month of interest thereon at
the Discount Rate and (2) any unreimbursed Servicer Advances with respect to
such Contract.
RESERVE ACCOUNT: means the account specified in Section
3.01(a) of the Amended and Restated Indenture.
RESERVE ACCOUNT BALANCE: means an amount equal to deposits of
all Reserve Account Deposit Amounts as reduced by (a) all Reserve Account Draws
and (b) all Reserve Account Withdrawals paid to the Transferor, or the Class F
Instrumentholder, if any.
RESERVE ACCOUNT DEPOSIT AMOUNT: means, on any Payment Date, an
amount equal to the excess of (A) the Reserve Account Required Amount over (B)
the amount on deposit in the Reserve Account (after giving effect to any Reserve
Account Draws on such Payment Date).
RESERVE ACCOUNT DRAW: means, with respect to each Payment
Date, the amount, if any, withdrawn by the Trustee from the Reserve Account for
payment of the Priority Payments pursuant to Section 3.04(c) of the Amended and
Restated Indenture.
RESERVE ACCOUNT PROPERTY: means the property set forth in
Section 3.08(a) of the Amended and Restated Indenture.
RESERVE ACCOUNT REQUIRED AMOUNT: means, with respect to the
Initial Payment Date, $2,925,289.09 (the "INITIAL RESERVE ACCOUNT REQUIRED
AMOUNT"); and, with respect to each Payment Date thereafter, the lesser of
either (i) the Initial Reserve Account Required Amount or (ii) the sum of (a)
the Class A Note Balance, (b) the Class B Note Balance, (c) the Class C Note
Balance, (d) the Class D Note Balance and (e) the Class E Note Balance;
PROVIDED, HOWEVER, that if a Restricting Event has occurred and is then
continuing, then notwithstanding the foregoing, the Reserve Account Required
Amount shall be equal to the sum of (i) the Reserve Account Required Amount on
the immediately preceding Payment Date (after giving effect to any additions to
or withdrawals from the Reserve Account on such Payment Date) and (ii) all
amounts otherwise payable to the Issuer or the Class F Instrumentholder, if any,
in accordance with Section 3.04(b) of the Amended and Restated Indenture.
RESERVE ACCOUNT WITHDRAWAL: means, for each Payment Date, the
amount of such excess, if any, withdrawn from the Reserve Account for payment to
the Issuer or the Class F Instrumentholder pursuant to Section 3.08 of the
Amended and Restated Indenture.
RESIDUAL PAYMENT: means any amount received either by the
Servicer or the Trustee as a Purchase Option Payment under a Contract or
proceeds of the sale of an item of Equipment subject to the lien of the Amended
and Restated Indenture or rental payments from the re-leasing of
25
an item of Equipment subject to the lien of the Amended and Restated Indenture
after the final Contract Payment due and payable under the initial terms of the
Contract to which such item of Equipment is subject is made.
RESIDUAL PRINCIPAL BALANCE: means the excess of (x) the
Aggregate Discounted Contract Balance, over (y) the sum of the Class A Note
Balance, the Class B Note Balance, the Class C Note Balance, the Class D Note
Balance and the Class E Note Balance.
RESPONSIBLE OFFICER: means, with respect to the Trustee, any
President, Senior Vice President, Vice President, Assistant Vice President,
Trust Officer or Assistant Secretary with direct responsibility for the
administration of the Trustee's obligations and duties under the Amended and
Restated Indenture and with respect to a particular matter, any officer to whom
such matter is referred because of such other officer's knowledge or familiarity
with the particular subject.
RESTRICTING EVENT: means the condition that exists on any
Payment Date if any one of the following conditions exists: (i) a Delinquency
Condition exists or (ii) an Indenture Event of Default has occurred and is then
continuing.
RETAINED INTEREST: means all right, title and interest of the
Contributor in and to (i) the Contributed Property prior to and including the
Cut-off Date, (ii) each periodic payment, if any, set forth in a Contract in
respect of maintenance, insurance or taxes and (iii) each Purchase Option
Payment, if any.
RULE 144A GLOBAL NOTE: means a Note evidencing all or a part
of an issuance of the Class E Notes, registered in the name of the Depositary or
its nominee, and delivered to the Depositary pursuant to the Depositary's
instruction, in accordance with Section 2.02 of the Amended and Restated
Indenture and bearing the legend prescribed in Section 2.02 of the Amended and
Restated Indenture.
S&P: means Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor.
SCHEDULED TERMINATION DATE: means, with respect to any
Contract, the date upon which such Contract is scheduled to terminate in
accordance with its terms.
SECURED EQUIPMENT NOTE: means any Contract in the form of a
loan to the user of the related Equipment secured by such Equipment. A Secured
Equipment Note is identified as "LOAN" on the Contract Schedule.
SECURITIES ACT: means The Securities Act of 1933 as amended.
SERVICER: means initially, the Contributor and thereafter,
either the Contributor or the then-acting Successor Servicer(s), if any,
appointed pursuant to the terms of the Amended and Restated Contribution and
Servicing Agreement.
26
SERVICER ADVANCE: means an advance made by the Servicer in
accordance with Section 5.01 of the Amended and Restated Contribution and
Servicing Agreement.
SERVICER EVENT OF DEFAULT: means as defined in Section 10.01
of the Amended and Restated Contribution and Servicing Agreement.
SERVICER ORDER: means a written order or request delivered to
the Trustee and signed in the name of the Servicer by an Authorized Officer.
SERVICING FEE: means an amount equal to the product of (i)
one-twelfth (or with respect to the Initial Payment Date, a fraction, the
numerator of which is equal to the number of days from the Closing Date to but
excluding the Initial Payment Date, and the denominator of which is equal to
360), (ii) the Servicing Fee Rate and (iii) the Aggregate Discounted Contract
Balance as of the beginning of the previous Collection Period.
SERVICING FEE RATE: means 0.45 %.
STATED MATURITY DATE: means, with respect to the Class A-1
Notes, the Class A-1 Stated Maturity Date, with respect to the Class A-2 Notes,
the Class A-2 Stated Maturity Date, with respect to the Class A-3 Notes, the
Class A-3 Stated Maturity Date, with respect to the Class A-4 Notes, the Class
A-4 Stated Maturity Date, with respect to the Class B Notes, the Class B Stated
Maturity Date, with respect to the Class C Notes, the Class C Stated Maturity
Date, with respect to the Class D Notes, the Class D Stated Maturity Date, and
with respect to the Class E Notes, the Class E Stated Maturity Date.
SUBORDINATION DEFICIENCY EVENT: means the occurrence of the
Class A Note Balance being greater than the Aggregate Discounted Contract
Balance as of the date of determination.
SUBSTITUTE CONTRACT: means an Eligible Contract substituted by
the Contributor pursuant to either Section 5.03 or Section 7.01 of the Amended
and Restated Contribution and Servicing Agreement.
SUBSTITUTE CONTRACT TRANSFER FORM: means a Substitute Contract
Transfer Form, substantially in the form of Exhibit A to the Amended and
Restated Subsequent Contract Transfer Agreement.
SUBSTITUTION DATE: means any Business Day on which the
Contributor transfers a Substitute Contract to the Transferor (which Substitute
Contract is subsequently transferred by the Transferor to the Issuer and then
pledged by the Issuer to the Trustee).
SUCCESSOR SERVICER: means the Trustee or any successor to the
Servicer pursuant to the Amended and Restated Contribution and Servicing
Agreement.
SUPPLEMENT: means a supplement to the Amended and Restated
Indenture complying with the terms of the Amended and Restated Indenture.
27
TRANSACTION DOCUMENTS: means collectively, the Amended and
Restated Contribution and Servicing Agreement, the Amended and Restated
Subsequent Contract Transfer Agreement, the Amended and Restated Indenture, the
Underwriting Agreement, any Note Purchase Agreement(s) and any and all
agreements relating to the servicing of the Contracts and the issuance of the
Notes.
TRANSFEROR: means DVI Receivables Corp. XI, a corporation
organized and existing under the laws of the State of Delaware and wholly-owned
by DVI, and its permitted successors and assigns.
TRANSFEROR ORDER or TRANSFEROR REQUEST: means a written order
or request delivered to the Trustee and signed in the name of the Transferor by
an Authorized Officer.
TRUST INDENTURE ACT OR TIA: means the Trust Indenture Act of
1939, as amended from time to time, as in effect on any relevant date.
TRUST PROPERTY: means (a) the Company Assets, (b) all moneys
from time to time held by the Trustee pursuant to Section 3.01 of the Amended
and Restated Indenture pending deposit in one of the accounts referred to
therein, (c) all moneys from time to time on deposit in each Lock-Box Account,
Collection Account, the Reserve Account, the Distribution Account, Class A
Distribution Sub-Account, Class B Distribution Sub-Account, Class C Distribution
Sub-Account, Class D Distribution Sub-Account, the Class E Distribution
Sub-Account and Class F Distribution Sub- Account, if any, including all
investments and income from the investment of such moneys, (d) all of the
Issuer's right, title and interest then or thereafter acquired under the Amended
and Restated Contribution and Servicing Agreement, (e) all of the Issuer's
right, title and interest then or thereafter acquired under the Amended and
Restated Subsequent Contract Transfer Agreement and (f) all income, payments and
proceeds of any of the foregoing.
TRUST STATUTE: means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C.ss.3801 ET. SEQ.
TRUSTEE: means the Person named as the "Trustee" in the first
paragraph of the Amended and Restated Indenture until a successor Person shall
have become the Trustee pursuant to the applicable provisions of the Amended and
Restated Indenture, and thereafter "Trustee" shall mean such successor Person;
PROVIDED, that the provisions of Sections 7.06 and 8.11 of the Amended and
Restated Indenture, as applicable to any Person at any time serving as Trustee
under the Amended and Restated Indenture, shall survive (with respect to any
period prior to the date of such termination) the termination of such Person's
status as Trustee under the Amended and Restated Indenture and the succession of
any other Person to such status.
UNDERWRITERS: means ▇▇▇▇▇▇ Brothers, Inc., Prudential
Securities Incorporated and Banc One Capital Markets, Inc.
UNDERWRITING AGREEMENT: means the underwriting agreement dated
as of May 5, 2000, by and among Prudential Securities Incorporated, ▇▇▇▇▇▇
Brothers Inc., Banc One Capital Markets, Inc., the Contributor, the Issuer and
the Transferor.
28
UNIFORM COMMERCIAL CODE or UCC: means, 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.
UNITS: means the membership interests in the Issuer.
VOTING RIGHTS: means, for so long as any Notes remain
outstanding, and shall encompass, for so long as any Class A Note, Class B Note,
Class C Note, Class D Note or Class E Note is outstanding, the voting rights as
of the date of determination (i) the votes of Class A-1 Noteholders evidencing
100% of the then-outstanding Class A-1 Note Balance, and, after the Note Balance
of such class equals zero, then (ii) the votes of Class A-2 Noteholders
evidencing 100% of the then-outstanding Class A-2 Note Balance, and, after the
Note Balance of such class equals zero, then (iii) the votes of the Class A-3
Noteholders evidencing 100% of the then-outstanding Class A-3 Note Balance, and,
after the Note Balance of such class equals zero, then (iv) the votes of the
Class A-4 Noteholders evidencing 100% of the then-outstanding Class A-4 Note
Balance, and, after the Note Balance of such class equals zero, then (v) the
votes of Class B Noteholders evidencing 100% of the then-outstanding Class B
Note Balance, and, after the Note Balance of such class equals zero, then (vi)
the votes of the Class C Noteholders evidencing 100% of the then-outstanding
Class C Note Balance, and, after the Note Balance of such class equals zero,
then (vii) the votes of Class D Noteholders evidencing 100% of the
then-outstanding Class D Note Balance, and, after the Note Balance of such class
equals zero, then (viii) the votes of the Class E Noteholders evidencing 100% of
the then-outstanding Class E Note Balance. When none of the Class A Notes, Class
B Notes, Class C Notes, Class D Notes and Class E Notes is outstanding, 100% of
the Voting Rights shall be exercised by the Holders of the Class F Instrument,
if any. When used in the Transaction Documents, "50% of the Voting Rights" and
"662/3% of the Voting Rights" shall be deemed to refer to fifty and sixty-six
and two-thirds percent, respectively, of each class of Notes then Outstanding
and then entitled to vote as measured by the Outstanding Note Balance of such
class on such date of determination.
29