Exhibit 4.3
SUBSEQUENT CONTRACT TRANSFER AGREEMENT
between
DVI RECEIVABLES CORP. XVI,
as Company
and
DVI RECEIVABLES XVI, L.L.C.,
as Issuer
Dated as of November 1, 2001
ALL RIGHTS IN AND TO THIS AGREEMENT ON THE PART OF DVI RECEIVABLES XVI, L.L.C.
HAVE BEEN ASSIGNED AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF U.S. BANK
TRUST NATIONAL ASSOCIATION, AS TRUSTEE, UNDER THE INDENTURE DATED AS OF NOVEMBER
1, 2001 FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions ...................................................1
ARTICLE II
PROCEDURES FOR PURCHASES OF ELIGIBLE CONTRACTS
Section 2.01 Transfer ......................................................2
Section 2.02 Substitute Contracts ..........................................2
Section 2.03 Intent of Parties; Security Interest ..........................3
Section 2.04 Obligations to Transfer Certain Collections ...................3
Section 2.05 Grant of Security Interest ....................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.01 Organization and Good Standing ................................5
Section 3.02 Authorization .................................................5
Section 3.03 Binding Obligation ............................................5
Section 3.04 No Violation ..................................................5
Section 3.05 No Proceedings ................................................6
Section 3.06 Approvals .....................................................6
Section 3.07 Ability to Perform ............................................6
Section 3.08 Equipment and Contracts .......................................6
Section 3.09 Principal Executive Office ....................................7
Section 3.10 No Prior Assignments ..........................................7
Section 3.11 Fair Consideration ............................................7
Section 3.12 Nonconsolidation ..............................................7
Section 3.13 Ordinary Course; No Insolvency ................................8
Section 3.14 Assets and Liabilities ........................................8
Section 3.15 Valid Sale; Fair Consideration ................................9
Section 3.16 Ability to Pay Debts ..........................................9
Section 3.17 Bulk Transfer Provisions ......................................9
Section 3.18 Transfer Taxes ................................................9
ARTICLE IV
CONDITIONS TO PURCHASE
Section 4.01 Representations and Warranties ................................9
ARTICLE V
COVENANTS OF THE COMPANY
Section 5.01 Books and Records ............................................10
i
TABLE OF CONTENTS
(continued)
Page
Section 5.02 Preservation of Office .......................................10
Section 5.03 Liens ........................................................10
Section 5.04 No Bankruptcy Petition Against the Issuer or Managing Member..10
Section 5.05 Protection of Right, Title and Interest.......................11
ARTICLE VI
REPRESENTATIONS AND COVENANTS OF THE ISSUER
Section 6.01 Nonconsolidation .............................................11
Section 6.02 No Bankruptcy Petition Against the Company ...................12
ARTICLE VII
SUBSTITUTION
Section 7.01 Substitution .................................................12
Section 7.02 Notice of Substitution .......................................13
Section 7.03 Contributor's and Company's Subsequent Obligations ...........13
Section 7.04 Usage of Predecessor Contracts in Calculation ................13
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Amendment ....................................................14
Section 8.02 Effect of Invalidity of Provisions ...........................14
Section 8.03 Notices ......................................................15
Section 8.04 Entire Agreement .............................................15
Section 8.05 Survival .....................................................15
Section 8.06 Consent to Service ...........................................15
Section 8.07 Jurisdiction Not Exclusive ...................................16
Section 8.08 Construction .................................................16
Section 8.09 Further Assurances ...........................................16
Section 8.10 Third Party Beneficiaries ....................................16
Section 8.11 Governing Law ................................................17
Section 8.12 Consent To Jurisdiction; Waiver Of Objection To Venue ........17
Section 8.13 Waiver Of Jury Trial .........................................17
Section 8.14 Headings and Cross-References ................................17
Section 8.15 Costs and Expenses ...........................................17
Section 8.16 Confidential Information .....................................18
Section 8.17 Statutory References .........................................18
Section 8.18 Execution in Counterparts ....................................18
Section 8.19 Power of Attorney ............................................18
EXHIBIT A SUBSEQUENT CONTRACT TRANSFER FORM
ii
TABLE OF CONTENTS
(continued)
Page
EXHIBIT B FORM OF RE-ASSIGNMENT OF ISSUER'S CERTIFICATE PURSUANT TO SECTION
1.04(c) or 5.01 OF THE SUBSEQUENT CONTRACT TRANSFER AGREEMENT
iii
SUBSEQUENT CONTRACT TRANSFER AGREEMENT ("Agreement") dated as of November
1, 2001, between DVI RECEIVABLES XVI, L.L.C., a Delaware limited liability
company (the "Issuer"), and DVI RECEIVABLES CORP. XVI, a Delaware corporation
(the "Company").
WHEREAS, the Company will from time to time acquire certain Contracts and
other Contributed Property related thereto pursuant to the Contribution and
Servicing Agreement dated as of the date hereof, between the Company and DVI
Financial Services Inc. (the "Contributor"), the Company will acquire from DVI
Receivables Corp. XV ("DVI Corp. XV") pursuant to a Sale Agreement (the "DVI XV
Sale Agreement"), dated the date hereof, among the Company, the Issuer, DVI
Receivables Corp. XV and DVI Receivables XV, L.L.C. ("DVI Receivables XV") the
Sold Company Assets (as defined in the DVI XV Sale Agreement, and the Company
will acquire from DVI Funding Corporation ("DFC") pursuant to a Sale Agreement
(the "Funding Sale Agreement"), dated the date hereof, among the Company, the
Issuer, DFC and DVI Funding, L.L.C. ("DVI Funding L.L.C.") the Sold Company
Assets (as defined in the Funding Sale Agreement).
WHEREAS, the Company desires to transfer to Issuer all Contributed Property
(other than any ownership interest in Equipment) which it acquires from the
Contributor and certain other assets, and Issuer desires to purchase such
Contributed Property and other assets, in each instance in accordance with the
terms and conditions set forth in this Agreement.
WHEREAS, pursuant to the Indenture (the "Indenture"), dated as of the date
hereof, by and between the Issuer and U.S. Bank Trust National Association (the
"Trustee"), the Issuer intends to issue its Series 2001-2 Notes, which will be
collateralized by a pledge by the Issuer to the Trustee, on behalf of the
Noteholders of all of the Issuer's right, title and interest in, to and under
the Trust Property.
WHEREAS, to facilitate the issuance of its Series 2001-2 Notes, the Issuer
and the Company desire to enter into this Agreement.
NOW, THEREFORE, the parties, in consideration of good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
For purposes of this Agreement, capitalized terms used herein but not
otherwise defined shall have the respective meanings assigned to such terms in
Appendix I to the Contribution and Servicing Agreement.
ARTICLE II
PROCEDURES FOR PURCHASES OF ELIGIBLE CONTRACTS
SECTION 2.01 Transfer.
(a) Conveyance. Upon the terms and conditions herein set forth, in exchange
for cash consideration received therefore and for other good and valuable
consideration, the Company hereby transfers, pledges, assigns and sells to the
Issuer on each Contribution Date (or, in the case of any Substitute Contracts
the related Substitution Date), without recourse except as set forth herein, all
of the Company's right, title and interest in and to the Company Assets as set
forth on the related Subsequent Contract Transfer Form. All funds received by
the Company on or in connection with the Company Assets on and after the
applicable Cut-off Date shall be received, held and applied by the Company in
trust for the benefit of the Issuer as owner of the Contracts and the other
Company Assets.
(b) After giving effect to such transfer and sale, the ownership of each
such Contract and the other Company Assets transferred on the related
Contribution Date shall be vested in the Issuer. The Contract Files and any
other documents relating to each Contract and the other Company Assets shall be
held in trust by the Trustee for the benefit of the Noteholders pursuant to the
terms of the Indenture. The Company agrees to take no action inconsistent with
the ownership of any Contract or the other Company Assets, to promptly indicate
to all parties with a valid interest inquiring as to the true ownership of each
Contract, that each Contract and the other Company Assets have been transferred,
assigned and sold to the Issuer and to claim no ownership interest in any such
Contracts and the other Company Assets.
(c) Any Company Assets transferred by the Contributor to the Company from
time to time shall forthwith be transferred to the Issuer without further act,
notwithstanding the delivery of any Subsequent Contract Transfer Forms in
respect thereof.
SECTION 2.02 Substitute Contracts.
(a) In consideration for the transfer by the Issuer to the Company of any
Predecessor Contract transferred to the Company by the Issuer in accordance with
the terms and conditions of Section 7 of the Contribution and Servicing
Agreement, the Company shall transfer to the Issuer on the Substitution Date
related thereto, and the Issuer shall accept, a Substitute Contract; provided
that such Substitute Contract is in accordance with the terms and conditions of
the Contribution and Servicing Agreement.
(b) With respect to all Predecessor Contracts and the ownership or the security
interest (as the case maybe) in the related Equipment purchased or replaced by
the Contributor pursuant to Section 5 or Section 7 of the Contribution and
Servicing Agreement, the Issuer shall deliver to the Company, an instrument
substantially in the form of Exhibit B hereto, assigning to the Company, without
recourse, representation or warranty (except as to the absence of liens, claims,
or encumbrances resulting from actions taken, or failed to be taken, by the
Issuer), all of the Issuer's right, title and interest in and to such
Predecessor Contracts and the ownership or the security interest (as the case
may be) in the related Equipment, and all security and documents relating
thereto.
SECTION 2.03 Intent of Parties; Security Interest.
The Issuer and the Company hereby confirm that the transactions
contemplated in this Agreement are intended as transfers, assignments,
conveyances and sales rather than as loan transactions. In the event, for any
reason, and solely in such event, any transaction hereunder is construed by any
court or regulatory authority as a loan or other than a transfer, assignment,
conveyance and sale of any or all Company Assets, then the Company shall be
deemed to have hereby
2
pledged to the Issuer as security for the performance by the Company of all of
its obligations from time to time arising hereunder and with respect to any and
all purchases effected pursuant hereto, and shall be deemed to have either
assigned or granted to the Issuer a first priority perfected (except Equipment
for which the Original Equipment Cost is less than $25,000, in which case, the
Company shall be deemed to have granted a valid security interest) security
interest in all of the Company Assets. In furtherance of the foregoing, (i) this
Agreement shall constitute a security agreement, (ii) the Trustee shall be
deemed to be a bailee for purposes of perfection of the security interest
granted to Issuer (and its assigns), (iii) the Issuer shall have all of the
rights of a secured party with respect to the Company Assets pursuant to
applicable law and (iv) in the manner consistent with this Agreement, the
Company shall execute all documents, including, but not limited to, UCC
financing statements, to effectively perfect and evidence Issuer's first
priority security interest in the Company Assets except that UCC financing
statements need not be filed with respect to Equipment for which the Original
Equipment Cost is less than $25,000. The Company also covenants not to pledge,
assign or grant any security interest to any other party in any of the Company
Assets. The consideration received and to be received by the Company in exchange
for the transfer, assignment and conveyance of the Company Assets is intended to
be fair consideration having value equivalent to or in excess of the value of
the assets being transferred by the Company.
SECTION 2.04 Obligations to Transfer Certain Collections. The Company shall
cause the Servicer to pay to the Issuer, by deposit into the Collection Account
within two (2) business days after receipt thereof, any and all payments and
other amounts (other than Purchase Option Payments and any Excluded Amounts), if
any, received by or on behalf of the Company in respect of any Equipment owned
by the Transferor following or as a result of any default or early termination
under the related Contract.
SECTION 2.05 Grant of Security Interest.
(a) To secure the timely payment of all obligations owing by the Company
and the performance and observance of all the obligations and liabilities of the
Company contained in this Agreement and the other Transaction Documents
(collectively, the "Company Obligations"), the Company hereby conveys, warrants,
assigns, transfers, pledges and grants a security interest unto (all of the
following are collectively, the "Company Collateral") (i) the Trustee, for the
benefit and security of the Issuer, all of the Company's right, title and
interest in and to all Equipment of the Company subject to certificates of title
or similar evidences of ownership, and all proceeds thereof, and (ii) the
Issuer, all of the Company's right, title and interest in and to all Equipment
of the Company, including all proceeds thereof.
(b) This Agreement shall create a continuing security interest in the
Company Collateral and shall:
(i) remain in full force and effect until payment in full and
performance of all Company Obligations;
(ii) be binding upon the Company and its successors, transferees and
assigns (except with respect to Company Collateral as to which the Issuer,
with the prior written consent of the Trustee, shall have released its
security interest therein); and
3
(iii) inure, together with the rights and remedies of the Issuer
hereunder, to the benefit of the Issuer and its successors and assigns.
(c) Upon the payment in full and performance of all Company Obligations,
the security interest granted herein shall, immediately and without further
action, terminate and be released and all rights to the Company Collateral shall
revert to the Company. Upon any such termination and release, the Issuer and the
Trustee will, at the Company's sole expense, deliver to the Company all
certificates and instruments representing or evidencing any Company Collateral,
and execute and deliver to the Company such documents as the Company shall
reasonably request to evidence such termination and release.
(d) In the event that (i) the Contributor or the Servicer shall have
substituted a Substitute Contract and an ownership interest or security interest
(as the case may be) in the Equipment subject thereto for a Predecessor Contract
in accordance with the Contribution and Servicing Agreement, or (ii) the
Contributor or the Servicer shall have repurchased a Contract and an ownership
interest or security interest (as the case may be) in the related Equipment in
accordance with the Contribution and Servicing Agreement, the Predecessor
Contract or the repurchased Contract, as applicable, and the ownership interest
or security interest (as the case may be) in the Equipment subject thereto,
shall be released from the ownership interest or security interest (as the case
may be) granted hereunder when the Trustee shall have (i) in the case of the
repurchase of a Contract, deposited in the Collection Account all amounts
received in accordance with the section of the Contribution and Servicing
Agreement pursuant to which such Contract is purchased, (ii) in the case of a
Substitute Contract, received a fully executed original of the Substitute
Contract Transfer Form and the Contract File with respect to such Substitute
Contract plus any cash amount delivered as provided in the section of the
Contribution and Servicing Agreement pursuant to which such Contract is
substituted and (iii) delivered to the Contributor or the Servicer, as the case
may be, acknowledgment of its receipt of the related Contract Files. If there
are such unreimbursed amounts, any proceeds received with respect to such
Predecessor Contract or repurchased Contract, as applicable, and the security
interest in the related Equipment shall be applied hereunder only to the extent
necessary to reimburse the Collection Account for such amounts drawn thereon and
the balance of such proceeds, if any, shall be paid to, or as directed by, the
Contributor.
(e) In the event that the Trustee shall have received written certification
from an Authorized Officer of the Servicer that the Trustee has received from
amounts paid by the Obligor or from the proceeds of the Equipment subject to any
Contract (i) the final Contract Payment due and payable under any Contractor or
(ii) a Prepayment Amount in respect of any Contract and, following such final
Contract Payment or Prepayment Amount, no further payments on, or in respect of,
such Contract are or will be due and payable, such Contract and the Equipment
subject thereto shall be released from the security interest granted hereunder.
(f) The Issuer and the Trustee shall promptly execute and deliver such
documents (which shall be furnished to the Issuer and the Trustee by the
Company) and take such other actions as the Company may reasonably request to
fully effectuate the release from the security interest granted hereunder of any
Contract and the security interest relating to Equipment required to be so
released pursuant to this Section 1.05.
4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and warranties for
the benefit of the Issuer, the Trustee and the Noteholders on which the Issuer
relies in purchasing and otherwise acquiring the Company Assets and on which the
Noteholders rely in funding advances under their respective Notes. Other than as
set forth in Section 3.08 hereof, such representations and warranties are and
will be true and correct as of the Closing Date and as of each Contribution Date
or Substitution Date, as the case may be (unless an earlier date is specified
therein) and shall survive each transfer, assignment, conveyance and sale to the
Issuer of the Company Assets and the subsequent pledge thereof by the Issuer
pursuant to the Indenture.
SECTION 3.01 Organization and Good Standing.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
SECTION 3.02 Authorization.
The Company has all requisite power and authority and all necessary
licenses and permits to enter into and perform its obligations under this
Agreement and each Subsequent Contract Transfer Form (each, an "SCTF") and the
transactions contemplated hereby and thereby, and the execution, delivery, and
performance of this Agreement and each SCTF, have been duly authorized by the
Company by all necessary corporate action.
SECTION 3.03 Binding Obligation.
This Agreement has been, and each SCTF will be, duly and validly executed
and delivered by the Company and will constitute a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its respective terms, subject to bankruptcy, insolvency and other laws of
general application affecting the rights of creditors and equitable principles
(whether considered in a proceeding at law or in equity).
SECTION 3.04 No Violation.
The consummation of the transactions contemplated by this Agreement and
each SCTF and the fulfillment of the terms thereof, will not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice, lapse of time or both) a default under the certificate of
incorporation or bylaws of the Company, or any indenture, agreement, mortgage,
deed of trust or other instrument to which the Company is a party or by which it
is bound, or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of such indenture, agreement, mortgage, deed of
trust or other such instrument, other than this Agreement, or violate any law,
or, to the best of the Company's knowledge, any order, rule or regulation
applicable to it of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Company or any of its properties.
5
SECTION 3.05 No Proceedings.
The Company is not subject to any injunction, writ, action, suit,
restraining order or other order of any nature, and there are no actions, suits,
proceedings or investigations to which the Company is a party pending or, to the
knowledge of the Company, threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality (A)
asserting the invalidity of this Agreement or any SCTF, (B) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement or
any SCTF or (C) seeking any determination or ruling that would materially and
adversely affect the performance by the Company of its obligations under, or the
validity or enforceability of this Agreement or any SCTF.
SECTION 3.06 Approvals.
All approvals, authorizations, consents, orders or other actions of any
person, corporation or other organization, or of any court, governmental agency
or body or official, required in connection with the execution and delivery of,
and compliance with the terms of, this Agreement or any SCTF, have been or will
be taken or obtained on or prior to the related Contribution Date.
SECTION 3.07 Ability to Perform.
The Company has the ability to perform all of its obligations under this
Agreement, any SCTF and the Contribution and Servicing Agreement.
SECTION 3.08 Equipment and Contracts.
With respect to each Contract, the Company hereby represents and warrants
to the Issuer, as of each Contribution Date that:
(a) the sale to the Issuer of the Company's interest in such Contract(s)
transferred on such date and the assignment of the Company's security interest,
or grant of a first priority perfected security interest, as the case may be, in
the Equipment related thereto pursuant to Section 2.01, Section 2.02 or Section
2.05 hereof constitutes a valid transfer of all of the Company's right, title
and interest in such Company Assets or a grant of a first-priority perfected
(except for Equipment for which the Original Equipment Cost is less than
$25,000, with respect to which the Company shall be deemed to have granted a
valid security interest) security interest therein from the Company in favor of
the Issuer, free and clear of any and all claims, charges, liens or security
interests created by the Company or any of its affiliates (other than the rights
of each Obligor under the Contract to which such Obligor is a party, claims,
charges, liens or security interests to be discharged on the Contribution Date
related thereto and any liens for taxes, assessments, and (x) governmental
charges or levies not yet due and payable and (y) liens imposed by law arising
in the ordinary course of business which secure obligations that are not yet due
and payable, in the case of (x) and (y) to the extent no enforcement,
collection, execution, levy or foreclosure proceeding shall have been
commenced);
(b) the Company did not, in the exercise of its interest in any such
Company Assets waive, discharge, release or otherwise permit any modification
thereto not in effect or agreed to at the time the Company acquired its interest
therein; and
(c) notwithstanding the foregoing clauses (a) and (b), the Company makes no
representation or warranty with respect to claims, charges, liens or security
interests created, or waivers, discharges, releases or modifications made, by
the Contributor.
6
The representations and warranties described in this Section 3.08 shall
survive the conveyance of the Company Assets to the Issuer.
SECTION 3.09 Principal Executive Office.
The principal executive office of the Company is located at 0000 Xxxx Xxxx,
Xxxxxxx, XX 00000, and has been located in the same county and state for at
least four months immediately preceding the Closing Date. The Company has no
trade names, fictitious names, assumed names or "doing business as" names, and
at all times has been originated under the laws of the State of Delaware. If any
change in any of the jurisidiction of organization of the Company, the Company's
name, structure or the location of its principal place of business or chief
executive office occurs, then the Company shall deliver thirty (30) days' prior
written notice of such change or relocation to the Issuer and the Trustee, then,
no later than sixty (60) days after the effective date of such change or
relocation, the Company shall file such amendments or statements as may be
required to preserve and protect the Issuer's and the Trustee's interest in the
Contracts, the Equipment and the other Trust Property. The Company shall pay all
filing fees or taxes payable in respect of any UCC financing or continuation
statements required to be filed pursuant to Section 1.03 of the Contribution and
Servicing Agreement and not paid by the Contributor.
SECTION 3.10 No Prior Assignments.
Except as permitted by the Transaction Documents, the Company has not
pledged, assigned or encumbered or terminated, in whole or in part, any of the
Company Assets.
SECTION 3.11 Fair Consideration.
The consideration received by the Company in connection with the transfer
and sale of the Company Assets constitutes reasonably equivalent value and fair
consideration for the Company Assets.
SECTION 3.12 Nonconsolidation.
The Company is operated in such a manner that it would not be substantively
consolidated with Contributor, such that the separate existence of the Company
and Contributor would not be disregarded in the event of a bankruptcy or
insolvency of the Company or Contributor, and in such regard, among other
things:
(a) the Company is not involved in the day to day management of
Contributor;
(b) the Company maintains separate corporate records and books of account
from Contributor and otherwise observes corporate formalities and has a separate
business office from Contributor (which may be at the same address as
Contributor, provided that the Company and Contributor have entered into a
written agreement specifying a reasonable allocation of expenses with respect to
overhead and other shared costs with respect to such premises or a lease
agreement);
(c) the financial statements and books and records of the Company prepared
after the date of creation of Contributor reflect and will reflect the separate
existence of Contributor;
7
(d) the Company maintains its assets separately from the assets of
Contributor (including through the maintenance of a separate bank account), the
Company's funds and assets, and records relating thereto, have not been and are
not commingled with those of Contributor and the separate creditors of
Contributor will be entitled to be satisfied out of Contributor's assets prior
to any value in Contributor becoming available to Contributor's equityholders or
the Company's creditors;
(e) all business correspondence of the Company and other communications are
conducted in the Company's own name and on its own stationery;
(f) Contributor does not act as an agent of the Company in any capacity and
the Company does not act as agent for Contributor, but instead presents itself
to the public as a corporation separate from Contributor, provided that
Contributor is the Servicer under the Contribution and Servicing Agreement; and
(g) the Company has caused its accounting records to be clearly and
unambiguously marked to show that such Contract has been transferred by the
Company to the Issuer and pledged by the Issuer to the Trustee for the benefit
of the Noteholders.
SECTION 3.13 Ordinary Course; No Insolvency.
The transactions contemplated by this Agreement are being consummated by
the Company and the Issuer, respectively, in furtherance of the Company's
ordinary business purposes and constitute a practical and reasonable course of
action by the Company designed to improve the financial position of the Company
with no contemplation of insolvency and with no intent to hinder, delay or
defraud any of its present or future creditors. Neither as a result of the
transactions contemplated by this Agreement, nor immediately before or after
such transactions, will the Company be insolvent, and the Company has adequate
capital for the conduct of its business and the payment of anticipated
obligations.
SECTION 3.14 Assets and Liabilities.
(a) Both immediately before and after the assignment, transfer and
conveyance of Contracts (including the right to receive all payments due or to
become due thereunder) and the other Company Assets, the present fair salable
value of the Company's assets will be in excess of the amount that will be
required to pay the Company's probable liabilities as they then exist and as
they become absolute and matured.
(b) Both immediately before and after the assignment and transfer of
Contracts and the other Company Assets, the sum of the Company's assets will be
greater than the sum of the Company's debts, valuing the Company's assets at a
fair salable value.
SECTION 3.15 Valid Sale; Fair Consideration.
This Agreement effects a valid assignment, transfer and conveyance of the
Company's interest in the Company Assets, enforceable against creditors of the
Company. The consideration received by the Transferor upon the sale of the
Company Assets to the Issuer constitutes reasonably equivalent value and fair
consideration for such Company Assets.
8
SECTION 3.16 Ability to Pay Debts.
Neither as a result of the transactions contemplated by this Agreement nor
otherwise does the Company believe that it will incur debts beyond its ability
to pay or which would be prohibited by its charter documents or by-laws. The
Company's assets and cash flow enable it to meet its present obligations in the
ordinary course of business as they become due.
SECTION 3.17 Bulk Transfer Provisions.
No transfer, assignment or conveyance of Contracts or the other Company
Assets by the Company to the Issuer contemplated by this Agreement will be
subject to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
SECTION 3.18 Transfer Taxes.
No transfer, assignment or conveyance of Company Assets contemplated by
this Agreement is subject to or will result in any tax, fee or governmental
charge payable by the Company or the Issuer to any federal, state or local
government ("Transfer Taxes"). In the event that the Company or the Issuer
receives actual notice of any Transfer Taxes arising out of the transfer,
assignment and conveyance of any Company Assets, on written demand by the
Issuer, or upon the Company otherwise being given notice thereof, the Company
shall pay, and otherwise indemnify and hold the Issuer, the Trustee and the
holders of the Notes harmless, on an after-tax basis, from and against any and
all such Transfer Taxes (it being understood that neither the holders of the
Notes nor the Trustee shall have any obligation to pay such Transfer Taxes).
ARTICLE IV
CONDITIONS TO PURCHASE
SECTION 4.01 Representations and Warranties.
The obligation of the Issuer to purchase any Contracts on the Closing Date
and each Contribution Date is subject to receipt by the Issuer of the following:
(a) an Officer's Certificate from Company to the effect that, on or before
such Contribution Date (after giving effect to the sale of the Subsequent
Contracts on such date), all representations and warranties of the Company
contained herein shall be true and correct in all respects, with respect to each
Contract individually and all Contracts in the aggregate, with the same force
and effect as though such representations and warranties had been made on and as
of such date (unless such representations and warranties specifically relate to
an earlier date); and
(b) an Officer's Certificate from the Contributor to the effect that, on or
before such Contribution Date (after giving effect to the sale of Subsequent
Contracts on such date), all representations and warranties of the Contributor
contained in Section 2 of the Amended and Restated Contribution and Servicing
Agreement shall be true and correct in all respects, with respect to each
Contract individually and all Contracts in the aggregate as stated therein, with
the same force and effect as though such representations and warranties had been
made on and as of such date (unless such representations and warranties
specifically relate to an earlier date).
9
ARTICLE V
COVENANTS OF THE COMPANY
So long as this Agreement remains in effect or the Company shall have any
obligations hereunder, Company hereby covenants and agrees with Issuer as
follows:
SECTION 5.01 Books and Records.
The Company will clearly xxxx its books and records to reflect each sale to
the Issuer of all Company Assets and to show that the Issuer owns the Company
Assets absolutely.
SECTION 5.02 Preservation of Office.
The Company will give the Issuer, each Noteholder and the Trustee prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement. If any change in either the
Company's name, structure or the location of its jurisdiction of organization,
principal place of business or chief executive office occurs, then the Company
shall deliver thirty (30) days' prior written notice of such change or
relocation to the Issuer and the Trustee, then, no later than sixty (60) days
after the effective date of such change or relocation, shall file such
amendments or statements as may be required to preserve and protect the Issuer's
and the Trustee's interest in the Contracts, the Equipment and the other Trust
Property. The Company shall pay all filing fees or taxes payable in respect of
any UCC financing or continuation statements required to be filed pursuant to
SECTION 1.03 of the Contribution and Servicing Agreement and not paid by the
Contributor.
SECTION 5.03 Liens.
The Company shall defend the right, title and interest of the Issuer in the
Company Assets against all claims of third parties claiming through or under the
Company (excluding claims arising from actions of the Contributor, in its
capacity as Servicer under the Contribution and Servicing Agreement, or any
agent of Contributor as such Servicer).
SECTION 5.04 No Bankruptcy Petition Against the Issuer or Managing Member.
The Company covenants and agrees it will not, prior to the date that is one
year and one day after the payment in full of all amounts owing pursuant to the
Transaction Documents, institute against, or join any other Person in
instituting against, any of the Issuer, the Managing Member or itself, any
bankruptcy, reorganization, receivership, arrangement, insolvency or liquidation
proceedings or other similar proceedings under any federal or state bankruptcy
or similar law. This Section 5.04 shall survive the termination of this
Agreement.
SECTION 5.05 Protection of Right, Title and Interest.
(a) The Company shall not change its name, identity, or corporate structure
in any manner that would, could, or might make any UCC financing statement or
continuation statement filed by the Contributor in accordance with Section
1.01(d) of the Contribution and Servicing Agreement seriously misleading within
the meaning of Section 9-506 of the UCC, unless it shall have given the Issuer
at least
10
thirty (30) days' prior written notice thereof and shall promptly file
appropriate amendments to all previously filed UCC financing statements or
continuation statements.
(b) If at any time the Company shall propose to sell, grant a security
interest in or otherwise transfer any interest in contracts to any prospective
lender, or other transferee, the Company shall give to such prospective lender,
or other transferee, computer tapes, records, or print-outs (including any
restored from archives)that, if they shall refer in any manner whatsoever to any
Contract, shall indicate clearly that such Contract have been sold to the Issuer
and pledged by the Issuer to the Trustee for the benefit of the Noteholders.
(c) The Company shall not amend its certificate of incorporation without
the prior written consent of the Rating Agencies.
ARTICLE VI
REPRESENTATIONS AND COVENANTS OF THE ISSUER
The Issuer hereby represents and warrants to the Company as of the Closing
Date and as of each Contribution Date:
SECTION 6.01 Nonconsolidation.
The Issuer is operated in such a manner that it would not be substantively
consolidated with Contributor, such that the separate existence of the Issuer
and Contributor would not be disregarded in the event of a bankruptcy or
insolvency of the Issuer or Contributor, and in such regard, among other things:
(a) the Issuer is not involved in the day to day management of Contributor;
(b) the Issuer maintains separate company records and books of account from
Contributor and otherwise observes company formalities and has a separate
business office from the Company;
(c) the financial statements and books and records of the Issuer prepared
after the date of creation of Contributor reflect and will reflect the separate
existence of Contributor;
(d) the Issuer maintains its assets separately from the assets of
Contributor (including through the maintenance of a separate bank account), the
Issuer's funds and assets, and records relating thereto, have not been and are
not commingled with those of Contributor and the separate creditors of
Contributor will be entitled to be satisfied out of Contributor's assets prior
to any value in Contributor becoming available to Contributor's equityholders or
the Issuer's creditors;
(e) all business correspondence of the Issuer and other communications are
conducted in the Issuer's own name and on its own stationery;
(f) Contributor does not act as an agent of the Issuer in any capacity and
the Issuer does not act as agent for Contributor, but instead presents itself to
the public as a limited liability company separate from Contributor and the
Company; provided that Contributor is the Servicer under the Contribution and
Servicing Agreement.
11
(g) The Issuer shall not issue any securities or cause any Person of which
it is the sole shareholder or economic owner to issue any securities (other than
the Notes, any Class F Instruments and any securities issued prior to the
Closing Date) unless it shall have received from the Rating Agencies a written
confirmation that the issuance of such securities will not result in a Ratings
Effect with respect to any class of Notes.
SECTION 6.02 No Bankruptcy Petition Against the Company.
The Issuer covenants and agrees it will not, prior to the date that is one
year and one day after the payment in full of all amounts owing pursuant to the
Transaction Documents, institute against, or join any other Person in
instituting against, any of the Company, the Managing Member or itself, any
bankruptcy, reorganization, receivership, arrangement, insolvency or liquidation
proceedings or other similar proceedings under any federal or state bankruptcy
or similar law. This Section 6.01 shall survive the termination of this
Agreement.
ARTICLE VII
SUBSTITUTION
SECTION 7.01 Substitution.
In the event that the Contributor contributes, transfers, sells or assigns
a Substitute Contract to the Company pursuant to Section 7.01 of the
Contribution and Servicing Agreement, the Company hereby agrees to sell,
transfer, convey and assign any such Substitute Contract and the security
interest in the related Equipment to the Issuer (or, in the case of Fair Market
Value Leases, grant a valid security interest in the related Equipment). In
addition, the Company hereby agrees to take any action to facilitate the
transfer of any Predecessor Contract, including (i) delivery to the Trustee and
the Issuer of the Substitute Contract Transfer Form, substantially in the form
of Exhibit C to the Contribution and Servicing Agreement, transferring to the
Issuer all right, title and interest of the Company in and to the Eligible
Contract being substituted and a security interest in the related Equipment
subject thereto, and granting the Trustee a valid and first priority security
interest in such Substitute Contracts and the related Equipment (in accordance
with the Transaction Documents), (ii) delivery to the Trustee of amendments to,
or executed originals of, the UCC financing statements referred to in Section
1.01(c) of the Contribution and Servicing Agreement reflecting the deletion of
the Predecessor Contract and the addition of the Substitute Contract, (iii)
delivery to the Contributor or the Servicer, as the case may be, by the Company
of an instrument, substantially in the form of Exhibit D of the Contribution and
Servicing Agreement, transferring to the Contributor or the Servicer, as the
case may be, without representation or warranty, all of the Company's right,
title and interest in and to the related Predecessor Contract, (iv) delivery to
the Trustee of the original, manually executed counterpart of each Contract that
constitutes "chattel paper" or an "instrument" under the UCC as appropriate for
the purposes of perfecting a security interest under the UCC and (v) delivery to
the Trustee of an amendment to the Contract Schedule, reflecting the deletion of
the Predecessor Contract and the addition of the Substitute Contract. Upon
delivery of each Substitute Contract and the Substitute Contract Transfer Form
therefor, the definition of "Company Assets" will be automatically amended to
(1) include such Substitute Contract and all related property and rights
contained in the definition of Contributed Property and (2) not include the
related Predecessor Contract and all related property and rights contained in
the definition of Contributed Property.
12
SECTION 7.02 Notice of Substitution.
In the Monthly Servicer Report to be delivered on each Determination Date,
the Company shall cause the Servicer to give written notice to the Trustee, each
Noteholder, and the Company of each substitution of Contracts pursuant to
Section 7.01 hereof during the preceding Collection Period. Such Monthly
Servicer Report or other written notice shall (i) specify the amount of each
periodic Contract Payment under the Predecessor Contract and the amount of each
periodic Contract Payment under each Eligible Contract being substituted, (ii)
specify the residual values of the Equipment subject to the Predecessor Contract
and the Equipment subject to the Eligible Contract being substituted, (iii)
specify the Discounted Contract Balance of the Predecessor Contracts, the
Discounted Contract Balance of the Substitute Contracts, and any amounts to be
deposited in the Collection Account in connection with such Substitute Contracts
and (iv) with respect to a substitution pursuant to Section 7.01 hereof, be
accompanied by an Officer's Certificate, substantially in the form of Exhibit F
of the Contribution and Servicing Agreement, certifying as to compliance with
the provisions of Section 7.01 hereof.
SECTION 7.03 Contributor's and Company's Subsequent Obligations.
Upon any substitution of Contracts in accordance with the provisions of
this Section 7, the Company's obligations hereunder with respect to the
Predecessor Contract shall cease but the Contributor and the Company shall each
thereafter have the same obligations with respect to the Substitute Contract
substituted as it has with respect to all other Contracts subject to the terms
hereof.
SECTION 7.04 Usage of Predecessor Contracts in Calculation.
After substitution therefor in accordance with the terms and conditions of
the Transaction Documents, no Predecessor Contract or any other Contract
repurchased or substituted for in accordance with the terms and conditions of
the Transaction Documents, including the subsequent default, delinquency or
breach thereof, shall be included in any calculation or determination made under
the Transaction Documents, including, without limitation, the calculation of
either any Amortization Event or Indenture Event of Default.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Amendment.
(a) This Agreement may be amended from time to time by the Issuer and the
Company with the consent of the Rating Agencies (but without the consent of the
Trustee or any of the Noteholders), to cure any ambiguity, to correct or
supplement any provision herein that may be inconsistent with any other
provisions herein, or to add or amend any other provisions with respect to
matters or questions arising under this Agreement; provided, however, that such
amendment shall not adversely affect in any material respect the interests of
either the Trustee or the Noteholders, unless so consented to by each entity so
affected.
(b) This Agreement may also be amended from time to time by the Issuer and
the Company, with the consent of the Rating Agencies and the Majority of Voting
Rights, for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement; provided, however, that no
such amendment shall (a) increase or reduce in any manner the
13
amount of, or accelerate or delay the timing of, collections of payments on
Contracts or payments that are required to be made on any Note without the
consent of the Holder of such Note, (b) reduce the aforesaid percentage required
to consent to any such amendment or (c) adversely affect in any material respect
the interests of the Trustee or any Noteholder without, in each instance, the
consent of each entity so affected.
(c) Approval of the particular form of any proposed amendment or consent
shall not be necessary for the consent of the Noteholders under Section 8.01(b),
but it shall be sufficient if such consent shall approve the substance thereof.
The manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Noteholders shall be subject to such reasonable
requirements as the Trustee may prescribe.
(d) Prior to the execution of any such amendment to this Agreement proposed
in accordance with Section 8.01(b), the Issuer shall deliver a copy of the
proposed amendment to the Company, the Rating Agencies and the Trustee.
(e) In executing any amendment to this Agreement pursuant to this Section
8.01, the Trustee shall be entitled to receive (i) an Officer's Certificate of
the Company stating that all conditions precedent for entering into such
amendment as set forth in this Agreement have been met, and (ii) an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement.
SECTION 8.02 Effect of Invalidity of Provisions.
In case any one or more of the provisions contained in this Agreement
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 8.03 Notices.
All demands, notices and communications hereunder shall be in writing,
personally delivered or mailed by certified mail-return receipt requested, or
delivered by courier, or delivered by facsimile to a facsimile and telephone
number provided by the relevant Person in writing, with subsequent telephone
confirmation of the receipt thereof, and shall be deemed to have been duly given
upon receipt (a) in the case of the Trustee, at the following address: 000 Xxxx
Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance,
Facsimile: (000) 000-0000, (b) in the case of the Servicer, at the following
address: 0000 Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Securitization
Manager, Facsimile: (000) 000-0000, (c) in the case of the Issuer, 0000 Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attn: Securitization Manager, Facsimile (215)
488-5416, with a copy to the Servicer at the address set forth in clause (b)
above, (d) in the case of the Company at the following address: 0000 Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Securitization Manager, Facsimile: (215)
488-5416, (e) in the case of the Rating Agencies, to the following addresses:
Fitch, Inc., 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xx.
Xxxxxx Xxxxxx, Facsimile: (000) 000-0000; and Xxxxx'x Investors Service, Inc.,
00 Xxxxxx Xxxxxx, 0xx Xx., Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring
Department, Facsimile: (000) 000-0000, or at other such respective address as
shall be designated by such party in a written notice to the other parties. Any
notice required or permitted to be mailed to a Noteholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Note Register. Any notice so mailed within the time prescribed in this
14
Agreement shall be conclusively presumed to have been duly given, whether or not
the Noteholder receives such notice.
SECTION 8.04 Entire Agreement.
This Agreement, including the Exhibits hereto, contains the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements between them, whether oral
or written, of any nature whatsoever with respect to the subject matter hereof.
SECTION 8.05 Survival.
All indemnities and undertakings of the Company and the Issuer hereunder
shall survive the termination of this Agreement.
SECTION 8.06 Consent to Service.
Each party irrevocably consents to the service of process by registered or
certified mail, postage prepaid, to it at its address provided on the signature
page hereto.
SECTION 8.07 Jurisdiction Not Exclusive.
Nothing herein will be deemed to preclude either party hereto from bringing
an action or proceeding in respect of this Agreement in any jurisdiction other
than as set forth in Section 8.12 hereof.
SECTION 8.08 Construction.
The headings in this Agreement are for convenience only and are not
intended to influence its construction. References to Sections, Schedules and
Exhibits in this Agreement are to the Sections of and Schedules and Exhibits to
this Agreement. Any Schedules and Exhibits are hereby incorporated into and form
a part of this Agreement. In this Agreement, the singular includes the plural,
the plural the singular, the words "and" and "or" are used in the conjunctive or
disjunctive as the sense and circumstances may require and the word "including"
means "including, but not limited to." Unless otherwise stated in this
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
SECTION 8.09 Further Assurances.
In addition to its agreements set forth herein, the Company (at the
Issuer's expense) agrees to do such further acts and things and to execute and
deliver such additional assignments, agreements, powers and instruments as are
reasonably requested by the Issuer to carry into effect the purposes of this
Agreement and the transactions contemplated herein, including, without
limitation, such documents as are necessary to protect the Trustee's interest in
the Contracts, the security interest in the Equipment and the other Company
Assets in accordance with the Transaction Documents.
15
SECTION 8.10 Third Party Beneficiaries.
Each Noteholder and the Trustee shall be an express third party beneficiary
of this Agreement. The obligations of the Company hereunder may be assigned by
the Issuer to the Trustee under the Indenture. The Company acknowledges that the
Issuer intends, pursuant to the Indenture, to pledge the Company Assets,
together with its respective rights under this Agreement to the Trustee on the
Closing Date, each Contribution Date and each Substitution Date, with respect to
each Contract and each Substitute Contract. The Company acknowledges and
consents to such conveyance and waives any further notice thereof and covenants
and agrees that the representations and warranties of the Company contained in
this Agreement and the rights of the Issuer hereunder, are intended to benefit
the Trustee, and each Securityholder. In furtherance of the foregoing, the
Company covenants and agrees to perform its duties and obligations hereunder, in
accordance with the terms hereof and for the benefit of the Trustee and the
Noteholder and that, notwithstanding anything to the contrary in this Agreement,
the Company shall be directly liable to the Trustee (notwithstanding any failure
by the Servicer or the Issuer to perform its duties and obligations hereunder,
or under the Indenture or Contribution and Servicing Agreement), and that the
Trustee may enforce the duties and obligations of the Company under this
Agreement against the Company for the benefit of the Securityholder.
SECTION 8.11 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS RULES REGARDING CONFLICT OF
LAWS.
SECTION 8.12 CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, EACH OF THE ISSUER AND THE COMPANY HEREBY AGREED
TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT LOCATED WITH THE STATE OF
NEW YORK. EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES
DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, AND EACH
PARTY IRREVOCABLY HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND
ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE
AFOREMENTIONED COURTS AND CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
SECTION 8.13 WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE ISSUER AND THE
COMPANY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
16
SECTION 8.14 Headings and Cross-References.
The various headings in this Agreement are included for convenience only
and shall not affect the meaning or interpretation of any provision of this
Agreement. References in this Agreement to Section names or numbers are to such
Sections of this Agreement.
SECTION 8.15 Costs and Expenses.
The Company will pay all reasonable expenses incident to the performance of
its obligations under this Agreement and under the Indenture and the Company
agrees to pay all reasonable out-of-pocket costs and expenses of the Issuer,
including fees and expenses of counsel, in connection with the enforcement of
any obligation of the Company hereunder.
SECTION 8.16 Confidential Information.
The Issuer agrees and covenants that it will neither use nor disclose to
any person the names and addresses of the Obligors, except in connection with
the enforcement of the Issuer's rights hereunder, under the Contracts, under the
applicable Transaction Documents or as required by law.
SECTION 8.17 Statutory References.
References in this Agreement to any section of the UCC shall mean, on and
after the effective date of adoption of any revision to the UCC in the
applicable jurisdiction, such revised or successor section thereto.
SECTION 8.18 Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
instrument.
SECTION 8.19 Power of Attorney. The Company hereby grants to each of the
Issuer and the Trustee the power as its attorney-in-fact (i) to file UCC
financing statements in the appropriate offices evidencing the conveyance of the
Contracts and other Company Assets to the Issuer and (ii) in the event an event
of default exists under any Transaction Document, to do any and all other acts
as may be necessary or appropriate to effect the transaction contemplated
herein. The Company will execute any document or instrument deemed necessary by
the Issuer or the Trustee to effect or to evidence this power of attorney. All
costs associated with such filings or instructions shall be paid by the Company.
[Signature page follows]
17
Subsequent Contract Transfer Agreement
IN WITNESS WHEREOF, Issuer and Company have duly executed this Subsequent
Contract Transfer Agreement as of the date and year first above written.
DVI RECEIVABLES CORP. XVI
By________________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
Address: 0000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Securitization Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DVI RECEIVABLES XVI, L.L.C.
By: DVI Receivables Corp. VIII,
its managing member
By:_______________________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
Address: 0000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Securitization Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXHIBIT A
SUBSEQUENT CONTRACT TRANSFER FORM
[DATE]
DVI Receivables Corp. XVI, (the "Company") and DVI Receivables XVI, L.L.C.
(the "Issuer"), pursuant to the Subsequent Contract Transfer Agreement, dated as
of November 1, 2001 (the "SCTA"), hereby confirm their understanding with
respect to the sale, transfer, assignment and conveyance by the Company to the
Issuer of those Contracts listed on Schedule 1 attached hereto (the
"Contracts"), together with a first priority perfected (except with regard to
Equipment that had an Original Equipment Cost of less than $25,000) security
interest in all of the Company's right, title and interest in and to the related
Equipment (except for (i) such item of Equipment that had an Original Equipment
Cost of less than $25,000 and (ii) any ownership interest in such item of
Equipment, with respect to which the Company instead grants to the Issuer a
first priority perfected security interest therein), and other related property
described herein.
Conveyance of Company Assets. On the date set forth above, the Company
hereby transfers to the Issuer all of the Company's rights, title and interest
in, to, and under the Contracts listed on Schedule 1 hereto including, without
limitation, its interests in the proceeds of such Contracts, the right to
receive all amounts due or to become due thereunder after _______________ (the
"Cut-off Date") together with all of the other Company Assets related thereto.
The Company hereby confirms that:
(1) On or prior to the date hereof (the "Subsequent Contract Transfer
Date"), the Contributor shall have deposited in the Collection Account all
collections in respect of the Contracts that were due on or after the Cut-off
Date;
(2) Each representation and warranty of the Company under the Contribution
and Servicing Agreement and the SCTA is true and correct as of the date hereof,
the Contributor was not insolvent nor will it be made insolvent by the transfer
contemplated herein nor is it aware of any pending insolvency and the Company is
not in breach of any covenant under the SCTA;
(3) Each Contract sold, transferred, assigned and conveyed pursuant hereto
is an Eligible Contract;
(4) On or prior to the Subsequent Contract Transfer Date, the Company shall
have delivered to the Trustee the sole original, manually executed counterpart
of each Contract;
(5) The sum of the Discounted Contract Balances as of the Cut-off Date of
the Contracts listed on Schedule 1 attached hereto is $__________ (calculated
using a Discount Rate of __________%);
(6) Reserved;
(7) When the Contracts are added to the Trust Property, all representations
and warranties of the Company in the SCTA will be true and correct as of the
date set forth in the heading of this
A-1
Subsequent Contract Transfer Form unless any breach of such representations and
warranties resulting from the inclusion of such Contract shall have been waived
in advance by Noteholders evidencing more than 50% of the Voting Rights; and
(8) The Contributor has delivered to the Trustee (i) amendments to, or
executed originals of, the UCC financing statements referred to in Section
1.01(d) of the Contribution and Servicing Agreement (the "Contribution and
Servicing Agreement"), dated as of November 1, 2001 between DVI Financial
Services Inc. and the Company, reflecting the addition of the Contract(s) and
(ii) an amendment to the Contract Schedule.
All terms and conditions of the SCTA with respect to the Company and the
Contracts have been complied with and are hereby ratified, confirmed and
incorporated herein; provided that, in the event of any conflict, the provisions
of this Subsequent Contract Transfer Form shall control over the conflicting
provisions of the Contribution and Servicing Agreement.
[signature page follows]
A-2
Terms capitalized herein and not defined herein shall have their respective
meanings as set forth in the SCTA and if not defined therein, then as such terms
are defined in Appendix I to the Contribution and Servicing Agreement.
DVI RECEIVABLES CORP. XVI
By:
Name:
Title:
DVI RECEIVABLES XVI, L.L.C.
By: DVI RECEIVABLES CORP. VIII,
its managing member
By:
Name:
Title:
A-3
EXHIBIT B
FORM OF RE-ASSIGNMENT OF ISSUER'S CERTIFICATE
PURSUANT TO SECTION 1.04(c) or 5.01 OF THE
SUBSEQUENT CONTRACT TRANSFER AGREEMENT
DVI Receivables XVI, L.L.C. (the "Issuer") pursuant to the Subsequent
Contract Transfer Agreement, dated as of November 1, 2001, between the Issuer
and DVI Receivables Corp. XVI (the "Company") does hereby sell, transfer,
assign, deliver and otherwise convey to Company, without recourse,
representation or warranty, all of the Issuer's right, title and interest in and
to all of the Predecessor Contracts listed on Schedule A hereto and all security
and documents relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________________.
DVI RECEIVABLES XVI, L.L.C.
By: DVI Receivables Corp. VIII,
its managing member
By:
--------------------------------
Name:
Title:
B-1
