EXHIBIT 4.1
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DVI RECEIVABLES XIX, L.L.C.
ISSUER
AND
U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
_______________
INDENTURE
Dated as of May 1, 2003
_______________
$440,060,000 IN AGGREGATE PRINCIPAL AMOUNT OF
ASSET-BACKED NOTES CONSISTING OF:
---------------------------------
$71,810,000 1.27300% ASSET BACKED NOTES, SERIES 2003-1, CLASS A-1
$25,200,000 One-Month LIBOR plus 0.15% ASSET BACKED NOTES, SERIES 2003-1,
CLASS A-2a
$27,000,000 1.57% ASSET BACKED NOTES, SERIES 2003-1, CLASS A-2b
$229,620,000 One-Month LIBOR plus 0.50% ASSET BACKED NOTES, SERIES 2003-1,
CLASS A-3a
$32,000,000 2.78% ASSET BACKED NOTES, SERIES 2003-1, CLASS A-3b
$17,010,000 One-Month LIBOR plus 1.00% ASSET BACKED NOTES, SERIES 2003-1,
CLASS B
$5,740,000 One-Month LIBOR plus 1.70% ASSET BACKED NOTES, SERIES 2003-1,
CLASS C-1
$9,000,000 3.62% ASSET BACKED NOTES, SERIES 2003-1, CLASS C-2
$6,340,000 One-Month LIBOR plus 1.95% ASSET BACKED NOTES, SERIES 2003-1,
CLASS D-1
$5,000,000 3.86% ASSET BACKED NOTES, SERIES 2003-1, CLASS D-2
$9,340,000 One-Month LIBOR plus 7.00% ASSET BACKED NOTES, SERIES 2003-1,
CLASS E-1
$2,000,000 9.02% ASSET BACKED NOTES, SERIES 2003-1, CLASS E-2
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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....................................................2
SECTION 1.02 Compliance Certificates........................................2
SECTION 1.03 Form of Documents Delivered to Trustee.........................3
SECTION 1.04 Acts of Noteholders, etc.......................................3
SECTION 1.05 Notices........................................................4
SECTION 1.06 Notice to Noteholders; Waiver..................................5
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 Indenture..........................................6
SECTION 1.11 Governing Law..................................................6
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.....................7
SECTION 1.16 Incorporation by Reference to Trust Indenture Act..............7
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...............................................8
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.........................................9
SECTION 1.26 Voting Rights of Class F Instruments..........................10
SECTION 1.27 Indebtedness Treatment........................................10
SECTION 1.28 Lien of the Indenture.........................................10
SECTION 1.29 Third Party Beneficiary.......................................10
ARTICLE II
THE NOTES
SECTION 2.01 General Provisions............................................11
SECTION 2.02 Global Notes..................................................13
SECTION 2.03 Execution, Authentication, Delivery and Dating................16
SECTION 2.04 Registration, Transfer and Exchange...........................17
SECTION 2.05 Mutilated, Destroyed, Lost and Stolen Notes...................18
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SECTION 2.06 Delivery of Class F Instruments...............................19
SECTION 2.07 Payment of Interest and Principal; Rights Preserved...........20
SECTION 2.08 Persons Deemed Owners.........................................21
SECTION 2.09 Cancellation..................................................21
SECTION 2.10 Noteholder Lists; Communications to Noteholders...............21
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..............................23
SECTION 3.02 Reserved......................................................25
SECTION 3.03 Collection of Moneys..........................................25
SECTION 3.04 Collection Account............................................26
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..............................32
SECTION 3.06 Reserved......................................................34
SECTION 3.07 Successor Servicer Reserve Account............................34
SECTION 3.08 Reserve Account...............................................35
SECTION 3.09 Reports; Notices of Certain Payments..........................36
SECTION 3.10 Trustee May Rely on Certain Information from Contributor
and Servicer..................................................37
ARTICLE IV
CONTRACTS AND EQUIPMENT
SECTION 4.01 Representations and Warranties of the Issuer..................38
SECTION 4.02 Purchase upon Breach; Contribution and Servicing Agreement....39
SECTION 4.03 Release of Contracts and Equipment Following Substitution
or Purchase...................................................40
SECTION 4.04 Release of Contracts and Equipment Upon Final Contract
Payment.......................................................40
SECTION 4.05 Execution of Documents........................................41
SECTION 4.06 Adjustments to Definition of Trust Property...................41
ARTICLE V
SERVICER EVENTS OF DEFAULT; SUBSTITUTE SERVICER
SECTION 5.01 Servicer Events of Default....................................42
SECTION 5.02 Substitute Servicer...........................................42
SECTION 5.03 Notification to Noteholders, the Swap Providers and
Rating Agencies...............................................42
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ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
SECTION 6.01 Events of Default.............................................43
SECTION 6.02 Acceleration of Maturity; Rescission and Annulment............44
SECTION 6.03 Other Remedies................................................45
SECTION 6.04 Trustee May File Proofs of Claim..............................45
SECTION 6.05 Trustee May Enforce Claims Without Possession of Notes........46
SECTION 6.06 Application of Money Collected................................47
SECTION 6.07 Limitation on Suits...........................................49
SECTION 6.08 Unconditional Right of Noteholders to Receive Payment.........50
SECTION 6.09 Restoration of Rights and Remedies............................50
SECTION 6.10 Rights and Remedies Cumulative................................50
SECTION 6.11 Delay or Omission Not Waiver..................................51
SECTION 6.12 Control by Noteholders........................................51
SECTION 6.13 Waiver of Defaults and Events of Default......................51
SECTION 6.14 Waiver of Stay or Extension Laws..............................52
SECTION 6.15 Sale of Trust Property........................................52
SECTION 6.16 Undertaking for Costs.........................................53
ARTICLE VII
THE TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities...........................54
SECTION 7.02 Notice of Defaults or Events of Default.......................55
SECTION 7.03 Certain Rights of Trustee.....................................55
SECTION 7.04 Trustee's Disclaimer..........................................56
SECTION 7.05 Money Held in Trust...........................................56
SECTION 7.06 Compensation, Reimbursement, etc..............................56
SECTION 7.07 Eligibility; Disqualification.................................57
SECTION 7.08 Resignation and Removal; Appointment of Successor.............58
SECTION 7.09 Acceptance of Appointment by Successor........................59
SECTION 7.10 Merger, Conversion, Consolidation or Succession to Business...59
SECTION 7.11 Co-trustees and Separate Trustees.............................59
SECTION 7.12 Trustee to Hold Contracts.....................................60
SECTION 7.13 Financing Statements..........................................61
SECTION 7.14 Trustee to Act; Appointment of Successor......................61
SECTION 7.15 Reports by Trustee to Holders.................................62
SECTION 7.16 Preferential Collection of Claims Against Issuer..............62
SECTION 7.17 Data Mapping..................................................62
ARTICLE VIII
COVENANTS
SECTION 8.01 Payment of Principal and Interest.............................63
SECTION 8.02 Maintenance of Office or Agency; Chief Executive Office.......63
SECTION 8.03 Money for Payments to Noteholders to Be Held in Trust.........63
SECTION 8.04 Issuer Existence; etc.........................................64
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SECTION 8.05 Protection of Trust Property; Further Assurances..............65
SECTION 8.06 Compliance Certificates.......................................66
SECTION 8.07 Performance of Obligations; Contribution and Servicing
Agreement.....................................................66
SECTION 8.08 Negative Covenants............................................66
SECTION 8.09 Information as to the Issuer..................................68
SECTION 8.10 Payment of Taxes and Other Claims.............................69
SECTION 8.11 Indemnification...............................................69
SECTION 8.12 Contract Files to Trustee.....................................70
SECTION 8.13 Payment Advices...............................................70
SECTION 8.14 Swap Agreement................................................70
ARTICLE IX
AMENDMENTS AND SUPPLEMENTAL INDENTURES
SECTION 9.01 Amendments and Supplemental Indentures........................71
SECTION 9.02 Execution of Amendments and Supplemental Indentures...........71
SECTION 9.03 Effect of Amendments and Supplemental Indentures..............72
SECTION 9.04 Reference in Notes to Amendments and Supplemental Indentures..72
SECTION 9.05 Compliance with Trust Indenture Act...........................72
SECTION 9.06 Revocation and Effect of Consents.............................72
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01 Optional Redemption; Election to Redeem.......................73
SECTION 10.02 Notice to Trustee.............................................73
SECTION 10.03 Notice of Redemption by the Issuer............................73
SECTION 10.04 Deposit of the Redemption Price...............................74
SECTION 10.05 Notes Payable on Redemption Date..............................74
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.......................75
SECTION 11.02 Application of Trust Money....................................76
SECTION 11.03 Reinstatement.................................................76
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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-3a - Form of Class A-3a Note
Exhibit A-3b - Form of Class A-3b Note
Exhibit B - Form of Class B Note
Exhibit C-1 - Form of Class C-1 Note
Exhibit C-2 - Form of Class C-2 Note
Exhibit D-1 - Form of Class D-1 Note
Exhibit D-2 - Form of Class D-2 Note
Exhibit E-1 - Form of Class E-1 Note
Exhibit E-2 - Form of Class E-2 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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INDENTURE
This INDENTURE ("INDENTURE"), dated as of May 1, 2003, is between DVI
RECEIVABLES XIX, L.L.C., a Delaware limited liability company (herein called the
"ISSUER"), and U.S. BANK NATIONAL ASSOCIATION, a national banking association,
as trustee (herein called the "TRUSTEE").
RECITALS OF THE ISSUER
The Issuer has duly authorized the issuance of, $385,630,000 in
aggregate principal amount of its Asset Backed Notes, Series 2003-1, Class A,
$17,010,000 in aggregate principal amount of its Asset Backed Notes, Series
2003-1, Class B, $14,740,000 in aggregate principal amount of its Asset Backed
Notes, Series 2003-1, Class C, $11,340,000 in aggregate principal amount of its
Asset Backed Notes, Series 2003-1, Class D, $11,340,000 in aggregate principal
amount of its Asset Backed Notes, Series 2003-1, Class E, of substantially the
tenor hereinafter set forth, and to provide therefor the Issuer has duly
authorized the execution and delivery of this Indenture.
Subsequent to the execution and delivery of this 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 Indenture a valid agreement of the Issuer, in accordance with
its terms, have been done.
Concurrent with the execution and delivery of the Notes, the Issuer
will enter into one or more Swap Agreement with one or more Swap Provider in
respect of the Class A-2a Notes, the Class A-3a Notes, the Class D Notes and the
Class E Notes.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the holders thereof, it is mutually covenanted and agreed, for the benefit of
all Noteholders and the Swap Providers, as follows:
GRANTING CLAUSE
The Issuer hereby Grants to the Trustee, for the benefit and security
of the Noteholders, the Swap Providers 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, the Swap Providers 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 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 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 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 Indenture or any Supplement, (ii) the payment
of all other sums payable under this Indenture and (iii) compliance with the
provisions of this Indenture (including, without limitation, payment to the Swap
Providers) 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 and the Swap Providers may be adequately and effectively protected
as hereinafter provided.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 DEFINITIONS.
For purposes of this 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 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 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 Indenture or any Supplement, no additional certificate need be
furnished.
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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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Supplement, they may, but need not, be
consolidated and form one instrument.
Wherever in this 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 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
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any such agent shall be sufficient for any purpose of this 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 Indenture and any
Supplement, each Noteholder irrevocably appoints the Trustee hereunder as the
special attorney-in-fact for such Noteholder vested with full power on behalf of
such Noteholder to effect and enforce the rights of such Noteholder 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
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: (651)
244-0727;
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(ii) if to the Issuer, Attention: Securitization Manager, at ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Number for telecopy: (▇▇▇) ▇▇▇-▇▇▇▇;
Number for telephonic confirmation: (▇▇▇) ▇▇▇-▇▇▇▇) 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: (215)
488-5416; Number for telephonic confirmation: (▇▇▇) ▇▇▇-▇▇▇▇) 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 Bank of America, N.A. (as a Swap Provider), Attention: Bank
of America, N.A., Capital Markets Documentation, at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
1-007-13-01 ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
(vi) 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
(vii) if to Fitch, Inc., at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ABS Group (Number for telecopy: (▇▇▇) ▇▇▇-▇▇▇▇), or at
any other address or telecopy number previously furnished in writing to the
Trustee, the Issuer and the Servicer by Fitch, Inc.; or
(viii) if to S&P, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
10041-0003, Attention: ABS Surveillance Group (Number for telecopy: (212)
438-2664), or at any other address or telecopy number previously furnished
in writing to the Trustees, the Issuer and the Servicer by S&P.
SECTION 1.06 NOTICE TO NOTEHOLDERS; WAIVER.
(a) Where this Indenture or any Supplement provides for notice to
Noteholders or the Swap Providers of any event, or the mailing of any report to
Noteholders or the Swap Providers, 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, or the Swap
Providers if affected by, such event or to whom such report is required to be
mailed, at the respective Swap Provider's address as set forth in the related
Swap Agreement or 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 the Swap Providers or 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 or any Swap
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Provider shall affect the sufficiency of such notice or report with respect to
other Noteholders or the Swap Providers. Where this 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 or the Swap Providers 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 or the Swap Providers, in accordance with Section 1.06(a), of any
event or any report to Noteholders or the Swap Providers when such notice or
report is required to be delivered pursuant to any provision of this 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 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 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.
SECTION 1.10 BENEFITS OF INDENTURE.
Nothing in this 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 Indenture.
SECTION 1.11 GOVERNING LAW.
THIS 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 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.
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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
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 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 Indenture, the 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 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 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 Indenture) are a part
of and govern this Indenture, whether or not physically contained herein.
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If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this 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 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 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.
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 and the Swap Providers.
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SECTION 1.21 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This 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 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 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 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 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, the Swap Providers 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; PROVIDED, HOWEVER, that the Trustee, on behalf of the
Noteholders and the Swap Providers, shall not be prevented from participating in
any such proceeding once commenced (as used in this proviso, the term
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"participating" includes, but is not limited to, filing claims, attending
meetings, sending/receiving notices, voting, etc., PROVIDED HOWEVER that the
foregoing shall not include acting as a petitioning creditor). 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 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 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.
SECTION 1.28 LIEN OF THE INDENTURE.
For the avoidance of doubt, (i) any property subject to the Lien of
this Indenture shall also be subject to all of the provisions of this Indenture
and (ii) any property released from the Lien of this Indenture shall also be
released from all of the provisions of this Indenture.
SECTION 1.29 THIRD PARTY BENEFICIARY.
The Swap Providers are third party beneficiaries under this Agreement.
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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 (excluding any Class F Instrument)
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 XIX, L.L.C.
Asset-Backed Notes, Series 2003-1". 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 five tranches, entitled "$71,810,000 in aggregate principal amount of its
1.27300% Asset-Backed Notes, Series 2003-1, Class A-1", "$25,200,000 in
aggregate principal amount of its One-Month LIBOR plus 0.15% Asset-Backed Notes,
Series 2003-1, Class A-2a", "$27,000,000 in aggregate principal amount of its
1.57% Asset-Backed Notes, Series 2003-1, Class A-2b", "$229,620,000 in aggregate
principal amount of its One-Month LIBOR plus 0.50% Asset-Backed Notes, Series
2003-1 Class A-3a", "$32,000,000 in aggregate principal amount of its 2.78%
Asset-Backed Notes, Series 2003-1 Class A-3b"; and, with respect to the Class B
Notes only, entitled "$17,010,000 in aggregate principal amount of its One-Month
LIBOR plus 1.00% Asset-Backed Notes, Series 2003-1, Class B"; and, with respect
to the Class C Notes only, entitled "$5,740,000 in aggregate principal amount of
its One-Month LIBOR plus 1.70% Asset-Backed Notes, Series 2003-1, Class C-1",
"9,000,000 in aggregate principal amount of its 3.62% Asset-Backed Notes, Series
2003-1, Class C-2"; and with respect to the Class D Notes only, in two tranches,
entitled "$6,340,000 in aggregate principal amount of its One-Month LIBOR plus
1.95% Asset-Backed Notes, Series 2003-1, Class D-1", "5,000,000 in aggregate
principal amount of its 3.86% Asset-Backed Notes, Series 2003-1, Class D-2"; and
with respect to the Class E Notes only, in two tranches, entitled "$9,340,000 in
aggregate principal amount of its One-Month LIBOR plus 7.00% Asset-Backed Notes,
Series 2003-1, Class E-1", "2,000,000 in aggregate principal amount of its 9.02%
Asset-Backed Notes, Series 2003-1, Class E-2", 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 Indenture. The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $440,060,000
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 $5,000 and integral multiples of $1,000 thereof;
PROVIDED that the Class E Notes shall be issuable only in denominations of at
least $500,000 and integral multiples of $1,000 thereof; PROVIDED FURTHER 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 the related minimum denomination; PROVIDED,
FURTHER, that a single Note of each Class may be issued in a different amount as
may be
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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 of twelve
30-day months PROVIDED that for Class A-1 Notes, Class A-2a Notes, the Class
A-3a Notes, Class D Notes and Class E Notes 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 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 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 Indenture as to treatment of such
Notes as indebtedness for such tax purposes.
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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. Notwithstanding anything stated
herein to the contrary, the Class E-1 Notes are in definitive form and have been
delivered to U.S. Bank National Association, as custodian. From or after the
Closing Date, the Class E-1 Notes may be registered in the name of the
Depositary or its nominee, and shall be then delivered to the Book Entry
Custodian.
(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 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 Class E Notes only, a Rule 144A
Global Note having an aggregate initial Outstanding principal balance equal to
the Initial Class Note Balance of such respective 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?% 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
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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 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 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 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.
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(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:
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 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
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otherwise required under this 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 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 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
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 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 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
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 Indenture or any Note or any losses incurred by any Noteholder.
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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 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.
(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
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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, as
applicable, 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 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, as
applicable, 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 Notes 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
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 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 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
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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 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, 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 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 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 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
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no Class F Instruments shall adversely affect the method of allocating Available
Funds to the Swap Providers or the 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 Swap Providers or the Class A,
Class B, Class C, Class D or Class E Noteholders or the rights or priority of
such entities 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 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.
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.
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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
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 and the Swap Providers. 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 and the Swap
Providers.
(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 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
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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 and the Swap Providers.
Each Lock-Box Account shall be a segregated account initially established and
maintained with First National Bank of Chicago, Firstar Bank N.A. 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, the
Swap Providers and the Issuer to the extent of their interests therein as
provided in this Indenture and in the 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;
(iii) Reserve Account; and
(iv) Successor Servicer 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 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 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
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Account to make all payments from the Collection Account in accordance with the
terms and conditions of this Indenture.
(b) The Trustee shall hold in trust but shall not be required to
deposit in any account specified in Section 3.01(a) any payment received by it
until such time as the Trustee shall have identified to its reasonable
satisfaction the nature of such payment and, on the basis thereof, the proper
account or accounts into which such payment is to be deposited. In determining
into which of the accounts, if any, referred to above any amount received by the
Trustee is to be deposited, the Trustee may conclusively rely (in the absence of
bad faith on the part of the Trustee) on the 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 Successor
Servicer 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 and the amounts in the
Successor Servicer Reserve Account shall be invested and reinvested by the
Trustee pursuant to a Servicer Order in one or more investments described in
paragraph (vii) of the definition of 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, the Reserve Account
and the Successor Servicer 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 or the Successor Servicer 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).
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(f) No investment of any amount held in the Collection Account, the
Reserve Account or the Successor Servicer 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, the Reserve Account or
the Successor Servicer 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 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, the Reserve
Account or the Successor Servicer 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 and the Swap
Providers 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 Indenture. The Trustee shall apply all such money received by it as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any
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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 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 Payment), it shall hold such
payment (except for the Residual Payment which the Issuer shall hold for the
benefit of the Transferor (or its assignee)) in trust for the benefit of the
Trustee, the Swap Providers 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 Transferor (or its assignee) 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 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 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
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(vii) promptly upon receipt, any amounts the Trustee receives pursuant
to Section 3.03 of this 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 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) (A) 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 and (B) if the Servicer is no longer
DVI, to the Trustee, the Trustee Fee;
(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 Contribution and Servicing Agreement;
(iii) to the Swap Providers, PARI PASSU and PRO RATA, any Net Swap
Payments (including interest on overdue Net Swap Payments) then due and
payable;
(iv) 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, PRO RATA and PARI PASSU in proportion to the outstanding Class
A-2a Note Balance, Class A-2b Note Balance and the amount of any swap
termination payments due and payable by the Issuer to the Swap Provider,
(A) in the following order of priority, the sum of: (1) PRO RATA and PARI
PASSU, the Class A-2a Monthly Interest and the Class A-2b Monthly Interest
and (2) PRO RATA and PARI PASSU, the Class A-2a Overdue Interest and the
Class A-2b Overdue Interest, if any; and (B) the amount of any swap
termination payments under the Swap Agreement; PROVIDED that if no Class
A-2a Monthly Interest, Class A-2b Monthly Interest, Class A-2a Overdue
Interest or Class A-2b Overdue Interest is due and payable as of such
payment date, such amounts will be applied to pay the portion, if any, of
any swap termination payments due and payable, if any; third, to the Class
A Distribution Sub-Account, PRO RATA and PARI PASSU in proportion to the
outstanding Class A-3a Note Balance, Class A-3b Note Balance and the amount
of any swap termination payments due and payable by the Issuer to the Swap
Provider, (A) in the following order of priority, the sum of: (1) PRO RATA
and PARI PASSU, the Class A-3a Monthly Interest and the Class A-3b Monthly
Interest and (2) PRO RATA and PARI PASSU, the Class A-3a Overdue Interest
and the Class A-3b Overdue Interest, if any; and (B) the amount of any swap
termination payments under the Swap Agreement; PROVIDED that if no Class
A-3a Monthly Interest, Class A-3b Monthly Interest, Class A-3a Overdue
Interest or Class A-3b Overdue Interest is due and payable as of such
payment
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date, such amounts will be applied to pay the portion, if any, of any swap
termination payments due and payable;
(v) to the Distribution Account, PRO RATA and PARI PASSU in proportion
to the Class A-1 Note Balance, the Class A-2 Note Balance and the Class A-3
Note Balance, an amount equal to the excess of (x) the aggregate
outstanding Class A Note Balance over (y) the Aggregate Discounted Contract
Balance;
(vi) to the Class B Distribution Sub-Account, in the following order
of priority, the sum of: (1) the Class B Monthly Interest and (2) the Class
B Overdue Interest, if any;
(vii) to the Distribution Account, an amount equal to the difference
between (A) the excess of (x) the aggregate outstanding Class A Note
Balance and the Class B Note Balance over (y) the Aggregate Discounted
Contract Balance and (B) any amounts deposited in the Distribution Account
in accordance with clause (v) above;
(viii) to the Class C Distribution Sub-Account, in the following order
of priority, the sum of: (1) Class C Monthly Interest and (2) the Class C
Overdue Interest, if any;
(ix) to the Distribution Account, an amount equal to the difference
between (A) the excess of (x) the aggregate outstanding Class A Note
Balance, the Class B Note Balance and the Class C Note Balance over (y) the
Aggregate Discounted Contract Balance and (B) any amounts deposited in the
Distribution Account in accordance with clauses (v) and (vii) above;
(x) to the Class D Distribution Sub-Account, PRO RATA and PARI PASSU
in proportion to the outstanding Class D Note Balance and the amount of any
swap termination payments due and payable by the Issuer to the Swap
Provider:
(A) in the following order of priority, the sum of: (1) the Class
D Monthly Interest and (2) Class D Overdue Interest, if any; and
(B) the amount of any swap termination payments under the Swap
Agreement; PROVIDED that if no Class D Monthly Interest or Class D
Overdue Interest is due and payable as of such payment date, such
amounts will be applied to pay the portion, if any, of any swap
termination payments due and payable;
(xi) to the Distribution Account, an amount equal to the difference
between (A) the excess of (x) the aggregate Class A Note Balance, the Class
B Note Balance, the Class C Note Balance and the Class D Note Balance over
(y) the Aggregate Discounted Contract Balance and (B) any amounts deposited
in the Distribution Account in accordance with clauses (v), (vii) and (ix)
above;
(xii) to the Class E Distribution Sub-Account, PRO RATA and PARI PASSU
in proportion to the outstanding Class E Note Balance and the amount of any
swap termination payments due and payable by the Issuer to the Swap
Provider:
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(A) in the following order of priority, the sum of: (1) the Class
E Monthly Interest and (2) the Class E Overdue Interest, if any; and
(B) the amount of any swap termination payments under the Swap
Agreement; PROVIDED that if no Class E Monthly Interest or Class E
Overdue Interest is due and payable as of such payment date, such
amounts will be applied to pay the portion, if any, of any swap
termination payments due and payable;
(xiii) to the Distribution Account, an amount equal to the difference
between (A) the excess of (x) the aggregate 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 over (y) the Aggregate Discounted Contract Balance and
(B) any amounts deposited in the Distribution Account in accordance with
clauses (v), (vii), (ix) and (xi) above;
(xiv) PROVIDED that no Amortization Event shall have occurred and be
continuing, to the Class A Distribution Sub-Account, in the following order
of priority and from amounts on deposit in the Distribution Account and any
remaining Available Funds on deposit in the Collection Account, the sum of:
(A) the Class A-1 Overdue Principal, if any;
(B) the Class A-1 Monthly Principal;
(C) PRO RATA and PARI PASSU, the Class A-2a Overdue Principal and
the Class A-2b Overdue Principal, if any;
(D) PRO RATA and PARI PASSU, the Class A-2a Monthly Principal and
the Class ▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
(E) PRO RATA and PARI PASSU, the Class A-3a Overdue Principal and
the Class A-3b Overdue Principal, if any; and
(F) PRO RATA and PARI PASSU, the Class A-3a Monthly Principal and
the Class A-3b Monthly Principal;
(xv) 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
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(B) the Class B Monthly Principal;
(xvi) PROVIDED that no Amortization Event shall have occurred and be
continuing, to the Class C Distribution Sub-Account, in the following order
of priority and from amounts on deposit in the Distribution Account and any
remaining Available Funds on deposit in the Collection Account, the sum of:
(A) the Class C Overdue Principal, if any; and
(B) the Class C Monthly Principal;
(xvii) PROVIDED that no Amortization Event shall have occurred and be
continuing, to the Class D Distribution Sub-Account, in the following order
of priority and from amounts on deposit in the Distribution Account and any
remaining Available Funds on deposit in the Collection Account, the sum of:
(A) the Class D Overdue Principal, if any; and
(B) the Class D Monthly Principal;
(xviii) PROVIDED that no Amortization Event shall have occurred and be
continuing, to the Class E Distribution Sub-Account, in the following order
of priority and from amounts on deposit in the Distribution Account and any
remaining Available Funds on deposit in the Collection Account, the sum of:
(A) the Class E Overdue Principal, if any; and
(B) the Class E Monthly Principal;
(xix) PROVIDED that no Amortization Event shall have occurred and be
continuing, to the Reserve Account, the Reserve Account Deposit Amount;
(xx) if an Amortization Event shall have occurred and is continuing
and is not subject to a continuing waiver from Noteholders evidencing not
less than 66?% of the Voting Rights, in the following order of priority and
from amounts on deposit in the Distribution Account and any remaining
Available Funds on deposit in the Collection Account:
FIRST, to the Class A Distribution Sub-Account the amount
necessary to reduce the Class A-1 Note Balance to zero; then, PRO
RATA and PARI PASSU, to the Class A Distribution Sub-Account, the
amount necessary to reduce the Class A-2a Note Balance to zero
and the Class A-2b Note Balance to zero; then, PRO RATA and PARI
PASSU, to the Class A Distribution Sub-Account, the amount
necessary to reduce the Class A-3a Note Balance to zero and the
Class A-3b Note Balance to zero;
SECOND, PRO RATA and PARI PASSU, to the Class B Distribution
Sub-Account, the amount necessary to reduce the Class B Note
Balance to zero; and
THIRD, PRO RATA and PARI PASSU, to the Class C Distribution
Sub-Account, the amount necessary to reduce the Class C Note
Balance to zero;
FOURTH, PRO RATA and PARI PASSU, to the Class D Distribution
Sub-Account, the amount necessary to reduce the Class D Note
Balance to zero; and
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FIFTH, PRO RATA and PARI PASSU, to the Class E Distribution
Sub-Account, the amount necessary to reduce the Class E Note
Balance to zero;
(xxi) 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.
Noteholders evidencing not less than 66?% 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 payments required to be made pursuant
to clause (i) of Section 3.04(b) include (x) any payments then due and payable
in connection with the selection of, or transition to, a Successor Servicer or
(y) any shortfall between the Available Funds on deposit in the Collection
Account (the "DEPOSITED AVAILABLE FUNDS") and the servicing fees then due and
payable to the Successor Servicer, then the trustee shall withdraw from the
Successor Servicer Reserve Account, to the extent that such funds are on deposit
in the Successor Servicer Reserve Account and, if required under Section
3.07(c), the Noteholders representing more than 50% of the Voting Rights have
consented, such amounts then due and payable. If on any Payment Date, 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) as well as any withdrawal from the Successor Servicer Reserve Account,
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").
(d) 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 Residual Payments deposited in the
Collection Account which are not includible in Available Funds, to the
Transferor or such other designee or account as the Servicer instructs in
accordance with the Monthly Servicer Report.
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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-3a Noteholders and the Class A-3b 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) PRO RATA and PARI PASSU, the Class A-2a Monthly Interest
and the Class A-2b Monthly Interest;
(iv) PRO RATA and PARI PASSU, the Class A-2a Overdue Interest
and the Class A-2b Overdue Interest, if any;
(v) PRO RATA AND PARI PASSU, the Class A-3a Monthly Interest
and the Class A-3b Monthly Interest; and
(vi) PRO RATA and PARI PASSU, the Class A-3a Overdue Interest
and the Class A-3b Overdue Interest, if any;
second, to the Class A-1 Noteholders, the Class A-2a Noteholders, the
Class A-2b Noteholders, the Class A-3a Noteholders and the Class A-3b
Noteholders, PRO RATA among the Noteholders of each such Class, in the following
order of priority:
(vii) the Class A-1 Overdue Principal, if any;
(viii) the Class A-1 Monthly Principal;
(ix) any additional Class A-1 principal payable pursuant to
this Indenture;
(x) (PRO RATA and PARI PASSU, the Class A-2a Overdue Principal
and the Class A-2b Overdue Principal, if any;
(xi) PRO RATA and PARI PASSU, the Class A-2a Monthly Principal
and the Class ▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
(xii) PRO RATA and PARI PASSU, any additional Class A-2a
principal payable pursuant to this Indenture and any
additional Class A-2b principal payable under this
Indenture;
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(xiii) PRO RATA and PARI PASSU, the Class A-3a Overdue Principal
and the Class A-3b Overdue Principal, if any;
(xiv) PRO RATA and PARI PASSU, the Class A-3a Monthly Principal
and the Class A-3b Monthly Principal; and
(xv) PRO RATA and PARI PASSU, any additional Class A-3a
principal payable pursuant to this Indenture and any
additional Class A-3b principal payable under this
Indenture.
(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 each 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) PRO RATA and PARI PASSU, any additional principal payable
to the Class B Noteholders pursuant to this 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 each 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;
(iv) the Class C Monthly Principal; and
(v) any additional principal payable to the Class C
Noteholders pursuant to this 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 each such Class, the amount then on deposit in the Class D
Distribution Sub-Account and allocated pursuant to
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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 this 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 each 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 this 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 SUCCESSOR SERVICER RESERVE ACCOUNT.
(a) On the Closing Date the Trustee shall promptly deposit into the
Successor Servicer Reserve Account all amounts required to be deposited into the
Successor Servicer Reserve Account and actually received by the Trustee pursuant
to this Indenture. The obligation of the Trustee to deposit amounts into the
Successor Servicer Reserve Account in accordance with the terms of this
Indenture shall be limited to the deposit of amounts in the Collection Account
pursuant to Section 3.07(b) hereof. The 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
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"SUCCESSOR SERVICER 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 the Closing Date, the Trustee shall deposit in the Successor
Servicer Reserve Account an amount equal to the Initial Successor Servicer
Reserve Account Deposit Amount from the proceeds of the issuance of the Notes.
(c) If on any Payment Date, the payments required to be made pursuant
to clause (i) of Section 3.04(b) include (x) any payments then due and payable
in connection with the selection of, or transition to, a Successor Servicer, or
(y) any shortfall between the Deposited Available Funds and the servicing fees
then due and payable to the Successor Servicer, then the Trustee shall withdraw
from the Successor Servicer Reserve Account in accordance with Section 3.04(c)
hereof; PROVIDED HOWEVER, to the extent such payments required to be made
pursuant to clause (i) of Section 3.04(b) include amounts described in clause
(x) of this subsection (c), the Trustee shall withdraw from the Successor
Servicer Reserve Account only with the consent of the Noteholders representing
more than 50% of the Voting Rights (such consent not to be unreasonably
withheld). On each Payment Date, if, after giving effect to all deposits and
withdrawals therefrom on such Payment Date, the balance in the Successor
Servicer Reserve Account is greater than the Initial Successor Servicer Reserve
Account Deposit Amount, the Trustee shall release and, at the instruction of the
Servicer, shall pay the amount 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 Successor
Servicer Reserve Account or from the Successor Servicer 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.
(d) With respect to the Successor Servicer Reserve Account Property,
the Issuer and the Trustee agree that any Successor Servicer 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.
(e) Upon termination of this Indenture, any amounts on deposit in the
Successor Servicer 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 3.08 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 Indenture. The obligation
of the Trustee to deposit amounts into the Reserve Account in accordance with
the terms of this 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
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Account, or the amount of any deposits to or withdrawals from the Reserve
Account. The 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 after the appointment of a Successor Servicer as a result of
the occurrence and continuance of a Servicer Event of Default, such Successor
Servicer (as long as no Servicer Event of Default has occurred with respect to
such Successor Servicer) may withdraw from amounts on deposit in the Reserve
Account any expenses incurred by such Successor Servicer in connection with the
rehabilitation of any Delinquent Contracts and/or Defaulted Contracts; provided
that in no event shall the amount of any such reimbursement exceed the lesser of
(x) one-half of one percent (0.50%) of the Initial Aggregate Discounted Contract
Balance and (y) one-half of one percent (0.50%) of the Aggregate Discounted
Contract Balance as of such Payment Date. 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 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 and the Swap Providers,
the Trustee shall mail to the Issuer, Cede & Co. and the Rating Agencies, and
make available to each Noteholder and each Swap Provider, the Monthly Servicer
Report furnished to the Trustee by the
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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, the Reserve
Account and the Successor Servicer Reserve Account, and identifying the
investments included therein.
SECTION 3.10 TRUSTEE MAY RELY ON CERTAIN INFORMATION FROM CONTRIBUTOR
AND SERVICER.
Pursuant to the 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 III and in Article IV of
this 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-2a Monthly Principal, the Class A-2b Monthly Principal,
the Class A-3a Monthly Principal, the Class A-3b 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-2a
Monthly Interest, the Class A-2b Monthly Interest, the Class A-3a Monthly
Interest, the Class A-3b 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, MUTATIS MUTANDIS, set forth in Section 2.03 and
Section 2.04 of the 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.
The Issuer has good and marketable title to (1) the Contracts pledged
on the Contribution Date and (2) the security interest assigned or granted, as
the case may be, in the Equipment related thereto (except for Equipment for
which the Original Equipment Cost is less than $25,000, with respect to which
the Company shall be deemed to have granted a valid security interest), in each
case free and clear of any and all claims, charges, liens or security interests
created by the Issuer or any of its affiliates (other than the rights of each
Obligor under the Contract to which such Obligor is a party, claims, charges,
liens or security interests to be discharged on the Contribution Date related
thereto and any liens for taxes, assessments, and (x) governmental charges or
levies not yet due and payable and (y) liens imposed by law arising in the
ordinary course of business which secure obligations that are not yet due and
payable, in the case of (x) and (y) to the extent no enforcement, collection,
execution, levy or foreclosure proceeding shall have been commenced).
This Indenture creates a valid and continuing security interest (as
defined in the applicable UCC) in the Trust Property in favor of the Trustee,
which security interest, except as contemplated by the Transaction Documents, is
prior to all other liens, and is enforceable as such as against creditors of and
purchasers from the Issuer.
An original executed copy of each Transaction Document and all
originals of the related chattel paper or instruments that constitute or
evidence the Trust Property (or, if the original chattel paper or instrument
constituting such item of Trust Property does not exist, then a certified true
copy) have been delivered to the Trustee.
The Issuer has caused the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the security interest in the Trust Property
Granted to the Trustee.
Except as contemplated by the Transaction Documents, the Issuer has
not (1) pledged, assigned, sold, granted a security interest in, or otherwise
conveyed any of the Trust Property or (2) authorized the filing of and is not
aware of any financing statements against the Issuer that include a description
of collateral covering the Trust Property other than any financing statement (i)
relating to the security interest granted to the Trustee in this Indenture and
which names the Trustee as secured party or assignee of the secured party, or
(ii) that has been terminated. The Issuer is not aware of any judgment or tax
lien filings against the Issuer.
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None of the Transaction Documents and the Contracts transferred
hereunder have any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Trustee. With
respect to all Contracts constituting chattel paper, the Issuer has, or has
caused to be taken, such steps as are necessary to protect the Trustee's
interest in any related Equipment securing such chattel paper.
SECTION 4.02 PURCHASE UPON BREACH; 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 Contribution and Servicing Agreement. With respect
to any breach of the Contributor's representations and warranties set forth in
Section 2 of the 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 (and an appropriate interest in
the related Equipment) in accordance with the provisions of Section 5.03 of the
Contribution and Servicing Agreement (and for the Transferor to receive from the
Contributor and transfer to the Issuer such Substitute Contract (and the
appropriate interest in the related Equipment)) or (b) purchase from the
Transferor (which Transferor shall purchase from the Issuer and resell to the
Contributor) the Contract and the security interest of the Issuer 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
(and the interest in the related Equipment), 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 Contribution and
Servicing Agreement, and against the Issuer or the Transferor with respect to a
breach under this Agreement or the Subsequent Contract Transfer Agreement by
reason of such breach by the Contributor, shall be to require the Contributor to
purchase or substitute Contracts (and the related Equipment) pursuant to the
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 Contribution and Servicing Agreement. In the event that the
Contributor fails to purchase or substitute for any Contract (and the related
Equipment) that it is required to substitute or repurchase pursuant to the
Contribution and Servicing Agreement, the Trustee, 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 Contribution and
Servicing Agreement, and the SCTA, as assigned to the Trustee, to require the
purchase or replacement of the Contract (and the related Equipment).
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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 an interest in the Equipment subject thereto for a
Predecessor Contract and an interest in the Equipment subject thereto in
accordance with Section 7 of the Contribution and Servicing Agreement, or (ii)
the Contributor or Servicer shall have purchased a Contract and the interest in
the related Equipment in accordance with Section 5.03 of the Contribution and
Servicing Agreement, the Predecessor Contract or the repurchased Contract, as
applicable, and the interest in the Equipment subject thereto, shall be released
from the lien and all of the provisions of this 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 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 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 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 or (ii) a Prepayment Amount in respect of any Contract and, following
such final Contract Payment or Prepayment Amount, no other payments (other than
any Excluded Amounts, Purchase Option Payment and any other payments under such
Contract not included in the determination of Discounted Contract Balance for
such Contract as set forth in the related Contract Schedule) 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 Indenture
except if a Restricting Event or an Amortization Event shall have occurred and
then be continuing.
(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)
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which would otherwise be released from the lien of this Indenture pursuant to
this Section 4.04 shall instead remain subject to such lien and all of the
provisions of this Indenture, including, without limitation, Article VI hereof;
PROVIDED, however, unless an Indenture Event of Default has occurred and is
continuing, in the event that the Trustee shall have received written
confirmation from an Authorized Officer of the Servicer that the Servicer has
received notification from an Obligor under any Contract (other than a
Delinquent Contract) that the Obligor intends to exercise its purchase option or
perform its purchase obligation, as the case may be, under a Contract, such
Contract and the Equipment subject thereto shall be released from the Lien of
this Indenture.
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 (i)
the release from this Indenture of any Contract, the security interest relating
to Equipment required to be so released pursuant to Sections 4.03 and 4.04
hereof and all interest in any income, payments and proceeds of any of the
foregoing or relating thereto accruing after the effective date of such release
and (ii) the transfer to the Transferor (or its assignee) of any Contract
related to Equipment required to be released pursuant to Sections 4.03 and 4.04
hereof.
SECTION 4.06 ADJUSTMENTS TO DEFINITION OF TRUST PROPERTY.
Upon the occurrence of any release pursuant to Section 4.03 or Section
4.04 hereof, the definition of "TRUST Property" will be automatically amended to
exclude all right, title and interest of the Trustee in (a) any Contract which
has been released from the lien of the Indenture, (b) the Equipment related to
such Contract, and (c) all income, payments and proceeds of any of the foregoing
or relating thereto accruing after the effective date of such release (although
such amounts shall remain subject to the repayment and reinvestment requirements
of Section 4.03 of this Indenture).
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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 Contribution and Servicing Agreement, the Trustee
shall, upon the written request of Noteholders evidencing not less than 66?% 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
Contribution and Servicing Agreement and the Trustee shall act as successor
Servicer in accordance with Section 10 of the 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 Contribution and Servicing Agreement.
SECTION 5.03 NOTIFICATION TO NOTEHOLDERS, THE SWAP PROVIDERS 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, the Swap Providers and each Noteholder in
the manner provided herein.
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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-2a Notes on the Class A-2a Stated Maturity Date, of
the Class A-2b Notes on the Class A-2b Stated Maturity Date, of the Class
A-3a Notes on the Class A-3a Stated Maturity Date, of the Class A-3b Note
on the Class A-3b Stated Maturity Date, of the Class B Notes on the Class B
Stated Maturity Date, of the Class C-1 Notes on the Class C-1 Stated
Maturity Date, of the Class C-2 Notes on the Class C-2 Stated Maturity
Date, of the Class D-1 Notes on the Class D-1 Stated Maturity Date, of the
Class D-2 Notes on the Class D-2 Stated Maturity Date, of the Class E-1
Notes on the Class E-1 Stated Maturity Date or of the Class E-2 Notes on
the Class E-2 Stated Maturity date or (C) any payment of principal of 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 Indenture (other than a covenant described in
(ii) above), or of any DVI Party to the 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 Indenture, the SCTA or the 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
Contribution and Servicing Agreement, with respect to any of the Contracts
or the interest in the Equipment
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subject thereto shall not constitute an Indenture Event of Default if the
Contributor substitutes one or more Substitute Contracts and the interest
in the Equipment subject thereto for such Contract and an interest in the
related Equipment in accordance with Section 7.01 of the Contribution and
Servicing Agreement, or repurchases a Contract and the interest in the
related Equipment in accordance with Section 5.03 of the 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 has received 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 66?% 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 provided in this Article, Noteholders evidencing
not less than 66?% of the Voting Rights, by written notice to the Issuer and the
Trustee, may rescind and annul such declaration and its consequences if:
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(i) the Issuer has paid or deposited with the Trustee a sum sufficient
to pay:
(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 and each Swap Provider 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 66?% 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, the Swap Providers
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 the Swap Providers 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
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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 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), of the
Swap Providers 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 and the Swap Providers 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, the
Swap Providers 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 and each Swap Provider 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 and/or the Swap Providers 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 or any
Swap Provider 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 or any Swap Provider
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 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 other moneys, securities or property that may then be held
or received by the Trustee after the occurrence and continuance of an Indenture
Event of Default, 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, PRO RATA and PARI PASSU, to the payment of all accrued and
unpaid Net Swap Payments (including interest on overdue Net Swap
Payments), if any, to the Swap Providers;
FIFTH, PARI PASSU AND PRO RATA, 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 and to the payment of all accrued
and unpaid swap termination payments to the Swap Providers under the
Swap Agreement;
SIXTH, to the Distribution Account, an amount equal to the excess of
(x) the aggregate outstanding Class A Note Balance over (y) the
Aggregate Discounted Contract Balance;
SEVENTH, 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;
EIGHTH, to the Distribution Account, an amount equal to the difference
between (A) the excess of (x) the aggregate outstanding Class A Note
Balance and the Class B Note Balance over (y) the Aggregate Discounted
Contract Balance and (B) any amounts paid to the Distribution Account
with the sixth paragraph above;
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NINTH, 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;
TENTH, to the Distribution Account, an amount equal to the difference
between (A) the excess of (x) the aggregate outstanding Class A Note
Balance, the Class B Note Balance and the Class C Note Balance over
(y) the Aggregate Discounted Contract Balance and (B) any amounts paid
to the Distribution Account in accordance with the sixth and eighth
paragraph above;
ELEVENTH, 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;
TWELFTH, to the Distribution Account, an amount equal to the
difference between (A) the excess of (x) the aggregate Class A Note
Balance, the Class B Note Balance, the Class C Note Balance and the
Class D Note Balance over (y) the Aggregate Discounted Contract
Balance and (B) any amounts paid to the Distribution Account in
accordance with the sixth, eighth and tenth paragraph above;
THIRTEENTH, 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;
FOURTEENTH, to the Distribution Account, an amount equal to the
difference between (A) the excess of (x) the aggregate 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 over (y) the Aggregate
Discounted Contract Balance and (B) any amounts paid to the
Distribution Account in accordance with the sixth, eighth, tenth and
twelfth paragraph above;
FIFTEENTH, 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, until the Class A-1 Note
Balance has been reduced to zero, then, PRO RATA and PARI PASSU, to
the payment of the outstanding Class A-2a Note Balance and Class A-2b
Note Balance, and any other amounts due to the Class A-2a Noteholders
and Class A-2b Noteholders, ratably, without preference or priority of
any kind, until the Class A-2a Note Balance and the Class A-2b Note
Balance have been reduced to zero, then, PRO RATA and PARI PASSU, to
the payment of the outstanding Class A-3a Note Balance and Class A-3b
Note Balance, and any other amounts due to the Class A-3a Noteholders
and the Class A-3b Noteholders, ratably, without preference or
priority of any kind, until the Class A-3a Note Balance and the Class
A-3b Note Balance have been reduced to zero;
SIXTEENTH, PRO RATA and PARI PASSU, 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;
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SEVENTEENTH, 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;
EIGHTEENTH, 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;
NINETEENTH, 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;
TWENTIETH, 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;
TWENTY-FIRST, 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;
TWENTY-SECOND, in the event that DVI is the Servicer, to the payment
of all unreimbursed Servicing Fees due to the Servicer; and
TWENTY-THIRD, to the payment of the remainder, if any, to, or at the
order of, the Issuer.
SECTION 6.07 LIMITATION ON SUITS.
Neither the holder of any Note nor any Swap Provider shall 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 or Swap Provider has previously given written
notice to the Trustee of a continuing Indenture Event of Default;
(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(s) or Swap Providers has offered to the Trustee
adequate indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(iv) the Trustee for 30 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(v) so long as any of the Notes remain outstanding, no direction
inconsistent with such written request has been given to the Trustee during
such 30-day period by Noteholders evidencing not less than 66?% of the
Voting Rights;
it being understood and intended that no one or more Noteholders or the Swap
Providers shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb, or prejudice
the rights of any other Noteholder or the Swap Providers, or to obtain or to
seek to obtain priority or preference over any other Noteholder or the Swap
Providers or to enforce any right under this 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
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 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 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.
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.
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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 Indenture, until such time
as the conditions specified in Section 11.01 have been satisfied in full,
Noteholders evidencing not less than 66?% 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 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:
(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 Indenture; but no such waiver
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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 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 66?% 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 and all amounts then due
and payable under a Swap Agreement 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, 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;
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(iii) the Trustee is hereby irrevocably appointed the agent and
attorney-in-fact of the Issuer to transfer and convey its interest in any
portion of the Trust 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
Indenture, including, without limitation, the power of the Trustee to proceed
against the collateral subject to the lien of this Indenture and to institute
judicial proceedings for the collection of any deficiency remaining thereafter.
SECTION 6.16 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken 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.
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ARTICLE VII
THE TRUSTEE
SECTION 7.01 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Indenture Event of Default:
(i) the Trustee undertakes to perform only those duties that are
specifically set forth in this 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 Indenture. The Trustee, however, shall examine the
same to determine whether or not they conform to the requirements of this
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 Indenture
and use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, EXCEPT that:
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section 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 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 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.
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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 Contribution
and Servicing Agreement, the Trustee shall transmit by certified mail return
receipt requested, hand delivery or overnight courier, to all Noteholders, as
their names and addresses appear in the Note Register, the Issuer, the Servicer,
the Swap Providers, 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 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 Indenture at the request or direction
of any of the Noteholders or the Swap Providers pursuant to this Indenture,
unless such Noteholders and the Swap Providers 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
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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 the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this 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 Indenture (except as against itself), the SCTA, the 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 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; PROVIDED that, if a
Servicer Event of Default has occurred and is continuing under Section
10.01 of the Contribution and Servicing Agreement and the Servicer is no
longer DVI, then the Trustee shall be compensated, for all services
rendered by it hereunder, on each Payment Date, from Available Funds on
deposit in the Collection Account, an amount equal to the sum of the
Servicing Fee and the Trustee Fee, such fees to be paid PARI PASSU;
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(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 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, fraud,
willful misconduct or bad faith;
(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 Indenture, the
Trustee will continue to perform its obligations under this 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 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 National Association (as successor to 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
National Association (as successor to 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 or
"BBB" from Fitch, Inc. or a short-term unsecured rating of "Prime-3" from
Moody's or "F1" from Fitch, Inc., 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.
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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 the
Swap Providers and the Noteholders evidencing more than 50% of the Voting Rights
under Section 7.09.
(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, the Swap Providers
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, the Swap Providers 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.
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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 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.
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(b) Should any written instrument from the Issuer be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Issuer.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms:
(i) The Notes shall be authenticated and delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustee hereunder, shall be exercised solely
by the Trustee.
(ii) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Trustee in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed
by the Trustee or by the Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee
or separate trustee, except to the extent that, under any law of any
jurisdiction in which any particular act is to be performed, the Trustee
shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and
performed by such co-trustee or separate trustee.
(iii) The Trustee at any time, by an instrument in writing executed by
it, with the concurrence of the Issuer evidenced by 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
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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 Indenture
pursuant to the provisions hereof.
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 Contribution and Servicing Agreement and
to carry out its servicing and administration duties under the 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 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
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 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 each Swap
Provider 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 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 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 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 Contribution and
Servicing Agreement.
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SECTION 7.15 REPORTS BY TRUSTEE TO HOLDERS.
If required by the TIA, within 60 days after each Payment Date
beginning with June 12, 2003, 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).
SECTION 7.17 DATA MAPPING.
Within ninety (90) days of the Closing Date, the Trustee, as backup
Servicer pursuant to Section 10.03 of the Contribution and Servicing Agreement,
shall (1) in order to understand the purpose of each data field (and the
interrelationships among such data fields) set forth in the computer software
used by the Servicer in connection with the servicing of each Contract and the
related Trust Property, review the computer software used by the Servicer in
connection with the servicing of each Contract and the related Trust Property
and (2) in order to be able to independently generate any Monthly Servicer
Report, develop a computer program that (x) recognizes the data fields (and the
interrelationships among them) used by the Servicer and (y) permits the data set
forth in a Monthly Servicer Report to be downloaded for use by such computer
program. Upon its receipt of an electronic copy of the Monthly Servicer Report,
the Trustee shall download the data contained in such Monthly Servicer Report
into the computer program and, using such computer program, it shall generate a
copy of such Monthly Servicer Report for its own records. Commencing in June
2003 and for the first calendar month in each quarter thereafter, with respect
to the data provided by the Servicer to the Trustee, the Trustee shall compare
the Monthly Servicer Report provided by the Servicer in respect of the related
calendar month to the Monthly Servicer Report generated by the Servicer for the
same calendar month. The Trustee shall report to the Servicer any discrepancies
between the Monthly Servicer Report generated by the Servicer and the Monthly
Servicer Report generated by the Trustee and shall require that the Servicer
reconcile any discrepancies between such Monthly Servicer Reports.
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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 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 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 Jamison, 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 and the
Swap Providers on each Payment Date in accordance with the terms of this
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.
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(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 or the Swap Provider shall be discharged from such trust and,
subject to applicable escheat laws, paid to the Issuer upon request; and such
Noteholder or Swap Provider 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 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
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 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
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communications, including, without limitation, letters, invoices, purchase
orders, contracts, statements and loan applications, will be made solely in the
name of the Issuer.
(e) The Issuer will be operated so as not to be substantively
consolidated for bankruptcy purposes with the Contributor or any other Person.
(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 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 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 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 Indenture
throughout such year and (b) the Servicer has fulfilled all of the
Servicer's obligations under the Contribution and Servicing Agreement, and
(iii) whether the officer knows of any Defaults by the Issuer under
this 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; CONTRIBUTION AND SERVICING
AGREEMENT.
(a) The Issuer will punctually perform and observe all of its
obligations and agreements contained in this 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 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 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.
SECTION 8.08 NEGATIVE COVENANTS.
The Issuer will not:
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(i) sell, transfer, exchange or otherwise dispose of any portion of
the Trust Property except as expressly permitted by this 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 Indenture or any
Grant hereby to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or permit
any Person to be released from any covenants or obligations under this
Indenture, except as may be expressly permitted hereby, (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 Indenture and the rights of Obligors,
or (C) permit the lien of this 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 or the
Transaction Documents;
(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 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 effectively
assumed the obligations of the Issuer hereunder, that all conditions
precedent provided for in this 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
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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 Indenture or
the Contribution and Servicing Agreement; or
(ix) issue any other securities (other than the Notes and the Class F
Instruments) or incur any indebtedness not contemplated by the Transaction
Documents unless it shall have received from the Rating Agencies a written
confirmation that the issuance of such securities or the incurrence of such
indebtedness 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
(ii) any pending or proposed court or administrative proceeding
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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 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 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 Indenture.
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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.
SECTION 8.14 SWAP AGREEMENT.
The Issuer shall enter into and maintain either the Swap Agreement or,
if the Swap Agreement is terminated, another interest rate hedge agreement for
the Class A-2a Notes, the Class A-3a Notes, the Class B Notes, the Class C-1
Notes, the Class D-1 Notes and the Class E-1 Notes until all interest and
principal of the Class A-2a Notes, the Class A-3a Notes, the Class B Notes, the
Class C-1 Notes, the Class D-1 Notes and the Class E-1 Notes shall have been
paid in full. As additional security hereunder, the Issuer hereby assigns to the
Trustee all of its right, title and interest under the Swap Agreement and each
other interest rate hedge agreement in respect of the Class A-2a Notes, the
Class A-3a Notes, the Class B Notes, the Class C-1 Notes, the Class D-1 Notes
and the Class E-1 Notes. The Issuer acknowledges that, as a result of such
assignment, the Issuer may not, without the prior written consent of the Trustee
(acting at the direction of the Majority of the Voting Rights), exercise any
rights under the Swap Agreement or any other interest rate hedge agreement in
respect of the Class A-2a Notes, the Class A-3a Notes, the Class B Notes, the
Class C-1 Notes, the Class D-1 Notes and the Class E-1 Notes that would
materially adversely affect the rights of the Noteholders, as assignee of the
Issuer's rights under the Swap Agreement and such other interest rate hedge
agreement; PROVIDED that nothing herein shall have the effect of releasing the
Issuer from any of its obligations under the Swap Agreement or any other
interest rate hedge agreement in respect of the Class A-2a Notes, the Class A-3a
Notes, the Class B Notes, the Class C-1 Notes, the Class D-1 Notes and the Class
E-1 Notes nor be construed as requiring the consent of the Trustee or any
Noteholder for the performance of the Issuer's obligations thereunder.
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ARTICLE IX
AMENDMENTS AND SUPPLEMENTAL INDENTURES
SECTION 9.01 AMENDMENTS AND SUPPLEMENTAL INDENTURES.
This 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 Indenture or the Notes
which shall not be materially inconsistent with the provisions of this 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 Indenture under the TIA.
This 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
66?% 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 Indenture or the Notes or of modifying
in any manner the rights of the Holders of Notes; PROVIDED, HOWEVER, that no
amendment to this 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 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 Indenture, the Notes or any
supplemental indenture pursuant to Section 9.01 of this 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 Indenture have been met and (ii) an Opinion of Counsel
stating that the execution of such amendment to this Indenture, the Note, or any
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any supplemental indenture which
affects the Trustee's own rights, duties, protections, or immunities under this
Indenture or otherwise.
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SECTION 9.03 EFFECT OF AMENDMENTS AND SUPPLEMENTAL INDENTURES.
Upon the execution of any amendment to this Indenture, the Notes or
any supplemental indenture under this Article, this 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 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 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 Indenture or the Notes shall comply with the TIA as then in
effect.
SECTION 9.06 REVOCATION AND EFFECT OF CONSENTS.
Subject to this 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.
-72-
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.01 OPTIONAL REDEMPTION; ELECTION TO REDEEM.
(a) 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 Aggregate Discounted
Contract Balance is less than 10% of the Initial Aggregate Discounted Contract
Balance. 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 having been given as provided in the
Indenture, the Notes shall, on the Redemption Date, become due and payable at
the Redemption Price. The Noteholders shall be paid the Redemption Price 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 Noteholders registered
as such on the relevant Record Dates or Redemption Record Date, 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 pursuant to Section 10.01, the Issuer
shall, at least 20 days prior to the Redemption, notify the Trustee and the
Rating Agencies of the Redemption Date and the principal amount of Notes to be
redeemed. The notice shall be accompanied by an Officer's Certificate stating
that the redemption complies with the provisions of this Indenture.
SECTION 10.03 NOTICE OF REDEMPTION BY THE ISSUER.
Notice of 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 Redemption Date, to each holder of a Note, at its address in the
Note Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Note, and that interest on
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;
-73-
(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 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 any defect
therein, to any holder of a Note shall not impair or affect the validity of the
redemption 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.
On or before the Business Day immediately preceding the Redemption
Date, the Issuer shall deposit with the Trustee an amount of monies sufficient
to pay the Redemption Price of all Notes outstanding on the 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.
Notice of redemption in full having been given as provided in Section
10.03, the Notes shall, on the Redemption Date, become due and payable at the
Redemption Price and on the 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.
-74-
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 SATISFACTION AND DISCHARGE OF INDENTURE.
(a) This 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 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 the Swap
Providers; 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 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
Indenture.
(b) Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Issuer under Sections 7.06 and 8.11, and, if money shall
have been deposited
-75-
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
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 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.
[SIGNATURE PAGE FOLLOWS]
-76-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
U.S. BANK NATIONAL ASSOCIATION
(as successor to U.S. Bank Trust National
Association), as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Asst. Vice President
INDENTURE
DATED AS OF MAY 1, 2003
SCHEDULE 1
CONTRACT SCHEDULE
[See Tab 4]
Sch 1
EXHIBIT A-1
TO 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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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.
▇-▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: June 14, 2004 CUSIP No. [ ]
[ ]% ASSET-BACKED NOTE, SERIES 2003-1, CLASS ▇-▇
▇▇▇ RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ] AND
[ ]/100 DOLLARS ($[ ]) 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 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 twelfth day of each month (or if
such date is not a Business Day, the next succeeding Business Day, commencing
June 12, 2003 (each, a "Payment Date"), and not later than June 14, 2004, 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 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, 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 2003-1, Class A-1
with aggregate principal amount of $[ ] and to be issued under an Indenture,
dated as of May 1, 2003 (herein called the "Indenture"), between the Issuer and
U.S. Bank National Association, as trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, and immunities thereunder
of the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and is subject to the
terms, provisions and conditions of the Indenture, to which 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
A-1-1
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 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 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 Indenture.
As provided in the 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
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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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-1-2
This Class A-1 Note and the Indenture may be amended or supplemented as set
forth in the Indenture.
By accepting this Class A-1 Note, the holder hereof irrevocably appoints
the Trustee under the 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 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
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
As provided in the Indenture, this Class A-1 Note and the 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 Indenture or be valid or obligatory for any purpose.
This Class A-1 Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
A-1-3
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By: ________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
Dated:
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
Name:
Title:
A-1-4
EXHIBIT A-2a
TO INDENTURE
------------
[FORM OF CLASS A-2a 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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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-2a 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-2a 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.
▇-▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: June 13, 2005 CUSIP No. [ ]
One-Month LIBOR plus [ ]% ASSET-BACKED NOTE, Series 2003-1, Class A-2a
DVI RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ]
AND [ ]/100 DOLLARS ($[ ]) in monthly installments equal to the sum of
(i) the Class A-2a Monthly Principal, (ii) the Class A-2a Overdue Principal and
(iii) any other principal that may be due hereon pursuant to the Indenture
during an Amortization Event together with (i) the Class A-2a Monthly Interest
and (ii) the Class A-2a Overdue Interest due thereon on the twelfth day of each
month or if such date is not a Business Day, the next succeeding Business Day,
commencing June 12, 2003 (each, a "Payment Date"), and not later than June 13,
2005, 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 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, 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-2a Notes of the
Issuer designated as its One-Month LIBOR plus [ ]% Asset-Backed Notes, Series
2003-1, Class A-2a with aggregate principal amount of $[ ] and to be issued
under an Indenture, dated as of May 1, 2003 (herein called the "Indenture"),
between the Issuer and U.S. Bank National Association, as trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
and immunities thereunder of the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and
is subject to the terms, provisions and conditions of the Indenture, to which
Indenture the Holder of this Note by virtue of the acceptance hereof assents and
by which such Holder is bound.
Each Class A-2a Noteholder by acceptance of its Class A-2a Note (and any
Person which is a beneficial owner of any interest in a Class A-2a Note, by
virtue of such Persons' acquisition
A-2-2
of a beneficial interest therein) agrees to treat the Class A-2a 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-2a Noteholder agrees that it will cause any Person
acquiring an interest in a Class A-2a Note through it to acknowledge the Class
A-2a Notes' characterization as indebtedness and to treat the Class A-2a Notes
as indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Class A-2a Notes, each
prospective transferee acquiring a Class A-2a Note, and each prospective owner
(or transferee thereof) of a beneficial interest in a Class A-2a 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-2a 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-2a
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 Indenture.
As provided in the Indenture and subject to the limitations set forth
therein and above, the transfer of this Class A-2a Note is registrable in the
Note Register, upon surrender of this Class A-2a Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
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-2a 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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-2a 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-2a 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-2a Note and the Indenture may be amended or supplemented as
set forth in the Indenture.
By accepting this Class A-2a Note, the holder hereof irrevocably appoints
the Trustee under the 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 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-2a Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
As provided in the Indenture, this Class A-2a Note and the 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-2a Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
This Class A-2a Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
A-2-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this
instrument to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By: _______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes referred to in the within mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: ________________________________
Authorized Signatory
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇▇
TO INDENTURE
------------
[FORM OF CLASS A-2b 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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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-2b 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-2b 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.
▇-▇▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: June 13, 2005 CUSIP No. [ ]
[ ]% ASSET-BACKED NOTE, Series 2003-1, Class ▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ XIX, L.L.C., a limited liability company (the "Issuer"),
for value received, hereby promises to pay to CEDE & CO. or registered assigns,
the principal sum of [ ] AND [ ]/100 DOLLARS ($[ ]) in monthly installments
equal to the sum of (i) the Class A-2b Monthly Principal, (ii) the Class A-2b
Overdue Principal and (iii) any other principal that may be due hereon pursuant
to the Indenture during an Amortization Event together with (i) the Class A-2b
Monthly Interest and (ii) the Class A-2b Overdue Interest due thereon on the
twelfth day of each month (or if such date is not a Business Day, the next
succeeding Business Day, commencing June 12, 2003 (each, a "Payment Date"), and
not later than June 13, 2005, 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 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, 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-2b Notes of the
Issuer designated as its [ ]% Asset-Backed Notes, Series 2003-1, Class A-2b with
aggregate principal amount of $[ ] and to be issued under an Indenture, dated as
of May 1, 2003 (herein called the "Indenture"), between the Issuer and U.S. Bank
National Association, as trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, and immunities thereunder of
the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and is subject to the
terms, provisions and conditions of the Indenture, to which Indenture the Holder
of this Note by virtue of the acceptance hereof assents and by which such Holder
is bound.
Each Class A-2b Noteholder by acceptance of its Class A-2b Note (and any
Person which is a beneficial owner of any interest in a Class A-2b Note, by
virtue of such Persons' acquisition of a beneficial interest therein) agrees to
treat the Class A-2b Notes (or beneficial interest
A-2b-2
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-2b
Noteholder agrees that it will cause any Person acquiring an interest in a Class
A-2b Note through it to acknowledge the Class A-2b Notes' characterization as
indebtedness and to treat the Class A-2b Notes as indebtedness for such tax
purposes.
Each prospective initial Noteholder acquiring Class A-2b Notes, each
prospective transferee acquiring a Class A-2b Note, and each prospective owner
(or transferee thereof) of a beneficial interest in a Class A-2b 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-2b 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-2b 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 Indenture.
As provided in the Indenture and subject to the limitations set forth
therein and above, the transfer of this Class A-2b Note is registrable in the
Note Register, upon surrender of this Class A-2b Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
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-2b 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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-2b 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-2b Note be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-2b-3
This Class A-2b Note and the Indenture may be amended or supplemented as
set forth in the Indenture.
By accepting this Class A-2b Note, the holder hereof irrevocably appoints
the Trustee under the 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 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-2b Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
As provided in the Indenture, this Class A-2b Note and the 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-2b Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
This Class A-2b Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
A-2b-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By: _________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: _______________________________
Authorized Signatory
Name:
Title:
▇-▇▇-▇
▇▇▇▇▇▇▇ ▇-▇▇
▇▇ ▇▇▇▇▇▇▇▇▇
------------
[FORM OF CLASS A-3a 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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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-3a 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-3a 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.
▇-▇▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: March 14, 2011 CUSIP No. [ ]
One-Month LIBOR plus [ ]% ASSET-BACKED NOTE, Series 2003-1, Class A-3a
DVI RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ] AND [ ]/100 DOLLARS
($[ ]) in monthly installments equal to the sum of (i) the Class A-3a
Monthly Principal, (ii) the Class A-3a Overdue Principal and (iii) any other
principal that may be due hereon pursuant to the Indenture during an
Amortization Event together with (i) the Class A-3a Monthly Interest and (ii)
the Class A-3a Overdue Interest due thereon on the twelfth day of each month or
if such date is not a Business Day, the next succeeding Business Day, commencing
June 12, 2003 (each, a "Payment Date"), and not later than March 14, 2011, 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 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, 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-3a Notes of the
Issuer designated as its One-Month LIBOR plus [ ]% Asset-Backed Notes, Series
2003-1, Class A-3a with aggregate principal amount of $[ ] and to be issued
under an Indenture, dated as of May 1, 2003 (herein called the "Indenture"),
between the Issuer and U.S. Bank National Association, as trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
and immunities thereunder of the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and
is subject to the terms, provisions and conditions of the Indenture, to which
Indenture the Holder of this Note by virtue of the acceptance hereof assents and
by which such Holder is bound.
Each Class A-3a Noteholder by acceptance of its Class A-3a Note (and any
Person which is a beneficial owner of any interest in a Class A-3a Note, by
virtue of such Persons' acquisition
A-3a-2
of a beneficial interest therein) agrees to treat the Class A-3a 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-3a Noteholder agrees that it will cause any Person
acquiring an interest in a Class A-3a Note through it to acknowledge the Class
A-3a Notes' characterization as indebtedness and to treat the Class A-3a Notes
as indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Class A-3a Notes, each
prospective transferee acquiring a Class A-3a Note, and each prospective owner
(or transferee thereof) of a beneficial interest in a Class A-3a 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-3a 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-3a
Note 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 Indenture.
As provided in the Indenture and subject to the limitations set forth
therein and above, the transfer of this Class A-3a Note is registrable in the
Note Register, upon surrender of this Class A-3a Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the 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-3a 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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-3a 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-3a Note be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-3a-3
This Class A-3a Note and the Indenture may be amended or supplemented as
set forth in the Indenture.
By accepting this Class A-3a Note, the holder hereof irrevocably appoints
the Trustee under the 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 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-3a Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
As provided in the Indenture, this Class A-3a Note and the 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-3a Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
This Class A-3a Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
A-3a-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
Name:
Title:
▇-▇▇-▇
▇▇▇▇▇▇▇ ▇-▇▇
TO INDENTURE
------------
[FORM OF CLASS A-3b 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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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-3b 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-3b 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.
▇-▇▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: March 14, 2011 CUSIP No. [ ]
[ ]% ASSET-BACKED NOTE, Series 2003-1, Class ▇-▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ] AND [ ]/100 DOLLARS
($[ ]) in monthly installments equal to the sum of (i) the Class A-3b
Monthly Principal, (ii) the Class A-3b Overdue Principal and (iii) any other
principal that may be due hereon pursuant to the Indenture during an
Amortization Event together with (i) the Class A-3b Monthly Interest and (ii)
the Class A-3b Overdue Interest due thereon on the twelfth day of each month or
if such date is not a Business Day, the next succeeding Business Day, commencing
June 12, 2003 (each, a "Payment Date"), and not later than March 14, 2011, 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
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, 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-3b Notes of the
Issuer designated as its [ ]% Asset-Backed Notes, Series 2003-1, Class A-3b with
aggregate principal amount of $[ ] and to be issued under an Indenture,
dated as of May 1, 2003 (herein called the "Indenture"), between the Issuer and
U.S. Bank National Association, as trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, and immunities thereunder
of the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and is subject to the
terms, provisions and conditions of the Indenture, to which Indenture the Holder
of this Note by virtue of the acceptance hereof assents and by which such Holder
is bound.
Each Class A-3b Noteholder by acceptance of its Class A-3b Note (and any
Person which is a beneficial owner of any interest in a Class A-3b Note, by
virtue of such Persons' acquisition
A-3b-2
of a beneficial interest therein) agrees to treat the Class A-3b 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-3b Noteholder agrees that it will cause any Person
acquiring an interest in a Class A-3b Note through it to acknowledge the Class
A-3b Notes' characterization as indebtedness and to treat the Class A-3b Notes
as indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Class A-3b Notes, each
prospective transferee acquiring a Class A-3b Note, and each prospective owner
(or transferee thereof) of a beneficial interest in a Class A-3b 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-3b 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-3b 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 Indenture.
As provided in the Indenture and subject to the limitations set forth
therein and above, the transfer of this Class A-3b Note is registrable in the
Note Register, upon surrender of this Class A-3b Note for registration of
transfer at the office or agency designated by the Issuer pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the 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-3b 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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-3b 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-3b Note be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-3b-3
This Class A-3b Note and the Indenture may be amended or supplemented as
set forth in the Indenture.
By accepting this Class A-3b Note, the holder hereof irrevocably appoints
the Trustee under the 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 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-3b Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
As provided in the Indenture, this Class A-3b Note and the 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-3b Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
This Class A-3b Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
A-3b-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
Name:
Title:
A-3b-5
EXHIBIT B
TO 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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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.
▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: March 14, 2011 CUSIP No. [ ]
One-Month LIBOR plus [ ]% ASSET-BACKED NOTE, Series 2003-1, CLASS B
DVI RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ] AND [ ]/100 DOLLARS
($[ ]) 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 Indenture during an
Amortization Event together with (i) the Class B Monthly Interest and (ii) the
Class B Overdue Interest due thereon on the twelfth day of each month (or if
such date is not a Business Day, the next succeeding Business Day, commencing
June 12, 2003 (each, a "Payment Date"), and not later than March 14, 2011, 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 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, 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 One-Month LIBOR plus [ ]% Asset-Backed Notes, Series
2003-1, Class B with aggregate principal amount of $[ ] and to be issued
under an Indenture, dated as of May 1, 2003 (herein called the "Indenture"),
between the Issuer and U.S. Bank National Association, as trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
and immunities thereunder of the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and
is subject to the terms, provisions and conditions of the Indenture, to which
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
B-2
beneficial interest therein) agrees to treat the Class B 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 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 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 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 Indenture.
As provided in the 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 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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.
B-3
This Note and the Indenture may be amended or supplemented as set forth in
the Indenture.
By accepting this Note, the holder hereof irrevocably appoints the Trustee
under the 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 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 Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, this Note and the 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 Indenture or be valid or obligatory for any purpose.
This Class B Note does not purport to summarize the Indenture and reference
is made to the 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 Indenture and all amendments
thereto will be provided to any Noteholder, at its expense, upon a written
request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
B-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________
Authorized Signatory
Name:
Title:
B-5
EXHIBIT C-1
TO INDENTURE
------------
[FORM OF CLASS C-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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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-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 C-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.
▇-▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: March 14, 2011 CUSIP No. [ ]
One-Month LIBOR plus [ ]% ASSET-BACKED NOTE, Series 2003-1, CLASS ▇-▇
▇▇▇ RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ] AND [ ]/100
DOLLARS ($[ ]) in monthly installments equal to the sum of (i) the Class C-1
Monthly Principal, (ii) the Class C-1 Overdue Principal and (iii) any other
principal that may be due hereon pursuant to the Indenture during an
Amortization Event together with (i) the Class C-1 Monthly Interest and (ii) the
Class C-1 Overdue Interest due thereon on the twelfth day of each month (or if
such date is not a Business Day, the next succeeding Business Day, commencing
June 12, 2003 (each, a "Payment Date"), and not later than March 14, 2011, 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 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, 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-1 Notes of the
Issuer designated as its One-Month LIBOR plus [ ]% Asset-Backed Notes, Series
2003-1, Class C-1 with aggregate principal amount of $[ ] and to be issued
under an Indenture, dated as of May 1, 2003 (herein called the "Indenture"),
between the Issuer and U.S. Bank National Association, as trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
and immunities thereunder of the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and
is subject to the terms, provisions and conditions of the Indenture, to which
Indenture the Holder of this Note by virtue of the acceptance hereof assents and
by which such Holder is bound.
Each Class C-1 Noteholder by acceptance of its Class C-1 Note (and any
Person which is a beneficial owner of any interest in a Class C-1 Note, by
virtue of such Persons' acquisition of a
C-1-2
beneficial interest therein) agrees to treat the Class C-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 C-1 Noteholder agrees that it will cause any Person acquiring an interest
in a Class C-1 Note through it to acknowledge the Class C-1 Notes'
characterization as indebtedness and to agree to comply with the Indenture as to
treatment of the Class C-1 Notes as indebtedness for such tax purpose.
Each prospective initial Noteholder acquiring Class C-1 Notes, each
prospective transferee acquiring the Class C-1 Notes, and each prospective owner
(or transferee thereof) of a beneficial interest in Class C-1 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-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 C-1
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 Indenture.
As provided in the 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 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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.
C-1-3
This Note and the Indenture may be amended or supplemented as set forth in
the Indenture.
By accepting this Note, the holder hereof irrevocably appoints the Trustee
under the 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 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 Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, this Note and the 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 Indenture or be valid or obligatory for any purpose.
This Class C-1 Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
C-1-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
Name:
Title:
C-1-5
EXHIBIT C-2
TO INDENTURE
------------
[FORM OF CLASS C-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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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-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 C-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.
▇-▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: March 14, 2011 CUSIP No. [ ]
[ ]% ASSET-BACKED NOTE, Series 2003-1, CLASS ▇-▇
▇▇▇ RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ] AND 00/100 DOLLARS
($[ ]) in monthly installments equal to the sum of (i) the Class C-2
Monthly Principal, (ii) the Class C-2 Overdue Principal and (iii) any other
principal that may be due hereon pursuant to the Indenture during an
Amortization Event together with (i) the Class C-2 Monthly Interest and (ii) the
Class C-2 Overdue Interest due thereon on the twelfth day of each month (or if
such date is not a Business Day, the next succeeding Business Day, commencing
June 12, 2003 (each, a "Payment Date"), and not later than March 14, 2011, 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
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, 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-2 Notes of the
Issuer designated as its [ ]% Asset-Backed Notes, Series 2003-1, Class C-2
with aggregate principal amount of $[ ] and to be issued under an Indenture,
dated as of May 1, 2003 (herein called the "Indenture"), between the Issuer and
U.S. Bank National Association, as trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, and immunities thereunder
of the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and is subject to the terms,
provisions and conditions of the Indenture, to which Indenture the Holder of
this Note by virtue of the acceptance hereof assents and by which such Holder is
bound.
Each Class C-2 Noteholder by acceptance of its Class C-2 Note (and any
Person which is a beneficial owner of any interest in a Class C-2 Note, by
virtue of such Persons' acquisition of a
C-2-2
beneficial interest therein) agrees to treat the Class C-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 C-2 Noteholder agrees that it will cause any Person acquiring an interest
in a Class C-2 Note through it to acknowledge the Class C-2 Notes'
characterization as indebtedness and to agree to comply with the Indenture as to
treatment of the Class C-2 Notes as indebtedness for such tax purpose.
Each prospective initial Noteholder acquiring Class C-2 Notes, each
prospective transferee acquiring the Class C-2 Notes, and each prospective owner
(or transferee thereof) of a beneficial interest in Class C-2 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-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 C-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 Indenture.
As provided in the 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 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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.
C-2-3
This Note and the Indenture may be amended or supplemented as set forth in
the Indenture.
By accepting this Note, the holder hereof irrevocably appoints the Trustee
under the 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 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 Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, this Note and the 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 Indenture or be valid or obligatory for any purpose.
This Class C-2 Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
C-2-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO INDENTURE
------------
[FORM OF CLASS D-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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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-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 D-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.
▇-▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: March 14, 2011 CUSIP No. [ ]
One-Month LIBOR plus [ ]% ASSET-BACKED NOTE, Series 2003-1, CLASS ▇-▇
▇▇▇ RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ] AND [ ]/100
DOLLARS ($[ ]) in monthly installments equal to the sum of (i) the Class D-1
Monthly Principal, (ii) the Class D-1 Overdue Principal and (iii) any other
principal that may be due hereon pursuant to the Indenture during an
Amortization Event together with (i) the Class D-1 Monthly Interest and (ii) the
Class D-1 Overdue Interest due thereon on the twelfth day of each month (or if
such date is not a Business Day, the next succeeding Business Day, commencing
June 12, 2003 (each, a "Payment Date"), and not later than March 14, 2011, 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 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, 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-1 Notes of the
Issuer designated as its One-Month LIBOR plus [ ]% Asset-Backed Notes, Series
2003-1, Class D-1 with aggregate principal amount of $[ ] and to be issued
under an Indenture dated as of May 1, 2003 (herein called the "Indenture"),
between the Issuer and U.S. Bank National Association, as trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties,
and immunities thereunder of the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and
is subject to the terms, provisions and conditions of the Indenture, to which
Indenture the Holder of this Note by virtue of the acceptance hereof assents and
by which such Holder is bound.
Each Class D-1 Noteholder by acceptance of its Class D-1 Note (and any
Person that is a beneficial owner of any interest in a Class D-1 Note, by virtue
of such Person's acquisition of a
D-1-2
beneficial interest therein) agrees to treat the Class D-1 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 D-1 Noteholder agrees that it
will cause any Person acquiring an interest in a Class D-1 Note through it to
acknowledge the Class D-1 Notes' characterization as indebtedness and to agree
to comply with the Indenture as to treatment of the Class D-1 Notes as
indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Class D-1 Notes, each
prospective transferee acquiring the Class D-1 Notes, and each prospective owner
(or transferee thereof) of a beneficial interest in Class D-1 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 D-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 D-1
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 Indenture.
As provided in the 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 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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.
D-1-3
This Note and the Indenture may be amended or supplemented as set forth in
the Indenture.
By accepting this Note, the holder hereof irrevocably appoints the Trustee
under the 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 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 Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, this Note and the 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 Indenture or be valid or obligatory for any purpose.
This Class D-1 Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
D-1-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO INDENTURE
------------
[FORM OF CLASS D-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 INDENTURE.
NEITHER THIS NOTE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, OR
DELIVERED, EXCEPT AS PERMITTED UNDER THE 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-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 D-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.
▇-▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: March 14, 2011 CUSIP No. [ ]
[ ]% ASSET-BACKED NOTE, Series 2003-1, CLASS ▇-▇
▇▇▇ RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ] AND [ ]/100 DOLLARS
($[ ]) in monthly installments equal to the sum of (i) the Class D-2
Monthly Principal, (ii) the Class D-2 Overdue Principal and (iii) any other
principal that may be due hereon pursuant to the Indenture during an
Amortization Event together with (i) the Class D-2 Monthly Interest and (ii) the
Class D-2 Overdue Interest due thereon on the twelfth day of each month (or if
such date is not a Business Day, the next succeeding Business Day, commencing
June 12, 2003 (each, a "Payment Date"), and not later than March 14, 2011, 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
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, 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-2 Notes of the
Issuer designated as its [ ]% Asset-Backed Notes, Series 2003-1, Class D-2 with
aggregate principal amount of $[ ] and to be issued under an Indenture
dated as of May 1, 2003 (herein called the "Indenture"), between the Issuer and
U.S. Bank National Association, as trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, and immunities thereunder
of the Issuer, the Trustee, and the holders 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 Indenture. This Note is issued under and is subject to the terms,
provisions and conditions of the Indenture, to which Indenture the Holder of
this Note by virtue of the acceptance hereof assents and by which such Holder is
bound.
Each Class D-2 Noteholder by acceptance of its Class D-2 Note (and any
Person that is a beneficial owner of any interest in a Class D-2 Note, by virtue
of such Person's acquisition of a
D-2-2
beneficial interest therein) agrees to treat the Class D-2 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 D-2 Noteholder agrees that it
will cause any Person acquiring an interest in a Class D-2 Note through it to
acknowledge the Class D-2 Notes' characterization as indebtedness and to agree
to comply with the Indenture as to treatment of the Class D-2 Notes as
indebtedness for such tax purposes.
Each prospective initial Noteholder acquiring Class D-2 Notes, each
prospective transferee acquiring the Class D-2 Notes, and each prospective owner
(or transferee thereof) of a beneficial interest in Class D-2 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 D-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 D-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 Indenture.
As provided in the 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 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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.
D-2-3
This Note and the Indenture may be amended or supplemented as set forth
in the Indenture.
By accepting this Note, the holder hereof irrevocably appoints the
Trustee under the 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 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
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
As provided in the Indenture, this Note and the 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 Indenture or be valid or obligatory for any purpose.
This Class D-2 Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
D-2-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
Name:
Title:
D-2-5
EXHIBIT E-1
TO INDENTURE
------------
[FORM OF CLASS E-1 NOTES]
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 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-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 E-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.
THIS CLASS E-1 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-1 NOTES TO SUCH TRANSFEREE, 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, CLASS C AND CLASS D 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.
▇-▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: March 14, 2011 CUSIP No. [ ]
One-Month LIBOR plus [ ]% ASSET-BACKED NOTE, Series 2003-1, CLASS ▇-▇
▇▇▇ RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to U.S. Bank National
Association, as Custodian (as defined in the Custodial Receipt for the E-1
Notes, dated May 22, 2003), or registered assigns, the principal sum of
[ ] AND [ ]/100 DOLLARS ($[ ]) in monthly
installments equal to the sum of (i) the Class E-1 Monthly Principal, (ii) the
Class E-1 Overdue Principal and (iii) any other principal that may be due hereon
pursuant to the Indenture during an Amortization Event together with (i) the
Class E-1 Monthly Interest and (ii) the Class E-1 Overdue Interest due thereon
on the twelfth day of each month (or if such date is not a Business Day, the
next succeeding Business Day, commencing June 12, 2003 (each, a "Payment Date"),
and not later than March 14, 2011, 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 Indenture.
THE RIGHTS TO RECEIVE PAYMENTS WITH RESPECT TO THIS CLASS E-1 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 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-1 Notes of the
Issuer designated as its one-month LIBOR plus [ ]% Asset-Backed Notes, Series
2003-1, Class E-1 with aggregate principal amount of $[ ] and to be
issued under an Indenture dated as of May 1, 2003 (herein called the
"Indenture"), between the Issuer and U.S. Bank National Association, as trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, and immunities thereunder of the Issuer, the Trustee, and the
holders 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
E-1-2
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 Indenture. This Note is issued under and
is subject to the terms, provisions and conditions of the Indenture, to which
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-1Noteholder by acceptance of its
Class E-1Note (and any Person that is a beneficial owner of any interest in a
Class E-1 Note, by virtue of such Person's acquisition of a beneficial interest
therein) agrees to treat the Class E-1 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-1 Note through it to acknowledge the
Class E-1 Notes' characterization as indebtedness and to agree to comply with
this Indenture as to treatment of the Class E-1 Notes as indebtedness for such
tax purposes.
Each prospective initial Noteholder acquiring Notes, each prospective
transferee acquiring the Class E-1 Notes, and each prospective owner (or
transferee thereof) of a beneficial interest in Class E-1 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-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 E-1
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 Indenture.
As provided in the 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 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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
E-1-3
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 Indenture may be amended or supplemented as set forth in
the Indenture.
By accepting this Note, the holder hereof irrevocably appoints the Trustee
under the 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 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 Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, this Note and the 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 Indenture or be valid or obligatory for any purpose.
This Class E-1 Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
E-1-4
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
Name:
Title:
E-1-5
EXHIBIT E-2
TO INDENTURE
------------
[FORM OF CLASS E-2 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 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-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 E-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.
THIS CLASS E-2 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-2 NOTES TO SUCH TRANSFEREE, SUBSTANTIALLY ALL OF
E-2-1
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, CLASS C AND
CLASS D 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.
▇-▇-▇
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $[ ]
Due: March 14, 2011 CUSIP No. [ ]
[ ]% ASSET-BACKED NOTE, Series 2003-1, CLASS ▇-▇
▇▇▇ RECEIVABLES XIX, L.L.C., a Delaware limited liability company (the
"Issuer"), for value received, hereby promises to pay to CEDE & CO. or
registered assigns, the principal sum of [ ] AND
[ ]/100 DOLLARS ($[ ]) in monthly installments equal to the sum of (i)
the Class E-2 Monthly Principal, (ii) the Class E-2 Overdue Principal and (iii)
any other principal that may be due hereon pursuant to the Indenture during an
Amortization Event together with (i) the Class E-2 Monthly Interest and (ii) the
Class E-2 Overdue Interest due thereon on the twelfth day of each month (or if
such date is not a Business Day, the next succeeding Business Day, commencing
June 12, 2003 (each, a "Payment Date"), and not later than March 14, 2011, 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
Indenture.
THE RIGHTS TO RECEIVE PAYMENTS WITH RESPECT TO THIS CLASS E-2 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 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-2 Notes of the
Issuer designated as its [ ]% Asset-Backed Notes, Series 2003-1, Class E-2 with
aggregate principal amount of $[ ] and to be issued under an Indenture dated
as of May 1, 2003 (herein called the "Indenture"), between the Issuer and U.S.
Bank National Association, as trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, and immunities thereunder of
the Issuer, the Trustee, and the holders 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
E-2-3
of certain other amounts and certain other obligations as set forth in the
Indenture. This Note is issued under and is subject to the terms, provisions and
conditions of the Indenture, to which 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-2 Noteholder by acceptance of its
Class E-2 Note (and any Person that is a beneficial owner of any interest in a
Class E-2 Note, by virtue of such Person's acquisition of a beneficial interest
therein) agrees to treat the Class E-2 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-2 Note through it to acknowledge the
Class E-2 Notes' characterization as indebtedness and to agree to comply with
this Indenture as to treatment of the Class E-2 Notes as indebtedness for such
tax purposes.
Each prospective initial Noteholder acquiring Notes, each prospective
transferee acquiring the Class E-2 Notes, and each prospective owner (or
transferee thereof) of a beneficial interest in Class E-2 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-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 E-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 Indenture.
As provided in the 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 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 by the Issuer, in whole but not in part, at the
redemption price set forth in the Indenture on any Payment Date on which the
Aggregate Discounted Contract Balance is less than 10% of the Initial Aggregate
Discounted Contract Balance in the manner provided in the Indenture.
The Notes are issuable only in registered form without coupons in
denominations as provided in the 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.
E-2-4
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 Indenture may be amended or supplemented as set forth in
the Indenture.
By accepting this Note, the holder hereof irrevocably appoints the Trustee
under the 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 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 Indenture
and not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
As provided in the Indenture, this Note and the 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 Indenture or be valid or obligatory for any purpose.
This Class E-2 Note does not purport to summarize the Indenture and
reference is made to the 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 Indenture and all
amendments thereto will be provided to any Noteholder, at its expense, upon a
written request to the Trustee, U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance.
[Signature page follows]
E-2-5
IN WITNESS WHEREOF, DVI RECEIVABLES XIX, L.L.C. has caused this instrument
to be duly executed.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its Managing Member
By:_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: EVP and CFO
This is one of the Notes
referred to in the within
mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________
Authorized Signatory
Name:
Title:
E-2-6
EXHIBIT F
TO INDENTURE
------------
[FORM OF CLASS F INSTRUMENT TO BE PROVIDED WITH ANY
SUPPLEMENT PURSUANT TO WHICH CLASS F INSTRUMENTS ARE ISSUED]
F-1
EXHIBIT G
TO INDENTURE
------------
INVESTMENT LETTER
-----------------
_______________, 200_
DVI Receivables XIX, L.L.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re:$ % Asset-Backed Notes, Series 2003-1, Class
CUSIP Number
------------
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 Indenture, dated as of May 1, 2003 (the "INDENTURE"; all capitalized
terms used herein without definition shall have the meanings ascribed to such
terms in the Indenture), between DVI Receivables XIX, L.L.C. (the "ISSUER") and
U.S. Bank 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 Indenture that:
G-1
(a) The Purchaser agrees to be bound, as Noteholder, by all of the
terms, covenants and conditions of the 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 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.
G-2
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.
5. 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.
6. [With respect to any Class E Note, the Purchaser agrees that it
shall not, and the Purchaser agrees that it will cause any person to which it
transfers an interest in any such Class E Note to agree not to, transfer, sell,
pledge, assign or otherwise grant a security interest in any Note to any Person
which is not a United States person within the meaning of Section 7701(a)(30) of
the Code, and shall not transfer, sell, pledge, assign or otherwise grant a
security interest in any such Note unless it obtains from such Person a Tax
Certificate in substantially the form attached to the Indenture. With respect to
any Class E Note, the Purchaser hereby certifies that it is not a pension,
profit sharing or employee benefit plan or other tax exempt entity and that it
is a United States person within the meaning of Section 7701(a)(30) of the
Code].
7. The Purchaser agrees to treat the Notes, and agrees to cause any
person to whom it transfers any interest in any Note to agree to treat, for
purposes of federal, state and local income or franchise taxes (and any other
tax imposed on or measured by income) as indebtedness.
8. 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. _______________________________
G-3
EXHIBIT H
[Reserved.]
H-1
EXHIBIT I
TAX CERTIFICATE
[With respect to Class E Notes]
The undersigned hereby certifies and represents as follows to the parties
listed in the 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.
I-1
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 Indenture.
I-2
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:____________________________
I-3
APPENDIX I
----------
The following definition of terms used in the Contribution and
Servicing Agreement, the Indenture, the Subsequent Contract Transfer Agreement,
any Placement Agency 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 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, 10% or more of any class of the voting stock
(or, in the case of an entity that is not a corporation, 10% of the equity
interest) of such specified Person, or (iii) 10% or more of the voting stock
(or, in the case of an entity that is not a corporation, 10% 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.
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.
APPLICABLE MARGIN: means with respect to the Class A-2a Notes,
one-month LIBOR plus 0.15%; with respect to the Class A-3a Notes, one-month
LIBOR plus 0.50%; with respect to the Class B Notes, one-month LIBOR plus 1.00%;
with respect to the Class C-1 Notes, one-month LIBOR plus 1.70%; with respect to
the Class D-1 Notes, one-month LIBOR plus 1.95%; and, with respect to the Class
E-1 Notes, one-month LIBOR plus 7.00%;
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, any Instrumentholder or such other
Person, as the case may be, who is authorized to act for that party.
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 Indenture.
2
BALLOON PAYMENT: means, with respect to any Contract, a final Contract
Payment that is significantly larger than the other scheduled payments related
to such Contract. Each Balloon Payment shall be an Eligible Balloon Payment or a
Purchase Option Payment.
BOOK-ENTRY CUSTODIAN: means, the Person appointed pursuant to the
terms of the 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 Indenture.
BROKER AGREEMENT RIGHTS: means any rights held by DVI under any
purchase or assignment agreement by and between DVI and a third party broker or
originator relating to the purchase by DVI of any lease or loan originated by
such third party.
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 Indenture.
CLASS A MONTHLY INTEREST: means, for any Payment Date, the sum of the
Class A-1 Monthly Interest, the Class A-2a Monthly Interest, the Class A-2b
Monthly Interest, the Class A-3a Monthly Interest and the Class A-3b Monthly
Interest.
CLASS A MONTHLY PRINCIPAL: means, for any Payment Date the sum of the
Class A-1 Monthly Principal, the Class A-2a Monthly Principal, the Class A-2b
Monthly Principal, the Class A-3a Monthly Principal and the Class A-3b Monthly
Principal due or payable on that Payment Date.
CLASS A NOTE BALANCE: means, as of the Closing Date, $385,630,000 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.
CLASS A NOTES: means any Class A-1 Note, Class A-2a Note, Class A-2b
Note, Class A-3a Note or Class A-3b Note described in Article II of, and
authorized by, and authenticated and delivered under, the 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)
3
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 a fraction the numerator of which is the
Class A Note Balance on the closing date and the denominator of which is the
difference between the Initial Aggregate Discounted Contract Balance and the
Issuer's Retained Interest.
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, $71,810,000 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 one and 27,300/100,000 percent (1.27300%)
per annum based upon the actual number of days elapsed in a 360 day year.
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 Indenture.
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.
4
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
June 14, 2004.
CLASS A-2 NOTE BALANCE: means the sum of Class A-2a Note Balance and
the Class A-2b Note Balance.
CLASS A-2 NOTEHOLDER: means the Class A-2a Noteholder and/or a Class
A-2b Noteholder, as the case may be.
CLASS A-2A 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, (ii) the Class A-2a Note Rate and (iii) the Class A-2a
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-2a Notes on such Payment Date. The Class A-2a 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-2A 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-2a 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-2a Monthly Principal due on any Payment Date exceed the Class A-2a
Note Balance, and (C) on the Class A-2a Stated Maturity Date, the entire amount
of the then outstanding Class A-2a Note Balance.
CLASS A-2A NOTE BALANCE: means, as of the Closing Date, $25,200,000
and thereafter shall equal the Class A-2a Note Balance as of the Closing Date
reduced by all principal payments on all of the Class A-2a Notes.
CLASS A-2A NOTE RATE: means One-Month LIBOR plus 15/100 percent
(0.15%) per annum based upon the actual number of days elapsed in a 360 day
year.
CLASS A-2A NOTEHOLDER: means, at any time, any Person in whose name a
Class A-2a Note is registered in the Note Register.
CLASS A-2A NOTES: means any Class A-2a Notes described in Article II
of, and authorized by, and authenticated and delivered under, the Indenture.
CLASS A-2A OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class A-2a Monthly Interest payable on
all prior Payment Dates over
5
(b) the aggregate amount of interest actually paid to the Class A-2a Noteholders
on all prior Payment Dates.
CLASS A-2A OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A-2a Monthly Principal due
on the Class A-2a Notes on all prior Payment Dates over (b) the aggregate amount
of principal actually paid to the Class A-2a Noteholders on all prior Payment
Dates.
CLASS A-2A STATED MATURITY DATE: means the Payment Date occurring on
June 13, 2005.
CLASS A-2B MONTHLY INTEREST: means, for any Payment Date (except the
Initial Payment Date), the product of (i) one-twelfth, (ii) the Class A-2b Note
Rate and (iii) the Class A-2b 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-2b Notes on such Payment
Date. The Class A-2b 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-2B 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-2b 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-2b Monthly Principal due on any Payment Date exceed the Class A-2b
Note Balance, and (C) on the Class A-2b Stated Maturity Date, the entire amount
of the then outstanding Class A-2b Note Balance.
CLASS A-2B NOTE BALANCE: means, as of the Closing Date, $27,000,000
and thereafter shall equal the Class A-2b Note Balance as of the Closing Date
reduced by all principal payments on all of the Class A-2b Notes.
CLASS A-2B NOTE RATE: means one and 57/100 percent (1.57%) per annum
based upon thirty days elapsed each month in a twelve-month year.
CLASS A-2B NOTEHOLDER: means, at any time, any Person in whose name a
Class A-2b Note is registered in the Note Register.
CLASS A-2B NOTES: means any Class A-2b Notes described in Article II
of, and authorized by, and authenticated and delivered under, the Indenture.
CLASS A-2B OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class A-2b Monthly Interest payable on
all prior Payment Dates over (b) the aggregate amount of interest actually paid
to the Class A-2b Noteholders on all prior Payment Dates.
CLASS A-2B OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A-2b Monthly Principal due
on the Class A-2b Notes on all
6
prior Payment Dates over (b) the aggregate amount of principal actually paid to
the Class A-2b Noteholders on all prior Payment Dates.
CLASS A-2B STATED MATURITY DATE: means the Payment Date occurring on
June 13, 2005.
CLASS A-3 NOTE BALANCE: means the sum of the Class A-3a Note Balance
and the Class A-3b Note Balance.
CLASS A-3 NOTEHOLDER: means a Class A-3a Noteholder and/or a Class
A-3b Noteholder, as the case may be.
CLASS A-3A 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, (ii) the Class A-3a Note Rate and (iii) the Class A-3a
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-3a Notes on such Payment Date. The Class A-3a 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-3A 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-3a 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-3a Monthly Principal due on any Payment Date exceed the Class A-3a
Note Balance, and (C) on the Class A-3a Stated Maturity Date, the entire amount
of the then outstanding Class A-3a Note Balance.
CLASS A-3A NOTE BALANCE: means, as of the Closing Date, $229,620,000
and thereafter shall equal the Class A-3a Note Balance as of the Closing Date
reduced by all principal payments on all of the Class A-3a Notes.
CLASS A-3A NOTE RATE: means One-Month LIBOR plus 50/100 percent
(0.50%) per annum based upon the actual number of days elapsed in a 360 day
year.
CLASS A-3A NOTEHOLDER: means, at any time, any Person in whose name a
Class A-3a Note is registered in the Note Register.
CLASS A-3A NOTES: means any Class A-3a Notes described in Article II
of, and authorized by, and authenticated and delivered under, the Indenture.
CLASS A-3A OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class A-3a Monthly Interest payable on
all prior Payment Dates over (b) the aggregate amount of interest actually paid
to the Class A-3a Noteholders on all prior Payment Dates.
7
CLASS A-3A OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A-3a Monthly Principal due
on the Class A-3a Notes on all prior Payment Dates over (b) the aggregate amount
of principal actually paid to the Class A-3a Noteholders on all prior Payment
Dates.
CLASS A-3A STATED MATURITY DATE: means the Payment Date occurring on
March 14, 2011.
CLASS A-3B MONTHLY INTEREST: means, for any Payment Date (except the
Initial Payment Date), the product of (i) one-twelfth, (ii) the Class A-3b Note
Rate and (iii) the Class A-3b 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-3b Notes on such Payment
Date. The Class A-3b 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-3B 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-3b 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-3b Monthly Principal due on any Payment Date exceed the Class A-3b
Note Balance, and (C) on the Class A-3b Stated Maturity Date, the entire amount
of the then outstanding Class A-3b Note Balance.
CLASS A-3B NOTE BALANCE: means, as of the Closing Date, $32,000,000
and thereafter shall equal the Class A-3b Note Balance as of the Closing Date
reduced by all principal payments on all of the Class A-3b Notes.
CLASS A-3B NOTE RATE: means two and 78/100 percent (2.78%) per annum
based upon thirty days elapsed each month in a twelve-month year.
CLASS A-3B NOTEHOLDER: means, at any time, any, Person in whose name a
Class A-3b Note is registered in the Note Register.
CLASS A-3B NOTES: means any Class A-3b Notes described in Article II
of, and authorized by, and authenticated and delivered under, the Indenture.
CLASS A-3B OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class A-3b Monthly Interest payable on
all prior Payment Dates over (b) the aggregate amount of interest actually paid
to the Class A-3b Noteholders on all prior Payment Dates.
CLASS A-3B OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class A-3b Monthly Principal due
on the Class A-3b Notes on all prior Payment Dates over (b) the aggregate amount
of principal actually paid to the Class A-3b Noteholders on all prior Payment
Dates.
8
CLASS A-3B STATED MATURITY DATE: means the Payment Date occurring on
March 14, 2011.
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 Indenture.
CLASS B 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, (ii) the Class B Note Rate and (iii) the Class B 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 B Notes on such Payment Date. The Class B 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 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, PROVIDED, HOWEVER, that in no case shall the Class B
Monthly Principal due on any Payment Date exceed the Class B Note Balance, 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, $17,010,000 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 One-Month LIBOR plus one and 00/100 percent
(1.00%) per annum based upon the actual number of days elapsed in a 360 day
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 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.
9
CLASS B PERCENTAGE: means a fraction the numerator of which is the
Class B Note Balance on the closing date and the denominator of which is the
difference between the Initial Aggregate Discounted Contract Balance and the
Issuer's Retained Interest.
CLASS B STATED MATURITY DATE: means the Payment Date occurring on
March 14, 2011.
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 Indenture.
CLASS C MONTHLY INTEREST: means, for any Payment Date, the sum of the
Class C-1 Monthly Interest and the Class C-2 Monthly Interest.
CLASS C MONTHLY PRINCIPAL: means, for any Payment Date, the sum of the
Class C-1 Monthly Principal and the Class C-2 Monthly Principal due or payable
on that Payment Date.
CLASS C NOTE BALANCE: means, as of the Closing Date, $14,740,000 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 NOTEHOLDER: means, at any time, any Person in whose name a
Class C Note is registered in the Note Register.
CLASS C NOTES: means any Class C-1 Notes and Class C-2 Notes described
in Article II of, and authorized by, and authenticated and delivered under, the
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 a fraction the numerator of which is the
Class C Note Balance on the closing date and the denominator of which is the
difference between the Initial Aggregate Discounted Contract Balance and the
Issuer's Retained Interest.
CLASS C-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, (ii) the Class C-1 Note Rate and (iii) the Class C-1 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-1 Note on such Payment Date. The Class C-1 Monthly
Interest, with respect to each Payment Date, shall accrue from and including the
prior Payment Date to but
10
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 C-1 MONTHLY PRINCIPAL: means, (A) on any Payment Date other than
the Class C-1 Stated Maturity Date, an amount equal to the product of (x) the
Class C-1 Percentage and (y) the Monthly Principal PROVIDED, HOWEVER, that in no
case shall the Class C-1 Monthly Principal due on any Payment Date exceed the
Class C-1 Note Balance, and (B) on the Class C-1 Stated Maturity Date, the
entire amount of the then outstanding Class C-1 Note Balance.
CLASS C-1 NOTE BALANCE: means, as of the Closing Date, $5,740,000 and
thereafter shall equal the Class C-1 Note Balance as of the Closing Date reduced
by all principal payments on the Class C-1 Notes.
CLASS C-1 NOTEHOLDER: means, at any time, any Person in whose name a
Class C-1 Note is registered in the Note Register. CLASS C-1 NOTE RATE: means
One-Month LIBOR plus one and 70/100 percent (1.70%) per annum based upon the
actual number of days elapsed in a 360 day year.
CLASS C-1 NOTES: means any Class C-1 Notes described in Article II of,
and authorized by, and authenticated and delivered under, the Indenture.
CLASS C-1 OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class C-1 Monthly Interest payable on all
prior Payment Dates over (b) the aggregate amount of interest actually paid to
the Class C-1 Noteholders on all prior Payment Dates.
CLASS C-1 OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class C-1 Monthly Principal due
on the Class C-1 Notes on all prior Payment Dates over (b) the aggregate amount
of principal actually paid to the Class C-1 Noteholders on all prior Payment
Dates.
CLASS C-1 STATED MATURITY DATE: means the Payment Date occurring on
March 14, 2011.
CLASS C-2 MONTHLY INTEREST: means, for any Payment Date (except the
Initial Payment Date), the product of (i) one-twelfth, (ii) the Class C-2 Note
Rate and (iii) the Class C-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 C-2 Notes on such Payment
Date. The Class C-2 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 C-2 MONTHLY PRINCIPAL: means, (A) on any Payment Date other than
the Class C-2 Stated Maturity Date, an amount equal to the product of (x) the
Class C-2 Percentage and (y) the Monthly Principal PROVIDED, HOWEVER, that in no
case shall the Class C-2 Monthly
11
Principal due on any Payment Date exceed the Class C-2 Note Balance, and (B) on
the Class C-2 Stated Maturity Date, the entire amount of the then outstanding
Class C-2 Note Balance.
CLASS C-2 NOTE BALANCE: means, as of the Closing Date, $9,000,000 and
thereafter shall equal the Class C-2 Note Balance as of the Closing Date reduced
by all principal payments on the Class C-2 Notes.
CLASS C-2 NOTEHOLDER: means, at any time, any Person in whose name a
Class C-2 Note is registered in the Note Register.
CLASS C-2 NOTE RATE: means three and 62/100 percent (3.62%) per annum
based upon thirty days elapsed in a twelve-month year.
CLASS C-2 NOTES: means any Class C-2 Notes described in Article II of,
and authorized by, and authenticated and delivered under, the Indenture.
CLASS C-2 OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class C-2 Monthly Interest payable on all
prior Payment Dates over (b) the aggregate amount of interest actually paid to
the Class C-2 Noteholders on all prior Payment Dates.
CLASS C-2 OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class C-2 Monthly Principal due
on the Class C-2 Notes on all prior Payment Dates over (b) the aggregate amount
of principal actually paid to the Class C-2 Noteholders on all prior Payment
Dates.
CLASS C-2 STATED MATURITY DATE: means the Payment Date occurring on
March 14, 2011.
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 Indenture.
CLASS D MONTHLY INTEREST: means, for any Payment Date, the sum of the
Class D-1 Monthly Interest and the Class D-2 Monthly Interest.
CLASS D MONTHLY PRINCIPAL: means, for any Payment Date, the sum of the
Class D-1 Monthly Principal and the Class D-2 Monthly Principal due on that
Payment Date.
CLASS D NOTE BALANCE: means, as of the Closing Date, $11,340,000 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 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-1 Notes and Class D-2 described in
Article II of, and authorized by, and authenticated and delivered under, the
Indenture.
12
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 a fraction the numerator of which is the
Class D Note Balance on the closing date and the denominator of which is the
difference between the Initial Aggregate Discounted Contract Balance and the
Issuer's Retained Interest.
CLASS D-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, (ii) the Class D-1 Note Rate and (iii) the Class D-1 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-1 Notes on such Payment Date. The Class D-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 including the Closing Date to but
excluding such Initial Payment Date.
CLASS D-1 MONTHLY PRINCIPAL: means (A) on any Payment Date other than
the Class D-1 Stated Maturity Date, the product of (x) the Class D-1 Percentage
and (y) Monthly Principal, PROVIDED, HOWEVER, that in no case shall the Class
D-1 Monthly Principal due on any Payment Date exceed the Class D-1 Note Balance,
and (B) on the Class D-1 Stated Maturity Date, the entire amount of the then
outstanding Class D-1 Note Balance.
CLASS D-1 NOTE BALANCE: means, as of the Closing Date, $6,340,000 and
thereafter shall equal the Class D-1 Note Balance as of the Closing Date reduced
by all principal payments on the Class D-1 Notes.
CLASS D-1 NOTE RATE: means One-Month LIBOR plus one and 95/100 percent
(1.95%) per annum based upon the actual number of days elapsed in a 360 day
year.
CLASS D-1 NOTEHOLDER: means at any time, any Person in whose name a
Class D-1 Note is registered in the Note Register.
CLASS D-1 NOTES: means any Class D-1 Notes described in Article II of,
and authorized by, and authenticated and delivered under, the Indenture.
CLASS D-1 OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class D-1 Monthly Interest payable on all
prior Payment Dates over (b) the aggregate amount of interest actually paid to
the Class D-1 Noteholders on all prior Payment Dates.
13
CLASS D-1 OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class D-1 Monthly Principal due
on the Class D-1 Notes on all prior Payment Dates over (b) the aggregate amount
of principal actually paid to the Class D-1 Noteholders on all prior Payment
Dates.
CLASS D STATED MATURITY DATE: means the Payment Date occurring on
March 14, 2011.
CLASS D-2 MONTHLY INTEREST: means, for any Payment Date (except the
Initial Payment Date), the product of (i) one-twelfth, (ii) the Class D-2 Note
Rate and (iii) the Class D-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 D-2 Notes on such Payment
Date. The Class D-2 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 D-2 MONTHLY PRINCIPAL: means (A) on any Payment Date other than
the Class D-2 Stated Maturity Date, the product of (x) the Class D-2 Percentage
and (y) Monthly Principal, PROVIDED, HOWEVER, that in no case shall the Class
D-2 Monthly Principal due on any Payment Date exceed the Class D-2 Note Balance,
and (B) on the Class D-2 Stated Maturity Date, the entire amount of the then
outstanding Class D-2 Note Balance.
CLASS D-2 NOTE BALANCE: means, as of the Closing Date, $5,000,000 and
thereafter shall equal the Class D-2 Note Balance as of the Closing Date reduced
by all principal payments on the Class D-2 Notes.
CLASS D-2 NOTE RATE: means three and 86/100 percent (3.86%) per annum
based upon thirty days elapsed each month in a twelve-month year.
CLASS D-2 NOTEHOLDER: means at any time, any Person in whose name a
Class D-2 Note is registered in the Note Register.
CLASS D-2 NOTES: means any Class D-2 Notes described in Article II of,
and authorized by, and authenticated and delivered under, the Indenture.
CLASS D-2 OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class D-2 Monthly Interest payable on all
prior Payment Dates over (b) the aggregate amount of interest actually paid to
the Class D-2 Noteholders on all prior Payment Dates.
CLASS D-2 OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class D-2 Monthly Principal due
on the Class D-2 Notes on all prior Payment Dates over (b) the aggregate amount
of principal actually paid to the Class D-2 Noteholders on all prior Payment
Dates.
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 Indenture.
14
CLASS E MONTHLY INTEREST: means, for any Payment Date, the sum of the
Class E-1 Monthly Interest and the Class E-2 Monthly Interest.
CLASS E MONTHLY PRINCIPAL: means, for any Payment Date, the sum of the
E-1 Monthly Principal and the Class E-2 Monthly Principal due on that Payment
Date.
CLASS E NOTE BALANCE: means, as of the Closing Date, $11,340,000 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 NOTEHOLDER: means at any time, any Person in whose name a
Class E Note is registered in the Note Register.
CLASS E NOTES: means any Class E-1 Notes and the Class E-2 Notes
described in Article II of, and authorized by, and authenticated and delivered
under, the 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 a fraction the numerator of which is the
Class E Note Balance on the closing date and the denominator of which is the
difference between the Initial Aggregate Discounted Contract Balance and the
Issuer's Retained Interest.
CLASS E-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, (ii) the Class E-1 Note Rate and (iii) the Class E-1 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-1 Note on such Payment Date. The Class E-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 E-1 MONTHLY PRINCIPAL: means, (A) on any Payment Date other than
the Class E-1 Stated Maturity Date, an amount equal to the product of (x) the
Class E-1 Percentage and (y) the Monthly Principal and (B) on the Class E-1
Stated Maturity Date, the entire amount of the then outstanding Class E-1 Note
Balance.
15
CLASS E-1 NOTE BALANCE: means, as of the Closing Date, $9,340,000 and
thereafter shall equal the Class E-1 Note Balance as of the Closing Date reduced
by all principal payments on the Class E-1 Notes.
CLASS E-1 NOTEHOLDER: means at any time, any Person in whose name a
Class E-1 Note is registered in the Note Register.
CLASS E-1 NOTE RATE: means One-Month LIBOR plus seven and 00/100
percent (7.00%) per annum based upon the actual number of days elapsed in a 360
day year.
CLASS E-1 NOTES: means any Class E-1 Notes described in Article II of,
and authorized by, and authenticated and delivered under, the Indenture.
CLASS E-1 OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class E-1 Monthly Interest payable on all
prior Payment Dates over (b) the aggregate amount of interest actually paid to
the Class E-1 Noteholders on all prior Payment Dates.
CLASS E-1 OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class E-1 Monthly Principal due
on the Class E-1 Notes on all prior Payment Dates over (b) the aggregate amount
of principal actually paid to the Class E-1 Noteholders on all prior Payment
Dates.
CLASS E-1 STATED MATURITY DATE: means the Payment Date occurring on
March 14, 2011.
CLASS E-2 MONTHLY INTEREST: means, for any Payment Date (except the
Initial Payment Date), the product of (i) one-twelfth, (ii) the Class E-2 Note
Rate and (iii) the Class E-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 E-2 Note on such Payment
Date. The Class E-2 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 and including the Closing Date to but
excluding such Initial Payment Date.
CLASS E-2 MONTHLY PRINCIPAL: means, (A) on any Payment Date other than
the Class E-2 Stated Maturity Date, an amount equal to the product of (x) the
Class E-2 Percentage and (y) the Monthly Principal and (B) on the Class E-2
Stated Maturity Date, the entire amount of the then outstanding Class E-2 Note
Balance.
CLASS E-2 NOTE BALANCE: means, as of the Closing Date, $2,000,000 and
thereafter shall equal the Class E-2 Note Balance as of the Closing Date reduced
by all principal payments on the Class E-2 Notes.
CLASS E-2 NOTEHOLDER: means at any time, any Person in whose name a
Class E-2 Note is registered in the Note Register.
CLASS E-2 NOTE RATE: means nine and 2/100 percent (9.02%) per annum
based upon thirty days elapsed each month in a twelve-month year.
16
CLASS E-2 NOTES: means any Class E-2 Notes described in Article II of,
and authorized by, and authenticated and delivered under, the Indenture.
CLASS E-2 OVERDUE INTEREST: means, for any Payment Date, the excess,
if any, of (a) the aggregate amount of Class E-2 Monthly Interest payable on all
prior Payment Dates over (b) the aggregate amount of interest actually paid to
the Class E-2 Noteholders on all prior Payment Dates.
CLASS E-2 OVERDUE PRINCIPAL: means, as of any Payment Date, the
excess, if any, of (a) the aggregate amount of Class E-2 Monthly Principal due
on the Class E-2 Notes on all prior Payment Dates over (b) the aggregate amount
of principal actually paid to the Class E-2 Noteholders on all prior Payment
Dates.
CLASS E-2 STATED MATURITY DATE: means the Payment Date occurring on
March 14, 2011.
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 Indenture.
CLASS F INSTRUMENTS: means any Class F Instruments described in
Article II of the Indenture, that may be issued from time to time under the
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 22,2003.
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
Indenture.
COLLECTION PERIOD: means, with respect to each Payment Date related
thereto, the calendar month immediately preceding such Payment Date.
COMMISSION: means the Securities and Exchange Commission.
COMPANY: means DVI Receivables Corp. XIX, a company organized and
existing under the laws of Delaware, and its successors.
COMPANY ASSETS: means (i) the Contributed Property related to the
Contracts set forth on each Subsequent Contract Transfer Form and the Sold
Company Assets (as defined in the related Sale Agreement), in each case, and
notwithstanding any other provision to the contrary, excluding (a) the Company's
Retained Interest relating to such Contracts, and (b) any and all ownership
interests of the Company in Equipment, with respect to which the Company shall
instead, pursuant to Section 2.05 of the SCTA, grant to the Issuer a first
priority perfected security interest therein, (ii) all of the Company's rights
and privileges, but none of its
17
obligations, under the Contribution and Servicing Agreement, the Sale Agreements
and each Substitute Contract Transfer Form and (iii) all payments, income and
proceeds of the foregoing or relating thereto. For the avoidance of doubt, the
term Company Assets excludes all right, title and interest of the Issuer in (a)
any Predecessor Contract or any Contract purchased by the Contributor or
Servicer pursuant to Section 5.03 of the Contribution and Servicing Agreement,
(b) the Equipment related to such Contract and (c) all income, payments and
proceeds of any of the foregoing or relating thereto occurring after the
effective date of the release of such Contract.
CONFIRMATION: means with respect to the Class A-2a Notes, the
Confirmation for U.S. Dollar Interest Rate Swap Transaction Under 1992 Master
Agreement (Reference Nos. 7453607/7453523, with respect to the Class A-3a Notes,
Reference Nos. 7453638/7453522, with respect to the Class B Notes, Reference
Nos. 7453815/7453521, with respect to the Class C-1 Notes, Reference Nos.
7453789/7453520, with respect to the Class D-1 Notes Reference Nos.
7453818/7453519, and with respect to the Class E-1 Notes, Reference Nos.
7453862/7453518), each dated May 15, 2003, by and between the Issuer and the
Swap Provider and each other Confirmation for U.S. Dollar Interest Rate Swap
Transactions by and between the Issuer and a Swap Provider.
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 (x) the Transferor from the
Contributor, directly or indirectly, pursuant to the Contribution and Servicing
Agreement or (y) the Issuer under either Sale Agreement. The term shall include
any Contract transferred, directly or indirectly, to the Transferor or the
Issuer on the Closing Date or, directly or indirectly, any Substitution Date in
connection with any substitution in accordance with the Contribution and
Servicing Agreement, respectively, but excluding any Unrelated Property.
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
9-102(a)(11) and Section 9-313 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;
18
(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.
CONTRACT PAYMENT: means any payment which the Obligor is required to
make pursuant to a Contract after the Cut-off Date, other than (i) any payment
not included in the remaining Contract Payments for such Contract as of the
related Cut-off Date as reflected in the Contract Schedule, (ii) 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 (iii) Purchase Option Payments.
CONTRACT SCHEDULE: means the schedule of Contracts attached to the
Contribution and Servicing Agreement and the Indenture, such schedule 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 name, address
and telephone number of 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 and the deletion of any
Predecessor Contract.
CONTRACT TRANSFER DATE: means any date on or prior to the Closing Date
that, pursuant to the Contribution and Servicing Agreement, the Contributor may
transfer a Contract to the Transferor.
CONTRIBUTED PROPERTY: means all of the right, title and interest of
DVI Receivables Corp. XV, DVI Receivables XV, L.L.C., DVI Funding Corp., DVI
Funding, L.L.C. and the Contributor's in and to (a) all Contracts, including
those listed on the Contract Schedule attached as Schedule 1 to the Indenture
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 Contributor's Retained Interest and any Broker
Agreement Rights relating to such Contracts, (b) any documents in the Contract
Files relating to the Contracts listed on the Contract Schedule attached as
Schedule 1 to the Indenture, (c) Insurance Policies and Insurance Proceeds
relating to the Contracts (or the related Equipment) listed on the Contract
Schedule attached as Schedule 1 to the Indenture, (d) the Equipment (which shall
be either a first priority perfected security interest in Equipment (other than
with respect to Equipment for which the Original Equipment Cost is less than
$25,000) or, with respect to Fair Market Value Leases, an ownership interest in
19
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 AND SERVICING AGREEMENT: means the Contribution and
Servicing Agreement dated as of May 1, 2003 between the Transferor and the
Contributor, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the provisions hereof and thereof.
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.
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, 2003; 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, (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
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 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 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
20
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
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary thereunder. For purposes of the 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 Indenture.
DETERMINATION DATE: means, with respect to any Payment Date, the third
Business Day immediately preceding each Payment Date.
DISCOUNT RATE: means 4.47% 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
(for the avoidance of doubt, not including any amounts, such as sales taxes, for
which the Contributor is not the ultimate beneficiary) 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, on the date a Contract becomes a Defaulted Contract, the
Discounted Contract Balance for such Contract will be zero. 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
21
Date a security deposit or an advance payment shall be deemed to be zero. For
the avoidance of doubt, Purchase Option Payment, shall not be included for any
purpose in the calculation of Discounted Contract Balance for any Contract.
DISTRIBUTION ACCOUNT: means the account or accounts by that name
established and maintained by Trustee pursuant to Section 3.01 of the 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 FUNDING SALE AGREEMENT: means the Sale Agreement, dated as of May
1, 2003, among DVI Funding, L.L.C., as transferor, the Issuer, DVI Funding
Corporation, as seller, the Transferor and 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 which
includes DVI, the Managing Member and the Transferor, regardless of the identity
of the common parent.
DVI PARTY: means any of DVI, the Transferor, the Issuer or the
Managing Member.
DVI XV SALE AGREEMENT: means the Sale Agreement, dated as of May 1,
2003, among DVI Receivables XV, L.L.C., as transferor, the Issuer, DVI
Receivables Corp. XV, as seller, the Transferor and DVI.
DVI, INC.: means DVI, Inc., a corporation organized and existing under
the laws of the State of Delaware, and its successors.
ELIGIBLE BALLOON PAYMENT: means, with respect to any Contract, a
Balloon Payment which is (x) less than six and one half times larger than the
average Contract Payments (calculated excluding such Balloon Payment) related to
such Contract and is included in the Discounted Contract Balance of such
Contract or (y) more than six and one half times larger than the average
Contract Payments (calculated excluding such Balloon Payment) related to such
Contract and is included in the Discounted Contract Balance of such Contract
and, with respect to any proposed Substitute Contract that contains an Eligible
Balloon Payment pursuant to clause (y) of this definition, would not result in a
Ratings Effect.
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
Contribution and Servicing Agreement and, with
22
respect to any Substitute Contract, satisfies the requirements of Section 7.01
(d) of the 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 of "AA-" by Fitch, Inc. and S&P and
"Aa3" by ▇▇▇▇▇'▇ or (x) a short-term unsecured debt rating or certificate of
deposit rating of "A-1" by S&P, "F1" by Fitch, Inc. and "P-1" by ▇▇▇▇▇'▇ or (2)
the parent corporation of which has either (y) a long-term unsecured debt rating
of "AA-" by Fitch, Inc. and S&P and "Aa3" by ▇▇▇▇▇'▇ or (z) a short-term
unsecured debt rating or certificate of deposit rating of "A-1" by S&P, "F1" by
Fitch, Inc. and "P-1" by ▇▇▇▇▇'▇ 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 Fitch, Inc.,
"AAA" by S&P and "Aaa" by ▇▇▇▇▇'▇ 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) 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 "A+" by
Fitch, Inc., "A+" by S&P and at least "A1" by ▇▇▇▇▇'▇, 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;
23
(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 "A" by Fitch, Inc., at least "A1" or higher by ▇▇▇▇▇'▇ or
Prime-1 by ▇▇▇▇▇'▇ and "A+" 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, (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 and (D) not exceed twenty percent (20%) of the Note
Balance;
(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 "A+" by Fitch, Inc. or "A1" by ▇▇▇▇▇'▇ 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 that will not result in a
Ratings Effect 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 ▇▇▇▇▇'▇ and S&P 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 Indenture; and
(viii) any investment that will not result in a Ratings Effect.
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.
24
EXCHANGE ACT: means the Securities Exchange Act of 1934, as amended.
EXCLUDED AMOUNTS: means any payments received from an Obligor in
connection with any application fees, tax processing fees, wire transfer fees,
express mail fees, 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 or any other non-rental administrative charges
reimbursable to the Servicer in accordance with the Servicer's customary
policies and procedures.
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, INC.: means Fitch, Inc. and any successor.
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: means the Indenture between the Issuer and the Trustee
dated as of May 1, 2003 and as from time to time may be supplemented, amended or
otherwise modified pursuant to the applicable provisions thereof.
INDENTURE EVENT OF DEFAULT: as defined in Section 6.01 of the
Indenture.
INITIAL AGGREGATE DISCOUNTED CONTRACT BALANCE: means an amount equal
to $453,679,762.28.
25
INITIAL CONTRACT: means any Contract acquired by the Issuer on or
prior to the Closing Date as set forth on Schedule 1 of the Indenture.
INITIAL PAYMENT DATE: means the initial Payment Date pursuant to the
Transaction Documents, which is scheduled (subject to prepayment provisions of
the Indenture) to be, when used with respect to interest on any Note, June 12,
2003, 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 12, 2003, when used with respect to the Class A-2 Notes, February
12, 2004 and when used with respect to the Class A-3 Notes, August 12, 2004.
INITIAL RESERVE ACCOUNT REQUIRED AMOUNT: has the meaning set forth in
the definition of "Reserve Account Required Amount."
INITIAL SUCCESSOR SERVICER RESERVE ACCOUNT DEPOSIT AMOUNT: means
$200,000.
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 XIX, 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.
26
LIBOR DETERMINATION DATE: means the second London Banking Day (as
defined in the Swap Agreement) prior to the Effective Date (as defined in the
Swap Agreement) or the Calculation Period (as defined in the Swap Agreement), as
the case may be. LIEN: means with respect to any property, any mortgage,
security interest, lien, charge, pledge, equity or encumbrance of any kind in
respect of such property.
LOCK-BOX ACCOUNT: means an account designated as such, established and
maintained pursuant to Section 3.01 of the Indenture.
LOCK-BOX AGREEMENT: means, (i) the agreement, as amended, supplemented
and otherwise modified from time to time, dated as of December 20, 2000, by and
among the Contributor and Firstar Bank, N.A., (ii) the agreement dated as of
December 15, 2000, by and among the Contributor and First Union National Bank or
(iii) the agreement dated as of October 5, 1994, by and between the Contributor
(as assignee of Affiliated Capital Corporation) and American National Bank,
pursuant to which the 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
Contribution and Servicing Agreement.
MOODY'S: means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor.
NET SWAP PAYMENT: means the absolute value of the negative result of
either of the below calculations:
(1) For any Payment Date after the first Payment Date, the sum of the
following calculation with respect to each of the Class A-2a Notes, the Class
A-3a Notes, the Class B Notes, the Class C-1 Notes, the Class D-1 Notes and the
Class E-1 Notes:
(a) the product of: (i) the actual number of days from and
including the immediately preceding Payment Date on which the related interest
period begins to but excluding such Payment Date, divided by 360, (ii) One-Month
LIBOR plus the Applicable
27
Margin determined as of the related LIBOR Determination Date, and (iii) the
applicable Notional Amount; minus
(b) the product of: (i) 1/12, (ii) the Fixed Rate (as defined in
the Swap Agreement), and (iii) the applicable Notional Amount.
(2) For the first Payment Date, the sum of the following calculation
with respect to each of the Class A-2a Notes, the Class A-3a Notes, the Class B
Notes, the Class C-1 Notes, the Class D-1 Notes and the Class E-1 Notes:
(a) the product of: (i) the actual number of days from and
including the Closing Date to but excluding such Payment Date, divided by 360,
(ii) One-Month LIBOR plus the Applicable Margin determined as of the related
LIBOR Determination Date, and (iii) the applicable Notional Amount; minus
(b) the product of: (i) the number of days from and including the
Closing Date to but excluding such Payment Date (assuming 30 day months),
divided by 360, (ii) the Fixed Rate (as defined in the Swap Agreement), and
(iii) the applicable Notional Amount.
NET SWAP RECEIPT: means the positive result of either of the below
calculations:
(1) For any Payment Date after the first Payment Date, the sum of the
following calculation with respect to each of the Class A-2a Notes, the Class
A-3a Notes, the Class B Notes, the Class C-1 Notes, the Class D-1 Notes and the
Class E-1 Notes:
(a) the product of: (i) the actual number of days from and
including the immediately preceding Payment Date on which the related interest
period begins to but excluding such Payment Date, divided by 360, (ii) One-Month
LIBOR plus the Applicable Margin determined as of the related LIBOR
Determination Date, and (iii) the applicable Notional Amount; minus
(b) the product of: (i) 1/12, (ii) the Fixed Rate (as defined in
the Swap Agreement), and (iii) the applicable Notional Amount.
(2) For the first Payment Date, the sum of the following calculation
with respect to each of the Class A-2a Notes, the Class A-3a Notes, the Class B
Notes, the Class C-1 Notes, the Class D-1 Notes and the Class E-1 Notes:
(a) the product of: (i) the actual number of days from and
including the Closing Date to but excluding such Payment Date, divided by 360,
(ii) One-Month LIBOR plus the Applicable Margin determined as of the related
LIBOR Determination Date, and (iii) the applicable Notional Amount; minus
(b) the product of: (i) the number of days from and including the
Closing Date to but excluding such Payment Date (assuming 30 day months),
divided by 360, (ii) the Fixed Rate (as defined in the Swap Agreement), and
(iii) the applicable Notional Amount (as defined in the Swap Agreement).
28
NONRECOVERABLE ADVANCE: means any Servicer Advance previously made in
respect of a Delinquent Contract by the Servicer pursuant to the terms of the
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, on the Closing Date, $385,630,000 for the Class A
Notes cumulatively (and, with respect to each tranche of Class A Notes,
$71,810,000 for the Class A-1 Notes, $52,200,000 for the Class A-2 Notes
($25,200,000 for the Class A-2a Notes and $27,000,000 for the Class A-2b Notes),
and $261,620,000 for the Class A-3 Notes ($229,620,000 for the Class A-3a Notes
and $32,000,000 for the Class A-3b Notes)), $17,010,000 for the Class B Notes
cumulatively, $14,740,000 for the Class C notes cumulatively ($5,740,000 for
Class C-1 Notes and $9,000,000 for the Class C-2 Notes), $11,340,000 for the
Class D Notes cumulatively ($6,340,000 for Class D-1 Notes and $5,000,000 for
the Class D-2 Notes), and $11,340,000 for the Class E Notes cumulatively
($9,340,000 for the Class E-1 Notes and $2,000,000 for the Class E-2 Notes), and
thereafter shall equal the Note Balance for each class reduced by all principal
payments on that 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-2a Note Rate on
the Class A-2a Notes, Class A-2b Note Rate on the Class A-2b Notes, Class A-3a
Note Rate on the Class A-3a Notes, Class A-3b Note Rate on the A-3b 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 and the 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 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 and/or Class E Notes (as the case may be) described in Article II
of the Indenture, and authorized by, and authenticated and delivered under, the
Indenture or any Supplement.
29
NOTIONAL AMOUNT: has the meaning set forth in the Swap Agreement.
OBLIGOR: means the obligor under any Contract and, only with respect
to the enforcement of any guaranteed obligations under a Contract, any guarantor
thereunder. Any two or more obligors under separate Contracts that have a common
"Controlling Person" (within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act), including, without limitation, any
guarantor, shall be deemed separate Obligors for purposes of any determination
under the Transaction Documents.
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.
ONE-MONTH LIBOR: means the Floating Rate (as defined in the related
Confirmation.
OPINION OF COUNSEL: means a written opinion letter 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 Indenture,
such opinion letter may be delivered by inside or outside counsel for the
Contributor, the Transferor or the Issuer and shall be addressed to the Trustee.
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);
(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
30
determining whether the Trustee shall be protected in relying upon any
request, demand, authorization, direction, notice, consent or waiver
of Noteholders under the 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.
PAYMENT DATE: means the twelfth of each month (or if such date is not
a Business Day, the immediately succeeding Business Day), commencing [June 12,
2003].
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.
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.
PLACEMENT AGENCY AGREEMENT: means any agreement (other than the
Underwriting Agreement and the Note Purchase Agreement) between the Issuer, the
Transferor, the Contributor, the placement agent(s) specified therein and any
other parties specified therein, relating to the private placement of Notes.
POOL: means either Pool A or Pool B.
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 Contribution and Servicing
Agreement.
31
POOL A PREPAID CONTRACT SUBSTITUTION: shall have the meaning ascribed
thereto in Section 7.01(a)(2) of the 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 Contribution and Servicing Agreement.
POOL B PREPAID CONTRACT SUBSTITUTION: shall have the meaning ascribed
thereto in Section 7.01(b)(2) of the Contribution and Servicing Agreement.
PREDECESSOR CONTRACT: means, except as otherwise defined in a
particular Section of any Transaction Document, with respect to any Substitute
Contract acquired by the Transferor by substitution pursuant to Section 7 of the
Contribution and Servicing Agreement and by the Issuer by substitution pursuant
to Section 7 of the Subsequent Contract Transfer Agreement, the Contract or
Contracts for which such Substitute Contract or any intervening Substitute
Contract has been substituted.
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 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).
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 Indenture.
PRIORITY PAYMENTS: shall have the meaning ascribed thereto in Section
3.04(c) of the Indenture.
PROSPECTUS SUPPLEMENT: means the prospectus supplement, dated May 16,
2003 relating to the Class A Notes, the Class B Notes, the Class C Notes and the
Class D Notes, and containing certain information relating to the Class E 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 Indenture shall apply.
32
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. The term Purchase Option Payment shall also
include any Balloon Payment that is not an Eligible Balloon Payment.
RATING AGENCIES: means, when used in the singular, any one of, and,
when used in the plural, each of Fitch, Inc., S&P 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 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 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.
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.
33
RESERVE ACCOUNT: means the account specified in Section 3.01(a) of the
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 Indenture.
RESERVE ACCOUNT PROPERTY: means the property set forth in Section
3.08(a) of the Indenture.
RESERVE ACCOUNT REQUIRED AMOUNT: means, with respect to the Initial
Payment Date, $11,341,994.06 (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 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
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 Indenture or rental
payments from the re-leasing of an item of Equipment subject to the lien of the
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
34
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, (a) with respect to the Contributor, all
right, title and interest of the Contributor, in and to (i) the Contributed
Property prior to and including the Cut-off Date and (ii) each periodic payment,
if any, set forth in a Contract in respect of maintenance, insurance or taxes;
and (b) with respect to the Company, all right, title and interest of the
Company in and to each Purchase Option Payment as well as any other payment set
forth in a Contract other than any Contract Payment or other payment in respect
of maintenance, insurance or taxes, if any; and (c) with respect to the Issuer,
(i) on the Closing Date, the Initial Aggregate Discounted Contract Balance less
the outstanding principal balance of the Notes and (ii) for each Payment Date
thereafter prior to the repayment in full of the outstanding principal balance
of the Notes, the ending Aggregate Discounted Contract Balance for the related
Payment Date less the outstanding principal balance of the Notes after giving
effect to all amounts paid on such Payment Date and (iii) after the repayment in
full of the outstanding principal balance of the Notes, the ending Aggregate
Discounted Contract Balance for the related Payment Date.
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 Indenture and bearing the
legend prescribed in Section 2.02 of the Indenture.
S&P: means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. and any successor.
SALE AGREEMENTS: means the DVI Funding Sale Agreement and the DVI XV
Sale Agreement.
SCHEDULE: means the Schedule to the 1992 ISDA Master Agreement
(Multicurrency-Cross Border), dated as of May 15, 2003, between the Swap
Provider and the Issuer and each other Schedule to the Master Agreement
(Multicurrency-Cross Border) between the Issuer and a Swap Provider.
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.
35
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 Contribution and Servicing Agreement.
SERVICER ADVANCE: means an advance made by the Servicer in accordance
with Section 5.01 of the Contribution and Servicing Agreement.
SERVICER EVENT OF DEFAULT: means as defined in Section 10.01 of the
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 0.75%.
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-2a Notes, the Class
A-2a Stated Maturity Date, with respect to the Class A-2b Notes, the Class A-2b
Stated Maturity Date, with respect to the Class A-3a Notes, the Class A-3a
Stated Maturity Date, with respect to the Class A-3b Notes, the Class A-3b
Stated Maturity Date, with respect to the Class B Notes, the Class B Stated
Maturity Date, with respect to the Class C-1 Notes, the Class C-1 Stated
Maturity Date, with respect to the Class C-2 Notes, the Class C-2 Stated
Maturity Date, with respect to the Class D-1 Notes, the Class D-1 Stated
Maturity Date, with respect to the Class D-2 Notes, the Class D-2 Stated
Maturity Date, with respect to the Class E-1 Notes, the Class E-1 Stated
Maturity Date and with respect to the Class E-2 Notes, the Class E-2 Stated
Maturity Date.
SUBSEQUENT CONTRACT TRANSFER AGREEMENT OR SCTA: means the Subsequent
Contract Transfer Agreement, dated as of May 1, 2003, by and between the Issuer
and the Transferor.
SUBSTITUTE CONTRACT: means, except as otherwise defined in a
particular Section of any Transaction Document, an Eligible Contract substituted
by the Contributor pursuant to either Section 5.03 or Section 7.01 of the
Contribution and Servicing Agreement.
SUBSTITUTE CONTRACT TRANSFER FORM: means a Substitute Contract
Transfer Form, substantially in the form of Exhibit A to the 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).
36
SUCCESSOR SERVICER: means the Trustee or any successor to the Servicer
pursuant to the Contribution and Servicing Agreement.
SUCCESSOR SERVICER RESERVE ACCOUNT: means the account specified in
Section 3.01(a) of the Indenture.
SUCCESSOR SERVICER RESERVE ACCOUNT PROPERTY: means the property set
forth in Section 3.07(a) of the Indenture.
SUPPLEMENT: means a supplement to the Indenture complying with the
terms of the Indenture.
SWAP AGREEMENT: means the 1992 ISDA Master Agreement, dated as of May
15, 2003, between the Swap Provider and the Issuer, including the Schedule
thereto and including each Confirmation executed in connection therewith, each
between the Swap Provider and the Issuer.
SWAP PROVIDER(S): means, initially, Bank of America, N.A., and any
permitted assignee thereof or successor thereto, and any other bank or financial
institution to a cap, collar or other hedging instrument permitted to be entered
into pursuant to the Indenture.
TRANSACTION DOCUMENTS: means collectively, the Contribution and
Servicing Agreement, the Subsequent Contract Transfer Agreement, the Sale
Agreements, the Indenture, the Underwriting Agreement, any Note Purchase
Agreement(s) and Placement Agency Agreements, and any and all agreements
relating to the servicing of the Contracts and the issuance of the Notes.
TRANSFEROR: means DVI Receivables Corp. XIX, 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) the Sold Trust
Property (as defined in the DVI XV Sale Agreement) and the Sold Borrower
Property (as defined in the DVI Funding Sale Agreement), (c) all moneys from
time to time held by the Trustee pursuant to Section 3.01 of the Indenture
pending deposit in one of the accounts referred to therein, (d) all moneys from
time to time on deposit in each Lock-Box Account, Collection Account, the
Reserve Account, the Successor Servicer 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, (e) all of the
Issuer's right, title and interest then or thereafter
37
acquired under the Contribution and Servicing Agreement, (f) all of the Issuer's
right, title and interest then or thereafter acquired under the Subsequent
Contract Transfer Agreement and (g) all income, payments and proceeds of any of
the foregoing or relating thereto. For the avoidance of doubt, the term Trust
Property excludes all right, title and interest of the Issuer in (a) any
Contract which has been released from the lien of the Indenture pursuant to
Section 4.03 or Section 4.04 of the Indenture, (b) the Equipment related to such
Contract and (c) all income, payments and proceeds of any of the foregoing or
relating thereto accruing after the effective date of the release of such
Contract (although such amounts shall remain subject to the repayment and
reimbursement requirements of Section 4.03 of the Indenture).
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 Indenture until a successor Person shall have become the
Trustee pursuant to the applicable provisions of the Indenture, and thereafter
"Trustee" shall mean such successor Person; PROVIDED, that the provisions of
Sections 7.06 and 8.11 of the Indenture, as applicable to any Person at any time
serving as Trustee under the 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 Indenture and the succession of any other Person to
such status.
TRUSTEE FEE: means an amount equal to the product of (i) one-twelfth,
(ii) .01% and (iii) the Aggregate Discounted Contract Balance as of the
beginning of the previous Collection Period.
UNDERWRITERS: means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, Banc of America Securities LLC and Nomura Securities
International, Inc.
UNDERWRITING AGREEMENT: means the underwriting agreement dated as of
May 15, 2003, by and among the Contributor, the Issuer and the Transferor and
the Managing Member as confirmed and accepted by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated as representative (on behalf of itself, Nomura Securities
International Inc. and Banc of America Securities LLC), and Bank of America,
N.A., as the Swap Provider.
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.
UNRELATED PROPERTY: means property or rights under a Contract conveyed
or otherwise granted as consideration for DVI's entering into any of the
foregoing agreements, and not as collateral or other credit enhancement for the
performance of the obligations of the related Obligor under such agreement.
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
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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 Class B Noteholders evidencing 100% of
the then-outstanding Class B Note Balance, and, after the Note Balance of such
class equals zero, then (v) 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 (vi) 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 (vii) 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 "66 2/3% 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.
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