EXHIBIT 4.2
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POOLING AND TRUST AGREEMENT
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between
DVI RECEIVABLES CORP.,
as Transferor
and
WILMINGTON TRUST COMPANY,
as Owner Trustee of
DVI BUSINESS TRUST 1998-2,
Issuer
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dated as of
December 1, 1998
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS...................................................................-2-
ARTICLE II
ORGANIZATION OF ISSUER;
CONVEYANCE OF TRUST PROPERTY
SECTION 2.01. NAME..........................................................................-3-
SECTION 2.02. OFFICE........................................................................-3-
SECTION 2.03. PURPOSES AND POWERS...........................................................-3-
SECTION 2.04. APPOINTMENT OF THE OWNER TRUSTEE..............................................-4-
SECTION 2.05. DECLARATION OF TRUST; TAXES...................................................-4-
SECTION 2.06. CONVEYANCE OF TRANSFERRED PROPERTY............................................-4-
SECTION 2.07. TITLE TO TRANSFERRED PROPERTY.................................................-5-
SECTION 2.08. CONDITIONS TO TRANSFER........................................................-5-
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. ORGANIZATION AND GOOD STANDING.................................................-7-
SECTION 3.02. AUTHORIZATION..................................................................-7-
SECTION 3.03. BINDING OBLIGATION.............................................................-7-
SECTION 3.04. NO VIOLATION...................................................................-7-
SECTION 3.05. NO PROCEEDINGS.................................................................-7-
SECTION 3.06. APPROVALS......................................................................-8-
SECTION 3.07. ABILITY TO PERFORM.............................................................-8-
SECTION 3.08. EQUIPMENT AND CONTRACTS........................................................-8-
SECTION 3.09. PRINCIPAL EXECUTIVE OFFICE.....................................................-8-
SECTION 3.10. NO PRIOR ASSIGNMENTS...........................................................-9-
SECTION 3.11. FAIR CONSIDERATION.............................................................-9-
SECTION 3.12. NONCONSOLIDATION...............................................................-9-
SECTION 3.13. ORDINARY COURSE; NO INSOLVENCY................................................-10-
SECTION 3.14. ASSETS AND LIABILITIES........................................................-10-
SECTION 3.15. VALID TRANSFER................................................................-10-
SECTION 3.16. ABILITY TO PAY DEBTS..........................................................-10-
SECTION 3.17. BULK TRANSFER PROVISIONS......................................................-10-
SECTION 3.18. TRANSFER TAXES................................................................-10-
SECTION 3.19. REPRESENTATIONS AND WARRANTIES OF THE BANK...................................-11-
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ARTICLE IV
COVENANTS OF THE TRANSFEROR, THE ISSUER AND THE OWNER TRUSTEE
SECTION 4.01. COVENANTS OF THE TRANSFEROR..................................................-13-
SECTION 4.02. NO BANKRUPTCY PETITION AGAINST THE TRANSFEROR................................-14-
SECTION 4.03. NO PETITION AGAINST TRANSFEROR OR ISSUER.....................................-14-
ARTICLE V
RIGHTS OF TRANSFEROR IN THE ISSUER
SECTION 5.01. RIGHTS OF TRANSFEROR.........................................................-15-
SECTION 5.02. TRANSFERS OF BENEFICIAL INTEREST IN ISSUER...................................-15-
ARTICLE VI
CONCERNING THE SERVICER
SECTION 6.01. SERVICING DUTIES.............................................................-16-
SECTION 6.02. ADMINISTRATIVE DUTIES........................................................-16-
ARTICLE VII
SUBSTITUTION OF CONTRACTS
SECTION 7.01. SUBSTITUTION..................................................................-19-
SECTION 7.02. NOTICE OF SUBSTITUTION.......................................................-19-
SECTION 7.03. CONTRIBUTOR'S AND TRANSFEROR'S SUBSEQUENT OBLIGATIONS........................-19-
SECTION 7.04. WARRANTY AND REPURCHASES.....................................................-19-
ARTICLE VIII
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
SECTION 8.01. GENERAL AUTHORITY............................................................-20-
SECTION 8.02. SPECIFIC AUTHORITY...........................................................-20-
SECTION 8.03. PLEDGE OF TRUST PROPERTY.....................................................-20-
SECTION 8.04. SIGNATURE OF RETURNS.........................................................-20-
SECTION 8.05. RIGHT TO RECEIVE AND RELY UPON INSTRUCTIONS..................................-20-
SECTION 8.06. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN INSTRUCTIONS...........-22-
SECTION 8.07. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS...................-22-
SECTION 8.08. RESTRICTIONS ON ACTION.......................................................-22-
SECTION 8.09. NO IMPAIRING INTERESTS OR VALUE..............................................-22-
ARTICLE IX
CONCERNING THE OWNER TRUSTEE
SECTION 9.01. ACCEPTANCE OF TRUSTS AND DUTIES..............................................-23-
SECTION 9.02. FURNISHING OF DOCUMENTS......................................................-24-
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SECTION 9.03. RELIANCE; ADVICE OF COUNSEL..................................................-24-
SECTION 9.04. NOT ACTING IN INDIVIDUAL CAPACITY............................................-24-
ARTICLE X
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
SECTION 10.01. FEES AND EXPENSES OF OWNER TRUSTEE..........................................-26-
SECTION 10.02. RESERVED....................................................................-26-
SECTION 10.03. INDEMNIFICATION.............................................................-26-
ARTICLE XI
TERMINATION OF TRUST
SECTION 11.01. TERMINATION OF TRUST........................................................-27-
SECTION 11.02. NATURE OF INTEREST IN TRANSFERRED PROPERTY..................................-27-
ARTICLE XII
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
SECTION 12.01. RESIGNATION, DISCHARGE OR REMOVAL OF AN OWNER TRUSTEE; SUCCESSOR............-28-
SECTION 12.02. APPOINTMENT OF ADDITIONAL OWNER TRUSTEES....................................-29-
SECTION 12.03. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE..................................-31-
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. AMENDMENT...................................................................-32-
SECTION 13.02. COUNTERPARTS................................................................-32-
SECTION 13.03. GOVERNING LAW...............................................................-33-
SECTION 13.04. NOTICES.....................................................................-33-
SECTION 13.05. SEVERABILITY OF PROVISIONS..................................................-33-
SECTION 13.06. ASSIGNMENT..................................................................-33-
SECTION 13.07. BINDING EFFECT..............................................................-33-
SECTION 13.08. SURVIVAL OF AGREEMENT.......................................................-34-
SECTION 13.09. CAPTIONS....................................................................-34-
SECTION 13.10. EXHIBITS....................................................................-34-
SECTION 13.11. INTEGRATION.................................................................-34-
SECTION 13.12. GENERAL INTERPRETIVE PRINCIPLES.............................................-34-
SECTION 13.13. THIRD PARTY BENEFICIARIES...................................................-35-
SECTION 13.14. CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE........................-35-
SECTION 13.15. WAIVER OF JURY TRIAL........................................................-35-
SECTION 13.16. COSTS AND EXPENSES..........................................................-35-
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EXHIBIT A - Subsequent Contract Transfer Form
EXHIBIT B - Form of Officer's Certificate
EXHIBIT C - Form of Re-assignment
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POOLING AND TRUST AGREEMENT
THIS POOLING AND TRUST AGREEMENT, dated as of December 1, 1998
(this "AGREEMENT"), is entered by and among DVI RECEIVABLES CORP. (the
"TRANSFEROR"), a Delaware corporation with its principal office located at 000
Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, with its principal office located at 0000 X.
Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000 (herein
referred to in its individual capacity and not as Owner Trustee, as the "BANK",
and hereinafter referred to not in its individual capacity but solely as Owner
Trustee, as the "OWNER TRUSTEE").
W I T N E S E T H:
WHEREAS, the Transferor and the Owner Trustee have formed the
Issuer as a trust in accordance with the Trust Statute;
WHEREAS, the Transferor and the Owner Trustee intend that this
Agreement incorporate and supersede all prior agreements relating to the
formation of the trust and constitute the "governing instrument" of such trust;
WHEREAS, DVI Financial Services Inc. (the "SELLER")
contributed to the Transferor all of its right, title and interest in, to and
under the Contributed Property, in accordance with the terms of the Contribution
and Servicing Agreement (the "CONTRIBUTION AND SERVICING AGREEMENT"), dated as
of the date hereof, among the Seller and the Transferor;
WHEREAS, the Transferor desires to transfer, contribute and
assign all of its right, title and interest in, to and under the Contributed
Property and certain additional property to the Issuer, in exchange for 100% of
the beneficial ownership of the Issuer, upon the terms and conditions
hereinafter set forth; and
WHEREAS, it is contemplated that following such transfer,
contribution and assignment, the Issuer will pledge the Trust Property to the
Trustee, as security for the payment of Notes to be issued pursuant to the
Indenture (the "INDENTURE"), dated as of December 1, 1998, between the Issuer
and U.S. Bank Trust National Association, as indenture trustee (the "TRUSTEE");
and
WHEREAS, the Issuer will pledge and assign to the Trustee, for
the benefit of the Noteholders, its rights under this Agreement, and the
Transferor agrees that all representations, warranties, covenants and agreements
made by the Transferor herein shall be for the benefit of the Issuer, the
Trustee and the Noteholders;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINITIONS. Capitalized terms used but not
otherwise defined in this Agreement shall have the respective meanings set forth
in the Indenture. Capitalized terms used in this Agreement not otherwise defined
in the Indenture shall have the respective meanings assigned to such terms in
this Agreement.
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ARTICLE II
ORGANIZATION OF ISSUER;
CONVEYANCE OF TRUST PROPERTY
SECTION 2.01. NAME. The name of the trust created hereby shall
be DVI Business Trust 1998-2, in which name the Owner Trustee may conduct the
business and affairs of the trust, enter into contracts on behalf of the trust
and xxx and be sued on behalf of the trust. The trust created hereunder may also
be referred to as the Issuer. The trust created hereby shall be a trust created
pursuant to the Trust Statute. This Agreement incorporates and supersedes all
prior agreements relating to the formation of the trust and constitutes the
"governing instrument" of such trust.
SECTION 2.02. OFFICE. The office of the Issuer shall be in
care of the Owner Trustee at the address set forth in Section 13.04, or at such
other address as the Owner Trustee may designate by notice to the Transferor,
the Contributor, the Servicer and the Trustee.
SECTION 2.03. PURPOSES AND POWERS. (a) The purpose of the
Issuer is to engage in the following activities:
(i) to issue, transfer and exchange the Notes
pursuant to the Indenture, to sell the Notes pursuant to the
Underwriting Agreement (or, with respect to any Notes not sold
thereby, pursuant to one or more Note Purchase Agreements) and
to make payments or cause payments to be made on the Notes;
(ii) to acquire the Transferred Property;
(iii) to hold and manage the Transferred Property;
(iv) to assign, grant, transfer, pledge, mortgage or
convey the Trust Property to the Trustee pursuant to the
Indenture;
(v) to enter into, perform its obligations under, and
perform any other activities contemplated by, this Agreement,
the Indenture, the Underwriting Agreement and any Note
Purchase Agreements; and
(vi) to engage only in those activities, including
the entering into agreements, that are necessary, suitable or
convenient to accomplish the foregoing or are incidental
thereto or connected therewith, subject to the explicit terms
of this Agreement.
The Issuer is hereby authorized to engage in the foregoing activities, and is
authorized and directed to execute and enter into the aforementioned agreements
and any documents necessary or incidental in connection therewith. The Issuer
shall not engage in any activities other than in connection with, or relating
to, the foregoing and other than those required or authorized by the terms of
this
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Agreement, the Indenture, the Underwriting Agreement and the Note Purchase
Agreements, except as are incidental to and necessary to accomplish such
activities.
(b) The Issuer shall always be a Special Purpose Entity.
The Owner Trustee shall not knowingly take any action in
contravention with any of the foregoing. The Transferor agrees not to instruct
the Owner Trustee to take any action that would violate the terms of this
Section 2.03.
SECTION 2.04. APPOINTMENT OF THE OWNER TRUSTEE. The Transferor
hereby appoints the Bank as Owner Trustee of the Issuer, effective as of the
date hereof, to have all the rights, powers and duties set forth herein and in
the Trust Statute and, in connection with the filing of the certificate of trust
in accordance with Section 3801 of the Trust Statute (the "CERTIFICATE OF
TRUST"), with respect to accomplishing the purposes of the trust created
hereunder. The Bank hereby accepts such appointment subject to the terms and
conditions of this Agreement.
SECTION 2.05. DECLARATION OF TRUST; TAXES. The Owner Trustee
hereby declares that it will hold the Trust Property in trust upon and subject
to the conditions set forth herein for the use and benefit of the Transferor and
the Noteholders. It is the intention of the parties hereto that the Issuer
constitute a trust under the Trust Statute and that this Agreement constitute
the governing instrument of the trust, and it is acknowledged that the Owner
Trustee has caused the filing of the Certificate of Trust with the Secretary of
State of the State of Delaware (the "Secretary of State"). It is the intention
of the parties hereto that the Issuer shall not be treated as an association
taxable as a corporation for federal income tax purposes, and each party hereto
agrees not to take any action that would be inconsistent with that intention.
The parties agree that, unless otherwise required by the Internal Revenue
Service, on the Closing Date, the Issuer will be disregarded as a separate
entity for federal income tax purposes. In the event the Issuer is subsequently
treated as a partnership for federal income tax purposes, the Owner Trustee
agrees to file or cause to be filed annual or other necessary returns, reports
and other forms consistent with the characterization of the Issuer as a
partnership.
SECTION 2.06. CONVEYANCE OF TRANSFERRED PROPERTY.
(a) CONVEYANCE. Upon the terms and conditions herein set
forth, in consideration of the issuance of 100% of the beneficial interest of
the Issuer to the Transferor and for other good and valuable consideration, the
Transferor hereby transfers, assigns and contributes to the Issuer on the
Closing Date and in the case of any Substitute Contracts, the related
Substitution Date, without recourse except as set forth herein, all of the
Transferor's right, title and interest in, to and under the Transferred Property
on the Closing Date and as set forth on any SCTF (as defined in Section 3.02).
All funds received by the Transferor on or in connection with the Transferred
Property that are payable on and after the applicable Cut-off Date shall be
received, held and applied by the Transferor in trust for the benefit of the
Issuer as owner of the Contracts.
(b) After giving effect to such transfer, assignment and
contribution, the ownership of each such Contract transferred on the related
Contribution Date shall be vested in the
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Issuer. Pursuant to the terms of the Indenture, the Contract Files and any other
documents relating to each Contract shall be held in trust by the Trustee for
the benefit of the Noteholders. The Transferor agrees to take no action
inconsistent with the Issuer's ownership of any Contract, to promptly indicate
to all parties with a valid interest inquiring as to the true ownership of each
Contract, that each Contract has been transferred, assigned and contributed to
the Issuer and to claim no ownership interest in any such Contracts and the
other Transferred Property.
(c) SUBSTITUTE CONTRACTS. In consideration for the transfer by
the Issuer to the Transferor of any Predecessor Contract transferred to the
Transferor by the Issuer in accordance with the terms and conditions of Article
7 hereof, the Transferor 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.
SECTION 2.07. TITLE TO TRANSFERRED PROPERTY. (a) Legal title
to all of the Transferred Property shall be vested in the name of the Issuer as
a separate legal entity, except where the laws of any jurisdiction where the
Trust Property may be located requires the property to be vested in the name of
a trustee in which case such property shall be vested in the Owner Trustee or a
co-trustee.
(b) The Issuer and the Transferor hereby confirm that the
transactions contemplated in this Agreement are intended as contributions 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 of competent jurisdiction as a loan or other than a contribution and
sale of any or all Transferred Property, then the Transferor shall be deemed to
have hereby pledged to the Issuer as security for the performance by the
Transferor 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 granted to the Issuer a first priority perfected security
interest in, all of the Transferred Property. 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, (iii) Issuer shall have all of the rights of a secured party
with respect to the Transferred Property pursuant to applicable law and (iv) in
the manner consistent with the Indenture, the Transferor 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 Transferred Property (and the assignment of such security interest to the
Trustee). The Transferor also covenants not to pledge, assign or grant any
security interest to any other party in any of the Transferred Property. The
consideration received and to be received by the Transferor in exchange for the
assignment, transfer and contribution of the Transferred Property is intended to
be fair consideration having value equivalent to or in excess of the value of
the assets being transferred by the Transferor.
SECTION 2.08. CONDITIONS TO TRANSFER. The Transferor shall not
assign, transfer or contribute any Contracts on the Closing Date or Substitution
Date unless the Transferor, on such date, shall have executed, if applicable,
and delivered to the Issuer, the following:
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(a) an Officer's Certificate from Transferor to the effect
that, on the Closing Date or Substitution Date, as applicable (after giving
effect to the sale of the Substitute Contracts on such date), all
representations and warranties of the Transferor 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).
(b) an Officer's Certificate from the Contributor to the
effect that, on the Closing Date or Substitution Date, as applicable (after
giving effect to the sale of Substitute Contracts on such date), all
representations and warranties of the Contributor contained in Section 2 of the
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 the Closing Date or Substitution Date (unless
such representations and warranties specifically relate to an earlier date).
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Transferor hereby makes the following representations and
warranties for the benefit of the Issuer, the Owner Trustee, the Trustee and the
Noteholders on which the Issuer relies in acquiring the Transferred Property and
the Trustee and Noteholder rely in participating in the Note financing for the
Issuer pursuant to the Indenture. Such representations and warranties are and
will be true and correct on the Closing Date and on each Substitution Date,
(unless an earlier date is specified therein) and shall survive each
contribution, transfer and assignment to the Issuer of the Transferred Property
and the subsequent pledge thereof by the Issuer pursuant to the Indenture.
SECTION 3.01. ORGANIZATION AND GOOD STANDING. The Transferor
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware.
SECTION 3.02. AUTHORIZATION. Transferor 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, in the form substantially similar to Exhibit A hereto (each, a
"SCTF") and the transactions contemplated hereby, and the execution, delivery,
and performance of this Agreement has been duly authorized by the Transferor by
all necessary corporate action.
SECTION 3.03. BINDING OBLIGATION. This Agreement and each SCTF
has been duly and validly executed and delivered by the Transferor and
constitutes a legal, valid and binding obligation of the Transferor, enforceable
against the Transferor in accordance with its terms, subject to bankruptcy,
insolvency and other laws of general application affecting the rights of
creditors and equitable principals (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
Transferor, or any indenture, agreement, mortgage, deed of trust or other
instrument to which the Transferor 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 Transferor'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 Transferor or
any of its properties.
SECTION 3.05. NO PROCEEDINGS. The Transferor 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 Transferor is a party pending or, to the knowledge of the Transferor,
threatened, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality (A) asserting the invalidity of any of
this Agreement or any SCTF, (B) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement
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or any SCTF or (C) seeking any determination or ruling that would materially and
adversely affect the performance by the Transferor 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 and each SCTF, have been or will be taken or obtained on or
prior to the related Contribution Date.
SECTION 3.07. ABILITY TO PERFORM. The Transferor has the
ability to perform all of its obligations under this Agreement, each SCTF and
the Contribution and Servicing Agreement.
SECTION 3.08. EQUIPMENT AND CONTRACTS. With respect to each
Contract, the Transferor hereby represents and warrants to the Issuer, as of
each Contribution Date or Substitution Date, as the case may be, that:
(a) The transfer to the Issuer of the Transferor's interest in
such Contract(s) transferred on such date and the grant or assignment of the
Transferor's security interest in the Equipment related thereto pursuant to
Section 2.06 and 2.07 hereof constitutes a valid transfer of all of Transferor's
right, title and interest in such Transferred Property or a grant of a
first-priority perfected security interest therein from the Transferor in favor
of the Issuer, free and clear of any and all claims, charges, liens or security
interests created by the Transferor or any of its affiliates.
(b) The Transferor did not, in the exercise of its interest in
any such Transferred Property, waive, discharge, release or otherwise permit any
modification thereto not in effect or agreed to at the time the Transferor
acquired its interest therein.
(c) Notwithstanding the foregoing clauses (a) and (b), the
Transferor 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.
The representations and warranties described in this Section
3.08 shall survive the conveyance of the Transferred Property to the Issuer.
SECTION 3.09. PRINCIPAL EXECUTIVE OFFICE. The principal
executive office of the Transferor is located at 000 Xxxx Xxxx, Xxxxxxxxxx, XX
00000, and has been so located for at least four months immediately preceding
the Closing Date. The Transferor has no trade names, fictitious names, assumed
names or "doing business as" names. If (i) any change in either the Transferor's
name, structure or the location of its principal place of business or chief
executive office occurs, then the Transferor shall deliver thirty (30) days'
prior written notice of such change or relocation to the Issuer and the Trustee
and (ii) if the Transferor becomes aware of the change in location of any
Equipment, 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 Transferred Property. The
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Transferor 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. The Transferor has not
pledged, assigned or encumbered or terminated, in whole or in part, any of the
Transferred Property.
SECTION 3.11. FAIR CONSIDERATION. The consideration received
by the Transferor in connection with the contribution and sale of the
Transferred Property constitutes reasonably equivalent value and fair
consideration for the Transferred Property.
SECTION 3.12. NONCONSOLIDATION. The Transferor is operated in
such a manner that it would not be substantively consolidated with DVI, such
that the separate existence of the Transferor and DVI would not be disregarded
in the event of a bankruptcy or insolvency of the Transferor or DVI, and in such
regard, among other things:
(a) the Transferor is not involved in the day to day
management of DVI;
(b) the Transferor maintains separate corporate records and
books of account from DVI and otherwise observes corporate formalities and has a
separate business office from DVI (which may be at the same address as DVI
PROVIDED that the Transferor and DVI 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
Transferor prepared after the date of creation of DVI reflect and will reflect
the separate existence of DVI;
(d) the Transferor maintains its assets separately from the
assets of DVI (including through the maintenance of a separate bank account),
the Transferor's funds and assets, and records relating thereto, have not been
and are not commingled with those of DVI and the separate creditors of DVI will
be entitled to be satisfied out of DVI's assets prior to any value in DVI
becoming available to DVI's equityholders or the Transferor's creditors;
(e) all business correspondence of the Transferor and other
communications are conducted in the Transferor's own name and on its own
stationery;
(f) DVI does not act as an agent of the Transferor in any
capacity and the Transferor does not act as agent for DVI, but instead presents
itself to the public as a corporation separate from DVI; PROVIDED that DVI is
the Servicer under the Contribution and Servicing Agreement;
(g) the Transferor will cause its accounting records to be
clearly and unambiguously marked to show that each Contract transferred to the
Issuer has been transferred by the Transferor to the Issuer and pledged by the
Issuer to the Trustee for the benefit of the Noteholders; and
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(h) the Transferor will at all times maintain two Independent
Directors (as such term is defined in the certificate of incorporation of the
Transferor).
SECTION 3.13. ORDINARY COURSE; NO INSOLVENCY. The transactions
contemplated by this Agreement are being consummated by the Transferor and the
Issuer, respectively, in furtherance of the Transferor's ordinary business
purposes and constitute a practical and reasonable course of action by the
Transferor designed to improve the financial position of the Transferor 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 Transferor be insolvent, and the Transferor 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 contribution of Contracts (including the right to receive all payments due
or to become due thereunder) and the other Transferred Property, the present
fair salable value of the Transferor's assets will be in excess of the amount
that will be required to pay the Transferor'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 Transferred Property, the sum of the
Transferor's assets will be greater than the sum of the Transferor's debts,
valuing the Transferor's assets at a fair salable value.
SECTION 3.15. VALID TRANSFER. This Agreement effects a valid
assignment, transfer and contribution of the Transferor's interest in the
Transferred Property, enforceable against creditors of the Transferor.
SECTION 3.16. ABILITY TO PAY DEBTS. Neither as a result of the
transactions contemplated by this Agreement nor otherwise does the Transferor
believe that it will incur debts beyond its ability to pay or which would be
prohibited by its charter documents or by-laws. The Transferor'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 Transferred Property by the
Transferor 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 Transferred Property contemplated by this Agreement is subject to
or will result in any tax, fee or governmental charge payable by the Transferor
or the Issuer to any federal, state or local government ("TRANSFER TAXES"). In
the event that the Transferor or the Issuer receives actual notice of any
Transfer Taxes arising out of the transfer, assignment and conveyance of any
Transferred Property, on written demand by the Issuer, or upon the Transferor
otherwise being given notice thereof, the
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Transferor 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).
SECTION 3.19. REPRESENTATIONS AND WARRANTIES OF THE BANK. The
Bank hereby makes the following representations and warranties on which the
Transferor relies in contributing, assigning and transferring the Transferred
Property and on which the Noteholders are relying in purchasing the Notes. Such
representations and warranties are made as of the Closing Date, but shall
survive each contribution, assignment and transfer of the respective Transferred
Property to the Issuer and its successors and assigns:
(i) ORGANIZATION. The Bank is a banking corporation
duly organized, validly existing and in good standing under
the laws of the state of its incorporation.
(ii) AUTHORIZATION. EXECUTION AND DELIVERY. The Bank
has all requisite corporate power, authority and legal right
to act as Owner Trustee under this Agreement and has full
trust powers to enter into and perform the obligations of the
Owner Trustee under this Agreement and such actions do not
contravene its certificate of incorporation or by-laws. The
Bank has duly authorized, executed and delivered this
Agreement.
(iii) BINDING OBLIGATION. This Agreement, assuming
due authorization, execution and delivery by the Transferor,
constitutes a legal, valid and binding obligation of the Bank,
enforceable against the Bank in accordance with its terms,
except that (A) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
(whether statutory, regulatory or decisional) now or hereafter
in effect relating to creditors' rights generally and (B) the
remedy of specific performance and injunctive and other forms
of equitable relief may be subject to certain equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought, whether a proceeding at
law or in equity;
(iv) NO VIOLATIONS. The execution, delivery and
performance by the Bank of this Agreement shall not violate
any provision of any Delaware or federal law or regulation
governing the banking or trust powers of the Bank or any
order, writ, judgment or decree of any court, arbitrator or
governmental authority applicable to the Bank or-any of its
assets;
(v) NO LIENS. The Transferred Property is free of any
Lien attributable to the Bank in its individual capacity and
unrelated to the performance of its duties as Owner Trustee,
except for the rights of the parties to this Agreement, the
Indenture and the transactions contemplated hereby and
thereby;
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(vi) NO PROCEEDINGS. There are no Proceedings or
investigations to which the Bank is a party pending or, to the
knowledge of the Bank, threatened, before any court,
regulatory body, administrative agency or other tribunal or
governmental instrumentality (A) asserting the invalidity of
this Agreement, (B) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or (C)
seeking any determination or ruling that would materially and
adversely affect the performance by the Bank of its
obligations under, or the validity or enforceability of, this
Agreement; and
(vii) PLACE OF BUSINESS. The Bank's principal place
of business and chief executive office is at Xxxxxx Square
North, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
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ARTICLE IV
COVENANTS OF THE TRANSFEROR, THE ISSUER AND THE OWNER TRUSTEE
SECTION 4.01. COVENANTS OF THE TRANSFEROR. The Transferor
hereby covenants and agrees with the Issuer as follows:
(a) BOOKS AND RECORDS. The Transferor will clearly xxxx its
books and records to reflect each contribution, assignment and transfer to the
Issuer of all Transferred Property and to show that the Issuer owns the
Transferred Property absolutely.
(b) PRESERVATION OF OFFICE. The Transferor will give the
Issuer 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.
(c) LIENS. The Transferor shall defend the right, title and
interest of the Issuer in the Transferred Property against all claims of third
parties claiming through or under the Transferor (excluding claims arising from
actions of the Contributor, in its capacity as Servicer under the Contribution
and Servicing Agreement, or any agent of DVI as such Servicer).
(d) NO BANKRUPTCY PETITION AGAINST THE ISSUER. The Transferor
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,
either the Issuer 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 4.01(d) shall
survive the termination of this Agreement.
(e) PROTECTION OF RIGHT, TITLE AND INTEREST.
(i) The Transferor 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 ss.
9-402(7) of the UCC, unless it shall have given the Issuer at
least thirty (30) days' prior written notice thereof and shall
promptly file appropriate amendments to all previously filed
UCC financing statements or continuation statements.
(ii) If at any time the Transferor shall propose to
sell, grant a security interest in, or otherwise transfer any
interest in the Contracts to any prospective lender, or other
transferee, the Transferor 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
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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.
(iii) The Transferor shall deliver to the Issuer, the
Rating Agencies and the Trustee promptly after the execution
and delivery of any amendment hereto that, in the reasonably
commercial judgment of the Trustee, is reasonably likely to
have a material effect upon the Trustee's interests in the
Trust Property, an opinion of counsel either (i) stating that,
in the opinion of such counsel, all UCC financing statements
and continuation statements necessary to preserve and protect
fully the interest of the Transferor, the Issuer and the
Trustee in the Trust Property have been filed or, with respect
to the Equipment, are required to be filed within thirty (30)
days following the related Contribution Date, or (ii) stating
that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interest.
(f) In accordance with the directions of the Issuer or the
Owner Trustee, the Transferor shall administer, perform or supervise the
performance of activities in connection with the Trust Property as are not
covered by any of the provisions set forth in Section 6.02(b) and as are
expressly requested by the Issuer or the Owner Trustee and are reasonably within
the capability of the Transferor.
(g) The Transferor shall not amend its certificate of
incorporation without the prior written consent of the Rating Agencies.
(h) The Transferor 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, the 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 4.02. NO BANKRUPTCY PETITION AGAINST THE TRANSFEROR.
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, either the Transferor 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 4.02 shall survive the termination of this Agreement.
SECTION 4.03. NO PETITION AGAINST TRANSFEROR OR ISSUER. The
Owner Trustee hereby 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, either the Transferor or the Issuer, any bankruptcy,
reorganization, receivership, arrangement, insolvency or liquidation proceedings
or other similar proceedings under any federal or state bankruptcy or similar
law. This Section 4.03 shall survive the termination of this Agreement.
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ARTICLE V
RIGHTS OF TRANSFEROR IN THE ISSUER
SECTION 5.01. RIGHTS OF TRANSFEROR. In addition to its rights
under the Transaction Documents, the Transferor shall be entitled to all rights
provided to it under the Trust Statute. No certificate or other written
instrument shall be necessary to evidence the beneficial ownership interest of
the Transferor in the Issuer.
SECTION 5.02. TRANSFERS OF BENEFICIAL INTEREST IN ISSUER. (a)
Notwithstanding anything to the contrary in any other Transaction Document, the
Transferor shall not sell, assign, transfer, mortgage, charge or otherwise
encumber, or suffer any third party to sell, assign, transfer, mortgage, charge
or otherwise encumber, or contract to do or permit any of the foregoing, whether
voluntarily or by operation of law (herein sometimes collectively called a
"TRANSFER" or a "TRANSFER") its beneficial interest in Issuer, although it may
transfer its right to distributions in respect thereof in connection with a
pledge of such right to distributions.
(b) Any purported Transfer of the Transferor's beneficial
interest in Issuer shall be null and void and of no effect whatsoever.
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ARTICLE VI
CONCERNING THE SERVICER
SECTION 6.01. SERVICING DUTIES. Pursuant to the Contribution
and Servicing Agreement, the Servicer has agreed to act as Servicer thereunder
in accordance with the provisions thereof, including, without limitation,
provisions relating to servicing the Contributed Property and its resignation,
liability and removal as Servicer.
SECTION 6.02. ADMINISTRATIVE DUTIES.
(a) DUTIES WITH RESPECT TO THE INDENTURE. The Issuer hereby
appoints the Servicer to act, and the Servicer hereby agrees to act, as an
administrative agent of the Issuer to perform all of the administrative duties
of the Issuer under the Indenture. In addition, the Servicer shall consult with
the Owner Trustee as the Servicer deems appropriate regarding the administrative
duties of the Issuer under the Indenture. The Servicer shall monitor the
performance of the Issuer and shall advise the Owner Trustee when action is
necessary to comply with the Issuer's administrative duties under the Indenture.
The Servicer shall prepare for execution by the Issuer or shall cause the
preparation by other appropriate Persons of all such documents, accounting and
other reports, filings, instruments, certificates and opinions as it shall be
the duty of the Issuer to prepare, file or deliver pursuant to the Indenture. In
furtherance of the foregoing, the Servicer shall take all necessary action that
it is the administrative duty of the Issuer to take pursuant to the Indenture.
(b) DUTIES WITH RESPECT TO THE ISSUER.
(i) In addition to the duties of the Servicer set
forth in the Transaction Documents to which it is a party, the
Servicer shall perform such calculations and shall prepare for
execution by the Issuer or the Owner Trustee or shall cause
the preparation by other appropriate Persons of all such
documents, accounting and other reports, filings, instruments,
certificates and opinions as it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver
pursuant to this Agreement or any of the Transaction Documents
or under state and federal tax and securities laws, and at the
request of the Owner Trustee shall take all appropriate action
that it is the administrative duty of the Issuer to take
pursuant to this Agreement or any of the Transaction Documents
to which the Issuer is a party; PROVIDED, HOWEVER, that once
prepared by the Servicer the Owner Trustee shall retain
responsibility for the distribution of the Schedule K-1s
necessary to enable the Transferor to prepare its federal and
state income tax returns.
(ii) Notwithstanding anything in this Agreement or any
of the Transaction Documents to the contrary, the Servicer
shall be responsible for promptly notifying the Owner Trustee
and the Trustee in the event that any withholding tax is
imposed on the Issuer's payments (or allocations of income) to
Noteholder as contemplated under the Indenture. Any such
notice shall be writing and specify the amount of any
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withholding tax required to be withheld by the Owner Trustee
or the Trustee pursuant to such provision.
(iii) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Servicer may
enter into transactions with or otherwise deal with any of its
Affiliates; PROVIDED, HOWEVER, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Servicer's opinion, no less favorable to the Issuer in any
material respect.
(c) TAX MATTERS. The Servicer shall prepare and file, on
behalf of the Transferor all tax returns, tax elections, financial statements
and such annual or other reports attributable to the activities engaged in by
the Issuer as are necessary for preparation of tax reports, including without
limitation forms 1099. All tax returns will be signed by the Transferor.
(d) NON-MINISTERIAL MATTERS. With respect to matters that in
the reasonable judgment of the Servicer are non-ministerial, the Servicer shall
not take any action pursuant to this Article unless within a reasonable time
before the taking of such action, the Servicer shall have notified the Owner
Trustee and the Trustee of the proposed action and the Owner Trustee and, with
respect to items (A), (B), (C) and (D) below, the Trustee shall not have
withheld consent or provided an alternative direction. For the purpose of the
preceding sentence, "non-ministerial matters" shall include:
(A) the amendment of or any supplement to the
Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection
with the collection of the Contracts);
(C) the amendment, change or modification of this
Agreement or any of the Transaction Documents;
(D) the appointment of successor Note Registrars and
successor Trustees pursuant to the Indenture or the
appointment of Successor Servicers or the consent to the
assignment by the Note Registrar or Trustee of its obligations
under the Indenture; and
(E) the removal of the Trustee.
(e) EXCEPTIONS. Notwithstanding anything to the contrary in
this Agreement, except as expressly provided herein or in the other Transaction
Documents, the Servicer, in its capacity hereunder, shall not be obligated to,
and shall not, (1) make any payments to the Noteholders under the Transaction
Documents, (2) take any other action that the Issuer directs the Servicer not to
take on its behalf or (3) in connection with its duties hereunder assume any
indemnification obligation of any other Person.
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(f) No successor Servicer shall be responsible for any
obligations or duties of the Servicer set forth under this Section 6.01;
provided, however, that in the event DVI is no longer Servicer, DVI shall be
responsible for any obligations or duties of the Servicer set forth under this
Section 6.01.
(g) RECORDS. The Servicer shall maintain appropriate books of
account and records relating to services performed under this Agreement, which
books of account and records shall be accessible for inspection by the Issuer at
any time during normal business hours.
(h) ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The
Servicer shall furnish to the Issuer from time to time such additional
information regarding the Trust Property as the Issuer shall reasonably request.
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ARTICLE VII
SUBSTITUTION OF CONTRACTS
SECTION 7.01. SUBSTITUTION. In the event that the Contributor
contributes and assigns a Substitute Contract to the Transferor pursuant to
Section 5.03 or Section 7.01 of the Contribution and Servicing Agreement, the
Transferor hereby agrees to contribute, transfer and assign any such Substitute
Contract and any security interest in the related Equipment to the Issuer. In
addition, the Issuer and the Transferor hereby agree to take any action to
facilitate the transfer to the Contributor of any Predecessor Contract,
including (i) delivery to the Transferor by the Issuer of an instrument,
substantially in the form of Exhibit C hereto, transferring to the Transferor,
without representation or warranty, all of the Issuer's right, title and
interest in and to the Predecessor Contract, (ii) delivery to the Contributor by
the Transferor of an instrument, substantially in the form of Exhibit E of the
Contribution and Servicing Agreement, transferring to the Contributor, without
representation or warranty, all of the Transferor's right, title and interest in
and to the Predecessor Contract, (iii) 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 (iv) 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.
SECTION 7.02. NOTICE OF SUBSTITUTION. Pursuant to the
Contribution and Servicing Agreement, in the Monthly Servicer Report to be
delivered on each Determination Date, the Servicer shall give written notice to
the Trustee, the Issuer and the Transferor 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 Substitute Contract, (ii) specify the
residual values of the Equipment subject to the Predecessor Contract and the
Equipment subject to the Substitute Contract, (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 of the Transferor, substantially in the form of Exhibit B hereto,
certifying as to compliance with the provisions of Section 7.01 hereof.
SECTION 7.03. CONTRIBUTOR'S AND TRANSFEROR'S SUBSEQUENT
OBLIGATIONS. Upon any substitution of Contracts in accordance with the
provisions of this Article VII, the Contributor's and the Transferor's
obligations hereunder with respect to the Predecessor Contract shall cease but
the Contributor and the Transferor 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. WARRANTY AND REPURCHASES. The Transferor hereby
conveys to the Issuer its rights and interests granted pursuant to Section 5.03
and Section 4.02(b) of the Contribution and Servicing Agreement.
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ARTICLE VIII
AUTHORITY AND DUTIES OF THE OWNER TRUSTEE
SECTION 8.01. GENERAL AUTHORITY. The Owner Trustee is
authorized to take all actions required or permitted to be taken by the Owner
Trustee pursuant to the terms of this Agreement. It shall be the duty of the
Owner Trustee to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and to administer the
Transferred Property pursuant to the terms of this Agreement.
SECTION 8.02. SPECIFIC AUTHORITY. The Owner Trustee is
authorized, empowered and directed to:
(a) take such action as Transferor shall require in a written
direction delivered to the Owner Trustee; and
(b) take whatever other action shall be required to be taken
by the Owner Trustee by the express terms, and subject to the terms, of
this Agreement.
SECTION 8.03. PLEDGE OF TRUST PROPERTY. (a) On the Closing
Date, the Owner Trustee, on behalf of the Issuer, is hereby authorized,
empowered and directed to execute and deliver such documents and instruments and
take such other actions to cause the Issuer to grant, assign, transfer, pledge,
mortgage, convey and deliver the Trust Property to the Trustee under the
Indenture.
(b) Except as otherwise provided herein, the Owner Trustee is
hereby authorized, empowered and directed to execute and deliver to the Trustee
any notice, instrument, document, agreement or other papers that the Servicer,
any subservicer or the Owner Trustee has determined to be necessary or desirable
in order to enable the Trustee to preserve, perfect, substantiate, continue,
validate or realize upon (in accordance with this Agreement and the Indenture)
the lien of the Indenture.
SECTION 8.04. SIGNATURE OF RETURNS. The Owner Trustee shall
sign on behalf of the Issuer the tax returns and other periodic filings, if any,
required to be filed by the Issuer, unless applicable law requires the
Transferor to sign such documents, in which case the Transferor shall sign such
document.
SECTION 8.05. RIGHT TO RECEIVE AND RELY UPON INSTRUCTIONS. (a)
Subject to the restrictions set forth in Section 8.08 hereof, the Owner Trustee
shall take such action or shall refrain from taking such action under this
Agreement as it shall be directed in writing pursuant to an express provision of
this Agreement or as it shall be directed by the Transferor PROVIDED that such
direction shall not be inconsistent with the terms of this Agreement. The
Transferor agrees that no direction given by it shall be inconsistent with the
terms of this Agreement.
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Without limiting the generality of the foregoing, the Owner
Trustee shall take no action in connection with non-ministerial matters
(including, but not limited to, the following) unless it receives written
approval from the Transferor:
(i) the satisfaction and discharge of the Indenture or
exercise of the Issuer's option to prepay the Notes in
accordance with Article X of the Indenture;
(ii) the initiation of any claim or lawsuit by the
Issuer and the compromise of any claim or lawsuit brought by
or against the Issuer;
(iii) the appointment of successor registrars or
successor Trustees pursuant to the Indenture;
(iv) the decision to remove the Note Registrar or the
Trustee pursuant to the Indenture;
(v) the amendment, change or modification of this
Agreement, the Indenture, the Underwriting Agreement, any Note
Purchase Agreement and any other agreement to which the Issuer
is a party;
(vi) the employment of and direction of any actions of
a co-trustee or separate trustee pursuant to Section 12.02
hereof;
(vii) the designation of successor Rating Agencies;
(viii) the request for release from a Lien;
(ix) the adoption of a plan of liquidation of the
Issuer;
(x) the preparation and filing of tax returns and the
payment of taxes.
(b) Whenever the Owner Trustee is (i) required by the terms of
this Agreement to decide between alternative courses of action, or (ii) unsure
as to the application, intent, interpretation or meaning of any provision of
this Agreement or any other agreement relating to the transactions contemplated
hereby or thereby, or if such provision is ambiguous, the Owner Trustee shall
request instructions in such form as shall be appropriate under the
circumstances from the Transferor with respect to the interpretation of this
Agreement or any other agreement related to the transactions contemplated hereby
or by the Indenture, or from the Trustee with respect to the interpretation of
the Indenture, as to the course of action to be adopted and, to the extent the
Owner Trustee acts in good faith in accordance with such instructions, the Owner
Trustee shall not be liable to any Person; PROVIDED, HOWEVER, that in the event
the Owner Trustee does not receive such instructions within ten days of such
request (or within such shorter reasonable period of time as may be specified in
such request) it may, but shall be under no duty to, take or refrain from taking
such action, not inconsistent with this Agreement, as it shall deem to be in the
best interests of the Transferor.
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SECTION 8.06. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT
OR IN INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment in respect of, register, record, sell, dispose of or
otherwise deal with the Transferred Property, or to otherwise take or refrain
from taking any action under, or in connection with, any document contemplated
hereby to which the Issuer is a party, except as expressly provided by the terms
of this Agreement or the Indenture, and no implied duties or obligations shall
be read into this Agreement against the Owner Trustee. Without limiting the
generality of the foregoing, in no event shall the Owner Trustee have any
responsibility to perform any of the duties of the Trustee under the Indenture.
SECTION 8.07. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not deal with any part of the Transferred
Property except (i) in accordance with the powers granted to and the authority
conferred upon the Owner Trustee pursuant to this Agreement, or (ii) in
accordance with instructions delivered to the Owner Trustee pursuant to Section
8.05 hereof.
SECTION 8.08. RESTRICTIONS ON ACTION. The Owner Trustee shall
not take any action (a) that is inconsistent with the purposes set forth in
Section 2.03 hereof, (b) that would result in the Issuer being treated as an
association taxable as a corporation for federal income tax purposes, (c) if the
Owner Trustee has been notified that such action would cause any of the Rating
Agencies to downgrade its rating of any class of the Notes or (d) to cause or to
consent to the filing of a petition in bankruptcy against the Issuer for any
reason until at least 367 days after payment in full of all the Notes, and the
Transferor shall not direct the Owner Trustee to take any such action. The Owner
Trustee shall be under no obligation to exercise any of its rights or powers
vested in it hereunder if the Bank reasonably concludes that the security and
indemnity provided for in Article X of this Agreement is not, at such time,
adequate to cover all reasonable liabilities, fees, costs, expenses (including
outside attorneys' fees) and related charges which are likely to be incurred in
connection with the taking of such action; PROVIDED, HOWEVER, that the decision
of the Owner Trustee to refrain from taking any such action shall not be
construed to relieve the Issuer of any of its obligations under the Notes.
SECTION 8.09. NO IMPAIRING INTERESTS OR VALUE. The Bank, in
its individual capacity, and the Owner Trustee shall take no action which could
impair the interests of the Issuer or the Noteholders in any of the Trust
Property or impair the value of any of the Trust Property. In furtherance but
not in limitation of the foregoing, the Bank agrees that it will not create,
incur, assume or suffer to exist any Lien attributable to it in its individual
capacity upon any of the Trust Property. The Bank agrees that it will, at its
personal cost and expense, and not at the cost and expense of the Trust
Property, the Issuer or any other Person, promptly take such action as may be
necessary to promptly and duly discharge any Lien attributable to it in its
individual capacity and unrelated to the performance of its duties under this
Agreement and the Indenture, and the transactions contemplated hereby. If the
Bank or the Owner Trustee fails to promptly discharge any such Lien, then the
Trustee or the Transferor may discharge such Lien and apply the amounts payable
to the Owner Trustee pursuant to Article X towards reimbursement of such
expenditure.
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ARTICLE IX
CONCERNING THE OWNER TRUSTEE
SECTION 9.01. ACCEPTANCE OF TRUSTS AND DUTIES. (a) The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to the same but only upon the terms of this Agreement.
The Owner Trustee also agrees to disburse all moneys actually received by it
constituting an asset of the Issuer in accordance with the terms of this
Agreement. The Owner Trustee shall not be liable to any Person under any
circumstances, except (i) as specifically set forth in Section 8.09 hereof, (ii)
for damages resulting from the breach of any of the representations and
warranties set forth in Section 3.19 hereof, (iii) for taxes, fees or other
charges on, based on or measured by any fees, commissions or compensation
received by, the Owner Trustee in connection with any of the transactions
contemplated by this Agreement or (iv) for its own willful misconduct, bad faith
or gross negligence.
(b) In particular, but not by way of limitation:
(i) the Owner Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer
of the Owner Trustee, other than any error of judgment
involving willful misconduct, bad faith or gross negligence by
such officer.
(ii) except as set forth in Sections 8.09 and 9.01(a)
hereof, the Owner Trustee shall not be required to expend or
risk its personal funds or otherwise incur any financial
liability in the performance of any of its rights or powers
hereunder, if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured or provided to it (the unsecured indemnity of an
institutional Noteholder being deemed satisfactory for such
purpose) PROVIDED, HOWEVER, that nothing contained herein
shall relieve the Owner Trustee of the obligation to exercise
its duties under this Agreement;
(iii) under no circumstance shall the Owner Trustee be
personally liable for any representation, warranty, covenant,
agreement or indebtedness of the Issuer under this Agreement
or the Indenture or any other document contemplated hereby or
thereby;
(iv) the Owner Trustee shall not be personally
responsible for or in respect of the validity or sufficiency
of this Agreement or for the due execution hereof by the
Transferor, or for the form, character, genuineness,
sufficiency, value or validity of the Transferred Property;
and
(v) notwithstanding anything contained herein or in
any document contemplated hereby, the Owner Trustee shall not
be required to take any action in any jurisdiction other than
in the State of Delaware if the taking of such action will (A)
require the consent or approval or authorization or order of
or the giving of notice
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to, or the registration with any state or other governmental
authority or agency of any jurisdiction other than the State
of Delaware, or (B) result in any fee, tax or other
governmental charge becoming payable by the Bank under the
laws of any jurisdiction or any political subdivisions other
than the State of Delaware, or (C) subject the Bank or the
Owner Trustee to personal jurisdiction in any jurisdiction
other than the State of Delaware.
SECTION 9.02. FURNISHING OF DOCUMENTS. The Owner Trustee shall
furnish to the Transferor, promptly upon receipt thereof, duplicates or copies
of all reports, notices, requests, demands, certificates, financial statements
and any other instruments furnished to the Owner Trustee hereunder (other than
documents originated by or otherwise furnished by the Transferor).
SECTION 9.03. RELIANCE; ADVICE OF COUNSEL. (a) The Owner
Trustee shall not be personally liable to any Person in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond or other document or paper believed by an authorized
officer of the Owner Trustee to be genuine and believed by an authorized officer
of the Owner Trustee to be signed by the proper party or parties. The Owner
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the manner of ascertainment of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the President or any Vice President of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Owner Trustee against personal liability for any action
taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the Issuer hereunder
and in the performance of its duties and obligations under this Agreement, the
Owner Trustee (i) may act directly or through agents or attorneys pursuant to
agreements entered into with any of them, and shall not be personally liable for
the default or misconduct of such agents or attorneys if such agents or
attorneys shall have been selected by the Owner Trustee with reasonable care;
and (ii) may consult with counsel, accountants and other skilled professionals
to be selected with reasonable care and employed by it, and shall not be
personally liable for anything done, suffered or omitted in good faith by it as
the Owner Trustee in accordance with the advice or opinion of any such counsel,
accountants or other skilled professionals.
SECTION 9.04. NOT ACTING IN INDIVIDUAL CAPACITY. Except as
expressly provided in Sections 3.19, 8.09 or 9.01 hereof, in accepting the
trusts hereby created hereunder the Owner Trustee acts solely as trustee
hereunder and not in its individual capacity, and no Person having any claim
against the Issuer by reason of the transactions contemplated by this Agreement
or the Indenture shall look to the Owner Trustee for payment or satisfaction
thereof.
SECTION 9.05. NO REPRESENTATIONS OR WARRANTIES AS TO CERTAIN
MATTERS. THE BANK DOES NOT MAKE AND SHALL NOT BE DEEMED TO HAVE MADE AND HEREBY
EXPRESSLY DISCLAIMS (a) ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS
TO THE TITLE, VALUE, CONDITION, QUALITY, WORKMANSHIP, DESIGN,
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OPERATION, MERCHANTABILITY OR FITNESS FOR USE OF THE EQUIPMENT (OR ANY PART
THEREOF), COMPLIANCE WITH SPECIFICATIONS, CONSTRUCTION, PERFORMANCE, CONDITION,
FREEDOM FROM PATENT OR TRADEMARK INFRINGEMENT, ABSENCE OF LATENT OR OTHER
DEFECTS WHETHER OR NOT DISCERNIBLE OR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE EQUIPMENT (OR ANY
PART THEREOF), except that the Bank represents and warrants to the Transferor,
the Trustee and the Noteholders, that, on the Closing Date or Substitution Date,
as the case may be, the Owner Trustee shall have received whatever right, title
and interest as was conveyed to it by the Transferor; or (b) any representation
or warranty as to the validity, legality or enforceability of this Agreement or
any other Transaction Document, or any other document or instrument, or as to
the correctness of any statement contained in any thereof, except to the extent
that any such statement is expressly made as a representation or warranty by the
Bank or the Owner Trustee.
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ARTICLE X
COMPENSATION AND INDEMNIFICATION OF OWNER TRUSTEE
SECTION 10.01. FEES AND EXPENSES OF OWNER TRUSTEE. (a) The
Owner Trustee and the Transferor by separate agreement shall fix and arrange for
payment of reasonable compensation to the Owner Trustee for all services
rendered by it hereunder and the Owner Trustee shall continue to serve
regardless of any failure to pay such compensation until a successor is
appointed and qualified.
(b) In addition, the Owner Trustee shall be reimbursed under
such separate agreement for all reasonable out-of-pocket expenses, disbursements
and advances incurred by the Owner Trustee in accordance with any of the
provisions of this Agreement, including the reasonable compensation, reasonable
expenses and reasonable disbursements of its counsel and of all Persons not in
its employ; PROVIDED, HOWEVER, that the Owner Trustee shall not be entitled to
reimbursement for (i) any such amounts resulting from, or arising as a result
of, the gross negligence, bad faith or willful misconduct of the Owner Trustee
or (ii) any amounts for which the Owner Trustee shall have liability as set
forth in Section 9.01 hereof.
SECTION 10.02. RESERVED.
SECTION 10.03. INDEMNIFICATION. The Owner Trustee and its
directors, officers, employees, attorneys and agents, and their respective
successors and assigns (each being an "Indemnified Party") shall be entitled to
be indemnified by the Transferor from and against any and all liabilities,
including, without limitation, any damages, penalties, taxes (other than any
income taxes on fees or other compensation received by the Owner Trustee),
claims (including, without limitation, claims involving strict liability in
tort), actions, suits, costs, expenses and disbursements (including, without
limitation, reasonable legal fees and expenses) of any kind and nature
whatsoever which may be imposed on, incurred by or asserted at any time against
an Indemnified Party in any way relating to this Agreement, the Trust Property,
any of the transactions contemplated in this Agreement or the performance or
enforcement of any of the terms thereof, or in any way relating to or arising
out of the Trust Property or any part thereof or any accident in connection
therewith (including, without limitation, latent and other defects, whether or
not discoverable, and any claim for patent, trademark or copyright
infringement), or in any way relating to or arising out of the administration of
the Trust Property or the action or inaction of the Owner Trustee under this
Agreement, except only that no indemnification shall be made for liabilities
arising or resulting in any of the circumstances described in the last sentence
of Section 11.01(a). The indemnities contained in this Section 12.03 shall
survive the termination of this Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section 12.03,
the Owner Trustee's choice of legal counsel shall be subject to the approval of
the Transferor, which approval shall not be unreasonably withheld.
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ARTICLE XI
TERMINATION OF TRUST
SECTION 11.01. TERMINATION OF TRUST. (a) The trust created by
this Agreement shall wind up, dissolve and terminate and this Agreement shall
terminate and be of no further force or effect, and the remaining trust assets
shall revert to the Transferor upon the earlier of (i) the date on which the
Indenture shall have been terminated in accordance with the provisions thereof
and (ii) 21 years less one day after the death of the survivor of the
descendants living on the date of this Agreement of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St.
Xxxxx.
(b) The Transferor shall not be entitled to revoke the trust
established hereunder prior to the date of its termination pursuant to the
Section 11.01.
(c) Upon the winding up of the trust and its termination as
aforesaid, the Owner Trustee shall cause the Certificate of Trust to be
cancelled by filing a certificate of cancellation with the Delaware Secretary of
State in accordance with the provisions of Section 3810 of the Trust
Statute.
(d) Upon the winding up of the trust and its termination as
aforesaid, the obligations of the Servicer, the Transferor and the Owner Trustee
under this agreement will terminate.
SECTION 11.02. NATURE OF INTEREST IN TRANSFERRED PROPERTY. The
Transferor shall not have legal title to any part of the Transferred Property or
any other assets of the Issuer. The Transferor shall only be entitled to receive
distributions with respect to its beneficial interest therein pursuant to this
Article XI and Section 303 of the Indenture.
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ARTICLE XII
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
SECTION 12.01. RESIGNATION, DISCHARGE OR REMOVAL OF AN OWNER
TRUSTEE; SUCCESSOR. (a) The Owner Trustee may resign and be discharged of its
obligations under this Agreement by executing an instrument in writing and
mailing a copy to the Transferor and to the Trustee not less than 30 days before
the date specified in such instrument when such resignation is to take effect.
Upon receiving such notice of resignation, the Transferor shall, subject to the
approval of the Trustee, acting at the direction of the Majority of Holders, use
its best efforts promptly to appoint a successor Owner Trustee in the manner and
meeting the qualifications hereinafter provided in this Section 12.01 hereof by
written instrument or instruments delivered to such resigning Owner Trustee and
the successor Owner Trustee, such approval to be deemed given by the Trustee and
the holders of Notes evidencing not less than 662/3% in aggregate outstanding
principal amount of such Notes (the "SUPERMAJORITY HOLDERS") if the Trustee has
not otherwise informed the Transferor in writing within five Business Days after
the date on which the Trustee's approval is sought. In addition, Supermajority
Holders may remove the Owner Trustee for any reason and appoint a successor
Owner Trustee by written instrument or instruments delivered to the Owner
Trustee being removed, the Transferor and the successor Owner Trustee. In any
event, any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to this Section 12.01 shall become effective
only upon acceptance of the appointment by the successor Owner Trustee and the
resigning Owner Trustee shall continue to serve until such acceptance or until
the court appoints a successor Owner Trustee pursuant to Section 12.01(b)
hereof. The Transferor will give notice of each resignation and each removal of
the Owner Trustee and each appointment of a successor Owner Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
Noteholders, as their names and addresses appear in the Note Register. Each
notice shall include the name of the successor Owner Trustee and the address of
its principal corporate trust office.
(b) In case at any time an Owner Trustee shall resign or be
removed and no successor Owner Trustee shall have been appointed within 30 days
after notice of such resignation or removal has been filed and mailed as
required by Section 12.01 hereof, the resigning or removed Owner Trustee may
forthwith apply to a court of competent jurisdiction for the appointment of a
successor Owner Trustee. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, appoint a successor Owner Trustee.
(c) Any successor Owner Trustee appointed hereunder shall
promptly execute and deliver to the Transferor, the resigning or removed Owner
Trustee, and the Trustee an instrument accepting such appointment hereunder, and
the substitute or successor Owner Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder with like effect as if originally named
an Owner Trustee herein and shall be bound by all the terms and conditions of
this Agreement and the Transferred Property. Upon the request of the Transferor
or the successor Owner Trustee, the resigning or removed Owner Trustee shall
execute and deliver an instrument transferring to the successor Owner Trustee
all the rights and powers of the resigning or removed Owner Trustee; and the
resigning or removed Owner Trustee shall transfer, deliver and pay over to the
successor Owner Trustee all of
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the Transferred Property at the time held by it, if any, together with all
necessary or appropriate instruments of transfer and assignment and other
documents properly executed necessary to effect such transfer and such of the
records or copies thereof maintained by the resigning or removed Owner Trustee
in the administration hereof as may be requested by the successor Owner Trustee
and shall thereupon be discharged from all duties and responsibilities under
this Agreement.
(d) Any Person into which the Owner Trustee may be merged or
with which it may be consolidated, or any corporation resulting from any merger
or consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the Owner Trustee's corporate trust
business, shall be a successor Owner Trustee under this Agreement without the
execution, delivery or filing of any paper, instrument or further act to be done
on the part of the parties hereto, notwithstanding anything to the contrary
herein, or in any agreement relating to such merger or consolidation, by which
the predecessor Person may seek to retain certain powers, rights and privileges
theretofore obtaining for any period of time following such merger or
consolidation. Notice of any such merger or consolidation shall be promptly
given to the Rating Agencies.
(e) Upon the happening of any of the events described in
subparagraphs (a) through (d) of this Section 12.01, the successor Owner Trustee
shall (x) cause an amendment to the Certificate of Trust to be filed with the
Secretary of State of the State of Delaware indicating the change with respect
to the Owner Trustee's identity and (y) promptly notify the Trustee, the
Servicer and the Rating Agencies of its appointment.
SECTION 12.02. APPOINTMENT OF ADDITIONAL OWNER TRUSTEES. (a)
At any time or times, for the purpose of meeting any legal requirements of any
jurisdiction in which any of the Transferred Property may at the time be
located, or the Transferor shall be advised by counsel satisfactory to it that
it is necessary or prudent to do so, the Owner Trustee shall, as directed by the
Transferor pursuant to Section 8.06 hereof, appoint one or more individuals or
corporations either to act as co-trustee or co-trustees jointly with the Owner
Trustee of all or any part of the Transferred Property or to act as separate
Trustee or separate trustees of all or any part of the Transferred Property and
to vest in such Person or Persons, in such capacity, such title to the
Transferred Property or any part thereof, and such rights, powers, duties,
trusts or obligations as may be necessary for the Owner Trustee to perform
hereunder, subject to the remaining provisions of this Section 12.02.
(b) Unless otherwise provided in the instrument appointing
such co-trustee or separate trustee, every co-trustee or separate trustee shall,
to the extent permitted by law, be appointed subject to the following terms:
(i) all rights, powers, trusts, duties and obligations
conferred by this Agreement upon the Owner Trustee in respect
of the custody or control of moneys, papers, securities and
other personal property shall be exercised solely by the Owner
Trustee;
(ii) all rights, powers, trusts, duties and
obligations conferred or imposed by this Agreement upon the
trustees shall be conferred or imposed upon and
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exercised or performed by the Owner Trustee, or by the Owner
Trustee and such co-trustee or co-trustees, or separate
trustee and separate trustees jointly, except to the extent
that, under the law of any jurisdiction in which any
particular act or acts are to be performed, the Owner Trustee
shall be incompetent or unqualified to perform such act or
acts, in which event such act or acts shall be performed by
such co-trustee or co-trustees or separate trustee or separate
trustees;
(iii) any request in writing by the Owner Trustee to
any co-trustee or separate trustee to take or to refrain from
taking any action hereunder shall be sufficient warrant for
the taking, or the refraining from taking, of such action by
such co-trustee or separate trustee;
(iv) any co-trustee or separate trustee to the extent
permitted by law may delegate to the Owner Trustee the
exercise of any right, power, trust, duty or obligation,
discretionary or otherwise;
(v) the Owner Trustee at any time, by an instrument in
writing may accept the resignation of or remove any co-trustee
or separate trustee appointed under this Section 12.02. A
successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this
Section 12.02.
(vi) neither the Owner Trustee nor any co-trustee or
separate trustee appointed hereunder shall be personally
liable by reason of any act or omission of any other trustee
hereunder selected by it with reasonable care;
(vii) any demand, request, direction, appointment,
removal, notice, consent, waiver or other action in writing
executed by the Transferor and delivered to the Owner Trustee
shall be deemed to also have been delivered to each such
co-trustee or separate trustee; and
(viii) any moneys, papers, securities or other items
of personal property received by any such co-trustee or
separate trustee hereunder shall forthwith, so far as may be
permitted by law, be turned over to the Owner Trustee to be
held pursuant
to the terms hereof.
(c) Upon the acceptance in writing of such appointment by any
such co-trustee or separate trustee, it shall be vested with the estates or
property specified in the instrument of appointment, subject to all the terms
hereof. Every such acceptance shall be filed with the Owner Trustee .
(d) In case any co-trustee or separate trustee shall become
incapable of acting, resign or be removed, all of its estates, properties,
rights and trusts shall, so far as permitted by law, vest in and be exercised by
the Owner Trustee.
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SECTION 12.03. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The
Owner Trustee shall at all times be a national banking association or a banking
corporation approved by the Trustee, acting at the direction of the Majority of
Holders (such approval to be deemed given if the Trustee has not otherwise
informed the Transferor in writing within five Business Days after the date on
which the Trustee's approval is sought), authorized to exercise corporate trust
powers and which maintains its principal place of business in the State of
Delaware such that it satisfies the requirements of Section 3807 of the Trust
Statute.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. AMENDMENT. (a) This Agreement may be amended
from time to time by the Owner Trustee and the Transferor 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 action shall not (i) alter the
provisions of Section 5.02 hereof or (ii) adversely affect in any material
respect the interests of 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 Owner Trustee and the Transferor, with the consent of the Rating Agencies
and the Majority of Holders, 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 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, (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 or (d) alter the
provisions of Section 5.02.
(c) Approval of the particular form of any proposed amendment
or consent shall not be necessary for the consent of the Noteholders under
Section 13.01(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 paragraph 13.01(b), the Owner Trustee
shall deliver a copy of the proposed amendment to the Transferor, the Rating
Agencies and the Trustee.
(e) In executing any amendment to this Agreement pursuant to
this Section 13.01, the Owner Trustee shall be entitled to receive (i) an
Officer's Certificate of the Transferor 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. The Owner Trustee may, but shall not
be obligated to, enter into any amendment which adversely affects the Owner
Trustee's own rights, duties, protections, or immunities under this Agreement.
SECTION 13.02. COUNTERPARTS. For the purpose of facilitating
the execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
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SECTION 13.03. GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with the internal laws of the State of Delaware,
without regard to the conflicts of laws provisions of such state.
SECTION 13.04. 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: 000 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Securitization Manager, Facsimile: (215)
230-5328, (c) in the case of the Issuer, in care of the Owner Trustee at the
address set forth in clause (e) below, with a copy to the Servicer at the
address set forth in clause (b) above, (d) in the case of the Transferor at the
following address: 000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Securitization Manager, Facsimile: (000) 000-0000, (e) in the case of Owner
Trustee, at the following address: Wilmington Trust Company, Xxxxxx Square
North, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration, Facsimile: (000) 000-0000, (f) in the case of
the Rating Agencies, to the following addresses: Duff & Xxxxxx Credit Rating
Co., 00 Xxxx Xxxxxx Xx., Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed
Monitoring Group, Facsimile: (000) 000-0000; Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxx Xxxxxx Xxxx, 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: (212)
553-3856, 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 Agreement shall be conclusively
presumed to have been duly given, whether or not the Noteholder receives such
notice.
SECTION 13.05. SEVERABILITY OF PROVISIONS. If any one or more
of the covenants, agreements, provisions, or terms of this Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement.
SECTION 13.06. ASSIGNMENT. The obligations of the Transferor
under this Agreement may not be delegated by it without the prior written
consent of the Owner Trustee and the Trustee. The rights of the Owner Trustee
under this Agreement may be assigned by it to the Trustee pursuant to the
Indenture.
SECTION 13.07. BINDING EFFECT. This Agreement shall inure to
the benefit of, and shall be binding upon, the Transferor and the Owner Trustee
and their respective successors and
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permitted assigns (including the Trustee and the Noteholders), subject, however,
to the limitations contained in this Agreement.
SECTION 13.08. SURVIVAL OF AGREEMENT. All covenants,
agreements, representations and warranties made herein and in the other
documents delivered pursuant hereto shall survive the contribution of the
Transferred Property and shall continue in full force and effect until all
principal and interest on the Notes shall have been paid in full or otherwise
discharged.
SECTION 13.09. CAPTIONS. The captions or headings in this
Agreement are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Agreement.
SECTION 13.10. EXHIBITS. The exhibits and schedule to this
Agreement are hereby incorporated herein and made a part hereof and are an
integral part of this Agreement.
SECTION 13.11. INTEGRATION. This Agreement contains the entire
understanding and agreement among the Transferor and the Owner Trustee with
respect to the subject matter hereof and supersede any prior or contemporaneous
understandings, agreements, covenants, statements, representations or
warranties, if any, with regard to the subject matter hereof.
SECTION 13.12. GENERAL INTERPRETIVE PRINCIPLES. For purposes
of this Agreement except as otherwise expressly provided or unless the context
otherwise requires:
(a) the defined terms in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include any other gender;
(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles as in effect on the date hereof;
(c) references herein to "Articles", "Sections",
"Subsections". "paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, paragraphs and other
subdivisions of this Agreement;
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without
limitation by reason of enumeration.
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SECTION 13.13. THIRD PARTY BENEFICIARIES. The Transferor and
the Owner Trustee hereby agree that each of the Contributor and the Trustee
shall be third party beneficiaries with respect to the rights, duties and
obligations of the various parties to this Agreement.
SECTION 13.14. 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 DELAWARE, EACH OF THE ISSUER AND THE TRANSFEROR 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 13.15. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF THE OWNER TRUSTEE AND THE TRANSFEROR 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.
SECTION 13.16. COSTS AND EXPENSES. The Transferor will pay all
reasonable expenses incident to the performance of its obligations under this
Agreement and the Indenture and the Transferor agrees to pay all reasonable
out-of-pocket costs and expenses of the Owner Trustee, including fees and
expenses of counsel, in connection with the enforcement of any obligation of the
Transferor hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers, all as of the day
and year first above written.
DVI RECEIVABLES CORP.,
as Transferor
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY, as
the Bank and as Owner Trustee of the
Issuer
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Administrative Account Manager
ACKNOWLEDGED AND AGREED,
as to Article VI hereof:
DVI FINANCIAL SERVICES INC.,
as Servicer
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
EXHIBIT A
SUBSEQUENT CONTRACT TRANSFER FORM
[DATE]
DVI Receivables Corp. (the "TRANSFEROR") and DVI Business
Trust 1998-2 ("the Issuer"), pursuant to the Pooling and Trust Agreement, dated
as of December 1, 1998 (the "POOLING AND TRUST AGREEMENT"), hereby confirm their
understanding with respect to the contribution, assignment and transfer by the
Transferor to the Issuer of those Contracts listed on the Schedule 1 attached
hereto (the "CONTRACTS"), together with an assignment of or the grant of a
security interest in all of the Transferor's right, title and interest in and to
the related Equipment and other related property described herein.
CONVEYANCE OF CONTRACTS. The Transferor hereby transfers to
the Issuer all of the Transferor's right, title and interest in, to, and under
the Contracts listed on Schedule 1 hereto (the "Substitute Contracts")
including, without limitation, its interests in the proceeds of such Substitute
Contracts, the right to receive all amounts due or to become due thereunder
after __________ (the "CUT-OFF DATE") together with all items of Transferred
Property related thereto.
The Transferor 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 Substitute Contracts that were due on or after
the Cut-off Date;
(2) Each representation and warranty of the Transferor under
the Contribution and Servicing Agreement and the Pooling and Trust Agreement is
true and correct as of the date hereof, the Transferor was not insolvent nor
will it be made insolvent by the transfer contemplated herein nor is it aware of
any pending insolvency and the Transferor is not in breach of any covenant under
any Transaction Document to which it is a party with respect to such Substitute
Contract;
(3) Each Substitute Contract contributed pursuant hereto is an
Eligible Contract;
(4) On or prior to the Subsequent Contract Transfer Date, the
Transferor shall have delivered to the Trustee the sole original, manually
executed counterpart of each Substitute Contract;
(5) The sum of the Discounted Contract Balances as of the
Cut-off Date of the Substitute Contracts listed on Schedule 1 attached hereto is
$__________ (calculated using a Discount Rate of _____%);
(6) The Commitment Period has not terminated as of the date
hereof;
A-1
(7) When the Substitute Contracts are added to the Transferred
Property, all representations and warranties of the Transferor in the Pooling
and Trust Agreement will be true and correct as of the date hereof unless any
breach of such representations and warranties resulting from the inclusion of
such Substitute 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 reflecting the
addition of the Substitute Contract(s) and (ii) an amendment to the Contract
Schedule.
All terms and conditions of the Pooling and Trust Agreement
with respect to the Transferor and the Substitute 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.
Terms capitalized herein and not defined herein shall have
their respective meanings as set forth in the Pooling and Trust Agreement.
DVI RECEIVABLES CORP.
By:_____________________________
Name:
Title:
DVI BUSINESS TRUST 1998-2
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By:_____________________________
Name:
Title:
A-2
EXHIBIT B
FORM OF OFFICER'S CERTIFICATE
-----------------------------
The undersigned certifies that the undersigned duly authorized
officer of DVI Receivables Corp. (the "TRANSFEROR"), and that, as such the
undersigned is authorized to execute and deliver this certificate on behalf of
the Transferor, and further certifies pursuant to Section 7.02 of the Pooling
and Trust Agreement (the "AGREEMENT") dated as of December 1, 1998 between the
Transferor and Wilmington Trust Company as Owner Trustee for DVI Business Trust
1998-2 (the "ISSUER"), that to his or her knowledge, the Transferor's
contribution to the Issuer of those Substitute Contracts listed in Schedule 1
attached hereto, together with all of the Transferor's right, title and interest
in and to the related Contracts and the related Transferred Property, is in
compliance with Section 7 of the Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name.
Date:
DVI RECEIVABLES CORP.
By:_____________________________
Name:
Title:
B-1
EXHIBIT C
FORM OF RE-ASSIGNMENT BY ISSUER
PURSUANT TO SECTION 7.01 OF THE
POOLING AND TRUST AGREEMENT
DVI Business Trust 1998-2 (the "Issuer") pursuant to the
Pooling and Trust Agreement, dated as of December 1, 1998, between DVI
Receivables Corp. (the "Transferor") and Wilmington Trust Company as owner
trustee (the "Owner Trustee"), does hereby sell, transfer, assign, deliver and
otherwise convey to the Transferor, 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 BUSINESS TRUST 1998-2
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By:_______________________________
Name:_____________________________
Title:____________________________
C-1
