Exhibit 4.2
-----------
TRUST AGREEMENT
by and between
------------------,
as Depositor,
and
---------------
as Trustee,
TRUST AGREEMENT
Dated as of ___________, 199_
$------------
DVI Asset Funding Trust ________
Equipment Finance Certificates
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
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Section 1.02. GENERAL INTERPRETIVE PRINCIPLES........................................................8
ARTICLE II
CONVEYANCE OF CONTRACTS; TRUST ESTATE
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Section 2.01. CONVEYANCE OF CONTRACTS..................................................................10
Section 2.02. ACCEPTANCE BY THE TRUSTEE................................................................10
Section 2.03. CUSTODY OF CONTRACTS AND CONTRACT FILES..................................................11
Section 2.04. LIABILITIES OF THE TRUST AND PARTIES TO THIS AGREEMENT; LIMITATIONS THEREON..............11
Section 2.05. TITLE TO TRUST ESTATE....................................................................11
Section 2.06. CONDITIONS TO CLOSING....................................................................12
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
Section 3.01. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR..........................................14
Section 3.02. COVENANTS OF THE DEPOSITOR...............................................................15
ARTICLE IV
THE CERTIFICATES
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Section 4.01. AUTHORIZATION OF CERTIFICATES............................................................18
Section 4.02. FORM OF CERTIFICATES.....................................................................18
Section 4.03. CERTIFICATE OF AUTHENTICATION............................................................18
Section 4.04. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES......................18
Section 4.05. MUTILATED, DESTROYED, LOST AND STOLEN CERTIFICATES.......................................19
Section 4.06. CANCELLATION.............................................................................20
Section 4.07. PERSONS DEEMED OWNERS....................................................................20
Section 4.08. BOOK ENTRY CERTIFICATES..................................................................20
Section 4.09. NOTICES TO CLEARING AGENCY...............................................................21
Section 4.10. DEFINITIVE CERTIFICATES..................................................................21
Section 4.11. TEMPORARY CERTIFICATES...................................................................22
ARTICLE V
PAYMENT OF CERTIFICATES; ACCOUNTS
---------------------------------
Section 5.01. COLLECTION ACCOUNT.......................................................................23
[Section 5.02. RESERVE ACCOUNT.........................................................................25
Section 5.03. [RESERVED]...............................................................................25
Section 5.04. INVESTMENT OF MONIES HELD IN THE ACCOUNTS................................................25
Section 5.05. RECORDS..................................................................................26
Section 5.06. CAPITALIZED INTEREST ACCOUNT.............................................................26
[Section 5.07. LOCKBOX ACCOUNT.........................................................................26
[Section 5.08. PRE-FUNDING ACCOUNT.....................................................................27
ARTICLE VI
CONCERNING THE TRUSTEE
----------------------
Section 6.01. DUTIES OF TRUSTEE........................................................................28
Section 6.02. RIGHTS OF THE TRUSTEE....................................................................29
Section 6.03. TRUSTEE NOT LIABLE.......................................................................29
Section 6.04. TRUSTEE MAY OWN CERTIFICATES.............................................................30
Section 6.05. LIEN FOR TRUSTEE'S FEES AND EXPENSES.....................................................30
Section 6.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE.....................................................30
Section 6.07. RESIGNATION AND REMOVAL OF TRUSTEE.......................................................31
Section 6.08. SUCCESSOR TRUSTEE........................................................................31
Section 6.09. MERGER OR CONSOLIDATION OF TRUSTEE.......................................................32
Section 6.10. SEPARATE TRUSTEES, CO-TRUSTEES AND CUSTODIANS............................................32
Section 6.11. REPRESENTATIONS AND WARRANTIES...........................................................34
Section 6.12. TRUSTEE OFFICES..........................................................................35
Section 6.13. NOTICE OF EVENT OF SERVICER DEFAULT......................................................35
Section 6.14. REPORTS TO CERTIFICATEHOLDERS............................................................35
Section 6.15. LIST OF CERTIFICATEHOLDERS; NO MEETINGS..................................................36
ARTICLE VII
TERMINATION
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Section 7.01. TERMINATION..............................................................................37
Section 7.02 DISSOLUTION UPON BANKRUPTCY OF THE DEPOSITOR..............................................38
ARTICLE VIII
MISCELLANEOUS PROVISIONS
------------------------
Section 8.01. SEVERABILITY OF PROVISIONS...............................................................39
Section 8.02. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS...............................................39
Section 8.03. AMENDMENT................................................................................40
Section 8.04. DURATION OF AGREEMENT....................................................................41
ii
Section 8.05. GOVERNING LAW............................................................................41
Section 8.06. NOTICES..................................................................................42
Section 8.07. BINDING EFFECT...........................................................................42
Section 8.08. CAPTIONS.................................................................................42
Section 8.09. EXHIBITS.................................................................................42
Section 8.10. GENERAL INTERPRETIVE PRINCIPLES..........................................................42
Section 8.11. NO BANKRUPTCY PETITION AGAINST DEPOSITOR OR TRANSFEROR...................................43
EXHIBIT A - Form of Class A Certificate
EXHIBIT B - Form of Class B Certificate
This TRUST AGREEMENT, dated as of _______________, ____, is
made with respect to the formation of the DVI ASSET FUNDING TRUST ____ and is
made by and between DVI _________, a ___________, as Depositor and
___________________, a [national] banking association, as Trustee.
NOW THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
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Whenever used herein, capitalized words and phrases, unless
the context otherwise requires, shall have the respective meanings set forth in
Exhibit A to the Contribution and Servicing Agreement, dated as of _________,
between DVI Financial Services Inc. and DVI Receivables Corp. VIII, except that
the following terms shall have the meanings indicated in this Trust Agreement:
AGREEMENT: This Trust Agreement, dated as of _________, ____, between
the Depositor and the Trustee, as it may be amended or supplemented from time to
time in accordance with its terms.
ASSETS: That portion of the Trust Fund relating to a Series of
Certificates.
AUTHORIZED OFFICERS: With respect to the Trust, any officer of the
Trustee who is designated to act for the Trustee in matters relating to the
Trust and who is identified on the list of Authorized Officers, containing the
specimen signature of such Person, delivered by the Trustee on the Closing Date
(as such list may be modified or supplemented from time to time thereafter).
BOOK ENTRY CERTIFICATES: A beneficial interest in the Certificates,
ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section ___ of this Agreement.
[CAPITALIZED INTEREST ACCOUNT: The account or accounts established by
the Trustee for the benefit of the Certificateholders pursuant to Section ___ of
this Agreement.]
[CAPITALIZED INTEREST REQUIREMENT: For any Payment Date, the excess, if
any, of (a) the interest payable on the Certificates on such Payment Date over
(b) the sum of (i) one month's interest on the Aggregate Discounted Contract
Principal Balance as of the last day of the immediately preceding Collection
Period, calculated at the weighted average Certificate Remittance Rate for all
Classes of Certificates then issued and outstanding hereunder [and (ii) the
amount of investment earnings on deposit in the Pre-Funding Account].
CERTIFICATES: The [Class A] Certificates [and the Class B Certificates]
collectively.
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CERTIFICATEHOLDER OR HOLDER: The person in whose name a Certificate is
registered in the Certificate Register.
CERTIFICATE OWNER: With respect to Book Entry Certificate, the Person
who is the owner of such Book Entry Certificate, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant in each case in accordance with the rules of such Clearing
Agency).
CERTIFICATE REGISTER: The register maintained by the Trustee pursuant
to Section 4.04 of this Agreement.
CHARGES: All federal, state, county, city, municipal, local, foreign or
other governmental taxes (including income or franchise taxes), levies,
assessments, charges or claims, in each case then due and payable, upon or
relating to (a) the Transferred Assets, (b) employees, payroll, income or gross
receipts of [Originator,] [Transferor,] [Depositor,] (c) ownership or use of any
of the properties or assets of [Originator,] [Transferor,] [Depositor,] or (d)
any other aspect of the business of [Originator,] [Transferor,] [Depositor].
CLASS: All Certificates having the same rights to payment under [this
Agreement].
[CLASS A] CERTIFICATE: Any one of the ____% Class A Equipment Finance
Pass-Through Certificates issued pursuant to the terms of this Agreement.
[CLASS A] CERTIFICATEHOLDER: A Holder of a Class A Certificate.
[CLASS A] CERTIFICATE INTEREST ARREARAGE: For any Payment Date, an
amount equal to the excess, if any, of (a) the Class A Certificate Monthly
Interest for such Payment Date and any outstanding Class A Certificate Interest
Arrearage from the immediately preceding Payment Date plus interest on such
outstanding Class A Certificate Interest Arrearage, to the extent permitted by
law, at the Class A Certificate Remittance Rate from the immediately preceding
Payment Date through (but not including) the current Payment Date minus (b) the
amount of Class A Certificate Monthly Interest and Class A Certificate Interest
Arrearage actually distributed to the Holders of the Class A Certificates on
such Payment Date from whatever source.
[CLASS A] CERTIFICATE MONTHLY INTEREST: For any Payment Date, an amount
equal to the product of (i) one twelfth of the Class A Certificate Remittance
Rate and (ii) the Class A Certificate Principal Balance on the immediately
preceding Payment Date (or, in the case of the first Payment Date, on the
Closing Date), after giving effect to any payments of Class A Certificate
Monthly Principal and Class A Certificate Principal Arrearage paid on such
preceding Payment Date.
[CLASS A] CERTIFICATE MONTHLY PRINCIPAL: For any Payment Date, an
amount equal to the product of (a) the Class A Certificate Percentage and (b)
the Monthly Principal Payment.
[CLASS A] CERTIFICATE PERCENTAGE: ____________ percent (__%).
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[CLASS A] CERTIFICATE PRINCIPAL ARREARAGE: For any Payment Date, the
excess, if any, of (a) Class A Certificate Monthly Principal due on such Payment
Date plus any outstanding Class A Certificate Principal Arrearage from the
immediately preceding Payment Date over (b) the amount of Class A Certificate
Monthly Principal and Class A Certificate Principal Arrearage paid to the Class
A Certificateholders on such Payment Date from whatever source.
[CLASS A] CERTIFICATE PRINCIPAL BALANCE: An amount equal, initially, to
the Class A Certificate Initial Principal Balance and, thereafter, shall equal
the Class A Certificate Initial Principal Balance reduced by all amounts
previously paid to the Holders of the Class A Certificates representing payments
of Class A Certificate Monthly Principal and Class A Certificate Monthly
Principal Arrearage.
[CLASS A] CERTIFICATE REMITTANCE RATE: ______ percent (___%) per annum.
[CLASS A] INITIAL PRINCIPAL BALANCE: $_________________.
[CLASS A] PREPAYMENT PREMIUM: An amount equal to the product of (i) the
Class A Certificate Percentage and (ii) the Prepayment Premium.]
CLASS B CERTIFICATE: Any one of the ____% Class B Equipment Finance
Pass-Through Certificates issued pursuant to the terms of this Agreement.
CLASS B CERTIFICATEHOLDER: A Holder of a Class B Certificate.
CLASS B CERTIFICATE INTEREST ARREARAGE: For any Payment Date, an amount
equal to the excess, if any, of (a) the Class B Certificate Monthly Interest for
such Payment Date and any outstanding Class B Certificate Interest Arrearage
from the immediately preceding Payment Date plus interest on such outstanding
Class B Certificate Interest Arrearage, to the extent permitted by law, at the
Class B Certificate Remittance Rate from the immediately preceding Payment Date
through (but not including) the current Payment Date minus (b) the amount of
Class B Certificate Monthly Interest and Class B Certificate Interest Arrearage
actually distributed to the Holders of the Class B Certificates on such Payment
Date from whatever source.
CLASS B CERTIFICATE MONTHLY INTEREST: For any Payment Date, an amount
equal to the product of (i) one twelfth of the Class B Certificate Remittance
Rate and (ii) the outstanding Class B Certificate Principal Balance on the
immediately preceding Payment Date (or, in the case of the first Payment Date,
on the Closing Date), after giving effect to any payments of Class B Certificate
Monthly Principal and Class B Certificate Principal Arrearage on such preceding
Payment Date.
CLASS B CERTIFICATE MONTHLY PRINCIPAL: For any Payment Date, an amount
equal to the product of (a) the Class B Certificate Percentage and (b) the
Monthly Principal Payment.
CLASS B CERTIFICATE PERCENTAGE: __________ percent (__%).
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CLASS B CERTIFICATE PRINCIPAL ARREARAGE: For any Payment Date, the
excess, if any, of (a) Class B Certificate Monthly Principal due on such Payment
Date plus any outstanding Class B Certificate Principal Arrearage from the
immediately preceding Payment Date over (b) the amount of Class B Certificate
Monthly Principal and Class B Certificate Principal Arrearage distributed to the
Class B Certificateholders on such Payment Date from whatever source.
CLASS B CERTIFICATE PRINCIPAL BALANCE: An amount equal, initially, to
the Class B Initial Principal Balance and, thereafter, shall equal the Class B
Initial Principal Balance reduced by all amounts previously paid to the Holders
of the Class B Certificates representing payments of Class B Certificate Monthly
Principal and Class B Certificate Monthly Principal Arrearage.
CLASS B CERTIFICATE REMITTANCE RATE: _______________________ percent
(_____%) per annum.
CLASS B INITIAL PRINCIPAL BALANCE: $_____________.
CLASS B PREPAYMENT PREMIUM: An amount equal to the product of (i) the
Class B Certificate Percentage and (ii) the Prepayment Premium.
CLEARING AGENCY: An organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended.
CLEARING AGENCY PARTICIPANT: A broker, dealer, bank, other financial
institution or other Person for whom a Clearing Agency effects from time to time
book entry transfer and pledges of securities deposited with the Clearing
Agency.
CODE: The Internal Revenue Code of 1986, as amended.
COLLECTION ACCOUNT: The account or accounts established by the Trustee
for the benefit of the Certificateholders [Securityholders] pursuant to Section
___ of this Agreement [the Indenture].
CONTRACT DEFAULT: An event of default by an Obligor under a Contract.
CONVEYED PROPERTY: The Conveyed Property will consist of (i) the
Transferred Assets, (ii) funds on deposit in the Accounts and any Eligible
Investments purchased with such amounts, (iii) the rights of the Depositor under
the Sale Agreement, (iv) the rights of the Transferor (and of the Depositor, as
assignee of the Transferor) under the Contribution and Servicing Agreement and
(v) all of the income and proceeds of any of the foregoing.
CREDIT ENHANCEMENT: [Any bond or certificate insurance, a letter of
credit, a guaranty, a cash collateral loan or other arrangement that increases
the certainty of payment to the Securityholders.]
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DEFINITIVE CERTIFICATE: This term shall have the meaning set forth in
Section 4.10 hereof.
DEPOSITOR: [DVI Receivables Corp. VIII], a corporation organized and
existing under the laws of the State of Delaware.
DEPOSITORY AGREEMENT: The agreement among the Depositor, the Trustee
and The Depository Trust Company, as the initial Clearing Agency, dated as of
the Closing Date, in the form acceptable to the Majority of Holders.
DISTRIBUTION DATE: _____________.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
FUNDING PERIOD: The period commencing on the Closing Date and ending on
the earlier to occur of (i) the _________ Payment Date after the Closing Date,
(ii) the date on which an Early Amortization Event occurs, [or (iii) the
depletion of the Pre-Funding Account].
INITIAL AGGREGATE DISCOUNTED CONTRACT BALANCE: $___________.
INITIAL CERTIFICATE PRINCIPAL BALANCE: An amount equal to the [sum of
the Class A] Initial Principal Balance [and the Class B Initial Principal
Balance].
MAJORITY OF HOLDERS: Holders of Certificates representing more than
fifty percent (50%) of the Percentage Interest of the Trust.
OID: Original Issue Discount, as defined in section 1273(a) of the Code
and the Treasury Regulations issued thereunder.
OPTIONAL REDEMPTION: The repurchase in whole or in part of the
Outstanding Certificates, as permitted by Section ___ of [this Trust Agreement].
OUTSTANDING: When used with reference to the Certificates and as of any
particular date, any Certificate theretofore and thereupon being authenticated
and delivered except:
(i) any Certificate cancelled by the Trustee [or proven to the
satisfaction of the Trustee to have been duly cancelled by the Issuer
at or before said date];
(ii) any Certificate, or portion thereof, called for payment
or redemption for which monies equal to the principal amount or
redemption price thereof, as the case may be, with interest to the
final payment date or redemption date, shall have theretofore been
deposited with the Trustee (whether upon or prior to final payment date
or the redemption date of such Certificate);
(iii) any Certificate in lieu of or in substitution for which
another Certificate shall subsequently have been authenticated and
delivered; and
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(iv) any Certificate held by the [Issuer] or any Affiliate
thereof.
PARTIAL PREPAYMENT AMOUNT: With respect to a Collection Period and a
Contract for which the Obligor has requested to make a voluntary partial
Prepayment, an amount equal to the excess, if any, of (A) the sum of (w) the
difference between (i) the Discounted Contract Balance of such Contract as of
the first day of such Collection Period 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 Scheduled Payment payable by the Obligor after giving
effect to the reduction of such Scheduled Payment which will result from such
partial Prepayment, plus (x) accrued and unpaid interest on the balance in
clause (w) at the Discount Rate from the Due Date on which a Scheduled Payment
was last paid to (but not including) the first day of such Collection Period,
plus (y) any unpaid Scheduled Payments from previous Collection Periods
(regardless of whether Servicer Advances were made with respect to such
Scheduled Payments) and interest thereon through the date of such partial
Prepayment, [plus (z) the Prepayment Premium] less (B) any Scheduled 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: The __th day of each calendar month (or if such day is
not a Business Day, the next succeeding Business Day).
PERCENTAGE INTEREST: As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made hereunder such percentage
interest being equal to the percentage obtained by dividing the denomination of
such Certificate by the aggregate of the denomination of the same class.
PLAN: An "employee benefit plan" within the meaning of Section 3(3) of
ERISA or a "plan" within the meaning of Section 4975(e)(i) of the Code.
[PRE-FUNDING ACCOUNT: The account or accounts established by the
Trustee for the benefit of the Certificateholders pursuant to Section ___ of
[the Indenture] this Agreement.]
PREPAYMENT: With respect to a Collection Period and a Contract (except
a Defaulted Contract), any payment received from or on behalf of an Obligor in
respect of any Scheduled Payment(s), in advance of their scheduled Due Date,
including Prepayment Amounts, Partial Prepayment Amounts, Casualty Proceeds,
Insurance Proceeds or otherwise, to the extent that any such amounts are
included in the Discounted Contract Balance and have not been previously
deducted from the Discounted Contract Balance of such Contract.
PREPAYMENT AMOUNT: With respect to a Collection Period and a Contract
for which the Obligor has requested to make a voluntary Prepayment in full, [and
for which no Substitute Contract has been provided,] an amount equal to the
excess of (A) the sum of (i) the Discounted Contract Balance of such Contract as
of the beginning of such Collection Period, (ii) accrued and unpaid interest on
the balance in clause (i) at the Discount Rate from the Due Date on which a
Scheduled Payment was last paid to (but not including) the first day of such
Collection Period, (iii) any unpaid Scheduled Payments from previous Collection
Periods (regardless of whether
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Servicer Advances were made with respect to such Scheduled Payments) and
interest thereon through the date of Prepayment [and (iv) the Prepayment
Premium] over (B) all Scheduled Payments received with respect to such Contract
for such Collection Period on or before the date of such Prepayment.
PREPAYMENT PREMIUM: With respect to any Contract for which the Obligor
has requested to make a voluntary Prepayment in full or in part, an amount equal
to the excess, if any, of (a) an amount equal to the Discounted Contract Balance
of the Contract subject to the prepayment calculated using a discount rate equal
to the sum of (i) the then current yield on U.S. Treasury securities with a
maturity comparable to the weighted average life of the prepaid Contract, plus
(ii) an amount, expressed as a percentage, equal to the weighted average spread
(between the Certificate rate and the applicable Treasury rate) used in pricing
the Certificates at the original sale, plus (iii) the Servicing Fee Rate over
(b) an amount equal to the actual Discounted Contract Balance of such Contract.
[PRE-FUNDING AMOUNT: For any Payment Date during the Funding Period, an
amount equal to the amount by which (x) the Monthly Principal Payment for such
Payment Date exceeds (y) the sum of the Discounted Contract Balance of all
Contracts that were initially classified as a Defaulted Contract during the
immediately preceding Collection Period.
RELATED DOCUMENTS: The Contribution and Servicing Agreement, the Sale
Agreement, this Trust Agreement, the Certificates, the Underwriting Agreement
and each other document or instrument executed in connection thereof or the
transaction contemplated thereby.
REPURCHASE OPTION PAYMENT: As defined in ss. 7.01 hereof.
REQUIRED PAYMENTS: The amounts distributable pursuant to clauses [(a),
(b), (c), (d), (e), (f) and (g)] as set forth in Section ___ of this Agreement.
[RESERVE ACCOUNT: The account or accounts established by the Trustee
for the benefit of the Certificateholders pursuant to Section ____ of this
Agreement.]
SCHEDULED PAYMENTS: means, with respect to a Contract, the periodic
payment, including but not limited to principal and interest scheduled to be
paid by an Obligor pursuant to the terms and conditions of a Contract, due from
the Obligor during the related Collection Period.
SECURITY DEPOSIT: Any refundable deposit collected from, or on behalf
of, an Obligor as a security deposit at the time of origination of a Contract.
[TRANSFER DATE: With respect to the Original Contracts, the Cut-Off
Date, and with respect to Additional Contracts or Substitute Contracts, the
Payment Date that such Additional Contract or Substitute Contract is sold or
contributed to the Trust Estate, as the case may be.]
TRUST: DVI Asset Funding Trust _____, a [business] trust organized and
existing under the laws of the State of ________.]
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TRUST ESTATE: All right, title and interest of the Trust in and to the
property and rights transferred to or held by the Trust pursuant to this
Agreement.
TRUST ORDER: A written order or request signed in the name of [the
Depositor by its Authorized Officers] [an Authorized Officer of the Owner
Trustee] and delivered to the Trustee.
TRUSTEE: The Person performing the duties of the Trustee under this
Agreement, initially -------------.
WARRANTY REPURCHASE AMOUNT: With respect to a Collection Period and for
each Contract repurchased by Originator pursuant to the Contribution and
Servicing Agreement[, and for which no Substitute Contract has been provided,]
an amount equal to the excess of (A) the sum of (i) the Discounted Contract
Balance of such Contract as of the beginning of such Collection Period, (ii)
accrued and unpaid interest on the balance in clause (i) at the Discount Rate
from the Due Date on which a Scheduled Payment was last paid to (but not
including) the first day of such Collection Period, (iii) any unpaid Scheduled
Payments from previous Collection Periods (regardless of whether Servicer
Advances were made with respect to such Scheduled Payments) and interest thereon
through the date of repurchase [and (iv) the Prepayment Premium] over (B) all
Scheduled Payments received with respect to such Contract for such Collection
Period on or before the date of such repurchase.
Section 1.02. GENERAL INTERPRETIVE PRINCIPLES. For purposes of this
Agreement except as otherwise expressly provided or unless the context otherwise
requires:
(a) the defined terms in this Agreement shall include the
plural as well as the singular, and the use of any gender herein shall be deemed
to include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
provision;
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(f) the term "include" or "including" shall mean without
limitation by reason of enumeration;
(g) interest payable under this Agreement shall be calculated
on the basis of a 360 day year consisting of twelve 30 day months; and
(h) the term "principal" when referring to the Certificates
shall mean the [sum of Class A] Certificate Monthly Principal, [Class A]
Certificate Principal Arrearage, [Class B Certificate Monthly Principal and
Class B Certificate Principal Arrearage] and the term "interest" when referring
to the Certificates shall mean [the sum of Class A] Certificate Monthly
Interest, [Class A] Certificate Interest Arrearage, [Class B Certificate Monthly
Interest and Class B Certificate Interest Arrearage].
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ARTICLE II
CONVEYANCE OF CONTRACTS; TRUST ESTATE
-------------------------------------
Section 2.01. CONVEYANCE OF CONTRACTS. In consideration for
the delivery to the Depositor by the Trustee of the Certificates in authorized
denominations equal in the aggregate to [the sum of the Class A] Initial
Principal Balance [and the Class B Initial Principal Balance], the Depositor
does hereby sell, transfer, assign, set over and convey to the Trustee without
recourse, all the right, title and interest of the Depositor in and to the
Conveyed Property.
It is the intention of the Depositor and the Trustee that the
assignment and conveyance by the Depositor of the Conveyed Property and the
related issuance of the Certificates pursuant to this Agreement shall constitute
a purchase by the Trust of the Conveyed Property [(other than the Reserve
Account, the Pre-Funding Account and the Capitalized Interest Account)], and
that the Conveyed Property not be part of the Depositor's estate in the event of
the insolvency or bankruptcy of the Depositor. In the event that the Conveyed
Property is held to be property of the Depositor's bankruptcy estate, or if for
any reason this Agreement is held or deemed to create a security interest in the
Conveyed Property, then (x) this Agreement shall also be deemed to be a security
agreement within the meaning of Article 8 and Article 9 of the Uniform
Commercial Code as in effect in the States of _____________ and (y) the
conveyance provided for in this section 2.01 shall be deemed to be a grant by
the Depositor to the Trustee of (A) a valid first priority perfected security
interest in all of the Depositor's right, title and interest in and to the
Conveyed Property, except for the Equipment not owned by the Depositor, and (B)
a valid assignment by the Depositor to the Trustee of its security interest in
the Equipment not owned by the Depositor. If the Trust terminates prior to the
satisfaction of the claims of any Person in any Certificates, the security
interest created hereby shall continue in full force and effect and the Trustee
shall be deemed to be the collateral agent for the benefit of the
Certificateholders.
Section 2.02. ACCEPTANCE BY THE TRUSTEE. (a) The Trustee
acknowledges and accepts the assignment to it of the Conveyed Property pursuant
to this Agreement to be held in trust for the use and benefit of all present and
future Certificateholders [Securityholders], and has caused to be authenticated
and delivered to or upon the order of the Depositor, in exchange for the
Conveyed Property, Certificates duly authenticated by the Trustee in authorized
denominations evidencing ownership of the entire Trust Estate.
(b) The Depositor hereby (x) appoints the Trustee as the
Depositor's attorney-in-fact with all power to independently enforce against the
Originator, the Transferor and the Servicer, as appropriate, any of its rights
under any of the Related Documents under the Contribution and Servicing
Agreement and the Sale Agreement and (y) directs the Trustee to enforce any such
rights. The Trustee hereby accepts such appointment and agrees to enforce any
such rights.
Section 2.03. CUSTODY OF CONTRACTS AND CONTRACT FILES. The
executed original counterpart of each Contract, together with the other
documents or instruments, if any, which
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constitute a part of a Contract File shall be held by the [Indenture] Trustee,
in accordance with its customary practices, for the benefit of the Depositor [,
the Certificateholders] and the Certificateholders, as their respective
interests may appear.
Section 2.04. LIABILITIES OF THE TRUST AND PARTIES TO THIS
AGREEMENT; LIMITATIONS THEREON. (a) The obligations evidenced by the
Certificates provide recourse only to the Trust Estate and provide no recourse
against the Depositor, the Originator, the Servicer, the Trustee, or any other
Person. In consideration of the sale of the Certificates by the Depositor to the
initial Certificateholders for aggregate proceeds equal to the Initial
Certificate Principal Balance, the Depositor hereby instructs the Trustee to,
and the Trustee hereby agrees to, cause the Trust to pay to the
Certificateholders an amount of principal and interest, in each case at the
times, from the sources and on the terms and conditions set forth herein.
(b) The Depositor, the Originator, the Transferor and the
Servicer shall not be liable to the Trust, the Trustee or the Certificateholders
except as expressly provided herein and, with respect to the Originator and the
Servicer, as provided in the Contribution and Servicing Agreement. Without
limiting the generality of the foregoing, if any Obligor fails to pay any
Scheduled Payment or other amounts due under a Contract, then neither the
Trustee, the Trust nor the Certificateholders will have any recourse against the
Depositor, the Originator, the Transferor or the Servicer for such Scheduled
Payment, other amounts due under the Contract or any losses, damages, claims,
liabilities or expenses incurred by the Trustee, the Trust or any
Certificateholder as a direct or indirect result thereof, except as may be
expressly provided for herein and, with respect to the Originator and the
Servicer, as provided in the Contribution and Servicing Agreement.
(c) The Trustee agrees that in the event of a Contract Default
by an Obligor, the Trustee, the Trust and the Certificateholders shall be
expressly limited to the sources of payment specified herein. In addition, the
Trustee shall have the right to exercise the rights of the Originator (assigned
to the Transferor, then to the Depositor and finally to the Trustee) under the
Contract, the Insurance Policies and any document in any Contract File in the
name of the Trustee, the Trust and the Certificateholders, either directly or
through the Servicer as agent, and the Trustee is hereby directed by the
Depositor to exercise such rights.
(d) The receipt of the Conveyed Property by the Trustee
pursuant to this Agreement does not constitute and is not intended to result in
an assumption by the Trustee, the Trust or any Certificateholder of any
obligation (except for the obligation not to disturb an Obligor's right of quiet
enjoyment) of the Originator or the Servicer to any Obligor, or other Person in
connection with the Equipment, the Contract, the Insurance Policies or any
document in the Contract Files.
Section 2.05. TITLE TO TRUST ESTATE. Legal title to all of the
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee, in which case title shall be deemed
to be vested in the Trustee.
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Section 2.06. CONDITIONS TO CLOSING. As conditions to the
execution, authentication and delivery of the Certificates by the Trustee on the
Closing Date, the Trustee shall have received a certificate of the Depositor
(and the Trustee shall not be responsible for any independent verification of
such certificate) to the effect that the following have been delivered on or
before the Closing Date:
(a) The List of Contracts certified by a duly authorized
officer of the Originator;
(b) Copies of resolutions of the Board of Directors of the
Originator and the Transferor approving the execution, delivery and performance
of the Related Documents to which each is a party, certified by a Secretary or
an Assistant Secretary of the Originator or the Transferor, as appropriate.
(c) A copy of a document, certified by the Secretary of State
of the State of ________, and dated not more than 30 days prior to the Closing
Date (and confirmed on the Business Day prior to the Closing Date by telegram,
telephone or other similar means), evidencing the due organization and good
standing of the Originator and the Transferor, as appropriate;
(d) Copies of the Certificate of Incorporation and By-Laws of
the Originator and the Transferor certified as true, correct, complete by the
Secretary of the Originator or the Transferor, as appropriate;
(e) Evidence of filing with the Secretary of State of the
State of ___________ of UCC-1 financing statements (i) executed by the
Originator, as debtor, and naming the Transferor as secured party (and the
Trustee as assignee thereof) and the Conveyed Property as collateral; (2)
executed by the Transferor, as debtor, and naming the Depositor as secured party
(and the Trustee as assignee thereof) and the Conveyed Property as collateral;
and (3) executed by the Depositor, as debtor and naming the Trustee as secured
party and the Conveyed Property as collateral;
(f) A certificate listing the Servicing Officers of the
Servicer as of the Closing Date;
(g) Executed copies of each of the Related Documents;
(h) Copies of resolutions of the Board of Directors of the
Depositor approving the execution, delivery and performance of the Related
Documents to which it is a party and the transactions contemplated thereby,
certified by a Secretary or an Assistant Secretary of the Depositor;
(i) A copy of an officially certified document, dated not more
than 30 days prior to the Closing Date and confirmed on the Business Day prior
to the Closing Date by
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telegram, telephone or other similar means, evidencing the due organization and
good standing of the Depositor;
(j) Copies of the Certificate of Incorporation and By-Laws of
the Depositor, certified by a Secretary or an Assistant Secretary of the
Depositor; and
(k) Evidence that all collections received on the Contracts
from the close of business on the Cut-Off Date through ______________ have been
deposited in the Collection Account, and of the deposit of $____________ in the
Capitalized Interest Account, $__________ in any Reserve Account and $__________
in the Pre-Funding Account.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.01. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR.
The Depositor hereby makes the following representations and warranties on which
the Trustee relies in accepting the Conveyed Property in trust and in
authenticating the Certificates. Such representations, warranties and covenants
are made as of the Closing Date (unless an earlier date is indicated therein),
but shall survive the sale, transfer and assignment of the Conveyed Property to
the Trustee.
(a) ORGANIZATION AND GOOD STANDING. The Depositor is a
corporation duly organized, validly existing and in good standing under
the laws of the State of ________, and is qualified to transact
business in all states in which the ownership or lease of its property
or the conduct of its business requires such qualification, except to
the extent that the failure to so qualify would not in the aggregate
materially adversely affect the ability of the Depositor to perform its
obligations under this Agreement and each other Related Document to
which it is a party.
(b) AUTHORIZATION. The Depositor has the power, authority and
legal right to execute, deliver and perform this Agreement and each
other Related Document to which it is a party including the sale and
assignment of the Conveyed Property to the Trustee, and the execution,
delivery, and performance of this Agreement have been duly authorized
by the Depositor by all necessary corporate action;
(c) BINDING OBLIGATION. This Agreement and each other Related
Document to which it is a party, assuming due authorization, execution
and delivery by the other parties hereto and thereto, each constitutes
a legal, valid and binding obligation of the Depositor, enforceable
against the Depositor in accordance with its terms, subject to
bankruptcy, insolvency and other laws of general application affecting
the rights of creditors;
(d) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and each other Related Document to which
it is a party and the fulfillment of the terms hereof will not conflict
with, result in any breach of any of the terms and provisions of or
constitute (with or without notice, lapse of time or both) a default
under the certificate of incorporation or bylaws of the Depositor, or
any material indenture, agreement, mortgage, deed of trust or other
instrument to which Depositor is a party or by which it is bound, or
result in the creation or imposition of any lien upon any of its
material properties pursuant to the terms of such indenture, agreement,
mortgage, deed of trust or other such instrument, other than this
Agreement, or violate any law, or any material order, rule or
regulation applicable to it of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or any of its
properties;
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(e) NO PROCEEDINGS. There are no proceedings or investigations
to which the Depositor is a party pending or, to the knowledge of the
Depositor, threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality
(A) asserting the invalidity of this Agreement or any other Related
Document, (B) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this
Agreement or any other Related Document or (C) seeking any
determination or ruling that would materially and adversely affect the
performance by the Depositor of its obligations under, or the validity
or enforceability of, this Agreement or any other Related Document;
(f) APPROVALS. All approvals, authorizations, consents, orders
or other actions of any person, corporation or other organization, or
of any court, governmental agency or body or official, required in
connection with the execution and delivery of this Agreement or any
other Related Document and with the valid and proper authorization,
issuance and sale of the Certificates pursuant to this Agreement, have
been or will be taken or obtained on or prior to the Closing Date;
(g) PLACE OF BUSINESS. The Depositor's principal place of
business and chief executive office is at 000 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000;
(h) SALE AGREEMENT. As of the Closing Date, the Depositor has
entered into the Sale Agreement with the Transferor from whom it has
acquired the Transferred Assets and any representations and warranties
relating to the Equipment and the Contracts made by the Transferor in
the Sale Agreement are for the benefit of the Depositor, the Trustee,
and the Certificateholders;
(i) NO OTHER CONVEYANCE. The Depositor has not conveyed any of
the Conveyed Property, nor will it convey any of the Trust Estate, to
the Trust with any intent to hinder, delay or defraud any of its
creditors.
(j) DEPOSITOR SOLVENT. The Depositor is solvent and will not
be rendered insolvent as a result of the sale of the Conveyed Property
to the Trust or the sale of the Certificates.
Section 3.02. COVENANTS OF THE DEPOSITOR. The Depositor hereby
covenants and agrees with Trustee and the Certificateholders as follows:
(a) SECURITY INTERESTS. Except as otherwise provided herein,
the Depositor will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist, any Lien on
any Trust Property now existing or hereafter created, or any interest
therein, prior to the termination of this Agreement pursuant to Article
___ and the Depositor shall defend the right, title and interest of the
Trust in, to and under the applicable Trust Estate now existing or
hereafter created, against all claims of third parties claiming through
or under the Depositor; PROVIDED, HOWEVER, that nothing in this
subsection shall prevent or be deemed to prohibit the Depositor from
suffering to exist
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upon any of the Trust Estate any Liens for municipal or other local
taxes and other governmental charges if such taxes or governmental
charges shall not at the time be due and payable or if the Depositor
shall currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books adequate
reserves with respect thereto.
(b) DELIVERY OF COLLECTIONS. The Depositor agrees to pay to
the Servicer all amounts which may be received by the Depositor in
respect of the Trust Estate, and to which the Depositor shall not
otherwise be entitled, as soon as practicable after receipt thereof by
the Depositor.
(c) OBLIGATIONS WITH RESPECT TO CONTRACTS. The Depositor has
and will have no obligations to be fulfilled under or in connection
with any Contract and will do nothing to impair the rights of the Trust
in the Contract. As long as there is no default of any of the
provisions of the applicable Contract, the Depositor will not disturb
the Obligor's quiet and peaceful possession of the related Equipment
and Obligor's unrestricted use thereof for its intended purpose.
(d) COMPLIANCE WITH LAW. The Depositor will comply, in all
material respects, with all acts, rules, regulations, orders, decrees
and directions of any governmental authority applicable to the
Contracts or any part thereof; PROVIDED, HOWEVER, that the Depositor
may contest any act, regulation, order, decree or direction in any
reasonable manner which shall not materially and adversely affect the
rights of the Trust in the Contracts and the related Equipment. The
Depositor will comply, in all material respects, with all requirements
of law applicable to the Depositor.
(e) NOTICE OF LIENS. The Depositor shall notify the Trustee in
writing promptly after becoming aware of the existence of any Lien on
the Trust Estate, except for any Liens for municipal or other local
taxes if such taxes shall not at the time be due or payable without
penalty or if the Trust shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto.
(f) PROTECTION OF TRUST ESTATE. The Depositor shall take or
cause to be taken such actions and execute such documents as are
necessary to protect the Trust Estate and the Certificateholders'
interests in the Trust Estate, including, without limitation, the
filing of financing statements, amendments thereto and continuation
statements, the execution of transfer instruments and the making of
notations on or taking possession of all records or documents of title
and shall take no action, including the filing of financing statements
under the UCC, which would be adverse to the Trust Estate or the
Certificateholders' interests in the Contracts and the security
interests in the Equipment.
(g) NAME CHANGE OR RELOCATION. If any change in either the
Depositor's name, structure or the location of its principal place of
business or chief executive office occurs, then the Depositor shall
deliver [sixty (60) days'] prior written notice of such change or
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relocation to the Trustee, and the Depositor, no later than [five] days
after the effective date of such change or relocation, shall file such
amendments or statements as may be required to preserve and protect the
Certificateholders' and the Trustee's respective interests in the Trust
Estate.
(h) CHIEF EXECUTIVE OFFICE. During the term of this Agreement,
the Depositor will maintain its chief executive office and principal
place of business in one of the States of the United States.
(i) COSTS AND EXPENSES. The Depositor agrees to pay all
reasonable costs and disbursements in connection with the protection,
as against all third parties, of the Trust Estate and the
Certificateholders' right, title and interest in and to the Trust
Estate.
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ARTICLE IV
THE CERTIFICATES
Section 4.01. AUTHORIZATION OF CERTIFICATES. There shall be
issued under this Agreement [(i)] the [Class A] Certificates in the initial
aggregate principal amount of $__________ [and (ii) the Class B Certificates in
the initial aggregate principal amount of
$---------.]
The [Class A] Certificates [and the Class B Certificates]
shall be initially issued in minimum denominations of $500,000, [each] as
requested by the Depositor in writing prior to the date of issuance of the
Certificates.
Section 4.02. FORM OF CERTIFICATES. The [Class A] Certificates
[and the Class B Certificates] issued under this Agreement shall be
substantially in the following form of Exhibit B, respectively, in each case,
with such appropriate variations, omissions, additions and insertions as are
permitted or required by this Agreement, and may have such legends or
endorsements placed thereon as may, consistently herewith, be determined by any
of the Corporate Trust Officers of the Trustee executing such Certificates, as
evidenced by their execution of the Certificates.
Section 4.03. CERTIFICATE OF AUTHENTICATION. No Certificate
shall be secured hereby or entitled to the benefit hereof or shall be or become
valid or obligatory for any purpose unless there shall be endorsed thereon a
certificate of authentication, substantially in the form as set forth in the
form of Certificate attached hereto as Exhibit B, executed by a Corporate Trust
Officer of the Trustee; and such certificate on any Certificate shall be
conclusive evidence and the only competent evidence that it has been duly
authenticated and delivered hereunder.
At the written direction of the Depositor, the Trustee shall
authenticate and deliver the Certificates. It shall not be necessary that the
same authorized signatory of the Trustee execute the certificate of
authentication on each of the Certificates.
Section 4.04. REGISTRATION; REGISTRATION OF TRANSFER AND
EXCHANGE OF CERTIFICATES. (a) The Trustee shall cause to be kept a register (the
"Certificate Register") in which, subject to such reasonable regulations as it
may prescribe, the Trustee shall provide for the registration and registration
of transfers of the Certificates. The names and addresses of the Holders of all
Certificates and all transfers of, and the names and addresses of the
transferees of, all Certificates will be registered in the Certificate Register.
If a Person other than the Trustee is to maintain the Certificate Register, such
successor certificate registrar shall give the Trustee prompt written notice of
such appointment and of the location, and any change in the location, of the
successor certificate registrar, and the Trustee shall have the right to inspect
the Certificate Register at all reasonable times and to obtain copies thereof,
and the Trustee shall have the right to rely upon a certificate executed on
behalf of the certificate registrar by an officer thereof as to the names and
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addresses of the Holders of the Certificates and the principal amounts and
number of such Certificates.
(b) Any Certificate is transferable only upon the
surrender to the Trustee of such Certificate assignment executed by the existing
Holder or its duly authorized attorney in form reasonably satisfactory to the
Trustee duly endorsed by, or accompanied by a written instrument of transfer.
Upon satisfaction of such requirements, each Holder of a Certificate shall have
the right to require a new Certificate or Certificates of the same Class to be
issued to it or to its assignee. All Certificates issued upon any registration
of transfer or exchange of Certificates shall be entitled to the same rights
under this Agreement as the Certificates surrendered upon such registration of
transfer or exchange.
(c) Any service charge made or expense incurred by
the Trustee for any such registration, discharge from registration or exchange
referred to in this Section 4.04 shall be paid by the Certificateholder. The
Trustee may require payment by the Holder of a sum sufficient to cover any tax
expense or other governmental charge payable in connection therewith.
(d) The preceding provisions of this Section 4.04
notwithstanding, the Trustee shall not be required to make and the Certificate
Registrar need not register transfers or exchanges, of any Certificate for a
period of thirty (30) days preceding the due date for the final repayment of
principal with respect to the Certificate.
Section 4.05. MUTILATED, DESTROYED, LOST AND STOLEN
CERTIFICATES. (a) If (i) any mutilated Certificate is surrendered to the
Trustee, or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Trustee such security or indemnity as it may require to hold the Trust and
the Trustee harmless, then the Trustee shall execute and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
replacement Certificate of the same Class and maturity and of like terms as the
mutilated, destroyed, lost or stolen Certificate; PROVIDED, HOWEVER, that if any
such destroyed, lost or stolen Certificate, but not a mutilated Certificate,
shall have become, or within thirty (30) days shall be, due and payable, the
Trustee may pay such destroyed, lost or stolen Certificate when so due or
payable instead of issuing a replacement Certificate.
(b) If, after the delivery of such replacement Certificate, or
payment of a destroyed, lost or stolen Certificate pursuant to the proviso to
the last sentence of subparagraph (a), a bona fide purchaser of the original
Certificate in lieu of which such replacement Certificate was issued presents
for payment such original Certificate, the Trustee shall be entitled to recover
upon the security or indemnity provided therefor to the extent of any loss,
damage, cost or expense incurred by the Trustee in connection therewith.
(c) The Trustee may, for each new Certificate authenticated
and delivered under the provisions of this Section 4.05, require the advance
payment by the Certificateholder of the expenses, including counsel fees,
service charges and any tax or governmental charge which may be incurred by the
Trustee or Trust Estate. Any Certificate issued under the provisions of this
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Section 4.05 in lieu of any Certificate alleged to be destroyed, mutilated, lost
or stolen, shall be equally and proportionately entitled to the benefits of this
Agreement with all other Certificates of the same Class issued hereunder. The
provisions of this Section 4.05 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 Certificates.
Section 4.06. CANCELLATION. Any such Certificate as to which
the Trustee has made or holds the final payment thereon shall be deemed
cancelled and shall no longer be outstanding for any purpose of this Agreement,
whether or not such Certificate is ever returned to the Trustee. All
Certificates surrendered for payment, registration of transfer, exchange or
transfer shall be promptly cancelled by the Trustee. If the Trustee, for its own
account, shall acquire any of the Certificates, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Certificates. All cancelled Certificates may be held or disposed of by the
Trustee in accordance with its standard retention or disposal policy as in
effect at the time.
Section 4.07. PERSONS DEEMED OWNERS. The Person in whose name
any Certificate is registered shall be deemed and treated as the owner and
Holder thereof for all purposes of this Agreement and the Trustee and the Trust
Estate shall not be affected by any notice or knowledge to the contrary.
Payments of principal and interest on the Certificates shall be payable on each
Payment Date only to the registered Holder thereof on the immediately preceding
Record Date.
Section 4.08. BOOK ENTRY CERTIFICATES. The Certificates, upon
original issuance, will be issued in the form of a typewritten Certificate or
Certificates representing the Book Entry Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Trust Estate. Such Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Certificate Owner will receive a Definitive Certificate representing such
Certificate Owner's interest in such Certificates, except as provided in Section
4.10 hereof. Unless and until Definitive Certificates have been issued to
Certificate Owners pursuant to Section 4.10:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the certificate registrar and the Trustee shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the payment of principal of and interest on such
Certificates and the giving of instructions or directions hereunder) as
the sole Holder of such Certificates, and shall have no obligation to
such Certificate Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions of
this Section shall control;
(iv) the rights of such Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between
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such Certificate Owners and the Clearing Agency and/or the Clearing
Agency Participants and, pursuant to the Depository Agreement, unless
and until Definitive Certificates are issued pursuant to Section 4.10,
the initial Clearing Agency will make book entry transfers among the
Clearing Agency Participants and receive and transmit payments of
principal of and interest on such Certificates to such Clearing Agency
Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of Holders of Certificates
evidencing a specified percentage of the Percentage Interest in the
Trust, the Clearing Agency shall be deemed to represent such percentage
only to the extent that it has (i) received instructions to such effect
from Certificate Owners and/or Clearing Agency Participants owning or
representing, respectively, such required percentage of the beneficial
interest in such Certificates and (ii) has delivered such instructions
to the Trustee.
Section 4.09. NOTICES TO CLEARING AGENCY. With respect to the
Certificates, whenever a notice or other communication to the related
Certificateholders is required or other communication to Certificateholders is
required under this Agreement, unless and until Definitive Certificates shall
have been issued to Certificate Owners pursuant to Section 4.10, the Trustee
shall give all such notices and communications specified herein to be given to
such Certificateholders to the Clearing Agency, and shall have no obligation to
the related Certificate Owners.
Section 4.10. DEFINITIVE CERTIFICATES. If, with respect to
Book Entry Certificates, (i) the Trustee is notified in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to such Certificates, and the Trustee is unable to
locate a qualified successor, (ii) the Trustee, at is option, elects to
terminate the book entry system through the Clearing Agency or (iii) [after the
occurrence of an Event of Default or a Servicer Default], Certificate Owners
representing beneficial interests aggregating at least a Majority of Holders
advise the Clearing Agency in writing that the continuation of a book entry
system through the Clearing Agency is no longer in the best interests of such
Certificate Owners, then the Clearing Agency shall notify all such Certificate
Owners and the Trustee of the occurrence of any such event and of the
availability of definitive fully registered Certificates ("Definitive
Certificates") to such Certificate Owners requesting the same. Upon surrender to
the Trustee of the typewritten Certificate or Certificates representing the Book
Entry Certificates by the Clearing Agency, accompanied by registration
instructions, the Trustee shall execute and authenticate the Definitive
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Certificate Registrar nor the Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Trustee shall recognize the Holders of the Definitive
Certificates as Certificateholders.
Section 4.11. TEMPORARY CERTIFICATES. Pending the
preparation of Definitive Certificates to be issued in exchange for Book Entry
Certificates, the Trustee may execute and authenticate and deliver, temporary
Certificates which are printed, lithographed, typewritten,
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mimeographed or otherwise produced, of the tenor of the Definitive Certificates
in lieu of which they are issued with such variations not inconsistent with the
terms of this Agreement as the Corporate Trust Officers executing such
Certificates may determine, as evidenced by their execution of such
Certificates.
If temporary Certificates are so issued, the Trustee will
cause Definitive Certificates to be prepared without unreasonable delay. After
preparation of Definitive Certificates, the temporary Certificates shall be
exchangeable for definitive Certificates upon surrender of the temporary
Certificates at the office or agency of the Trustee without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Trustee shall execute and authenticate and deliver in exchange
therefor a like principal amount of Definitive Certificates of authorized
denominations. Until so exchanged, the temporary Certificates shall in all
respects be entitled to the same benefits under this Agreement as Definitive
Certificates.
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ARTICLE V
PAYMENT OF CERTIFICATES; ACCOUNTS
[NOTE: THE PROVISIONS OF SECTIONS 5.01, 5.02, 5.03, 5.07, 5.08, 5.09 AND 5.10
MAY BE DELETED OR MODIFIED DEPENDING ON THE TERMS OF A PARTICULAR TRANSACTION.]
Section 5.01. COLLECTION ACCOUNT. (a) The Trustee hereby
establishes the Collection Account to be held (together with all property
therein from time to time) by and maintained with the Trustee in accordance with
the provisions of this Section 5.01. The Collection Account shall at all times
be an Eligible Account and shall be held as one or more segregated trust
accounts, initially in the Trustee's corporate trust department, and shall be
titled as follows: "_______________, as Trustee for the benefit of the
registered Certificateholders of DVI Asset Funding Trust 199_____ -- Collection
Account". The Trustee shall make or permit withdrawals from the Collection
Account only as provided in this Agreement.
(b) The following amounts shall be deposited in the Collection
Account at the times indicated below:
(i) The Servicer shall remit to the Trustee and
the Trustee shall immediately deposit, or
cause to be deposited into the Collection
Account the aggregate amount of Collections
received by the Servicer on or before the
[second] Business Day following the
Servicer's receipt of such Collections;
[provided, however, that the Servicer shall
not be obligated to remit any portion of the
foregoing amounts which represent Excluded
Amounts];
(ii) The Servicer shall remit to the Trustee on
or prior to _______ on the [Notice] Date,
and the Trustee shall immediately deposit
into the Collection Account, any Servicer
Advances;
(iii) The Originator shall remit to the Trustee,
and the Trustee shall deposit in immediately
available funds, the aggregate Warranty
Repurchase Amount due and payable by the
Originator not later than the _________
Business Day following the date on which it
becomes obligated to pay such Warranty
Repurchase Amount and the Trustee shall
immediately deposit into the Collection
Account any Warranty Repurchase Amount
received from, or on behalf of, the
Originator;
[(iv) The Trustee shall immediately deposit into
the Collection Account any Reserve Account
Draw required to be deposited into the
Collection Account pursuant to Section 5.02
of this Agreement]; and
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[(v) The Trustee shall immediately deposit into
the Collection Account the amount of any
withdrawals made from the Capitalized
Interest Account in accordance with Section
5.10 of this Agreement.]
(c) On each Payment Date, the Trustee shall pay the amounts
set forth below (based solely on the information stated on the Servicer Report
delivered on the immediately preceding Notice Date) out of the Collection
Account from amounts deposited therein pursuant to this Section 5.01 to the
following Persons in the following order of priority:
[(1) To the Servicer by [wire transfer of immediately
available funds] (to the account that the Servicer has designated to the Trustee
on or prior to the Business Day immediately preceding such Payment Date), an
amount necessary to reimburse the Servicer for unreimbursed Servicer Advances as
follows: (i) for Servicer Advances made with respect to Contracts which become
Defaulted Contracts, from all Collections; and (ii) for Servicer Advances made
with respect to Delinquent Contracts, from such delinquent payments subsequently
received from Obligors under such Delinquent Contract;]
(2) To the Servicer by [wire transfer of immediately available
funds] (to the account that the Servicer has designated to the Trustee on or
prior to the Business Day immediately preceding such Payment Date), the sum of
(a) any Servicing Fee Arrearage, plus (b) any other amounts to which the
Servicer is entitled pursuant to the [Contribution and Servicing Agreement]; and
(3) To each Holder of a [Class A] Certificate on the
immediately preceding Record Date (or, in the case of the initial Distribution
Date, the Closing Date), pro rata, by [wire transfer of immediately available
funds] (to the account that such Certificateholder has designated to the Trustee
in writing on or prior to the Business Day immediately preceding such Payment
Date), an amount equal to the sum of (x) [Class A] Certificate Monthly Interest
and (y) [Class A] Certificate Interest Arrearage, if any;
[ (4) To each Holder of a Class B Certificate on the immediately preceding
Record Date (or, in the case of the initial Distribution Date, the Closing
Date), pro rata, by [wire transfer of immediately available funds] (to the
account that such Certificateholder has designated to the Trustee in writing on
or prior to the Business Day immediately preceding such Payment Date), an amount
equal to the sum of (x) Class B Certificate Monthly Interest and (y) Class B
Certificate Interest Arrearage, if any;]
(5) To each Holder of a [Class A] Certificate on the
immediately preceding Record Date, pro rata, by [wire transfer of immediately
available funds] (to the account such Certificateholder has designated to the
Trustee in writing on or prior to the Business Day immediately preceding such
Payment Date), an amount equal to the sum of (i) [Class A] Certificate Monthly
Principal and (ii) [Class A] Certificate Principal Arrearage, if any;
[ (6) To each Holder of a Class B Certificate on the
immediately preceding Record Date, pro rata, by [wire transfer of immediately
available funds] (to the account that such
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Certificateholder has designated to the Trustee in writing on or prior to the
Business Day immediately preceding such Payment Date), pro rata, an amount equal
to the sum of (i) Class B Certificate Monthly Principal and (ii) Class B
Certificate Principal Arrearage, if any;]
[(7) To the Trustee, the amount of any fees, expenses and
indemnifications owing pursuant to Section ___ hereof;] and
(8) To the Depositor (or its designee), any remaining
Available Funds (and the proceeds thereof) on deposit in the Collection Account.
[Section 5.02. RESERVE ACCOUNT. (a) The [Depositor] [Trustee]
hereby establishes the Reserve Account to be held (together with all property
therein from time to time) by and maintained with the Trustee in accordance with
the provisions of this Section 5.02. The Reserve Account shall at all times be
an Eligible Account and shall be held as one or more segregated trust accounts
in the Trustee's corporate trust department and shall be titled as follows:
"__________, as Trustee for the benefit of the registered Certificateholders of
DVI Asset Funding Trust _____-Reserve Account". The Trustee shall make or permit
withdrawals from the Reserve Account only as provided in this Indenture.
(b) No later than the Business Day prior to each Payment Date,
the Trustee shall, in accordance with the information set forth in the Servicer
Report, make a draw on the Reserve Account in an amount equal to the extent by
which Available Funds related to such Collection Period are not sufficient to
pay the Required Payments on such Payment Date, and the amount of any such
Reserve Account Draw will be deposited in the Collection Account.
(c) On the first Business Day after the date on which this
Agreement terminates pursuant to Section ____ hereof, the Trustee shall withdraw
all amounts then on deposit in the Reserve Account and deliver such amounts
first to the Holders of the [Class A] Certificates to the extent of any unpaid
amounts owing on the [Class A] Certificates, [then to the Holders of the Class B
Certificates to the extent of any unpaid amounts owing on the Class B
Certificates and finally to the Depositor or its designee.]]
Section 5.03. [RESERVED]
Section 5.04. INVESTMENT OF MONIES HELD IN THE ACCOUNTS. The
Trustee shall invest any cash deposited in the Accounts in such Eligible
Investments as the Servicer shall direct. Each Eligible Investment (including
reinvestment of the income and proceeds of Eligible Investments) shall be held
to its maturity and shall mature not later than the [Business Day immediately
preceding the next succeeding] Payment Date. If the Trustee has not received
written instructions from the Servicer as to the investment of funds then on
deposit in any of the aforementioned accounts, the Issuer hereby instructs the
Trustee to invest such funds in Eligible Investments described in clause [(iv)]
of the definition thereof. Any funds in the Accounts not so invested must be
fully insured by the Federal Deposit Insurance Corporation. Eligible Investments
shall be made in the name of the Trustee for the benefit of the Noteholders
provided that upon release of such Eligible Investments in accordance with
Section ____ of this
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Agreement, the Trustee shall transfer such Eligible Investments into the name of
the Issuer or its designee. Any earnings on Eligible Investments in the Accounts
shall be retained in each such account and be distributed in accordance with the
terms of this Indenture. The Trustee shall not be liable or responsible for
losses on any investments made by it pursuant to and in compliance with such
instructions of the Servicer.
Section 5.05. RECORDS. The Trustee shall cause to be kept
and maintained adequate records pertaining to the Accounts and all disbursements
therefrom.
[Section 5.06. CAPITALIZED INTEREST ACCOUNT. (a) The Trustee
hereby establishes the Capitalized Interest Account to be held (together with
all property therein from time to time) by and maintained with the Trustee for
the benefit of the Certificateholders. The Capitalized Interest Account shall at
all times be an Eligible Account and initially shall be held as one or more
segregated trust accounts in the Trustee's corporate trust department and shall
be titled as follows: "_______________, as Trustee for the benefit of the
registered Certificateholders of DVI Asset Funding Trust ______ -Capitalized
Interest Account". The Trustee shall make or permit withdrawals from the
Capitalized Interest Account only as provided in this Agreement.
(b) On the Closing Date, the Trustee shall deposit in the
Capitalized Interest Account funds in an amount equal to $________ from the
proceeds of the sale of the Notes.
(c) On each Payment Date through and including the Payment
Date immediately following the termination of the Funding Period, the Trustee
shall transfer from the Capitalized Interest Account to the Collection Account
the Capitalized Interest Requirement for such Payment Date.
(d) On the Payment Date following the termination of the
Funding Period, any amounts remaining in the Capitalized Interest Account shall
be paid to the Company on such Payment Date and the Capitalized Interest Account
shall be closed.]
[Section 5.07. LOCKBOX ACCOUNT. On or prior to the Closing
Date, the Trustee, on behalf of the Issuer, shall establish in the name of the
Trustee for the benefit of the Noteholders, a post-office box with __________
(the "Lockbox Account") for the receipt directly from the Obligors of all
Collections on, or in respect of, each Contract. No Person other than the
Trustee shall be permitted to have access to such Lockbox Account. On each
Business Day, the Trustee shall cause all items received in the Lockbox Account
since the preceding Business Day to be deposited into the Collection Account.
All Collections relating to a Contract received in the Lockbox Account shall
constitute part of the Collateral.]
[Section 5.08. PRE-FUNDING ACCOUNT. (a) The Trustee, on
behalf of the Issuer, hereby establishes the Pre-Funding Account to be held
(together with all property therein from time to time) by and maintained with
the Trustee for the benefit of the Certificateholders. The Pre-Funding Account
shall at all times be an Eligible Account and initially shall be held as one or
more segregated trust accounts in the Trustee's corporate trust department and
shall be titled as follows: "_______________, as Trustee for the benefit of the
registered Xxxxxxxxxxxxxxxxxx xx
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XXX Xxxxx Funding Trust _____ Pre-Funding Account". The Trustee shall make or
permit withdrawals from the Pre-Funding Account only as provided in this
Indenture.
(b) On the Closing Date, the Trustee shall deposit, on behalf
of the Noteholders, in the Pre-Funding Account funds in an amount equal to
$________ from the proceeds of the sale of the Notes.
(c) On any Transfer Date occurring subsequent to the Closing
Date [and prior to the expiration of the Funding Period], the Issuer shall
instruct the Trustee to withdraw from the Pre-Funding Account an amount equal to
___% of the Discounted Contract Balances of the Additional Contracts sold to the
Company on such Transfer Date and pay such amount, upon satisfaction of the
conditions set forth in Section ____ of the [Contribution and Servicing
Agreement] with respect to such transfer.
(d) If the balance of funds on deposit in the Pre-Funding
Account has not been reduced to zero on the Final Transfer Date [within the
Funding Period], the Trustee is hereby authorized and directed to withdraw from
the Pre-Funding Account on such Final Transfer Date the remaining Pre-Funded
Amount on deposit in the Pre-Funding Account and shall distribute such amounts
on such Final Additional Closing Date to the [Class A] Certificateholders [and
the Class B Certificateholders], in accordance with their respective
percentages, [as a prepayment on the Class A Certificates and the Class B
Certificates.]]
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ARTICLE VI
CONCERNING THE TRUSTEE
----------------------
Section 6.01. DUTIES OF TRUSTEE. (a) Except during the
continuance of a Servicer Default:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement and no
implied covenants or obligations shall be read into this Agreement
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates, statements, reports, documents, orders, opinions or other
instruments furnished to the Trustee and conforming to the requirements
of this Agreement; PROVIDED, HOWEVER, the Trustee shall examine such
statements, reports, documents, orders, opinions or other instruments
whether or not they confirm on their face to the requirements of this
Agreement.
(b) If a Servicer Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by the
Contribution and Servicing Agreement, and use the degree of care and skill in
their exercise as is required pursuant to the terms of the Contribution and
Servicing Agreement.
(c) No provision of this Agreement 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; PROVIDED, HOWEVER, that:
(i) This paragraph shall not limit the effect of paragraph
(b) of this Section;
(ii) The Trustee shall not be liable for an error of judgment
made in good faith by a Corporate Trust Officer or Corporate Trust
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the directions received from the requisite
amount of Holders relating to the time, method and place of conducting
any Proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement.
(d) No provisions of this Agreement shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
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Section 6.02. RIGHTS OF THE TRUSTEE.
(a) The Trustee may consult with counsel and any advice of
such counsel shall be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel.
(b) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Agreement
PROVIDED, HOWEVER, that the Trustee's conduct does not constitute willful
misconduct, negligence or bad faith.
(c) 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, consent, order, approval, bond or
other paper or document, unless requested in writing to do so by the Majority of
Holders; PROVIDED, HOWEVER, that the Trustee may require reasonable indemnity
against any cost, expense or liability likely to be incurred in making such
investigation as a condition to so proceeding. The reasonable expense of any
such examination shall be paid, on a pro rata basis, by the Certificateholders
requesting such examination or, if paid by the Trustee, shall be reimbursed by
such Certificateholders upon demand.
(d) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, [provided that the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it
with due care hereunder].
(e) The provisions of this Section 902 shall be applicable to
the Trustee in its capacity as Trustee under this Agreement. If the Trustee, in
accordance with the Contribution and Servicing Agreement, shall have succeeded
to the obligations of the Servicer, the provisions of the [Contribution and
Servicing] Agreement shall govern the actions of the Trustee as successor
Servicer.
Section 6.03. TRUSTEE NOT LIABLE. (a) Other than the
representations and warranties contained in Section 9.11 hereof and the
certificate of authentication on the Certificates, the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement, the Certificates, the Trust
Estate or of any related document. The Trustee shall not be accountable for the
use or application by the Trust Estate of any of the Certificates or of the
proceeds thereof, or for the use or application of any funds paid to the Trust
Estate or the Servicer (if the Servicer is a Person other than the Trustee) in
respect of the Collateral.
(b) The Trustee shall not have any obligation or
responsibility with respect to the Contract Files [except as set forth in
Section _____________]. The Trustee shall have no responsibility or liability
for or with respect to the existence or validity of any Contract or item of
Equipment, the perfection of any security interest (whether as of the date
hereof or at any future time), the maintenance of or the taking of any action to
maintain such perfection, the validity of
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the assignment of any portion of the Collateral to the Trustee or of any
intervening assignment, the review of any Contract (it being understood that the
Trustee has not reviewed and does not intend to review the substance or form of
any such Contract), the performance or enforcement of any Contract, the
compliance by the Originator or the Servicer [(other than the Trustee acting as
Servicer)] with any covenant or the breach by the Originator or the Servicer
(other than the Trustee acting as Servicer) of any warranty or representation
made hereunder or in any related document or the accuracy of such warranty or
representation, any investment of monies in the Accounts or any loss resulting
therefrom (provided that such investments are made in accordance with the
provisions of Section 5.04 hereof), the acts or omissions of the Depositor, the
Servicer (other than the Trustee acting as Servicer) or any Obligor or any
action of the Servicer taken in the name of the Trustee.
(c) The Trustee shall not have any obligation or liability
under any Contract by reason of or arising out of this Agreement or the granting
of a security interest in such Contract hereunder or the receipt by the Trustee
of any payment relating to any Contract pursuant hereto, nor shall the Trustee
be required or obligated in any manner to perform or fulfill any of the
obligations of the Trust Estate or the Depositor under or pursuant to any
Contract, or to make any payment, or to make any inquiry as to the nature or the
sufficiency of any payment received by it, or the sufficiency of any performance
by any party, under any Contract.
Section 6.04. TRUSTEE MAY OWN CERTIFICATES. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights it would have if it were not Trustee; PROVIDED, HOWEVER,
that (1) such transaction must not result in the disqualification of the Trustee
for purposes of Rule 3a-7 under the Investment Company Act of 1940, as amended
and (2) the Trustee must comply with Section 6.06 hereof.
Section 6.05. LIEN FOR TRUSTEE'S FEES AND EXPENSES. The fees
and expenses of the Trustee shall be paid in accordance with Section 5.01 of
this Agreement. Subject to the provisions of Section ______ hereof, the Trust
Estate shall indemnify the Trustee for, and hold it harmless against, any loss,
liability or expense incurred without negligence or willful misconduct on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending itself both
individually and in its representative capacity against any claim or liability
in connection with the exercise or performance of any of its power or duties
hereunder.
Section 6.06. ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The
Trustee may have normal banking relationships with the Company. The Trustee or
its parent corporation shall at all times have a combined capital and surplus of
at least [$50,000,000]. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising or
examining authority, then, for the purposes of this Section 6.06, 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 addition, the Trustee hereunder shall at all times qualify for
purposes of Rule 3a-7 under the Investment Company Act of 1940. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section,
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the Trustee shall resign immediately in the manner and with the effect specified
in Section 6.07 hereof.
Section 6.07. RESIGNATION AND REMOVAL OF TRUSTEE. (a) The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Certificateholders, the Company, any
other Depositor, and any Indenture Trustee. Upon receiving such notice of
resignation, the Majority of Holders shall promptly appoint a successor trustee
(which shall be reasonably acceptable to the Majority of Holders) by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor Trustee. If no successor Trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee,
which successor trustee shall be reasonably acceptable to the Majority of
Holders.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.06 hereof and shall fail to resign
after written request therefor by the Company, or if at any time the Trustee
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Company shall remove the Trustee and appoint a successor Trustee reasonably
acceptable to the Majority of Holders by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee.
The Trustee also may be removed at any time (i) by the
Company, if the Trustee ceases to be eligible to continue as such under this
Trust Agreement, (ii) if the Trustee become insolvent, (iii) if a tax is imposed
or threatened with respect to the Trust Fund by any state in which the Trustee
or the Trust Estate held by the Trustee pursuant to this Trust Agreement is
located, or (iv) by the Majority of Holders upon 30 days' advance written notice
to the Trustee and to the Company.
(c) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 6.08 hereof.
Section 6.08. SUCCESSOR TRUSTEE. (a) Any successor Trustee
appointed as provided in Section 6.07 hereof shall execute, acknowledge and
deliver to the Trust Estate and to its predecessor Trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as Trustee herein. The predecessor Trustee
shall deliver to the successor Trustee the original Contracts and Contract
Files, if any, delivered to it, together with any amount remaining in the
Accounts. In addition, the predecessor Trustee and, upon request of the
successor Trustee, the Trust Estate shall execute and deliver such instruments
and do such other things as may
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reasonably be required for more fully and certainly vesting and confirming in
the successor Trustee all such rights, powers, duties and obligations.
(b) No successor Trustee shall accept appointment as provided
in this Section unless at the time of such acceptance such successor Trustee
shall be eligible under the provisions of Section 6.06 hereof.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section, the Trustee shall mail notice of its succession to all
Certificateholders at their addresses as shown in the Note Register.
Section 6.09. MERGER OR CONSOLIDATION OF TRUSTEE. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible under the provisions of
Section 6.06 hereof, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 6.10. SEPARATE TRUSTEES, CO-TRUSTEES AND CUSTODIANS.
The Trustee or the Majority of Holders shall each have the power from time to
time to appoint one or more persons or corporations to act either as co-trustees
jointly with the Trustee, or as separate trustees, or as custodians, for the
purpose of holding title to, foreclosing or otherwise taking action with respect
to any of the Collateral, where such separate trustee or co-trustee is necessary
or advisable under any applicable laws or for the purpose of otherwise
conforming to any legal requirement, restriction or condition in any applicable
jurisdiction. The separate trustees, co-trustees, or custodians so appointed
shall be trustees, co-trustees, or custodians for the benefit of all
Certificateholders and shall have such powers, rights and remedies as shall be
specified in the instrument of appointment; PROVIDED, HOWEVER, that no such
appointment shall, or shall be deemed to, constitute the appointee an agent of
the Trustee. The Trustee shall join in any such appointment, but such joining
shall not be necessary for the effectiveness of such appointment.
Every separate trustee, co-trustee and custodian shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all powers, duties, obligations and rights conferred upon
the Trustee in respect of the receipt, custody and payment of moneys
shall be exercised solely by the Trustee;
(ii) all other rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate
trustee, co-trustee, or custodian jointly, except as provided in the
instrument of appointment, and except to the extent that under any law
of any jurisdiction in which any particular act or acts are to be
performed (whether as Trustee hereunder or as successor to the
Servicer) the Trustee shall be incompetent or unqualified to perform
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such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Collateral or any
portion thereof in any such jurisdiction) shall be exercised and
performed by such separate trustee, co-trustee or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Trustee or the Majority of Holders may at any time
accept the resignation of or remove any separate trustee, co-trustee or
custodian so appointed by it or them if such resignation or removal
does not violate the other terms of this Agreement.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee, or custodian shall refer to this
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Trustee or separately, as may be provided therein, subject to
all the provisions of this Agreement, specifically including every provision of
this Agreement relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be furnished
to the Trustee.
Any separate trustee, co-trustees, or custodian may, at any
time, constitute the Trustee, its agent or attorney-in-fact, with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name, provided that the
Trustee shall continue to be responsible for its duties and obligations under
the Trust Agreement. If any separate trustee, co-trustee, or custodian shall
die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee or custodian.
No separate trustee, co-trustee or custodian hereunder shall
be required to meet the terms of eligibility as a successor trustee under
Section 6.06 hereof and no notice to Noteholders of the appointment thereof
shall be required under Section 6.08 hereof.
The Trustee agrees to instruct the co-trustees, if any, to the
extent necessary to fulfill the Trustee's obligations hereunder.
Section 6.11. REPRESENTATIONS AND WARRANTIES. The Trustee
hereby represents and warrants that:
(a) ORGANIZATION AND GOOD STANDING. The Trustee is a
[national] banking association duly organized, validly existing and in good
standing under the laws of [the United States of America], and has the power to
own its assets and to transact the business in which it is presently engaged;
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(b) AUTHORIZATION. The Trustee has the power, authority and
legal right to execute, deliver and perform this Agreement and to authenticate
the Certificates, and the execution, delivery and performance of this Agreement
and the authentication of the Certificates has been duly authorized by the
Trustee by all necessary corporate action;
(c) BINDING OBLIGATIONS. This Agreement, assuming due
authorization, execution and delivery by the Depositor, constitutes the legal,
valid and binding obligations of the Trustee, enforceable against the Trustee in
accordance with its terms, except that (i) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
(whether statutory, regulatory or decisional) now or hereafter in effect
relating to creditors' rights generally and the rights of trust companies in
particular and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to certain equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought,
whether a proceeding at law or in equity.
(d) NO VIOLATION. The performance by the Trustee of its
obligations under this Agreement will not conflict with, result in any breach of
any of the terms and provisions of, or constitute (with or without notice, lapse
of time or both) a default under, the charter documents or bylaws of the
Trustee;
(e) NO PROCEEDINGS. There are no proceedings or investigations
to which the Trustee is a party pending, or, to the knowledge of the Trustee,
threatened, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality (A) asserting the invalidity of this
Agreement or the Certificates, (B) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by this
Agreement or (C) seeking any determination or ruling that would materially and
adversely affect the performance by the Trustee of its obligations under, or the
validity or enforceability of, this Agreement or the Certificates; and
(f) APPROVALS. Neither the execution or delivery by the
Trustee of this Agreement nor the consummation of the transactions by the
Trustee contemplated hereby requires the consent or approval of, the giving of
notice to, the registration with or the taking of any other action with respect
to any governmental authority or agency under any existing federal or State of
____________ law governing the banking or trust powers of the Trustee;
Section 6.12. TRUSTEE OFFICES. The Trustee shall maintain in
the State of ____________ an office or offices or agency or agencies where
Certificates may be surrendered for registration of transfer or exchange, which
office shall initially be located at
___________________________________________________, and shall promptly notify
the Servicer and the Certificateholders of any change of such location.
Section 6.13. NOTICE OF EVENT OF SERVICER DEFAULT. (a) If the
Trustee shall have actual knowledge of a Servicer Default, the Trustee, shall
give prompt written notice thereof to the Certificateholders. For all purposes
of this Agreement, in the absence of actual knowledge by a Corporate Trust
Officer of the Trustee, the Trustee shall not be deemed to have actual
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knowledge of any Servicer Default unless notified in writing thereof by the
Depositor, the Servicer or any Certificateholder, and such notice references the
Certificates generally, the Trust Estate or this Agreement.
[(b) Upon the waiver or cure of a Servicer Default, the
Trustee shall promptly notify the Rating Agencies as to how and when such
Servicer Default was waived or cured.]
Section 6.14. REPORTS TO CERTIFICATEHOLDERS. The Trustee will
prepare and forward to each Certificateholder on each Distribution Date, or as
soon thereafter as is practicable, a statement setting forth, to the extent
applicable to any Series, among other things:
(i) with respect to a Series, the amount of such distribution
allocable to principal on the Certificates, separately
identifying the aggregate amount of any principal prepayments
or redemptions included therein;
(ii) with respect to a Series, the amount of such distribution
allocable to interest on the Certificates;
(iii) the aggregate outstanding implicit or explicit principal
balance of the Assets as of the close of business on the
Determination Date;
(iv) the Aggregate Outstanding Principal Balance of the
Certificates of such series as of the Distribution Date, after
giving effect to distributions allocated to principal reported
under (i) above;
(v) if applicable, the amount of any shortfall (I.E., the
difference between the aggregate amounts of principal and
interest which Certificateholders would have received if there
were sufficient eligible funds to distribute and the amounts
actually distributed);
(vi) if applicable, the number and aggregate principal
balances of any Delinquent Contracts or Defaulted Contracts;
(vii) in the case of any Credit Enhancement described in the
related Prospectus Supplement, the amount of coverage of such
credit support as of the close of business on the applicable
Distribution Date;
(viii) in the case of any Series which includes Subordinate
Securities, the subordinated amount, if any, determined as of
the related Determination Date and if the distribution to the
Holders of Senior Securities is less than their required
distribution, the amount of the shortfall;
(ix) the amount of any withdrawal from any applicable Reserve
Fund included in amounts actually distributed to
Certificateholders and the remaining balance of
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each Reserve Fund, if any, on such Distribution Date, after
giving effect to distributions made on such date; and
(x) such other information as specified in the related Trust
Agreement.
In addition, within a reasonable period of time after the end
of each calendar year the Trustee, unless otherwise specified in the related
Prospectus Supplement, will furnish to each Certificateholder of record at any
time during such calendar year: (A) the aggregate of amounts reported pursuant
to clauses (i), (ii) and (v) (to the extent not received on any subsequent
Payment Date(s) during such calendar year) above for such calendar year and (B)
such other information specified in this Trust Agreement to enable
Certificateholders to prepare their tax returns including, without limitation,
the amount of original issue discount accrued on the Certificates, if
applicable. Information in the Distribution Date and annual reports provided to
the Certificateholders will not have been examined and reported upon by an
independent public accountant.
Section 6.15. LIST OF CERTIFICATEHOLDERS; NO MEETINGS. Unless
otherwise specified in the Prospectus Supplement, upon written request of three
or more Certificateholders of record of a Series for more than six months for
purposes of communicating with other Certificateholders with respect to their
rights under the Trust Agreement or under the Certificates for such Series,
which request is accompanied by a copy of the communication which such
Certificateholders propose to transmit, the Trustee will afford such
Certificateholders access during business hours to the most recent list of
Certificateholders of that Series held by the Trustee.
ARTICLE VII
TERMINATION
Section 7.01. TERMINATION. (a) The Trust created by this
Agreement shall terminate [135] days after the earlier to occur of (i) upon the
final payment or other liquidation (or any advance with respect thereto) of the
last Contract or the disposition of all property acquired upon repossession and
resale of any Equipment relating to such Contract and the remittance of all
funds due hereunder; or (ii) at the option of the Servicer [or the Company or
other Depositor], on any Payment Date which occurs in the month next following a
Collection Period in which the Aggregate Discounted Contract Balance is 10% or
less of the Aggregate Discounted Contract Balance as of the Cut-Off Date, so
long as the Servicer [or the Company or other Depositor] deposits or causes to
be deposited in the Certificate Account during the Collection Period related to
such Payment Date an amount equal to the Warranty Repurchase Amount for each
Contract (a "Repurchase Option Payment").
Notice of any termination, specifying the Payment Date upon
which all Certificateholders may surrender their Certificates to the Trustee for
payment and cancellation, shall be given promptly by the Trustee (upon direction
by the Servicer 10 days prior to the date such notice is to be mailed) by letter
to Certificateholders [and the Rating Agencies] mailed no later than the 25th
day of the month preceding the month of such final distribution specifying (i)
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the Payment Date upon which final payment on the Certificates will be made upon
presentation and surrender of Certificates at the office or agency of the
Trustee therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Payment Date is not
applicable, payment being made only upon presentation and surrender of the
Certificates at the office or agency of the Trustee therein specified. After
giving such notice, the Trustee shall not register the transfer or exchange of
any Certificates. If such notice is given in connection with the Servicer's
election to repurchase, the Servicer shall deposit in the Certificate Account
during the applicable Collection Period an amount equal to the above-described
purchase price and on the Payment Date on which such termination is to occur,
Certificateholders will be entitled to the amount of such purchase price but not
amounts in excess thereof, all as provided herein. Upon presentation and
surrender of the Certificates, the Trustee shall notify the Servicer, or its
successor servicer, and the Servicer, or its successor servicer, shall cause to
be distributed to Certificateholders an amount equal to (a) the amount otherwise
distributable on such Payment Date, if not in connection with the Servicer's
optional repurchase; or (b) if the Servicer elected to so purchase, an amount
equal to the then outstanding principal balance of, and accrued interest on, the
Certificates.
If all of the Certificateholders shall not surrender their
Certificates for cancellation within three months after the time specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
three months after the second notice all the Certificates shall not have been
surrendered for cancellation, the Trustee shall appoint an agent to take
appropriate and reasonable steps to contact the remaining Certificateholders
concerning surrender of their Certificates, and the cost thereof shall be paid
out of the funds and other assets which remain in the Trust Estate hereunder.
(b) Upon deposit into the Certificate Account of the Warranty
Repurchase Amount by the Servicer under Section [_______], the Trustee shall be
deemed without any further action to have assigned to the Servicer, each
Contract that remains in default immediately prior to such termination, without
recourse, representation or warranty.
(c) Notwithstanding any other provision of this Agreement, the
Trust created by this Agreement shall not continue beyond the expiration of 21
years from the death of the last survivor of the descendants of Xxxx X.
Xxxxxxxxxxx living on the date hereof.
(d) Except as provided in Section [________], neither the
Depositor nor any Certificateholder shall be entitled to revoke or terminate the
Trust. The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder, other than the Depositor as described in Section [_____],
shall not (i) operate to terminate this Agreement or the Trust, nor (ii) entitle
such Certificateholder's legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or winding up
of all or any part of the Trust or Trust Estate nor (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
Section 7.02 DISSOLUTION UPON BANKRUPTCY OF THE DEPOSITOR. In
the event that any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other
-38-
proceeding, voluntary or involuntary, under any federal or state bankruptcy or
similar law (each, an "Insolvency Event") shall occur with respect to the
Depositor, this Agreement shall be terminated 60 days after the date of such
Insolvency Event, unless, before the end of such 60-day period the Trustee shall
have received written instructions from each of the Certificateholders (other
than the Depositor), to the effect that each such party disapproves of the
liquidation of the Contracts and termination of the Trust. Promptly after the
occurrence of any Insolvency Event with respect to the Depositor, (i) the
Depositor shall give the Trustee written notice of such Insolvency Event and
(ii) the Trustee shall, upon receipt of written notice of such Insolvency Event
from the Depositor, give prompt written notice to the Certificateholders of the
occurrence of such event; PROVIDED, HOWEVER, that any failure to give a notice
required by this sentence shall not prevent or delay, in any manner, a
termination of the Trust pursuant to the first sentence of this Section [____].
Upon a termination pursuant to this Section, the Trustee shall sell the assets
of the Trust in a commercially reasonable manner and on commercially reasonable
terms. The proceeds of such a sale of the assets of the Trust shall be treated
as Collections under the Contribution and Servicing Agreement.
-39-
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 8.02. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. The
death or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding-up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder shall have any right to vote or in any
manner otherwise control (except as expressly provided herein) the operation and
management of the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the Certificates, be
construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
Except as set forth in Section ____, no Certificateholder
shall have any right by virtue of any provision of this Agreement to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Agreement, unless such Holder previously shall have given to the Trustee
a written notice of default (including any Servicer Default) and of the
continuance thereof, as hereinbefore provided, and the Holder of Certificate
evidencing in the aggregate not less than 25% of the Percentage Interests shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the cost, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 30 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificate shall have any right in any manner whatever
by virtue of any provision of this Agreement to affect, disturb or prejudice the
rightful Holders of any other of such Certificates or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of Certificateholders. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
-40-
Section 8.03. AMENDMENT. (a) Without the consent of any
Securityholder and based on an Opinion of Counsel from a nationally recognized
outside counsel, the Depositor and the Trustee, at any time and from time to
time, may amend this Trust Agreement for any of the following purposes:
(i) to add to the covenants of the [Depositor] for
the benefit of the Securityholders, or to surrender any
right or power herein conferred upon the Issuer;
(ii) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect
to matters or questions arising under this Agreement, provided
that such action shall not materially adversely affect the
interests of the Securityholders of the Certificates. Any such
amendment pursuant to clause (iii) of the preceding sentence
shall be deemed not to adversely affect in any material
respect the interests of any Certificateholder if the Trustee
receives written confirmation from each Rating Agency which
may have rated such Certificates that such amendment will not
cause such Rating Agency to reduce the then current rating
thereof;
(iii) to correct or amplify the description of any
property at any time a part of the Trust Estate, or better to
assure, convey and confirm unto the Trustee any property part
of or required to be a part of the of Trust Estate, or to
deposit additional property into the Trust Estate, or to set
forth the terms of and security for additional Series;
[(iv) to add to the conditions, limitations and
restrictions on the authorized amount, terms and purposes of
issue, authentication and delivery of the Certificates, as
herein set forth, or additional conditions, limitations and
restrictions thereafter to be observed by the [Issuer]
[Depositor];]
(v) to convey, transfer, assign, mortgage or pledge
any additional property to or with the Trust or the Trustee;
(vi) to evidence the succession of the Trustee
pursuant to Article __;
[(vii) to evidence the succession of another person
to [Issuer] [Depositor];]
(viii) to make any amendment necessary or desirable
to maintain the federal income tax status of the [Issuer]
[Depositor] [Trust]; or
-41-
(ix) to amend the provisions of this Trust Agreement
relating to [authentication and] delivery of a Series with
respect to which an amendment has not theretofore been
authorized; or
(b) This Trust Agreement also may be amended by the Trustee
and the Company with respect to such Series with the consent of the Holders
possessing not less than 66% of the Aggregate Outstanding Principal Balance of
the Certificates of each Class of such Series affected thereby, for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Trust Agreement or modifying in any manner the rights of
Certificateholders of such Series; PROVIDED, HOWEVER, that no such amendment may
(a) reduce the amount or delay the timing of payments on any Certificate without
the consent of the Holder of such Certificate; or (b) reduce the aforesaid
percentage of Aggregate Outstanding Principal Balance of Certificates of each
Class, the Holders of which are required to consent to any such amendment
without the consent of the Holders of 100% of the Aggregate Outstanding
Principal Balance of each Class of Certificates affected thereby; (c) modify or
alter the provisions of this Trust Agreement defining the term "Outstanding";
(d) reduce the percentage of the Voting Rights, the consent of the Holders of
which is required to direct the Trustee to liquidate the Assets for such Series,
(e) modify any of the provisions of this Trust Agreement if such modification
affects the calculation of the amount of any payment of interest or principal
due and payable on any Certificate on any Distribution Date or to affect the
rights of the Holders of Certificates of any Series (or Class of such Series) to
the benefit of any provisions for the mandatory redemption of Certificates of
such Series (or Class of such Series) contained therein or (f) modify the
provisions of this Trust Agreement regarding that any modifications of this
Trust Agreement receive the consent of the requisite portion of the Holders of
Certificates, except to increase the percentage or number of Holders required to
consent to such modification of this Trust Agreement, or to provide that
additional provisions of this Trust Agreement cannot be modified or waived
without the consent of the Holder of each Certificate affected thereby.
(c) Promptly after the execution of any amendment pursuant to
this Section, the Trustee [Depositor] shall mail to the Securityholders of the
Certificates and the Rating Agencies, a notice setting forth in general terms
the substance of such amendment or supplement, together with a copy of the text
of such Supplement. Any failure of the Trustee [Depositor] to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such Amendment.
Section 8.04. DURATION OF AGREEMENT. This Agreement shall
continue in existence and effect until terminated as herein provided.
Section 8.05. GOVERNING LAW. This Agreement shall be construed
in accordance with the laws of the State of New York and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
Section 8.06. NOTICES. All demands, notices and
communications hereunder shall be in writing and shall be deemed to have been
duly given if personally delivered at or mailed by first class or registered
mail, postage prepaid, to (i) in the case of the Trustee,
-42-
-----------------------, -----------------, ---------, ----------,
----------------------, or (ii) in the case of the Rating Agencies, to
-----------------------------, -------------------------------, ----------,
-----------, ----------------------, (iii) in the case of Certificateholders,
the address that appears in the Certificate Register, (iv) in the case of the
Depositor, 000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or (v) in the case of
any of the foregoing persons, such other addresses as may hereafter be furnished
by any such person to the other parties to this Agreement.
Section 8.07. BINDING EFFECT. This Agreement shall inure to
the benefit of, and shall be binding upon, the Seller, the Depositor, the
Trustee and the Certificateholders and their respective successors and permitted
assigns.
Section 8.08. CAPTIONS. The captions or headings in this
Agreement are for convenience only and in no way define, limit or describe the
scope and intent of any provisions or sections of this Agreement.
Section 8.09. EXHIBITS. The exhibits to this Agreement are
hereby incorporated herein and made a part hereof and are an integrate part of
this Agreement.
Section 8.10. GENERAL INTERPRETIVE PRINCIPLES. For purposes of
this Agreement except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections", "paragraphs",
and other subdivisions without reference to a document are to be designated
Articles, Sections, paragraphs and other subdivisions of this Agreement;
(d) a reference to a paragraph without further reference to a
Section is a reference to such paragraph as contained in the same Section in
which the reference appears, and this rule shall also apply to other
subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
-43-
Section 8.11. NO BANKRUPTCY PETITION AGAINST DEPOSITOR OR
TRANSFEROR. Each party hereto agrees that, prior to the date that is one year
and one day after the payment in full of all outstanding Certificates, it will
not institute against the Depositor or the Transferor, or join any other Person
in instituting against the Depositor, Transferor, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
proceeding under the laws of the United States or any state of the United
States. This Section 8.11 shall survive the termination of this Agreement.
-44-
IN WITNESS WHEREOF, the Depositor and the Trustee have caused
their name to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
DVI
--------------------,
as Depositor
By:
------------------------------
Name: Title:
---------------------------- ------------------------------
---------------------,
as Trustee
By:
------------------------------
Name: Title:
---------------------------- ------------------------------
EXHIBIT A
FORM OF CLASS A CERTIFICATE
[Face of Certificate]
[DVI ASSET FUNDING] TRUST ______
____% CLASS A EQUIPMENT FINANCE CERTIFICATE
evidencing a fractional undivided interest in a Trust, the corpus of
which consists primarily of the receivables of a portfolio of equipment
leases and security interests in Equipment, as more fully described in
the Trust Agreement referred to herein.
Principal in respect of this Class A Certificate is payable monthly on
the dates and in the amounts set forth in the Trust Agreement referred
to herein. Accordingly, the unpaid principal balance of the fractional
undivided interest evidenced hereby at any time may be less than the
Initial Class A Principal Balance set forth below.
This Certificate does not represent any interest in DVI ____________,
or any Affiliate thereof. Neither the Certificates nor the Contracts
are insured by any governmental agency.
Initial Class A Principal Balance
of this Certificate: $______________
Certificate No. ________ Class A Interest Rate: ____%
Initial Class A Principal Balance $_________
Interest representing ____% of the Class A Principal Balance
____% of the Aggregate Certificate Principal
Balance
THIS CERTIFIES THAT ___________________________________ is the
registered owner of a ______________ ($__________________ dollars)
nonassessable, fully-paid, fractional undivided interest in the DVI Asset
Funding Trust _______ (the "Trust") formed by DVI ___________, a Delaware
________ (the "Transferor"). The Trust hereby agrees to pay to such registered
Holder its pro rata share (based on the aggregate Percentage Interest held by
such registered Holder) of the Required Payments, as hereinafter set forth in
this Certificate and as more fully set forth in the hereinafter defined
Agreement, at all times from the sources and on the terms and conditions
hereinafter set forth and as more fully set forth in the Agreement. The corpus
of the Trust includes a portfolio of equipment finance contracts (the
"Contracts"), including all Scheduled Payments and other payments due thereunder
after _____________, 199_ (the "Cut-Off Date"), a security interest in the
Equipment leased thereunder and the income and proceeds of such Equipment, a
Collection Account, [a Reserve Account,] and [a _______ Account], as described
in the Agreement, and other property. The Aggregate Discounted Contract Balance
for all Contracts
A-1
is $_____________ as of the Cut-Off Date. The Trust was created pursuant to a
Trust Agreement dated as of ____________, 199_ (the "Agreement") between DVI
_______, as Depositor, and __________ Bank, N.A., as trustee of the Trust (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in the Agreement. This Class A
Certificate is one of the duly authorized Certificates designated as Class A
Equipment Finance Certificates of DVI Asset Funding Trust _____ (the
"Certificates"). This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Under the Agreement, the Trust is obligated to pay to the
extent that monies are available in the Collection Account [and the Reserve
Account] for such payments, on the [fifteenth] day of each month or, if such day
is not a Business Day, the Business Day immediately following (the "Payment
Date"), commencing on ________ [15], 199_, to the person in whose name this
Class A Certificate is registered and at the address specified in the
Certificate Register at the close of business on the Record Date, an amount from
certain monies deposited in the Collection Account with respect to the related
Collection Period equal to the product of the Percentage Interest evidenced by
this Certificate and an amount equal to the sum of [the Class A Monthly
Principal, Class A Monthly Interest, any Class A Overdue Principal, any Class A
Overdue Interest due and owing].
Payments on this Class A Certificate will be made by the
Trustee by check mailed, or upon request of the Holder hereof, by wire transfer
of immediately available funds, to the Person entitled thereto, as specified by
such Person in accordance with the terms of the Agreement or by such other means
as the Person entitled thereto and the Trustee shall agree, without the
presentation or surrender of this Class A Certificate or the making of any
notation hereon.
The Holder hereof, by its acceptance of this Class A
Certificate, agrees to look solely to the funds in the Collection Account [and
the Reserve Account] [and any Credit Enhancement] to the extent available for
payment to the Holder hereof as provided in the Agreement for payment hereunder
and that the Trustee in its individual capacity is not personally liable to the
Holder hereof for any amounts due under this Certificate or the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder, at its
expense, upon a written request to the Trustee, __________ Bank, N.A.
__________, (Attn.: [Corporate Trust Department]).
Reference is hereby made to the further provisions of this
Class A Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
A-2
IN WITNESS WHEREOF, the Trust has caused this Certificate to
be duly executed.
DVI ASSET FUNDING TRUST ______
By: __________ BANK, N.A.,
not in its individual capacity,
but solely as Trustee
Dated:
By:___________________________
Authorized Officer
This is one of the Certificates of the Series designated herein, issued under
the within-mentioned Trust Agreement.
__________ BANK, N.A.
not in its individual capacity but
solely as Trustee
By:________________________
Authorized Officer
A-3
[Reverse of Certificate]
The Certificates do not represent an obligation of, or an
interest in, __________ Bank, N.A. or any Affiliate thereof. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the Contracts and the Equipment, all as more specifically set forth above and in
the Agreement.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement at any time by the Depositor and the Trustee with the consent of a
Majority of Holders. Any such consent by the Holder of this Class A Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Class A Certificate and of any Class A Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Class A Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Certificateholders.
As provided in the Agreement, the transfer of this Class A
Certificate is registrable in the Certificate Register upon surrender of this
Class A Certificate for registration of transfer at the offices or agencies
maintained by the Trustee, in the City of [_________], accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Class A Certificates of authorized denominations
evidencing the same aggregate Percentage Interest in the Trust will be issued to
the designated transferee or transferees. As provided in the Agreement, the
effectiveness of any such transfer is contingent upon such surrender for
registration of transfer. The Seller, the Servicer, the Trustee and any agent of
any of the foregoing may treat the person in whose name this Class A Certificate
is registered as the owner hereof for all purposes, and none of the foregoing
shall be affected by any notice to the contrary.
The Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000,000 or integral multiples thereof
(except that a single Certificate may be issued in a non-standard denomination
in excess of $1,000,000) of each class. As provided in the Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Percentage Interest as requested by the Certificateholder surrendering the same.
Each prospective initial Certificateholder acquiring a
Certificate, each prospective transferee acquiring a Certificate and each
prospective owner of a beneficial interest in a Certificate acquiring such
beneficial interest (the prospective initial Certificateholder, the prospective
transferee and the prospective owner of a beneficial interest, collectively, the
"PROSPECTIVE OWNER"), will be deemed to have represented by such purchase to the
Depositor, Originator, the Servicer, any successor Servicer and the Trustee that
either (1) the Prospective Owner is not acquiring the Certificate with the
assets of a Plan or (2) the acquisition and holding of the certificate will not
give rise to a nonexempt prohibited transaction under Section 406(a) of ERISA or
Section 4975 of the Code.
A-4
No Certificate may be subdivided for resale or other transfer
(including any assignment or transfer of a participation or beneficial interest
therein) into a unit smaller than a unit the initial offering price of which
would have been $500,000.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The obligations and responsibilities created by the Agreement
and the Trust created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as set forth in the Agreement) shall terminate
[367] days after the earliest of (i) the repurchase by the Servicer, at its
option, subject to the restriction set forth below as to the size of the
Aggregate Certificate Principal Balance, of all Contracts and all other Conveyed
Property acquired in respect of any Contract remaining in the Trust at the price
specified in the Agreement, (ii) the payment to Certificateholders of all
amounts required to be paid to them pursuant to the Agreement, reducing the
Aggregate Certificate Principal Balance to zero, (iii) the Payment Date next
succeeding the Collection Period during which the last Contract not repurchased
by the Servicer shall have been liquidated and any Liquidation Proceeds shall
have been deposited in the applicable account (but not later than [180] days
after the completion of all collection efforts following the declaration of a
Contract as a Defaulted Contract) and (iv) the Payment Date on which the
proceeds of a liquidation pursuant to Section [____] of the Agreement are
distributed. The exercise of the right of the Servicer to purchase all the
Contracts and Equipment and cause distribution to the Transferor of all other
property of the Trust will effect early retirement of the Certificates, but such
right of purchase is exercisable only as of a Payment Date subsequent to any
[Determination] Date as of which the Aggregate Certificate Principal Balance is
less than 10 percent (10.00%) of the Initial Aggregate Certificate Principal
Balance. After such date, interest on the Certificates shall cease to accrue.
A-5
EXHIBIT B
FORM OF CLASS B CERTIFICATE
[Face of Certificate]
[DVI ASSET FUNDING] TRUST ______
____% CLASS B EQUIPMENT FINANCE CERTIFICATE
evidencing a fractional undivided interest in a Trust, the corpus of
which consists primarily of the receivables of a portfolio of equipment
leases and security interests in Equipment, as more fully described in
the Trust Agreement referred to herein.
Principal in respect of this Class B Certificate is payable monthly on
the dates and in the amounts set forth in the Trust Agreement referred
to herein. Accordingly, the unpaid principal balance of the fractional
undivided interest evidenced hereby at any time may be less than the
Initial Class B Principal Balance set forth below.
This Certificate does not represent any interest in DVI _________, or
any Affiliate thereof. Neither the Certificates nor the Contracts are
insured by any governmental agency.
Initial Class B Principal Balance
of this Certificate: $______________
Certificate No. ________ Class B Interest Rate: ____%
Initial Class B Principal Balance $____________
Interest representing ____% of the Class B Principal Balance
____% of the Aggregate Certificate Principal
Balance
THIS CERTIFIES THAT ___________________________________ is the
registered owner of a ______________ ($__________________ dollars)
nonassessable, fully-paid, fractional undivided interest in the DVI Asset
Funding Trust ______ (the "Trust") formed by DVI ________, a Delaware _________
(the "Transferor"). The Trust hereby agrees to pay to such registered Holder its
pro rata share (based on the aggregate Percentage Interest held by such
registered Holder) of the Required Payments, as hereinafter set forth in this
Certificate and as more fully set forth in the hereinafter defined Agreement, at
all times from the sources and on the terms and conditions hereinafter set forth
and as more fully set forth in the Agreement. The corpus of the Trust includes a
portfolio of equipment finance contracts (the "Contracts"), including all
Scheduled Payments and other payments due thereunder after _________, 199_ (the
"Cut-Off Date"), a security interest in the Equipment leased thereunder and the
income and proceeds of such Equipment, a Collection Account, [a Reserve Account]
[and a ________ Account], as described in the Agreement, and other property. The
Aggregate Discounted Contract Balance for all Contracts is $__________ as of the
Cut-Off Date. The Trust was created pursuant to a Trust Agreement dated as of
_______,
B-1
199_ (the "Agreement") between DVI _______, as Depositor, and __________ Bank,
N.A., as trustee of the Trust (the "Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in the Agreement. This Class B Certificate is one of the duly authorized
Certificates designated as Class B Equipment Finance Certificates of DVI Asset
Funding Trust ______ (the "Certificates"). This Certificate is issued under and
is subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Under the Agreement, the Trust is obligated to pay to the
extent that monies are available in the Collection Account [and the Reserve
Account for such payments], on the [fifteenth] day of each month or, if such day
is not a Business Day, the Business Day immediately following (the "Payment
Date"), commencing on _______ [15], 199_, to the person in whose name this Class
B Certificate is registered and at the address specified in the Certificate
Register at the close of business on the Record Date, an amount from certain
monies deposited in the Collection Account with respect to the related
Collection Period equal to the product of the Percentage Interest evidenced by
this Certificate and an amount equal to the sum of [the Class B Monthly
Principal, Class B Monthly Interest, any Class B Overdue Principal, any Class B
Overdue Interest, and any Class B Premium] due and owing. THE RIGHTS OF THE
CLASS B CERTIFICATEHOLDERS TO RECEIVE SUCH PAYMENTS ARE SUBORDINATED TO THE
RIGHTS OF THE CLASS A CERTIFICATEHOLDERS TO RECEIVE PAYMENTS IN RESPECT OF THE
CLASS A CERTIFICATES, AS PROVIDED IN THE AGREEMENT.
Payments on this Class B Certificate will be made by the
Trustee by check mailed, or upon request of the Holder hereof, by wire transfer
of immediately available funds, to the Person entitled thereto, as specified by
such Person in accordance with the terms of the Agreement or by such other means
as the Person entitled thereto and the Trustee shall agree, without the
presentation or surrender of this Class B Certificate or the making of any
notation hereon.
The Holder hereof, by its acceptance of this Class B
Certificate, agrees to look solely to the funds in the Collection Account [and
the Reserve Account] to the extent available for payment to the Holder hereof as
provided in the Agreement for payment hereunder and that the Trustee in its
individual capacity is not personally liable to the Holder hereof for any
amounts due under this Certificate or the Agreement.
This Certificate does not purport to summarize the Agreement
and reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties evidenced hereby
and the rights, duties and immunities of the Trustee. Copies of the Agreement
and all amendments thereto will be provided to any Certificateholder, at its
expense, upon a written request to the Trustee, __________ Bank, N.A. __________
(Attn.: [Corporate Trust Department]).
Reference is hereby made to the further provisions of this
Class B Certificate set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
B-2
IN WITNESS WHEREOF, the Trust has caused this Certificate to
be duly executed.
DVI ASSET FUNDING TRUST ______
By: __________ BANK, N.A.,
not in its individual capacity,
but solely as Trustee
Dated:
By:___________________________
Authorized Officer
This is one of the Certificates of the Series designated herein, issued under
the within-mentioned [Trust] Agreement.
__________ BANK, N.A.
not in its individual capacity
but solely as Trustee
By:________________________
Authorized Officer
B-3
[Reverse of Certificate]
The Certificates do not represent an obligation of, or an
interest in, __________ Bank, N.A. or any Affiliate thereof. The Certificates
are limited in right of payment to certain collections and recoveries respecting
the Contracts and the Equipment, all as more specifically set forth above and in
the Agreement.
The Agreement permits, with certain exceptions therein
provided, the amendment thereof and the modification of the rights and
obligations of the Depositor and the rights of the Certificateholders under the
Agreement at any time by the Depositor and the Trustee with the consent of a
Majority of Holders. Any such consent by the Holder of this Class B Certificate
shall be conclusive and binding on such Holder and upon all future Holders of
this Class B Certificate and of any Class B Certificate issued upon the transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent is made upon this Class B Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
Certificateholders.
As provided in the Agreement, the transfer of this Class B
Certificate is registrable in the Certificate Register upon surrender of this
Class B Certificate for registration of transfer at the offices or agencies
maintained by the Trustee, in the City of [____________], accompanied by a
written instrument of transfer in form satisfactory to the Trustee duly executed
by the Holder hereof or such Holder's attorney duly authorized in writing, and
thereupon one or more new Class B Certificates of authorized denominations
evidencing the same aggregate Percentage Interest in the Trust will be issued to
the designated transferee or transferees. As provided in the Agreement, the
effectiveness of any such transfer is contingent upon such surrender for
registration of transfer. The Seller, the Servicer, the Trustee and any agent of
any of the foregoing may treat the person in whose name this Class B Certificate
is registered as the owner hereof for all purposes, and none of the foregoing
shall be affected by any notice to the contrary.
The Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000,000 or integral multiples thereof
(except that a single Certificate may be issued in a non-standard denomination
in excess of $1,000,000) of each class. As provided in the Agreement and subject
to certain limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
Percentage Interest as requested by the Certificateholder surrendering the same.
Each prospective initial Certificateholder acquiring a
Certificate, each prospective transferee acquiring a Certificate and each
prospective owner of a beneficial interest in a Certificate acquiring such
beneficial interest (the prospective initial Certificateholder, the prospective
transferee and the prospective owner of a beneficial interest, collectively, the
"PROSPECTIVE OWNER"), will be deemed to have represented by such purchase to the
Depositor, Originator, the Servicer, any successor Servicer and the Trustee that
either (1) the Prospective Owner is not acquiring the Certificate with the
assets of a Plan or (2) the acquisition and holding of the Certificate will not
give rise to a nonexempt prohibited transaction under Section 406(a) of ERISA or
Section 4975 of the Code.
B-4
No Certificate may be subdivided for resale or other transfer
(including any assignment or transfer of a participation or beneficial interest
therein) into a unit smaller than a unit the initial offering price of which
would have been $500,000.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
The obligations and responsibilities created by the Agreement
and the Trust created thereby (other than the obligation of the Trustee to make
payments to Certificateholders as set forth in the Agreement) shall terminate
[367] days after the earliest of (i) the repurchase by the Servicer, at its
option, subject to the restriction set forth below as to the size of the
Aggregate Certificate Principal Balance, of all Contracts and all other Conveyed
Property acquired in respect of any Contract remaining in the Trust at the price
specified in the Agreement, (ii) the payment to Certificateholders of all
amounts required to be paid to them pursuant to the Agreement, reducing the
Aggregate Certificate Principal Balance to zero, (iii) the Payment Date next
succeeding the Collection Period during which the last Contract not repurchased
by the Servicer shall have been liquidated and any Liquidation Proceeds shall
have been deposited in the applicable account (but not later than [180] days
after the completion of all collection efforts following the declaration of a
Contract as a Defaulted Contract) and (iv) the Payment Date on which the
proceeds of a liquidation pursuant to Section [___] of the Agreement are
distributed. The exercise of the right of the Servicer to purchase all the
Contracts and Equipment and cause distribution to the Transferor of all other
property of the Trust will effect early retirement of the Certificates, but such
right of purchase is exercisable only as of a Payment Date subsequent to any
Determination Date as of which the Aggregate Certificate Principal Balance is
less than 10 percent (10.00%) of the Initial Aggregate Certificate Principal
Balance. After such date, interest on the Certificates shall cease to accrue.
B-5
