EQUIPMENT AND CONTRACTS. (a) As to each Contract: (i) (A) immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Leveraged Lease Loans, Fair Market Value Lease or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable Purchase; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and its interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and either a valid first priority security interest in the Contributor's interest in the Equipment (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000), or, with respect to DVI Fair Market Value Leases, an ownership interest in the related Equipment subject to any Contract; at such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) the obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of set- off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) the Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as of the Cut-Off Date, (A) no Contract had a remaining term of more than 83 months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) there will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no Contract permits early termination or voluntary prepayment by the Obligor; (xii) no right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction; the sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no Obligor is an Affiliate of the Contributor or the Servicer; (xv) the Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) all parties to each Contract had requisite authority and capacity to execute such Contract; (xix) prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ordinary course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H hereto; (xx) the Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) the Contract Schedule accurately reflects the information relating to each Contract; (xxii) there are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) each Contract effects either the lease of or the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000) in favor of the Contributor as lessor, secured party or seller as the case may be, and contains provisions sufficient for the realization of such leasehold interest, security interest or ownership interest as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) the Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) with respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000); (xxvii) no Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no Obligor is a government or municipality; and (xxx) no Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) the Aggregate Discounted Contract Balance of the Contracts as of the Closing Date is equal to $273,612,728.90; and (ii) the Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-Off Date of not more than $5,117,844.60; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-Off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-Off Date, no item of Equipment has been repossessed; (D) as of the Cut-Off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than a day in October 31, 2007; (G) as of the Cut-Off Date, (i) the Discounted Contract Balance of Contracts that have Balloon Payments constitute not more than 10.77% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Balloon Payments) constitutes not more than 39.33% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, (i) the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed 11.95% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, (ii) no single Obligor will have a Discounted Contract Balance that exceeds 2.62% of the Aggregate Discounted Contract Balance on the Closing Date, (iii) the sum of the Discounted Contract Balances of any five Contracts shall not exceed 11.79% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed $90,560,000 of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than 10.0% of the Aggregate Discounted Contract Balance will arise from Contracts which constitute loans to manufacturers, wholesalers, and retailers; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such Contract except for Contracts representing 7.0% of the Aggregate Discounted Contract Balance as of the Closing Date which Contracts provide for the related initial Contract Payment to be due within 30 days of the Payment Date occurring on December 12, 2000; (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than 3.0% of the Aggregate Discounted Contract Balance as of the Closing Date and, (L) no Balloon Payment is more than six and a half times larger than the average Contract payment related to such Contract.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp Viii)

EQUIPMENT AND CONTRACTS. (a) As to each Contract: (i) (A) immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Leveraged Lease Loans, Fair Market Value Lease or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable Purchase; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and its interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and either a valid first priority security interest in the Contributor's interest in the Equipment (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000), or, with respect to DVI Fair Market Value Leases, an ownership interest in the related Equipment subject to any Contract; at such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) the obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of set- off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) the Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as of the Cut-Off Date, (A) no Contract had a remaining term of more than 83 months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) there will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no Contract permits early termination or voluntary prepayment by the Obligor; (xii) no right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction; the sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no Obligor is an Affiliate of the Contributor or the Servicer; (xv) the Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) all parties to each Contract had requisite authority and capacity to execute such Contract; (xix) prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ordinary course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H hereto; (xx) the Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) the Contract Schedule accurately reflects the information relating to each Contract; (xxii) there are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) each Contract effects either the lease of or the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000) in favor of the Contributor as lessor, secured party or seller as the case may be, and contains provisions sufficient for the realization of such leasehold interest, security interest or ownership interest as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) the Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) with respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000); (xxvii) no Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no Obligor is a government or municipality; and (xxx) no Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) the Aggregate Discounted Contract Balance of the Contracts as of the Closing Date is equal to $~~273,612,728.90~~325,093,057.74; and (ii) the Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-Off Date of not more than $~~5,117,844.60~~4,439,211.29; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-Off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-Off Date, no item of Equipment has been repossessed; (D) as of the Cut-Off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than ~~a day in October 31~~April 30, ~~2007~~2008; (G) as of the Cut-Off Date, (i) the Discounted Contract Balance of Contracts that have Balloon Payments constitute not more than ~~10.77~~8.12% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Balloon Payments) constitutes not more than ~~39.33~~44.57% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, (i) the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed ~~11.95~~18.23% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, (ii) no single Obligor will have a Discounted Contract Balance that exceeds ~~2.62~~2.05% of the Aggregate Discounted Contract Balance on the Closing Date, (iii) the sum of the Discounted Contract Balances of any five Contracts shall not exceed ~~11.79~~9.73% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed $~~90,560,000~~ 102,000,000 of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than 10.0% of the Aggregate Discounted Contract Balance will arise from Contracts which constitute loans to manufacturers, wholesalers, and retailers; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such Contract except for Contracts representing ~~7.0~~6.0% of the Aggregate Discounted Contract Balance as of the Closing Date which Contracts provide for the related initial Contract Payment to be due within 30 days of the Payment Date occurring on ~~December 12~~June 11, ~~2000~~2001; (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than 3.0% of the Aggregate Discounted Contract Balance as of the Closing Date and, (L) no Balloon Payment is more than six and a half times larger than the average Contract payment related to such Contract.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp Viii)

EQUIPMENT AND CONTRACTS. (a) As to each Contract: (~~i) (~~A) ~~immediately~~ Immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Leveraged Lease Loans, Fair Market Value Lease or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable Purchase; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and ~~its~~ a security interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and ~~either~~ a valid first priority security interest in ~~the Contributor's interest in~~ each item of the Equipment (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000), or, with respect to DVI Fair Market Value Leases, an ownership interest in the related Equipment~~ 20,000) subject to any Contract~~; at~~ . At such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) ~~each~~ Each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) ~~the~~ The obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of ~~set-~~ set-off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) ~~the~~ The Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) ~~each~~ Each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as As of the Cut-~~Off~~ off Date, (A) no Contract had a remaining term of more than 83 84 months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) ~~there~~ There will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no No Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no No Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) ~~each~~ Each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no No Contract permits early termination or voluntary prepayment by the Obligor; (xii) no No right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) ~~each~~ Each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction~~; the~~ . The sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no No Obligor is an Affiliate of the Contributor or the Servicer; (xv) ~~the~~ The Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no No Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in In the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) ~~all~~ All parties to each Contract had requisite authority and capacity to execute such Contract; (xix) ~~prior~~ Prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ordinary course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H hereto; (xx) ~~the~~ The Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) ~~the~~ The Contract Schedule accurately reflects the information relating to each Contract; (xxii) ~~there~~ There are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) ~~each~~ Each Contract effects either the lease of of, or the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000) in favor of the Contributor as ~~lessor~~lessor or secured party, ~~secured party or seller~~ as the case may be, and contains provisions sufficient for the realization of such leasehold interest or security interest, ~~security interest or ownership interest~~ as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) ~~each~~ Each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) ~~the~~ The Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) ~~with~~ With respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000)~~20,000) ; (xxvii) no No Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) ~~each~~ Each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no No Obligor is a government or municipality; and (xxx) no No Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) ~~the~~ The Initial Aggregate Discounted Contract Balance of the Contracts as of the ~~Closing~~ initial Cut-off Date is equal to $~~273,612,728.90; and~~218,254,123.54; (ii) ~~the~~ The Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-~~Off~~ off Date of not more than $~~5,117,844.60~~4,490,084.33; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-~~Off~~ off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-~~Off~~ off Date, no item of Equipment has been repossessed; (D) as of the Cut-~~Off~~ off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than ~~a day in~~ October 31, ~~2007~~2005; (G) as of the Cut-~~Off~~ off Date, (i) the Discounted Contract Balance of Contracts that have Balloon Payments constitute not more than ~~10.77~~4.0% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Balloon Payments) constitutes not more than ~~39.33~~12% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, ~~(i)~~ the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed 11.95% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, (ii) no single Obligor will have a Discounted Contract Balance that exceeds 2.62% of the Aggregate Discounted Contract Balance on the Closing Date, (iii) the sum of the Discounted Contract Balances of any five Contracts shall not exceed 11.79% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed $90,560,000 of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than 10.0% of the Aggregate Discounted Contract Balance will arise from Contracts which constitute loans to manufacturers, wholesalers, and retailers; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such Contract except for Contracts representing 7.0% of the Aggregate Discounted Contract Balance as of the Closing Date which Contracts provide for the related initial Contract Payment to be due within 30 days of the Payment Date occurring on December 12, 2000; (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than 3.0% of the Aggregate Discounted Contract Balance as of the Closing Date and, (L) no Balloon Payment is more than six and a half times larger than the average Contract payment related to such Contract.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp)

EQUIPMENT AND CONTRACTS. (a) As to each Contract: (~~i) (~~A) ~~immediately~~ Immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Leveraged Lease ~~Loans~~Loan, Fair Market Value Lease or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable Purchase; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and ~~its~~ a security interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and ~~either~~ a valid first priority ~~security interest in the Contributor's interest in the Equipment~~ perfected (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000), or, with respect to DVI Fair Market Value Leases, an ownership~~ 20,000) security interest in each item of the ~~related~~ Equipment subject to any Contract~~; at~~ . At such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) ~~each~~ Each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) ~~the~~ The obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of ~~set-~~ set-off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) ~~the~~ The Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) ~~each~~ Each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as As of the Cut-~~Off~~ off Date, (A) no Contract had a remaining term of more than 83 __ months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) ~~there~~ There will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no No Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no No Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) ~~each~~ Each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no No Contract permits early termination or voluntary prepayment by the Obligor; (xii) no No right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) ~~each~~ Each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction~~; the~~ . The sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no No Obligor is an Affiliate of the Contributor or the Servicer; (xv) ~~the~~ The Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no No Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in In the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) ~~all~~ All parties to each Contract had requisite authority and capacity to execute such Contract; (xix) ~~prior~~ Prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ordinary course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H C hereto; (xx) ~~the~~ The Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) ~~the~~ The Contract Schedule accurately reflects the information relating to each Contract; (xxii) ~~there~~ There are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) ~~each~~ Each Contract effects either the lease of of, or the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000) in favor of the Contributor as ~~lessor~~lessor or secured party, ~~secured party or seller~~ as the case may be, and contains provisions sufficient for the realization of such leasehold interest or security interest, ~~security interest or ownership interest~~ as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) ~~each~~ Each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) ~~the~~ The Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) ~~with~~ With respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000)~~20,000) ; (xxvii) no No Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) ~~each~~ Each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no No Obligor is a government or municipality; and (xxx) no No Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) ~~the~~ The Initial Aggregate Discounted Contract Balance of the Contracts as of the ~~Closing~~ initial Cut-off Date is equal to $~~273,612,728.90; and~~______________; (ii) ~~the~~ The Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-~~Off~~ off Date of not more than $~~5,117,844.60~~____________; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-~~Off~~ off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-~~Off~~ off Date, no item of Equipment has been repossessed; (D) as of the Cut-~~Off~~ off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than ~~a day in October 31, 2007~~______________; (G) as of the Cut-~~Off~~ off Date, (i) the Discounted Contract Balance of Contracts that have Balloon Payments constitute not more than ~~10.77~~___% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Balloon Payments) constitutes not more than ~~39.33~~__% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, ~~(i)~~ the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed ~~11.95~~__% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, ~~(ii)~~ no single Obligor will have a Discounted Contract Balance that exceeds ~~2.62~~____% of the Aggregate Discounted Contract Balance on the Closing Date, ~~(iii)~~ the sum of the Discounted Contract Balances of any ~~five~~ seven Contracts shall not exceed ~~11.79~~____% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed ~~$90,560,000~~ _____% of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than ~~10.0~~____% of the Aggregate Discounted Contract Balance will arise from Contracts which do not constitute loans to manufacturers, wholesalers, and ~~retailers~~retailers of, and to prospective purchasers of, specified merchandise, insurance and services; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such Contract except for Contracts representing ~~7.0~~___% of the Aggregate Discounted Contract Balance as of the Closing Date which Contracts provide for the related initial Contract Payment to be due within 30 days of the Payment Date occurring ~~on December 12, 2000~~in _____________; and (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than ~~3.0~~____% of the Aggregate Discounted Contract Balance as of the Closing ~~Date and, (L) no Balloon Payment is more than six and a half times larger than the average Contract payment related to such Contract~~Date.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp Viii)

EQUIPMENT AND CONTRACTS. (a) As to each Contract: ~~(i)~~ (A) immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Finance Lease, Leveraged Lease ~~Loans~~Loan, ~~Fair Market Value Lease~~ Secured Equipment Note or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable ~~Purchase~~Purchase and (with respect to each Fair Market Value Lease) a valid first priority ownership interest in such Contract and the related equipment subject thereto; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and its interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and either a valid first ~~priority security~~ priority, security, interest in the Contributor's interest in the Equipment (except for Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000), or, with respect to ~~DVI~~ Fair Market Value Leases, an ownership interest in the related Equipment subject to any Contract; at such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) the obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of ~~set-~~ set-off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) the Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as of the Cut-Off Date, (A) no Contract had a remaining term of more than 83 85 months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) there will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no Contract permits early termination or voluntary prepayment by the Obligor; (xii) no right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction; the sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no Obligor is an Affiliate of the Contributor or the Servicer; (xv) the Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) all parties to each Contract had requisite authority and capacity to execute such Contract; (xix) prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ~~ordinary~~ ordinary, course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H hereto; (xx) the Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) the Contract Schedule accurately reflects the information relating to each Contract; (xxii) there are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) each Contract effects either the lease of or the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000) in favor of the Contributor as lessor, secured party or seller as the case may be, and contains provisions sufficient for the realization of such leasehold interest, security interest or ownership interest as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) the Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) with respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000); (xxvii) no Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no Obligor is a government or municipality; and (xxx) no Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) the Aggregate Discounted Contract Balance of the Contracts as of the Closing Date is equal to $~~273,612,728.90~~429,583,246.18; and (ii) the Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-Off Date of not more than $~~5,117,844.60~~4,625,790.18; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-Off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-Off Date, no item of Equipment has been repossessed; (D) as of the Cut-Off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than ~~a day in~~ October 31, ~~2007~~2008; (G) as of the Cut-Off Date, (i) the Discounted Contract Balance of Contracts that have Balloon Payments constitute not more than ~~10.77~~7.18% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Balloon Payments) constitutes not more than ~~39.33~~37.13% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, (i) the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed ~~11.95~~15.94% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, (ii) no single Obligor will have a Discounted Contract Balance that exceeds ~~2.62~~1.70% of the Aggregate Discounted Contract Balance on the Closing Date, (iii) the sum of the Discounted Contract Balances of any five Contracts shall not exceed ~~11.79~~7.50% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed $~~90,560,000~~ 142,000,000 of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than 10.0% of the Aggregate Discounted Contract Balance will arise from Contracts which constitute loans to manufacturers, wholesalers, and retailers; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such Contract except for Contracts representing 7.0% of the Aggregate Discounted Contract Balance as of the Closing Date which Contracts provide for the related initial Contract Payment to be due within 30 120 days of the Payment Date occurring on December 1211, ~~2000~~2001; (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than 3.0% of the Aggregate Discounted Contract Balance as of the Closing Date and, (L) no Balloon Payment is more than six and a half times larger than the average Contract payment related to such Contract.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp Viii)

EQUIPMENT AND CONTRACTS. (a) As to each Contract: ~~(i)~~ (A) immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Finance Lease, Leveraged Lease ~~Loans~~Loan, ~~Fair Market Value Lease~~ Secured Equipment Note or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable ~~Purchase~~Purchase and (with respect to each Fair Market Value Lease) a valid first priority ownership interest in such Contract and the related equipment subject thereto; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and its interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and either a valid first ~~priority security~~ priority, security, interest in the Contributor's interest in the Equipment (except for Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000), or, with respect to ~~DVI~~ Fair Market Value Leases, an ownership interest in the related Equipment subject to any Contract; at such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) the obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of ~~set-~~ set-off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) the Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as of the Cut-Off Date, (A) no Contract had a remaining term of more than 83 85 months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) there will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no Contract permits early termination or voluntary prepayment by the Obligor; (xii) no right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction; the sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no Obligor is an Affiliate of the Contributor or the Servicer; (xv) the Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) all parties to each Contract had requisite authority and capacity to execute such Contract; (xix) prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ~~ordinary~~ ordinary, course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H hereto; (xx) the Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) the Contract Schedule accurately reflects the information relating to each Contract; (xxii) there are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) each Contract effects either the lease of or the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000) in favor of the Contributor as lessor, secured party or seller as the case may be, and contains provisions sufficient for the realization of such leasehold interest, security interest or ownership interest as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) the Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) with respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000); (xxvii) no Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no Obligor is a government or municipality; and (xxx) no Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) the Aggregate Discounted Contract Balance of the Contracts as of the Closing Date is equal to $~~273,612,728.90~~454,734,535.69; and (ii) the Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-Off Date of not more than $~~5,117,844.60~~5,868,380,74; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-Off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-Off Date, no item of Equipment has been repossessed; (D) as of the Cut-Off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than ~~a day in October 31~~June 30, ~~2007~~2009; (G) as of the Cut-Off Date, (i) the Discounted Contract Balance of Contracts that have Eligible Balloon Payments constitute not more than ~~10.77~~7.20% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Eligible Balloon Payments) constitutes not more than ~~39.33~~41.26% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, (i) the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed ~~11.95~~16.36% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, (ii) no single Obligor will have a Discounted Contract Balance that exceeds ~~2.62~~1.53% of the Aggregate Discounted Contract Balance on the Closing Date, (iii) the sum of the Discounted Contract Balances of any five Contracts shall not exceed ~~11.79~~7.23% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed $~~90,560,000~~ 157,000,000 of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than 10.0% of the Aggregate Discounted Contract Balance will arise from Contracts which constitute loans to manufacturers, wholesalers, and retailers; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such ~~Contract~~ Contract, except for Contracts representing ~~7.0~~7.26% of the Aggregate Discounted Contract Balance as of the Closing ~~Date~~ Date, which Contracts provide for the related initial Contract Payment to be due within 30 120 days of the Payment Date occurring on ~~December 12~~July 11, ~~2000~~2002; (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than 3.0% of the Aggregate Discounted Contract Balance as of the Closing Date ~~and,~~ and (L) no all Eligible Balloon ~~Payment is more than six and a half times larger than~~ Payments shall be included in the ~~average~~ calculation of Aggregate Discounted Contract ~~payment related to such Contract~~Balance.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp Viii)

EQUIPMENT AND CONTRACTS. (a) As to each Contract: ~~(i)~~ (A) immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Finance Lease, Leveraged Lease ~~Loans~~Loan, ~~Fair Market Value Lease~~ Secured Equipment Note or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable ~~Purchase~~Purchase and (with respect to each Fair Market Value Lease) a valid first priority ownership interest in such Contract and the related equipment subject thereto; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and its interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and either a valid first ~~priority security~~ priority, security, interest in the Contributor's interest in the Equipment (except for Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000), or, with respect to ~~DVI~~ Fair Market Value Leases, an ownership interest in the related Equipment subject to any Contract; at such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) the obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of ~~set-~~ set-off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) the Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as of the Cut-Off Date, (A) no Contract had a remaining term of more than 83 85 months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) there will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no Contract permits early termination or voluntary prepayment by the Obligor; (xii) no right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction; the sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no Obligor is an Affiliate of the Contributor or the Servicer; (xv) the Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) all parties to each Contract had requisite authority and capacity to execute such Contract; (xix) prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ~~ordinary~~ ordinary, course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H hereto; (xx) the Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) the Contract Schedule accurately reflects the information relating to each Contract; (xxii) there are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) each Contract effects either the lease of or the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000) in favor of the Contributor as lessor, secured party or seller as the case may be, and contains provisions sufficient for the realization of such leasehold interest, security interest or ownership interest as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) the Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) with respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment ~~relating to a Secured Equipment Note or Finance Lease and~~ for which the Original Equipment Cost is less than $25,000); (xxvii) no Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no Obligor is a government or municipality; and (xxx) no Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) the Aggregate Discounted Contract Balance of the Contracts as of the Closing Date is equal to $~~273,612,728.90~~462,410,954.84; and (ii) the Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-Off Date of not more than $~~5,117,844.60~~6,751,654.15; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-Off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-Off Date, no item of Equipment has been repossessed; (D) as of the Cut-Off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than ~~a day in~~ October 311, ~~2007~~2009; (G) as of the Cut-Off Date, (i) the Discounted Contract Balance of Contracts that have Eligible Balloon Payments constitute not more than ~~10.77~~13.9% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Eligible Balloon Payments) constitutes not more than ~~39.33~~42.95% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, (i) the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed ~~11.95~~19.05% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, (ii) no single Obligor will have a Discounted Contract Balance that exceeds ~~2.62~~1.64% of the Aggregate Discounted Contract Balance on the Closing Date, (iii) the sum of the Discounted Contract Balances of any five Contracts shall not exceed ~~11.79~~7.84% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed $~~90,560,000~~ 139,000,000 of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than 10.0% of the Aggregate Discounted Contract Balance will arise from Contracts which constitute loans to manufacturers, wholesalers, and retailers; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such ~~Contract~~ Contract, except for Contracts representing ~~7.0~~8.39% of the Aggregate Discounted Contract Balance as of the Closing ~~Date~~ Date, which Contracts provide for the related initial Contract Payment to be due within 30 120 days of the Payment Date occurring on ~~December~~ January 12, ~~2000~~2003; (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than 3.0% of the Aggregate Discounted Contract Balance as of the Closing Date ~~and,~~ and (L) no all Eligible Balloon ~~Payment is more than six and a half times larger than~~ Payments shall be included in the ~~average~~ calculation of Aggregate Discounted Contract ~~payment related to such Contract~~Balance.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp Viii)

EQUIPMENT AND CONTRACTS. (a) As to each Contract: (i) (A) immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Leveraged Lease Loans, Fair Market Value Lease or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable Purchase; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and its interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and either a valid first priority security interest in the Contributor's interest in the Equipment (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000), or, with respect to DVI Fair Market Value Leases, an ownership interest in the related Equipment subject to any Contract; at such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) the obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of ~~set-~~ set-off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) the Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as of the Cut-~~Off~~ off Date, (A) no Contract had a remaining term of more than 83 84 months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) there will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no Contract permits early termination or voluntary prepayment by the Obligor; (xii) no right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction; the sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no Obligor is an Affiliate of the Contributor or the Servicer; (xv) the Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) all parties to each Contract had requisite authority and capacity to execute such Contract; (xix) prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ordinary course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H hereto; (xx) the Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) the Contract Schedule accurately reflects the information relating to each Contract; (xxii) there are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) each Contract effects either the lease ~~of or~~ of, the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000) in favor of the Contributor as lessor, secured party or seller as the case may be, and contains provisions sufficient for the realization of such leasehold interest, security interest or ownership interest as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) the Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) with respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000); (xxvii) no Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no Obligor is a government or municipality; and (xxx) no Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) the Initial Aggregate Discounted Contract Balance of the Contracts as of the ~~Closing~~ initial Cut-off Date is equal to $~~273,612,728.90~~251,182,193.25; and (ii) the Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-~~Off~~ off Date of not more than $~~5,117,844.60~~4,657,697.43; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-~~Off~~ off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-~~Off~~ off Date, no item of Equipment has been repossessed; (D) as of the Cut-~~Off~~ off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than a day in ~~October 31~~April, ~~2007~~2006; (G) as of the Cut-~~Off~~ off Date, (i) the Discounted Contract Balance of Contracts that have Balloon Payments constitute not more than ~~10.77~~4.5% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Balloon Payments) constitutes not more than ~~39.33~~24.5% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, (i) the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed ~~11.95~~22% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, (ii) no single Obligor will have a Discounted Contract Balance that exceeds ~~2.62~~2.65% of the Aggregate Discounted Contract Balance on the Closing Date, (iii) the sum of the Discounted Contract Balances of any ~~five~~ six Contracts shall not exceed ~~11.79~~14.1% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed $~~90,560,000~~ 91,195,539.04 of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than ~~10.0~~10% of the Aggregate Discounted Contract Balance will arise from Contracts which constitute loans to manufacturers, wholesalers, and retailers; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such Contract except for Contracts representing ~~7.0~~1.5% of the Aggregate Discounted Contract Balance as of the Closing Date which Contracts provide for the related initial Contract Payment to be due within 30 days of the Payment Date occurring ~~on December 12~~in August 13, ~~2000~~1999; and (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than ~~3.0~~3.98% of the Aggregate Discounted Contract Balance as of the Closing ~~Date and, (L) no Balloon Payment is more than six and a half times larger than the average Contract payment related to such Contract~~Date.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp Viii)

EQUIPMENT AND CONTRACTS. (a) As to each Contract: (i) (A) immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Leveraged Lease Loans, Fair Market Value Lease or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable Purchase; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and its interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and either a valid first priority security interest in the Contributor's interest in the Equipment (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000), or, with respect to DVI Fair Market Value Leases, an ownership interest in the related Equipment subject to any Contract; at such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) the obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of set- off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) the Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as of the Cut-Off Date, (A) no Contract had a remaining term of more than 83 86 months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) there will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no Contract permits early termination or voluntary prepayment by the Obligor; (xii) no right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction; the sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no Obligor is an Affiliate of the Contributor or the Servicer; (xv) the Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) all parties to each Contract had requisite authority and capacity to execute such Contract; (xix) prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ordinary course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H hereto; (xx) the Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) the Contract Schedule accurately reflects the information relating to each Contract; (xxii) there are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) each Contract effects either the lease of or the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000) in favor of the Contributor as lessor, secured party or seller as the case may be, and contains provisions sufficient for the realization of such leasehold interest, security interest or ownership interest as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) the Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) with respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $25,000); (xxvii) no Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no Obligor is a government or municipality; and (xxx) no Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) the Aggregate Discounted Contract Balance of the Contracts as of the Closing Date is equal to $~~273,612,728.90~~292,528,909.43; and (ii) the Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-Off Date of not more than $~~5,117,844.60~~4,681,554.10; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-Off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-Off Date, no item of Equipment has been repossessed; (D) as of the Cut-Off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than a day in ~~October 31~~May, 2007; (G) as of the Cut-Off Date, (i) the Discounted Contract Balance of Contracts that have Balloon Payments constitute not more than ~~10.77~~9.25% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Balloon Payments) constitutes not more than ~~39.33~~40.0% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, (i) the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed ~~11.95~~17.0% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, (ii) no single Obligor will have a Discounted Contract Balance that exceeds ~~2.62~~2.5% of the Aggregate Discounted Contract Balance on the Closing Date, (iii) the sum of the Discounted Contract Balances of any five Contracts shall not exceed ~~11.79~~10.71% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed $~~90,560,000~~ 121,000,000 of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than 10.0% of the Aggregate Discounted Contract Balance will arise from Contracts which constitute loans to manufacturers, wholesalers, and retailers; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such Contract except for Contracts representing ~~7.0~~3.0% of the Aggregate Discounted Contract Balance as of the Closing Date which Contracts provide for the related initial Contract Payment to be due within 30 days of the Payment Date occurring on ~~December 12~~June, 2000; and (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than 3.0% of the Aggregate Discounted Contract Balance as of the Closing ~~Date and, (L) no Balloon Payment is more than six and a half times larger than the average Contract payment related to such Contract~~Date.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp Viii)

EQUIPMENT AND CONTRACTS. (a) As to each Contract: (i) (A) immediately prior to the transfers and conveyances set forth herein, the Contributor will be the sole owner of, and have good and marketable title to, the subject Contracts. With respect to any Leveraged Lease Loans, Fair Market Value Lease or Lease Receivable Purchase, the Contributor will have a valid first priority security interest in the equipment lease and the Equipment that has been pledged as collateral security for such Leveraged Lease Loan, Fair Market Value Lease or Lease Receivable Purchase; (B) immediately prior to the transfers and conveyances set forth herein, the Contributor will have acquired either good title to each item of Equipment or, with respect to the Equipment that is the subject of a Secured Equipment Note, Lease Receivables Purchase, Finance Lease or a Leveraged Lease Loan, a valid first priority perfected security interest therein from the related Obligor (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000). Immediately prior to such date, with respect to each item of Equipment related to Fair Market Value Leases, the Contributor will have paid in full to the manufacturer or supplier or Obligor, as the case may be, the purchase price and any related charges in connection with the acquisition of such Equipment; (C) upon the transfer to the Transferor by the Contributor of the Contributor's interest in the Contracts and its interest in the Equipment pursuant to Section 1 hereof, the Transferor will, after giving effect to the provisions of Section 1.01(d), have a valid first priority perfected ownership interest in, and have good title to the Contributed Property including the Contracts and either a valid first priority security interest in the Contributor's interest in the Equipment (except for Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000), or, with respect to DVI Fair Market Value Leases, an ownership interest in the related Equipment subject to any Contract; at such time, the Contracts and the Transferor's interest in the Equipment will be free and clear of all Liens other than the rights of each Obligor under the Contract to which such Obligor is a party and Liens to be discharged on the Closing Date; and there will be no delinquent taxes or other outstanding charges affecting the Equipment which are or may be Liens; (ii) each of the Contracts is a legal, valid and binding full recourse obligation of the related Obligor, enforceable by the Contributor (and its designee) against such Obligor in accordance with the terms thereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors' rights and by general equitable principles, and is in full force and effect, and any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending and equal credit opportunity laws applicable to the origination, enforceability or assignment of each Contract have been complied with; and the Contributor has no knowledge of any challenge, dispute or claim by the Obligor under or affecting any Contract or of the bankruptcy or the insolvency of any such Obligor; (iii) the obligation of each Obligor to pay Contract Payments under each of its related Contract(s) throughout the term thereof is and will be unconditional, without any right of ~~set-~~ set-off by such Obligor and without regard to any event affecting the Equipment, the obsolescence of any Equipment, any claim of such Obligor against the Contributor or any change in circumstance of such Obligor or any other circumstance whatsoever; (iv) the Contributor has no knowledge that any item of the Equipment has suffered any loss or damage except for such Equipment that has been restored to its original condition, ordinary wear and tear excepted; (v) each Contract requires the Obligor thereunder to either maintain insurance covering damage to, destruction or theft of the Equipment subject thereto in an amount at least equal to the remaining Discounted Contract Balance of such Contract; (vi) as of the Cut-Off Date, (A) no Contract had a remaining term of more than 83 86 months, (B) no Contract Payment under any Contract is delinquent for more than sixty (60) days and (C) no event of default has occurred and is continuing under any Contract; (vii) there will be no facts or circumstances existing as of the time of the transfer pursuant to this Agreement which give rise, or would give rise at any time in the future, to any right of rescission, offset, counterclaim or defense, including the defense of usury, to the obligations of any Obligor, including the obligation of such Obligor to pay all amounts due with respect to any Contract and neither the operation of any of the terms of any Contract or the exercise of any right thereunder will render such Contract unenforceable in whole or in part or subject to any right of rescission, offset, counterclaim or defense, including the defense of usury, and no such right of rescission, offset, counterclaim or defense has been asserted with respect thereto; (viii) no Contract has been amended, altered or modified in any respect and no provision of any Contract has been waived, except in writing and copies of all such writings are attached to the Contract delivered to the Transferor; (ix) no Obligor has been released, in whole or in part, from any of its obligations in respect of a Contract; no Contract has been satisfied, cancelled or subordinated, in whole or in part, or rescinded, and no Equipment has been released from the related Contract, in whole or in part, nor has any instrument been executed that would effect any such satisfaction, release, cancellation, subordination or rescission; (x) each Contract is in substantially one of the forms included as Exhibit G to this Agreement, and no Contract shall have been the subject of any restructuring of the terms and provisions thereof; (xi) no Contract permits early termination or voluntary prepayment by the Obligor; (xii) no right of the Contributor with respect to an Obligor's failure to pay all rent due under any Contract has been waived by the Contributor; (xiii) each Contract is "chattel paper" or an "instrument" under the UCC as in effect in the applicable jurisdiction; the sole executed counterpart of each Contract that constitutes chattel paper or an instrument is in the possession of the Trustee and all of the documents required to be delivered to the Trustee in connection therewith pursuant to Section 1 have been so delivered; (xiv) no Obligor is an Affiliate of the Contributor or the Servicer; (xv) the Contributor has no knowledge that the obligations of any Obligor under any Contract will not be paid in full; (xvi) no Contract will have been originated in or be subject to the laws of any jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms hereof or of the other Transaction Documents unlawful; (xvii) in the case of each Contract which consists of a master lease and one or more exhibits or schedules thereto, (A) the Contributor has not assigned and will not assign such master lease in its entirety, and has not delivered and will not deliver physical possession of such master lease, to any Person other than the Trustee and (B) such exhibits or schedules constitute a separate contract and are not part of any other contract not sold to the Transferor; (xviii) all parties to each Contract had requisite authority and capacity to execute such Contract; (xix) prior to the time of assignment, transfer, sale and contribution to the Transferor, each Contract will have been originated by the Contributor in the ordinary course of its business, except for certain Contracts which have been acquired by the Contributor in the ordinary course of its business, and each Contract shall have been underwritten by the Contributor in accordance with the standards set forth on Exhibit H hereto; (xx) the Contributor is not aware of any fact that would prevent or prohibit Obligors from being reimbursed by Medicare or Medicaid for any services provided; (xxi) the Contract Schedule accurately reflects the information relating to each Contract; (xxii) there are no proceedings or investigations pending or, to the knowledge of the Contributor, threatened, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of any of the Contracts, (B) seeking to prevent the payment and discharge of any of the Contracts or (C) seeking any determination or ruling that would materially and adversely affect the performance by an Obligor of its obligations under, or the validity or enforceability of the Contracts; (xxiii) each Contract effects either the lease of or the grant of a perfected first priority security interest in, a specified item of Equipment (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000) in favor of the Contributor as lessor, secured party or seller as the case may be, and contains provisions sufficient for the realization of such leasehold interest, security interest or ownership interest as the case may be, as against such Equipment, and is assignable by the Contributor without the consent of any other Person; (xxiv) each Contract provides that the Contributor has no obligation to assemble, install, test, adjust or service the Equipment subject to a Contract. Each Contract provides that the Obligor, at its sole expense, at all times during the term of the Contract and until return of the Equipment will maintain the Equipment in good operating order, repair, condition, appearance and protect the Equipment from deterioration, and provide all accessories, upgrades, repairs, replacement parts and service required therefor except that the equipment lease pledged as collateral security for a Leveraged Lease Loan may in certain instances provide that the related lessor is responsible for maintaining such Equipment; (xxv) the Contributor has no knowledge that any Obligor under a Contract is a Person involved in the business of selling medical equipment of the same type as the Equipment subject to such Contract; (xxvi) with respect to each item of Equipment either (A) no such Equipment has been relocated from the jurisdiction set forth in the Contract or, (B) if such Equipment has been relocated from the jurisdiction set forth in the Contract and the Contributor has knowledge of any such relocation, all UCC filings necessary to continue the first priority security interest in such Equipment have been made (other than Equipment relating to a Secured Equipment Note or Finance Lease and for which the Original Equipment Cost is less than $~~25,000~~20,000); (xxvii) no Contract is a consumer lease as defined in Article 2A of the UCC; (xxviii) each Obligor has accepted the related Equipment and, after reasonable opportunity to inspect and test, has not notified the Contributor of any defects therein; (xxix) no Obligor is a government or municipality; and (xxx) no Contract requires the prior written consent of the Obligor or contains any other restriction relating to the transfer or assignment of such Contract by the Contributor or the seller except such consent as has been obtained on or prior to the date of such transfer. (b) The Contributor represents and warrants, as to the Contracts in the aggregate: (i) the Aggregate Discounted Contract Balance of the Contracts as of the Closing Date is equal to $~~273,612,728.90~~270,243,724.70; and (ii) the Contracts have the following characteristics: (A) each Initial Contract has a Discounted Contract Balance as of the Cut-Off Date of not more than $~~5,117,844.60~~4,810,917.90; (B) no Discounted Contract Balance of any Contract will include an amount attributable to any (i) Purchase Option Payment for such Contract, (ii) Contract Payment due on or prior to the Cut-Off Date, (iii) security deposit or (iv) advance payment; (C) as of the Cut-Off Date, no item of Equipment has been repossessed; (D) as of the Cut-Off Date no Contract is a refinancing due to delinquencies under a prior lease, security agreement or loan with the same Obligor relating to the Equipment; (E) the Obligor with respect to each Contract has a place of business in, or is organized under, the laws of any state or territory of the United States of America; (F) with respect to the Initial Contracts, each Contract will have a Scheduled Termination Date no later than a day in ~~October 31~~November, ~~2007~~2006; (G) as of the Cut-Off Date, (i) the Discounted Contract Balance of Contracts that have Balloon Payments constitute not more than ~~10.77~~14.2% of the Aggregate Discounted Contract Balance, (ii) the Discounted Contract Balance of Contracts that have non-level payments to the Scheduled Termination Date (excluding Contracts that have Balloon Payments) constitutes not more than ~~39.33~~29.4% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts as of the Closing Date; (H) as of the Closing Date, (i) the sum of the Discounted Contract Balances of all Contracts with Equipment located in any one State will not exceed ~~11.95~~16.0% of, with respect to the Initial Contracts, the Aggregate Discounted Contract Balance of the Initial Contracts, (ii) no single Obligor will have a Discounted Contract Balance that exceeds ~~2.62~~2.55% of the Aggregate Discounted Contract Balance on the Closing Date, (iii) the sum of the Discounted Contract Balances of any ~~five~~ six Contracts shall not exceed ~~11.79~~13.5% of the Aggregate Discounted Contract Balance on the Closing Date and (iv) the sum of the Discounted Contract Balances of all Contracts for which the related Equipment is magnetic resonance imaging equipment will not exceed $~~90,560,000~~ 109,000,000 of the Aggregate Discounted Contract Balance as of the Closing Date; (I) not more than 10.0% of the Aggregate Discounted Contract Balance will arise from Contracts which constitute loans to manufacturers, wholesalers, and retailers; (J) the Obligor under each Contract has made at least one Contract Payment under such Contract prior to the first Payment Date occurring after the time such Contract was executed by the parties thereto in addition to any payment made at the time of the signing of such Contract except for Contracts representing ~~7.0~~19.0% of the Aggregate Discounted Contract Balance as of the Closing Date which Contracts provide for the related initial Contract Payment to be due within 30 days of the Payment Date occurring on ~~December 12~~November 13, ~~2000~~1999; and (K) the sum of the Discounted Contract Balance of all Contracts that are Lease Receivable Purchases shall not exceed, at any time, more than 3.0% of the Aggregate Discounted Contract Balance as of the Closing ~~Date and, (L) no Balloon Payment is more than six and a half times larger than the average Contract payment related to such Contract~~Date.

Appears in 1 contract

Samples: Contribution and Servicing Agreement (Dvi Receivables Corp Viii)

Common use of EQUIPMENT AND CONTRACTS Clause in Contracts