EXHIBIT 10.01 PURCHASE AGREEMENT
------------------
PURCHASE AGREEMENT, dated as of August 20, 2001, by and among X.X.
XXXXXXXXX RECEIVABLES II LLC, a Nevada limited liability company ("R-II");
RECEIVABLES II-B LLC, a Nevada limited liability company ("R-II-B"); RECEIVABLES
II-B HOLDING COMPANY LLC, a Nevada limited liability company ("R-II-B
Holdings"); X.X. XXXXXXXXX S.S.C. LIMITED PARTNERSHIP, a Nevada limited
partnership ("SSC"); X.X. XXXXXXXXX MANAGEMENT COMPANY, INC., a Pennsylvania
corporation ("JGW"), for the purpose of Sections 2(b) and (c) and 8 only; and S2
HOLDINGS, INC., a Delaware corporation ("Buyer"), and DVL, INC., a Delaware
corporation ("DVL").
RECITALS
--------
A. SSC and R-II are engaged in the business of acquiring, holding and
collecting structured settlement receivables; X.X. Xxxxxxxxx Receivables V LLC,
a Nevada limited liability company ("R-V"), has acquired and securitized
structured settlement receivables; and JGW is engaged in the business of
servicing structured settlement receivables.
B. R-II-B owns the entire equity interests in R-V.
C. R-II-B Holdings owns (a) a one-tenth of one percent (00.1%)
manager, Class A equity interest in R-II-B, and (b) a ninety-nine and
nine-tenths percent (99.9%) non-manager, Class B equity interest in R-II-B (the
"Class B Interest").
D. R-II-B Holdings desires to sell and assign the Class B Interest to
Buyer, and Buyer desires to purchase and acquire the Class B Interest.
E. At Closing (as hereinafter defined), DVL is willing to issue a
Guaranty (as hereinafter defined) of the Notes (as hereinafter defined).
F. The parties intend that the economic effective date of the Closing
hereunder shall be August 15, 2001.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
1. SALE AND PURCHASE OF CLASS B INTEREST.
(a) SALE AND ASSIGNMENT. On the Closing Date (as hereinafter
defined), and subject to the terms and conditions contained in this Agreement,
SSC and R-II shall cause R-II-B Holdings to, and R-II-B Holdings shall, sell and
assign the Class B Interest to Buyer, and Buyer shall purchase and acquire the
Class B Interest, free and clear of all liens, security
interests, pledges, mortgages, preferential arrangements with creditors, or
other encumbrances of any kind ("Liens").
(b) PURCHASE PRICE. The purchase price for the Class B Interest
(the "Purchase Price") shall consist of (i) a promissory note ("Note 1") in the
original principal amount of Seven Million Nine Hundred Thirty-One Thousand Five
Hundred Sixty Dollars ($7,931,560.00), subject to adjustment as provided in
Section 1(c), payable to the order of SSC, in the form of EXHIBIT B-1 attached
hereto, (ii) a promissory note ("Note 2" and, together with Note 1, the "Notes")
in the original principal amount of One Million One Hundred Sixty-Eight Thousand
Four Hundred Forty Dollars ($1,168,440.00), subject to adjustment as provided in
Section 1(c), payable to the order of SSC, in the form of EXHIBIT B-2 attached
hereto, and (iii) a warrant for the purchase of One Million (1,000,000) shares
of DVL common stock, in the form attached hereto as EXHIBIT C (the "Warrant"),
which amount of shares may, after the issuance of the Warrant, be adjusted in
accordance with the anti-dilution and other adjustment provisions of the
Warrant. Payment of a portion of the principal due under the Notes will be
guaranteed by DVL pursuant to a guaranty (the "Guaranty") to be delivered by DVL
to SSC at Closing, in the form attached hereto as EXHIBIT D. Buyer's obligation
under the Notes will be secured pursuant to a pledge agreement (the "Pledge
Agreement"), in the form attached hereto as EXHIBIT E, which will be delivered
to SSC at the Closing. Eighty-Seven and 16/100ths percent (87.16%) of all
payments made by Buyer under the Notes shall be allocated to, and paid to SSC
under, Note l, and the balance shall be allocated to, and paid to SSC under,
Note 2.
(c) ADJUSTMENT TO PURCHASE PRICE.
(i) From and after February 15, 2003, the Purchase Price
and the principal amount of the Notes shall, effective as of the first day of
each month, be increased PARI PASSU by (i) an amount, if any, equal to
eighty-one percent (81%) of (x) the actual cash collected by R-V in the
immediately prior month (the "Calculation Month") in excess of (y) the total
dollar amount for the Calculation Month of "Performing Scheduled Payments" as of
December 31, 2002, based upon the "Performing Cash Collections" column of the
"secmodel" as shown on the form, dated June 30, 2001, of "secmodel" attached
hereto as SCHEDULE 1(C)(I)-1, plus (ii) an amount, if any, equal to eighty-one
percent (81%) of (x) the rehabilitated claims in the Calculation Month as shown
on the monthly servicer reports for R-V (the "Monthly Servicer Reports") for the
Calculation Month, samples of which reports are attached hereto as SCHEDULE
1(C)(I)-2, in excess of (y) the new defaults in the Calculation Month as shown
on the Monthly Servicer Reports for the Calculation Month; provided, however, it
is understood and agreed that increases
-2-
shall be made at such 81% level only to the extent there are no then outstanding
cumulative reductions in the principal amount of the Notes that were made at a
100% level; otherwise, the increases referred to above in this sentence shall be
made at the 100% level, and not at the 81% level, until such cumulative
reductions made at the 100% level have been reduced to zero.
(ii) From and after February 15, 2003, the Purchase Price
and the principal amount of the Notes shall, effective as of the first day of
each month, be reduced PARI PASSU by an amount, if any, equal to one hundred
percent (100%) of (x) the new defaults in the Calculation Month as shown on the
Monthly Servicer Reports for the Calculation Month in excess of (y) the
rehabilitated claims in the Calculation Month as shown on the Monthly Servicer
Reports for the Calculation Month; provided, however, it is understood and
agreed that reductions shall be made at such 100% level only to the extent there
are no then outstanding cumulative increases in the principal amount of the
Notes that were made at an 81% level; otherwise, the reductions referred to
above in this sentence shall be made at the 81% level, and not at the 100%
level, until the cumulative increases made at the 81% level have been reduced to
zero.
(iii) From and after August 15, 2001, the Purchase Price
and the principal amount of the Notes shall, on a monthly basis, also be
increased PARI PASSU, on a dollar-for-dollar basis, by the amount of any reserve
fund(s) existing on or prior to August 15, 2001, which reserve fund(s) have been
established under, or as provided in, the documents listed in EXHIBIT A attached
hereto (the "Securitization Documents"), paid after August 15, 2001 to the
Series 2001-A Noteholders.
(iv) From and after August 15, 2001, in the event of any
"Event of Default" (as defined in the 8/2/01 Indenture) or "Servicer Default"
(as defined in the 2001-A Supplement) that results in any suspension of payments
to R-V under the 2001-A Supplement, the Purchase Price and the principal amount
of the Notes will be reduced PARI PASSU by an amount equal to eighty-one percent
(81%) of the net present value of the remaining cash flow attributable to the
"Issuer Interest" (as defined in the 8/20/01 Indenture) of R-V, as determined
pursuant to the following sentence. The calculation of the net present value of
such remaining cash flow payable to R-V will be made using the "cash available"
column of the "secmodel" as adjusted on a monthly basis, a copy of which has
been furnished, and is acceptable, to Buyer. The discount rate used in the
calculation of such net present value will be the discount rate used in the
2001-A Supplement. After reductions have been made under this Section 1(c)(iv)
with respect to the securitization described in the Securitization Documents, no
further reductions will be made under Section 1(c)(ii). If the suspension
referred to above is
-3-
reversed for any reason, this clause (iv) shall have no application.
(v) On January 15, 2003, (a) the Purchase Price and the
principal amount of the Notes shall be reduced PARI PASSU by an amount, if any,
equal to eighty-one percent (81%) of the excess of (x) the "Cumulative Defaults
at the end of the Collection Period" as shown on the SSC Master Trust V, Series
2001-A December, 2002 servicer report less (y) Five Million Eighteen Thousand
Five Hundred Sixty-Three Dollars ($5,018,563.00), or (b) the Purchase Price and
the principal amount of the Notes shall be increased PARI PASSU by an amount, if
any, equal to eighty-one percent 81% of the excess of (x) Five Million Eighteen
Thousand Five Hundred Sixty-Three Dollars ($5,018,563.00) Five Million Seven
Thousand Nine Hundred and Forty-Nine Dollars ($5,007,949.00) less (y) the
"Cumulative Defaults at the end of the Collection Period" as shown on such
December, 2002 servicer report.
(vi) Net increases under Sections 1(c)(i), (ii) and (v)
(that is, increases thereunder less reductions thereunder) shall not exceed Four
Million Five Hundred Thousand Dollars ($4,500,000). Eighty-Seven and 16/100ths
percent (87.16%) of all such increases and reductions, if any, shall be
allocated to Note 1, and the balance shall be allocated to Note 2. All such
increases and reductions, if any, shall be endorsed by SSC on a grid or schedule
to be attached to the Notes, and SSC is authorized by Buyer to make such
endorsements. All increases and reductions under this Section 1(c) shall be made
without duplication.
(vii) Examples of the application of this Section 1(c) are
attached hereto as SCHEDULE 1(C)(VII).
2. REPRESENTATIONS AND WARRANTIES OF SSC, R-II-B, R-II-B HOLDINGS AND
JGW.
(a) REPRESENTATIONS AND WARRANTIES OF SSC, R-II-B AND R-II-B
HOLDINGS. SSC, R-II-B and R-II-B Holdings, jointly and severally, hereby make
the following representations and warranties to Buyer and DVL as of the date of
the execution of this Agreement by SSC, R-II-B and R-II-B Holdings:
(i) ORGANIZATION AND GOOD STANDING. SSC is a limited
partnership duly organized and in good standing under the laws of the State of
Nevada, and is duly qualified to do business and is in good standing in every
jurisdiction in which the nature of its business requires it to be so qualified,
except any jurisdiction(s) where the failure to be so qualified would not have a
material adverse effect on its business or the
-4-
transactions contemplated hereby, by the other agreements, instruments,
certificates and documents to be executed by such party under the terms of this
Agreement (such other agreements, instruments, certificates and documents being
collectively called, the "Seller Transaction Documents") or by the
Securitization Documents. Each of R-II, R-II-B, R-II-B Holdings and R-V is a
limited liability company, duly organized and in good standing under the laws of
the State of Nevada, and is duly qualified to do business and is in good
standing in every jurisdiction in which the nature of its business requires it
to be so qualified, except any jurisdiction(s) where the failure to be so
qualified would not have a material adverse effect on its business or the
transactions contemplated hereby, by the Seller Transaction Documents or by the
Securitization Documents. SSC has delivered to Buyer a true and correct copy of
each of the Articles of Organization and the Operating Agreement of R-II,
R-II-B, R-II-B Holdings and R-V and a true and correct copy of each of the
Certificate of Limited Partnership and Agreement of Limited Partnership of SSC,
in each case as amended through the Closing Date.
(ii) OWNERSHIP OF CLASS B INTEREST. R-II-B Holdings owns
the Class B Interest, free and clear of all Liens. R-II-B Holdings has the
requisite power and authority to sell, transfer, assign and deliver the Class B
Interest to Buyer and, upon receipt of the consideration therefor as provided by
this Agreement, such sale, transfer, assignment and delivery will assign and
transfer lawful and valid title to the Class B Interest to Buyer, free and clear
of all Liens. There is no outstanding security, option, warrant, right,
agreement, understanding or commitment of any kind entitling any person or
entity to acquire any or all of the Class B Interest.
(iii) AUTHORIZATION. Each of SSC, R-II, R-II-B and R-II-B
Holdings has full power and authority to execute and deliver this Agreement and
the Seller Transaction Documents to which it is a party and to perform all acts
contemplated by this Agreement and the Seller Transaction Documents to which it
is a party. The execution, delivery and performance by SSC, R-II, R-II-B and
R-II-B Holdings of this Agreement and the Seller Transaction Documents to which
it is a party and the transactions contemplated hereby and thereby have been
duly authorized by all necessary action on its part. This Agreement and each of
the Seller Transaction Documents to which it is a party, when executed and
delivered by SSC, R-II, R-II-B and R-II-B Holdings in accordance with the
provisions hereof and thereof, will constitute the legal, valid and binding
obligation of SSC, R-II, R-II-B and R-II-B Holdings, and each instrument to
which they are parties contemplated by this Agreement and the Seller Transaction
Documents, when executed and delivered by SSC, R-II, R-II-B and R-II-B Holdings
in accordance with the provisions hereof and
-5-
thereof, will be a legal, valid and binding obligation of SSC, R-II, R-II-B and
R-II-B Holdings, in each case enforceable against SSC, R-II, R-II-B and R-II-B
Holdings in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency and other similar laws affecting creditors
rights generally, and general equitable principles.
(iv) NO BREACH OR VIOLATION. Neither the execution and
delivery of this Agreement or the Seller Transaction Documents to which they are
a party nor the consummation of the transactions contemplated hereby or thereby
by SSC, R-II, R-II-B or R-II-B Holdings (i) conflicts with or results in a
violation or breach of, or constitutes a default or requires any party's consent
under, or results in a loss of rights under, the organization documents of SSC,
R-II, R-II-B, R-II-B Holdings or R-V, or any agreement to which SSC, R-II,
R-II-B, R-II-B Holdings or R-V is a party or by which SSC, R-II, R-II-B, R-II-B
Holdings, R-V or the Class B Interest is bound (other than the consent of ING
(U.S.) Capital LLC which has been duly obtained); (ii) results in the creation
of any Lien upon the Class B Interest; or (iii) violates any judgment, order,
permit, injunction, decree or award of any court, administrative agency or
governmental body against, or binding upon, SSC, R-II, R-II-B, R-II-B Holdings
or R-V (or their respective properties including, in the case of R-II-B
Holdings, the Class B Interest).
(v) FINANCIAL STATEMENTS. SCHEDULE 2(A)(V) contains the
unaudited consolidated balance sheet and profit and loss statement of SSC as of
and at March 31, 2001 (the "Specified Date Balance Sheet") and for the year then
ended, and the audited consolidated balance sheet and income statements of SSC
for the years ended December 31, 1999, 2000 and 2001. The foregoing financial
statements were prepared in accordance with generally accepted accounting
principles, consistently applied, are true, complete and correct in all material
respects, and fairly and accurately present in all material respects the
consolidated financial position and results of operations of SSC and its
consolidated subsidiaries as of the dates of such balance sheets and income
statements and for the periods then ended; provided, however, the Specified Date
Balance Sheet does not contain any footnotes or reflect year-end adjustments
(which adjustments may be material).
(vi) SUBSIDIARIES AND JOINT VENTURES. SSC has no
subsidiaries and does not own any capital stock, security, partnership interest
or other interest of any kind in any corporation, partnership, joint venture,
association or other entity, except that SSC owns, of record and beneficially,
all of the equity interests of R-II (and all of the voting rights in R-II,
except those voting rights vested in the independent members of R-II under the
terms of the organization documents of R-II);
-6-
R-II owns, of record and beneficially, all of the equity interests of, and
voting rights in, R-II-B Holdings; R-II-B Holdings owns, of record and
beneficially, all of the equity interests of, and voting rights in, R-II-B; and
R-II-B owns, of record and beneficially, all of the equity interests of R-V (and
all of the voting rights in R-V, except those voting rights vested in the
independent members of R-V under the terms of the organization documents of
R-V). There are no options, warrants, purchase rights, subscription rights,
conversion rights, exchange rights, convertible securities or other rights,
agreements, arrangements or commitments of any character relating to the equity
interests of R-II, R-II-B, R-II-B Holdings or R-V, or obligating SSC, R-II,
R-II-B or R-II-B Holdings to issue, sell or otherwise cause to become
outstanding any equity interest in R-II, R-II-B, R-II-B Holdings or R-V.
(vii) UNDISCLOSED LIABILITIES. Neither SSC, R-II, R-II-B,
R-II-B Holdings nor R-V has any material obligations or liabilities except (i)
liabilities or obligations reflected on the Specified Date Balance Sheet; and
(ii) liabilities incurred since such date in the ordinary course of business
consistent with past practice.
(viii) LITIGATION. Except as set forth in the Final
Offering Memorandum, dated August 10, 2001, previously delivered to Buyer,
relating to certain notes issued by R-V (the "PPM"), there are no material
suits, litigation or other legal or administrative arbitrations or other
proceedings or investigations pending or, to SSC's knowledge, threatened against
SSC, R-II, R-II-B, R-II-B Holdings or R-V, or with respect to the transactions
contemplated hereby or the Class B Interest.
-7-
(ix) PERMITS AND LICENSES; COMPLIANCE WITH LAWS. To SSC's
knowledge, SSC, R-II, R-II-B, R-II-B Holdings and R-V are in compliance with all
federal, state and local laws, rules and regulations and all requirements of all
governmental bodies or agencies having jurisdiction over them or their
respective properties including, in the case of R-II-B Holdings, the Class B
Interest, that materially affect the conduct of their respective businesses and
affairs, the Class B Interest or the transactions contemplated hereby, except
for such non-compliance which is not reasonably likely to have a material
adverse effect on SSC, R-II, R-II-B, R-II-B Holdings and R-V taken as a whole,
or the Class B Interest or the transactions contemplated hereby. All material
actions, approvals, consents, waivers, exemptions, variances, franchises,
orders, permits, authorizations, rights and licenses required to be taken, given
or obtained, as the case may be, by or from any governmental authority, that are
necessary in connection with the performance by SSC, R-II, R-II-B and R-II-B
Holdings under this Agreement and the Seller Transaction Documents to which they
are parties and the conduct by SSC, R-II, R-II-B and R-II-B Holdings of their
respective businesses as currently conducted have been obtained and are in full
force and effect and are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) which are reasonably likely to have a
material adverse impact on SSC's, R-II's, R-II-B's or R-II-B Holdings'
performance of its obligations under this Agreement and the Seller Transaction
Documents to which they are parties.
(x) GOVERNMENTAL APPROVAL. No consent, approval, waiver,
order or authorization of, or registration, declaration or filing with, any
governmental authority is required to be obtained by SSC, R-II, R-II-B or R-II-B
Holdings in connection with the execution and delivery of this Agreement or the
Seller Transaction Documents to which they are parties or the consummation of
the transactions contemplated hereby or thereby.
(xi) SECURITIZATIONS. (A) To SSC's knowledge, neither
SSC, R-II, R-II-B, R-II-B Holdings nor R-V is in material default under any of
the Securitization Documents; (B) to SSC's knowledge, (1) no "Event of Default"
(as defined in the 8/2/01 Indenture and the Credit Agreement), "Servicer
Default" (as defined in the 2001-A Supplement), "Surety Event" (as defined in
the 8/2/01 Indenture), or material default or material breach of or under the
Intercreditor Agreement, any Seller Purchase Agreement or any Issuer Purchase
Agreement has occurred and is continuing, and (2) no event, which with notice or
lapse of time or both, would constitute any such Event of Default, Servicer
Default, Surety Event, or material default or material breach has occurred and
is continuing; (C) (1) the Securitization Documents (x) are all those material
agreements and other documents related to, or establishing the rights of any
party with respect to, the
-8-
assets of R-V, and (y) are valid and binding on SSC, JGW, R-II and R-V (to the
extent they are parties thereto) and, by reason of the consummation of the
transactions contemplated by this Agreement, shall not fail to continue in full
force and effect without penalty or adverse consequence, and (2) SSC has
heretofore made available to Buyer a true, correct and complete copy of each
Securitization Document and all amendments thereto through the Closing Date; and
(D) to SSC's knowledge, (1) no "Overcollateralization Shortfall" (as defined in
the 2001-A Supplement) has occurred and is continuing, (2) there are no "Accrued
Liabilities" (as defined in the 2001-A Supplement) with respect to MBIA
Insurance Corporation, (3) all interest payments and fees (including "Premium"
payable to MBIA Insurance Corporation) payable on or prior to the Closing Date
under the 2001-A Supplement have been duly paid, and (4) amounts in the "Series
2001-A Reserve Account" on the Closing Date are as required by the 2001-A
Supplement.
(xii) SOLVENCY. SSC, R-II, R-II-B, R-II-B Holdings and R-V
are solvent and will not become insolvent after giving effect to the
transactions contemplated by this Agreement and the Seller Transaction
Documents; SSC, R-II, R-II-B, R-II-B Holdings and R-V are paying their debts as
they mature; neither SSC, R-II, R-II-B nor R-II-B Holdings is entering into this
Agreement or the Seller Transaction Agreements to which it is a party with the
intent to hinder, delay or defraud any entity to which it was, or is becoming,
indebted; neither SSC, R-II, R-II-B, R-II-B Holdings nor R-V has incurred debts
beyond its ability to pay as they mature; and SSC, R-II, R-II-B, R-II-B Holdings
and R-V, after giving effect to the transactions contemplated by this Agreement
and the Seller Transaction Documents to which it is a party, will in the
foreseeable future be able to pay their bills in the ordinary course.
(xiii) RATING AGENCY. No"Rating Agency" (as defined in the
8/13/01 Indenture) has downgraded or withdrawn its rating of any security issued
pursuant to the 2001 Indenture.
(xiv) NO CONFLICT WITH CERTAIN EVENTS. SSC has delivered
to Buyer a true, correct and complete copy of all documents and agreements in
connection with the formation of R-II-B, R-II-B Holdings and R-V, and the
assignment by R-II to R-II-B of its equity interests in R-V (the "Ancillary
Documents"). There are no other material agreements or other documents related
to the transactions contemplated by the Ancillary Documents. The Ancillary
Documents are valid and binding on the respective parties thereto and, by reason
of the consummation of the transactions contemplated by this Agreement, shall
not fail to continue in full force and effect without penalty or adverse
consequence. The execution and delivery of, and the consummation of the
transactions contemplated by, the Ancillary Documents, do
-9-
not and will not conflict with, or result in a breach or default under, any of
the Securitization Documents (and all consents relating thereto have been duly
obtained), or result in a diminution of the rights or remedies of SSC, R-II or
R-V under the Securitization Documents.
(b) JOINT AND SEVERAL REPRESENTATIONS AND WARRANTIES OF JGW AND
SSC. JGW and SSC hereby jointly and severally represent and warrant to Buyer and
DVL that as of the date of the execution of this Agreement by JGW and SSC (i)
the information set forth in the Monthly Servicing Reports for the most recent
thirty-six (36) months delivered to DVL is true and correct in all material
respects, and (ii) the representations and warranties set forth in the
Securitization Documents made by JGW or R-V are true and correct in all material
respects as of the date made, and DVL and Buyer shall be permitted to rely
thereon as if such representations and warranties were made directly to DVL and
Buyer.
(c) REPRESENTATIONS AND WARRANTIES OF JGW. JGW hereby makes the
following representations and warranties to Buyer and DVL as of the date of the
execution of this Agreement by JGW:
(i) ORGANIZATION AND GOOD STANDING. JGW is a corporation
duly organized and in good standing under the laws of Commonwealth of
Pennsylvania, and is duly qualified to do business and is good standing in every
jurisdiction in which the nature of its business requires it to be so qualified,
except any jurisdiction(s) where the failure to be so qualified would not have a
material adverse effect on its business or the transactions contemplated hereby
or by the Seller Transaction Documents or by the Securitization Documents.
(ii) AUTHORIZATION. JGW has full power and authority to
execute and deliver this Agreement and the Seller Transaction Documents to be
executed by JGW under the terms of this Agreement and to perform all acts
contemplated by this Agreement and the Seller Transaction Documents to which it
is a party. The execution, delivery and performance by JGW of this Agreement and
the Seller Transaction Documents to which it is a party and the transactions
contemplated hereby and thereby have been duly authorized by all necessary
action on its part.
(iii) BINDING OBLIGATION. This Agreement and each of the
Seller Transaction Documents to which it is a party, when executed and delivered
by JGW in accordance with the provisions hereof and thereof, will constitute the
legal, valid and binding obligation of JGW, and each instrument to which it is a
party contemplated by this Agreement and the Seller Transaction Documents, when
executed and delivered by JGW in accordance with the provisions hereof and
thereof, will constitute the legal,
-10-
valid and binding obligation of JGW, in each case enforceable against JGW in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency and other similar laws affecting creditors rights
generally, and general equitable principles.
(iv) NO BREACH OR VIOLATION. Neither the execution and
delivery by JGW of this Agreement or the Seller Transaction Documents to which
it is a party nor the consummation of the transactions contemplated hereby or
thereby (i) conflicts with or results in a violation or breach of, or
constitutes a default under, any agreement or other arrangement to which JGW is
a party or by which it is bound or (ii) violates any judgment, order,
injunction, decree or award of any court, administrative agency or governmental
body against, or binding upon, JGW.
(v) LITIGATION. Except as set forth in the PPM, there
are no material suits, litigations or other legal or administrative arbitrations
or other proceedings or investigations pending or, to JGW's knowledge,
threatened against JGW or with respect to the transactions contemplated hereby.
(vi) PERMITS AND LICENSES; COMPLIANCE WITH LAWS. To JGW's
knowledge, JGW is in compliance with all federal, state and local laws, rules
and regulations and all requirements of all governmental bodies or agencies
having jurisdiction over it that materially affect the conduct of its business
and affairs, except for such non-compliance which is not reasonably likely to
have a material adverse effect on JGW or the transactions contemplated hereby.
All material actions, approvals, consents, waivers, exemptions, variances,
franchises, orders, permits, authorizations, rights and licenses required to be
taken, given or obtained, as the case may be, by or from any governmental
authority, that are necessary in connection with the performance by JGW under
this Agreement and the Seller Transaction Documents to which it is a party and
the conduct by JGW of its business as currently conducted have been obtained and
are in full force and effect and are not subject to any pending proceedings or
appeals (administrative, judicial or otherwise) which are reasonably likely to
have a material adverse impact on JGW's performance under this Agreement and the
Seller Transaction Documents to which it is party.
(vii) GOVERNMENTAL AUTHORITY. No consent, approval,
waiver, order or authorization of, or registration, declaration or filing with,
any governmental authority is required to be obtained by JGW in connection with
the execution and delivery of this Agreement or the Seller Transaction Documents
to which it is a party or the consummation of the transactions contemplated
hereby or thereby.
-11-
(viii) INFORMATION. Each certificate, information, exhibit,
financial statement, document, book or report furnished by JGW to DVL or Buyer
in connection with any Securitization Document is accurate in all material
respects as of its date.
3. REPRESENTATIONS AND WARRANTIES OF BUYER AND DVL. Buyer and DVL
hereby jointly and severally make the following representations and warranties
to SSC as of the date of the execution of this Agreement by Buyer and DVL:
(a) ORGANIZATION AND GOOD STANDING. Each of Buyer and DVL is a
corporation, duly organized and in good standing under the laws of the State of
Delaware, and is duly qualified to do business and is in good standing in every
jurisdiction in which the nature of its business requires it to be so qualified,
except any jurisdiction(s) where the failure to be so qualified would not have a
material adverse effect on its business or the transactions contemplated hereby
or by the other agreements, instruments, certificates and documents to be
executed by Buyer and/or DVL under the terms of this Agreement (collectively
with this Agreement, the "Buyer Transaction Documents").
(b) AUTHORIZATION. Each of Buyer and DVL has full power and
authority to execute, deliver and perform this Agreement and the other Buyer
Transaction Documents to which it is a party. All material actions, approvals,
consents, waivers, exemptions, variances, franchises, orders, permits,
authorizations, rights and licenses required to be taken, given or obtained, as
the case may be, by or from any governmental authority, that are necessary in
connection with the performance by Buyer and/or DVL under this Agreement and the
other Buyer Transaction Documents have been obtained and are in full force and
effect and are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) which are reasonably likely to have a
material adverse impact on Buyer's and/or DVL's performance of their respective
obligations under this Agreement and the other Buyer Transaction Documents.
(c) NO BREACH OR VIOLATION. Neither the execution and delivery
by Buyer or DVL of this Agreement or any of the other Buyer Transaction
Documents nor the consummation of the transactions contemplated hereby and
thereby will (i) conflict with or result in a violation or breach of, or
constitute a default under, any agreement or other arrangement to which Buyer or
DVL is a party or by which either is bound or (ii) violate any judgment, order,
injunction, decree or award of any court, administrative agency or governmental
body against, or binding upon, Buyer or DVL.
-12-
(d) BINDING OBLIGATION. This Agreement and the other Buyer
Transaction Documents constitute the valid and binding obligation of Buyer
and/or DVL (to the extent either is a party thereto), and is enforceable against
them in accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency and other similar laws affecting creditors
rights generally, and general equitable principles. Each of the other Buyer
Transaction Documents constitutes the legal, valid and binding obligation of
Buyer and/or DVL (to the extent they are parties thereto), and each instrument
contemplated by the other Buyer Transaction Documents, when executed and
delivered by Buyer and DVL in accordance with the provisions thereof, will be a
legal, valid and binding obligation of Buyer and DVL (to the extent they are
parties thereto) and are in each case enforceable against Buyer and DVL in
accordance with their respective terms, except as such enforceability may be
limited by bankruptcy, insolvency and other similar laws affecting creditors
rights generally, and general equitable principles.
(e) SEC REPORTS. All of the reports (including, without
limitation, Forms 10-Q, 10-K and 8-K) filed by DVL with the Securities and
Exchange Commission at any time on or after January 1, 1998 are true, complete
and correct in all material respects.
4. CLOSING.
(a) PLACE AND TIME. The closing of the transactions provided
for in this Agreement (the "Closing") will take place at the offices of Xxxxx
Xxxxxx, 3773 Xxxxxx Xxxxxx Parkway, Third Floor South, Las Vegas, Nevada 89109,
concurrently with the delivery of this Agreement, fully executed by all parties
hereto, or at such other place, date and time as shall be mutually agreed upon
by all parties hereto. The date and time of Closing is sometimes referred to
herein as the "Closing Date." Notwithstanding the foregoing, the Closing shall
be effective, and shall be deemed to be effective, on and as of August 15, 2001.
(b) DELIVERIES.
(i) DELIVERIES OF SSC. At the Closing, SSC will deliver
(or cause to be delivered) to Buyer:
(A) a "good standing" certificate issued for SSC,
R-II, R-II-B, R-II-B Holdings and R-V, all of which shall be dated as of a date
within fifteen (15) days prior to the Closing Date;
(B) an assignment of the Class B Interest,
executed by R-II-B Holdings, in a form satisfactory to Buyer;
-13-
(C) the legal opinion of counsel for SSC, in the
form attached hereto as EXHIBIT F;
(D) a certificate of SSC's general partner,
executed by an officer of such general partner and in a form satisfactory to
Buyer;
(E) each of the Seller Transaction Documents,
executed by SSC, R-II, R-II-B and/or R-II-B Holdings, as the case may be, and in
a form satisfactory to Buyer; and
(F) evidence of receipt of all applicable
consents and approvals to be obtained by SSC, R-II, R-II-B, R-II-B Holdings or
R-V in connection with the consummation of the transactions contemplated by this
Agreement and the Seller Transaction Documents.
(ii) DELIVERIES OF BUYER. At the Closing, Buyer will
deliver (or cause to be delivered) to SSC
(A) the Notes;
(B) the Warrant;
(C) the Guaranty;
(D) the Pledge Agreement;
(E) any and all documents referred to in the
documents referred to in Sections 4(b)(ii)(A)-(D) required to be delivered by
Buyer or DVL concurrently with or immediately after the execution or delivery of
such documents;
(F) a "good standing" certificate issued by
Delaware for Buyer and DVL, each of which shall be dated as of a date within
fifteen (15) days prior to the Closing Date;
(G) the legal opinion of counsel for Buyer and
DVL in the form attached hereto as EXHIBIT G;
(H) a certificate of DVL, executed by an officer
of DVL and in a form satisfactory to SSC;
(I) a certificate of Buyer, executed by an
officer of Buyer and in a form satisfactory to SSC;
(J) each of the Buyer Transaction Documents,
executed by DVL and/or Buyer, as the case may be, and in a form satisfactory to
SSC; and
-14-
(K) evidence of receipt of all applicable
consents and approvals to be obtained by Buyer and/or DVL in connection with the
consummation of the transactions contemplated by this Agreement and the other
Buyer Transaction Documents.
5. INTENTIONALLY OMITTED.
6. CONDITIONS TO THE OBLIGATIONS OF SSC, R-II AND R-II-B HOLDINGS.
The obligations of SSC and R-II to cause R-II-B Holdings to sell, and of R-II-B
Holdings to sell, the Class B Interest and to close hereunder shall be subject
to the following conditions, any or all of which may be waived in writing by
SSC:
(a) all documents and payments required to be delivered by or
on behalf of Buyer or DVL at or prior to Closing shall have been delivered or
shall be delivered at the time and place of Closing;
(b) Buyer and DVL shall have in all respects performed and
complied with all terms and conditions required by this Agreement to be
performed or complied with by Buyer or DVL on or before the Closing Date; and
(c) all representations and warranties of Buyer and DVL in this
Agreement and the other Buyer Transaction Documents shall be true and correct in
all material respects as of the Closing Date as if made on the Closing Date,
except to the extent any such representation is stated to be made as of a
particular date or time.
7. CONDITIONS TO THE OBLIGATIONS OF BUYER. The obligations of Buyer
to purchase the Class B Interest shall be subject to the following conditions,
any or all of which may be waived in writing by Buyer:
(a) SSC, R-II, R-II-B, R-II-B Holdings and JGW shall have in
all respects performed and complied with all terms and conditions required by
this Agreement and the Seller Transaction Documents to be performed and complied
with by SSC, R-II, R-II-B, R-II-B Holdings and JGW on or before the Closing
Date; and
(b) the representations and warranties of SSC, R-II-B, R-II-B
Holdings and JGW in this Agreement and the Seller Transaction Documents are true
and correct in all material respects as of the Closing Date as if made on the
Closing Date, except to the extent any such representation is stated to be made
as of a particular date or time.
8. POST-CLOSING COVENANTS. From and after the Closing, and until
R-II-B has received all distributions due it from R-V, and Buyer has received
all distributions due Buyer from R-II-B:
-15-
(a) SSC and JGW shall, and SSC shall cause R-II to, deliver to
Buyer (i) all notices (and, in the case of JGW, servicer reports) delivered by
SSC, R-II or JGW, as the case may be, under or pursuant to any Securitization
Document simultaneously with the delivery of such notice, and (ii) all notices
and reports received by SSC, R-II or JGW, as the case may be, under or pursuant
to any Securitization Document promptly, but in any event within five (5)
business days, after receipt of such notice. Without limiting the foregoing, SSC
shall, promptly after the Closing, instruct (to the extent permitted to do so)
the other parties to the Securitization Documents (other than the Series 2001-A
Noteholders) to deliver copies of all notices and reports to Buyer.
(b) Buyer, DVL, their respective assigns (or designated
representative thereof) and independent accountants appointed by, or other
agents of, any of the foregoing, shall have the right, upon reasonable prior
written notice to SSC, to visit SSC, to discuss the affairs, finances and
accounts of R-II-B and R-V with, and to be advised as to the same by, SSC's
officers, to examine the books of account and records of R-II-B and R-V, and to
make or be provided with a copy and extract therefrom, all at such reasonable
times and intervals (but not more than once in any one-month period) and to such
reasonable extent during regular business hours as Buyer, DVL, their respective
assigns (or designated representative thereof) or such accountants or agents
appointed by any of the foregoing, as applicable, may desire. JGW shall
cooperate reasonably in providing any information requested by Buyer, DVL, their
respective assigns (or designated representative thereof) or such accountants or
agents appointed by any of the foregoing pursuant to this Section 8(b). Each of
SSC, R-II, R-II-B and JGW recognizes that Buyer is a wholly-owned subsidiary of
a company that is required to report under the Securities Exchange Act of 1934,
as amended.
(c) Neither R-II-B nor R-V will engage in any business other
than the business of acquiring, holding, managing and transferring structured
settlement receivables as in effect on the Closing Date.
(d) After the obligations of JGW as Master Servicer have
terminated under the 8/2/01 Indenture and the 2001-A Supplement (the "2001
Agreements"), other than as a result of a Service Transfer (as defined in the
8/13/01 Indenture) following a Servicer Default, (i) JGW (or its successor
permitted by the Securitization Documents) shall continue to serve as
administrator and/or servicer with respect to the relevant Receivables upon the
terms and conditions set forth in the 2001 Agreements, as the case may be, for
the benefit of R-V until
-16-
Buyer shall have received all distributions due Buyer from R-II-B, and (ii) in
the event of a breach or default by any of SSC, JGW or R-II of its obligations
under any Securitization Document, Buyer shall have the right, upon prior
written notice to such party, to enforce R-V's rights under the Securitization
Document (and the certificates and documents, but not the legal opinions,
executed in connection therewith) as if Buyer were a party thereto; provided,
however, that (1) Buyer shall take no such action if, within thirty (30) days
after Buyer has delivered such written notice, SSC, JGW or R-II, as the case may
be, shall have cured such breach or default, and (2) such enforcement rights
shall be subject to the terms and conditions of the Securitization Documents;
provided further that, after payment in full of all notes and other obligations
in favor of the Series 2001-A Noteholders, (A) the rights of the Trustee, any
Rating Agency, any Controlling Party or any other third party VIS-A-VIS JGW
under such agreements shall be deemed to be rights of the Issuer, and (B) if JGW
or an affiliate of JGW is the Applicable Master Servicer, Buyer shall have the
sole right to give any Termination Notices to the Master Servicer and to appoint
a Successor Servicer on such terms and conditions as are agreed to by Buyer;
provided, however, as long as one or both of the Notes are outstanding, Buyer
and SSC shall mutually agree upon the choice of a Successor Servicer, each such
party covenanting to act reasonably and in good faith in mutually agreeing to
such appointment.
(e) Buyer directs JGW, as servicer under the Securitization
Documents, and JGW accepts such direction, to make all payments due under the
Notes directly to SSC.
9. INDEMNIFICATION OF BUYER AND DVL.
(a) BASIC PROVISION. SSC hereby indemnifies and agrees to hold
harmless Buyer, DVL and their respective affiliates, officers, directors,
employees and agents (in this Section 9 sometimes referred to as a "Section 9
Indemnitee"), from, against and in respect of the amount of any and all Section
9 Deficiencies (as hereinafter defined).
(b) DEFINITION OF "SECTION 9 DEFICIENCIES". As used in this
Section 9, "Section 9 Deficiencies" means:
(i) any and all losses or damages resulting from any
misrepresentation, breach of warranty, or any non-fulfillment of any warranty,
representation, covenant or agreement on the part of SSC, JGW, R-II, R-II-B or
R-II-B Holdings contained herein or in any Seller Transaction Document;
(ii) any and all judgments, settlements and/or other
direct losses and/or damages (but not indirect,
-17-
consequential or special damages including, without limitations, loss of
profits) resulting from third party claims in connection with the securitization
described in the Securitization Documents including, without limitation, claims
by any claimant that is a party to a settlement purchase agreement with SSC,
such claimant's bankruptcy estate, any governmental entity, or any annuity
provider, unless caused by the negligence or willful misconduct of Buyer, DVL or
any other Section 9 Indemnitee; and
(iii) attorneys' fees, costs and expenses reasonably
incurred incident to any of the foregoing.
(c) PROCEDURES FOR THIRD PARTY CLAIMS. In the event that any
claim shall be asserted by any party against any Section 9 Indemnitee which, if
sustained, would result in a Section 9 Deficiency, such Section 9 Indemnitee,
within a reasonable time after learning of such claim, shall notify SSC of such
claim, and if such Section 9 Indemnitee intends to assert the right to
indemnification hereunder with respect to such claim, then such Section 9
Indemnitee shall extend to SSC a reasonable opportunity to defend against such
claim, at SSC's sole expense and through legal counsel reasonably acceptable to
such Section 9 Indemnitee, provided that SSC proceeds in good faith,
expeditiously and diligently. Notwithstanding the foregoing, any failure to
timely give the notice referred to in the immediately preceding sentence shall
not negate or impair the indemnification obligations set forth in this Section
9, but shall give SSC the right to offset against any indemnity payments made by
it hereunder the actual damages caused to it as a result of such failure. Such
Section 9 Indemnitee shall, at its option and expense, have the right to
participate in any defense undertaken by SSC with legal counsel of such Section
9 Indemnitee's own selection. No settlement or compromise of any claim which may
result in a Section 9 Deficiency may be made by SSC without the prior written
consent of such Section 9 Indemnitee unless (A) prior to such settlement or
compromise SSC acknowledges in writing its obligation to pay in full the amount
of the settlement and all associated expenses and (B) such Section 9 Indemnitee
is furnished with reasonably satisfactory evidence and security that SSC will in
fact pay such amount and expenses.
(d) PAYMENT OF SECTION 9 DEFICIENCIES. In the event any Section
9 Indemnitee discovers and claims any Section 9 Deficiency, such Section 9
Indemnitee shall give written notice to SSC of the nature and amount of the
Section 9 Deficiency. SSC hereby agrees to pay the amount of any valid claim to
such Section 9 Indemnitee within fifteen (15) days after such notice is given.
(e) ABSOLUTE CAP. Notwithstanding any other provision in this
Agreement, in no event shall the maximum aggregate
-18-
indemnification obligation of SSC under this Agreement, or otherwise in
connection with the purchase and sale hereunder exceed the Purchase Price
actually received by SSC; provided, however, this Section 9(e) shall not apply
to SSC's indemnification obligation with respect to losses and damages under
Section 9(b)(ii) and attorneys' fees, costs and expenses reasonably incurred
incident thereto.
(f) LIMITATION AND DEDUCTIBLE FOR SECTION 9 DEFICIENCIES.
(i) Except for the representations contained in Sections
2(a)(i) through (iv), each of which shall survive for the applicable statute of
limitations, no claim for indemnity on account of a breach of representation
shall be made unless such claim is set forth in a written notice thereof given
to SSC on or prior to that date which is eighteen (18) months after the date of
Closing hereunder; provided, however, this Section 9(f)(i) shall not apply to
SSC's indemnification obligation with respect to losses and damages under
Section 9(b)(ii) and attorneys' fees, costs and expenses reasonably incurred
incident thereto, which obligation shall survive indefinitely.
(ii) No claim(s) for Section 9 Deficiencies, except for
claim(s) based upon a breach of a covenant or agreement hereunder, may be made
against SSC unless the aggregate amount of such claim(s) exceeds Fifty Thousand
Dollars ($50,000) (the "Threshold Amount"), but if such claim(s) exceeds in the
aggregate the Threshold Amount, Section 9 Indemnitee may claim for the entire
amount of such claim(s) including such Fifty Thousand Dollars ($50,000) amount.
(iii) At the direction of Buyer (subject to Section 9(h)),
SSC will, and at the election of SSC, SSC may satisfy, all or any portion of the
Section 9 Deficiencies payable by SSC by giving written notice to Buyer that
Buyer shall be permitted to offset an amount specified in such notice against
the next installments of the principal amount and accrued interest thereon of
the Notes, and the amount of the Section 9 Deficiency deemed to be satisfied
thereby shall be equal to the aggregate amount of principal and accrued interest
of such offset; provided, however, this Section 9(f)(iii) shall not apply to
SSC's indemnification obligation with respect to losses and damages under
Section 9(b)(ii) and attorneys' fees, costs and expenses reasonably incurred
incident thereto.
(g) INSURANCE. Buyer and DVL hereby irrevocably assign to SSC
all of their respective rights to receive, and their respective interests in,
any and all any amounts receivable by them under any insurance policy(ies) as a
result of, or relating to, any and/or all of the Section 9 Deficiencies (or
-19-
deliver to SSC all amounts received by them) to the extent of all amounts
received by them under this Section 9, subject to any rights of recapture by any
insurer under such insurance policies; PROVIDED THAT, in the event that any
indemnification payments made to a Section 9 Indemnitee shall, for any reason,
be required to be returned or otherwise disgorged to SSC (including, without
limitation, as a preference payment in a bankruptcy of SSC), SSC's
indemnification obligations hereunder shall not be deemed to have been satisfied
and shall be deemed reinstituted to the extent of the amount so returned or
disgorged.
(h) SET-OFF. Upon discovery by any party of a breach by any
other party of any of the representations and warranties set forth in Section 2,
the discovering party shall give prompt written notice to the other parties
hereto. If such breach materially and adversely affects Buyer's interest in the
Class B Interest and a court of competent jurisdiction (in a proceeding in which
SSC received notice and was given the opportunity to appear and defend itself)
renders a judgment in favor of Buyer in excess of Fifty Thousand Dollars
($50,000) arising from a breach by SSC of any of the representations and
warranties set forth in Section 2, Buyer shall have the right to set-off against
any payment thereafter due under the Notes an amount equal to such judgment.
10. INDEMNIFICATION OF SSC AND AFFILIATES.
(a) BASIC PROVISION. Buyer and DVL hereby jointly and severally
indemnify and agree to hold harmless SSC, JGW, R-II, R-II-B, R-II-B Holdings and
R-V, and their respective members (other than Buyer), partners, affiliates,
officers, directors, employees and agents (in this Section 10 sometimes referred
to as a "Section 10 Indemnitee"), from, against and in respect of the amount of
any and all Section 10 Deficiencies (as hereinafter defined).
(b) DEFINITION OF "SECTION 10 DEFICIENCIES". As used in this
Section 10, "Section 10 Deficiencies" means:
(i) any and all losses or damages resulting from any
misrepresentation, breach of warranty, or any non-fulfillment of any warranty,
representation, covenant or agreement on the part of Buyer and/or DVL contained
herein or in any Buyer Transaction Document;
(ii) any and all judgments, settlements and/or other
direct losses and/or damages (but not indirect, consequential or special damages
including, without limitations, loss of profits) resulting from third party
(including, without limitation, any government or agency, commission or other
arm thereof) claims in connection with any disclosure or filing with
-20-
any government or agency, commission or other arm thereof made or omitted by or
on behalf of DVL or one or more of its affiliates (or their respective
successors or assigns), or any securities law violation (or alleged violation)
by DVL or one or more of its affiliates (or their respective successors or
assigns), unless caused by the negligence or willful misconduct of SSC or any
other Section 10 Indemnitee; and
(iii) attorneys' fees, costs and expenses reasonably
incurred incident to any of the foregoing.
(c) PROCEDURES FOR THIRD PARTY CLAIMS. In the event that any
claim shall be asserted by any party against any Section 10 Indemnitee which, if
sustained, would result in a Section 10 Deficiency, such Section 10 Indemnitee,
within a reasonable time after learning of such claim, shall notify DVL of such
claim, and if such Section 10 Indemnitee intends to assert the right to
indemnification hereunder with respect to such claim, then such Section 10
Indemnitee shall extend to DVL a reasonable opportunity to defend against such
claim, at DVL's sole expense and through legal counsel reasonably acceptable to
such Section 10 Indemnitee, provided that DVL proceeds in good faith,
expeditiously and diligently. Notwithstanding the foregoing, any failure to
timely give the notice referred to in the immediately preceding sentence shall
not negate or impair the indemnification obligations set forth in this Section
10, but shall give Buyer and DVL the right to offset against any indemnity
payments made by them hereunder the actual damages caused to them as a result of
such failure. Such Section 10 Indemnitee shall, at its option and expense, have
the right to participate in any defense undertaken by DVL with legal counsel of
such Section 10 Indemnitee's own selection. No settlement or compromise of any
claim which may result in a Section 10 Deficiency may be made by DVL without the
prior written consent of such Section 10 Indemnitee unless (A) prior to such
settlement or compromise DVL acknowledges in writing its obligation to pay in
full the amount of the settlement and all associated expenses and (B) such
Section 10 Indemnitee is furnished with reasonably satisfactory evidence and
security that DVL will in fact pay such amount and expenses.
(d) PAYMENT OF SECTION 10 DEFICIENCIES. In the event any
Section 10 Indemnitee discovers and claims any Section 10 Deficiency, such
Section 10 Indemnitee shall give written notice to DVL of the nature and amount
of the Section 10 Deficiency. DVL hereby agrees to pay the amount of any valid
claim to such Section 10 Indemnitee within fifteen (15) days after such notice
is given.
(e) ABSOLUTE CAP. Notwithstanding any other provision in this
Agreement, in no event shall the maximum aggregate
-21-
indemnification obligation of Buyer and DVL under this Agreement, or otherwise
in connection with the purchase and sale hereunder exceed the distributions and
other monies actually received by Buyer with respect to the Class B Interest;
provided, however, this Section 10(e) shall not apply to the indemnification
obligations of Buyer and DVL with respect to losses and damages under Section
10(b)(ii) and attorneys' fees, costs and expenses reasonably incurred incident
thereto.
(f) LIMITATION AND DEDUCTIBLE FOR SECTION 10 DEFICIENCIES.
(i) Except for the representations contained in Sections
3(a) through (d), each of which shall survive for the applicable statute of
limitations, no claim for indemnity on account of a breach of representation
shall be made unless such claim is set forth in a written notice thereof given
to DVL on or prior to that date which is eighteen (18) months after the date of
Closing hereunder; provided, however, this Section 10(f)(i) shall not apply to
the indemnification obligations of Buyer and DVL with respect to losses and
damages under Section 10(b)(ii) and attorneys' fees, costs and expenses
reasonably incurred incident thereto, which obligations shall survive
indefinitely.
(ii) No claim(s) for Section 10 Deficiencies, except for
claim(s) based upon a breach of a covenant or agreement hereunder, may be made
against DVL unless the aggregate amount of such claim(s) exceeds Fifty Thousand
Dollars ($50,000) (the "Threshold Amount"), but if such claim(s) exceeds in the
aggregate the Threshold Amount, Section 10 Indemnitee may claim for the entire
amount of such claim(s) including such Fifty Thousand Dollars ($50,000) amount.
(g) INSURANCE. SSC, JGW, R-II, R-II-B and R-II-B Holdings
hereby irrevocably assign to Buyer all of their respective rights to receive,
and their respective interests in, any and all any amounts receivable by them
under any insurance policy(ies) as a result of, or relating to, any and/or all
of the Section 10 Deficiencies (or deliver to Buyer all amounts received by
them) to the extent of all amounts received by them under this Section 10,
subject to any rights of recapture by any insurer under such insurance policies;
PROVIDED THAT, in the event that any indemnification payments made to a Section
10 Indemnitee shall, for any reason, be required to be returned or otherwise
disgorged to Buyer or DVL (including, without limitation, as a preference
payment in a bankruptcy of Buyer or DVL), Buyer's and DVL's indemnification
obligations hereunder shall not be deemed to have been satisfied and shall be
deemed reinstituted to the extent of the amount so returned or disgorged.
-22-
11. MISCELLANEOUS.
(a) WAIVERS. The failure (or delay) of any of the parties to
this Agreement to require the performance of a term or obligation under this
Agreement or the waiver by any of the parties to this Agreement of any breach
hereunder shall not prevent subsequent enforcement of such term or obligation or
be deemed a waiver of any subsequent breach hereunder.
(b) CONTROLLING LAW. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of Delaware
(notwithstanding any conflict-of-law doctrines to the contrary), and without the
aid of any canon, custom or rule of law requiring construction against the
draftsman.
(c) NOTICES. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
delivered (personally, by courier service such as Federal Express, or by other
messenger) or four days following the day when deposited in the United States
mails, registered or certified mail, postage prepaid, return receipt requested,
addressed as set forth below:
-23-
(i) If to SSC, JGW, R-II, R-II-B and/or R-II-B Holdings:
Green Valley Executive Suites
0000 X. Xxxxx Xxxxxx Xxxxxxx, Building 3, Xxxxx 000
Xxxxxxxxx, XX 00000
with a copy, given in the manner prescribed above, to:
Xxxxxx X. Xxxxxx, Esquire
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
0000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
(ii) If to Buyer:
S2 Holdings, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
with a copy, given in the manner prescribed above, to:
DVL, Inc.
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Financial Officer
and to:
Xxx Xxxxxxxx, Esquire
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Any party may alter the address to which communications or copies are to
be sent by giving notice of such change of address in conformity with the
provisions of this Section for the giving of notice.
(d) EXHIBITS AND SCHEDULES. All Exhibits and Schedules attached
hereto are hereby incorporated by reference into, and made a part of, this
Agreement.
(e) BINDING NATURE OF AGREEMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that no party may assign or transfer its rights
or obligations under this
-24-
Agreement, and any such assignment or transfer shall be void AB INITIO.
(f) EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
(g) PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(h) ENTIRE AGREEMENT. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be waived, modified or amended other than
by an agreement in writing.
(i) SECTION HEADINGS. The section headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
(j) GENDER, ETC. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(k) NUMBER OF DAYS. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday on which federal banks are or may
elect to be closed, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or such holiday.
(l) ENFORCEMENT COSTS. The parties hereto hereby agree that the
prevailing party in any litigation or other proceeding to enforce this Agreement
shall be reimbursed by the other party(ies) for out-of-pocket costs and
expenses, including,
-25-
without limitation, legal fees and expenses incurred by the prevailing party in
connection with such litigation or proceeding, and if such reimbursement is not
made within fifteen days after demand therefor, the amount thereof shall
thereafter bear interest until paid at the rate of twelve percent (12%) per
annum or, if less, the highest rate permitted by applicable law.
(m) EXPENSES. Except as otherwise specifically provided herein,
all costs and expenses incurred in connection with the transactions contemplated
by this Agreement shall be paid by the party incurring such expenses.
(n) FURTHER ASSURANCES. Each party shall, promptly after
request therefor from time to time by any other party, execute and deliver any
and all such other documents and/or take any and all further action(s), as such
requesting party shall reasonably request in order to effectuate the provisions
of this Agreement and the transactions contemplated hereby.
(o) KNOWLEDGE. As used in this Agreement, any reference to the
"knowledge" of any party shall be deemed to be its actual knowledge, after due
inquiry.
(p) LIMITATIONS ON LIABILITY. The parties hereto hereby
acknowledge and agree that the obligations and liabilities of R-II under this
Agreement shall not survive the Closing, and in no event shall R-II be liable in
any manner under Sections 2 and 9. Neither Buyer nor DVL (nor anyone claiming or
acting on behalf of, or for, under or through, either or both of them) shall
have any recourse against any asset(s) of any shareholder(s), partner(s),
director(s), officer(s), employee(s) and/or agent(s) of SSC, its general partner
and/or JGW solely as the result of their status as such (but only against the
assets of SSC and JGW), such parties hereby fully, irrevocably and
unconditionally waiving such rights. None of SSC, JGW, R-II, R-II-B or R-II-B
Holdings (nor anyone claiming or acting on behalf of, or for, under or through,
any one or more of them) shall have any recourse against any asset(s) of any
shareholder(s), partner(s), director(s), officer(s), employee(s) and/or agent(s)
of Buyer and/or DVL solely as a result of their status as such (but only against
the assets of Buyer and DVL), such parties hereby fully, irrevocably and
unconditionally waiving such rights.
(q) CUMULATIVE REMEDIES. Subject to any limitations set forth
herein, the rights and remedies set forth herein shall be cumulative and
non-exclusive of any rights or remedies provided by law.
-26-
(r) DEFINITIONS. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to such terms in Exhibit A or in the
Securitization Documents.
(s) NON-DISCLOSURE. Except as required by law (including,
without limitation, disclosure requirements under the Securities Exchange Act of
1934, as amended, and other securities laws), Buyer and DVL will maintain the
confidential nature of (and will not disclose, file with the Securities and
Exchange Commission or any other governmental agency, or deliver to anyone) the
Securitization Documents and/or any other confidential or proprietary
information now or hereafter provided by SSC, JGW and/or R-II, and/or their
respective affiliates and agents, relating to their respective businesses of
SSC, JGW, R-II, and/or their respective affiliates (including, without
limitation, all matters now or hereafter provided under, or pursuant to, this
Agreement), and Buyer and DVL will not use such confidential or proprietary
information other than in connection with the transactions described herein. The
obligation of Buyer and DVL hereunder shall not apply to any of such
confidential or proprietary information that is already public or hereafter
enters the public domain through no breach hereunder by Buyer, DVL and/or their
respective affiliates and agents.
(t) PRESS RELEASE. None of the parties hereto shall issue any
press release relating to the transactions contemplated by this Agreement,
except as mutually agreed to, in writing, by SSC and DVL.
(u) FREE ALIENABILITY. R-II-B Holdings, and its successors and
assigns, may, without limitation, sell, assign, transfer and/or encumber (in
whole or from time to time in part) its interest in (i) any and all Investment
Proceeds Accounts and/or (ii) the principal and earnings on any and all reserve
accounts established pursuant to the Securitization Documents.
-27-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
S2 HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
DVL, INC.
By:
------------------------------------
Name:
Title:
X.X. XXXXXXXXX S.S.C. LIMITED PARTNERSHIP,
by its sole general partner:
X.X. Xxxxxxxxx Structured Settlement
Funding Corporation
By:
--------------------------------------
Name:
Title:
X.X. XXXXXXXXX MANAGEMENT COMPANY, INC.
By:
--------------------------------------
Name:
Title:
X.X. XXXXXXXXX RECEIVABLES II LLC,
by its designated manager:
X.X. XXXXXXXXX S.S.C. LIMITED PARTNERSHIP,
by its sole general partner:
X.X. Xxxxxxxxx Structured Settlement
Funding Corporation
By:
--------------------------------------
Name:
Title:
-28-
RECEIVABLES II-B LLC,
by its managing manager:
RECEIVABLES II-B HOLDING COMPANY LLC,
by its designated manager:
X.X. XXXXXXXXX RECEIVABLES II LLC,
by its designated manager:
X.X. XXXXXXXXX S.S.C. LIMITED PARTNERSHIP,
by its sole general partner:
X.X. Xxxxxxxxx Structured Settlement
Funding Corporation
By:
--------------------------------------
Name:
Title:
RECEIVABLES II-B HOLDING COMPANY LLC,
by its designated manager:
X.X. XXXXXXXXX RECEIVABLES II LLC,
by its designated manager:
X.X. XXXXXXXXX S.S.C. LIMITED PARTNERSHIP,
by its sole general partner:
X.X. Xxxxxxxxx Structured Settlement
Funding Corporation
By:
--------------------------------------
Name:
Title:
-29-
EXHIBITS
A - List of Securitization Documents
B-1 - Form of Note 1
B-2 - Form of Note 2
C - Form of Warrant
D - Form of DVL Guaranty
E - Form of Pledge Agreement
F - Form of Opinion of SSC's Counsel
G - Form of Opinion of Buyer's Counsel
SCHEDULES
Schedule 1(c)(i)-1 Sample "Secmodel"
Schedule 1(c)(i)-2 Sample Monthly Servicer Report
Schedule 1(c)(vii) Examples of Purchase Price Adjustments
as per Section 1(c)
Schedule 2(a)(v) Financial Statements of SSC
-30-
EXHIBIT A
LIST OF SECURITIZATION DOCUMENTS
1. Master Trust Indenture and Security Agreement, dated as of August
13, 2001 (the "8/13/01 Indenture"), among R-V, JGW, The Chase Manhattan Bank
("Chase") and MBIA Insurance Corporation ("MBIA").
2. Series 2001-A Supplement, dated as of August 13, 2001 (the "2001-A
Supplement"), among R-V, JGW, Chase and MBIA.
3. Seller Purchase Agreement (as defined in the 8/13/01 Indenture).
4. Issuer Purchase Agreement (as defined in the 8/13/01 Indenture).
5. Note Purchase Agreement (as defined in the 2001-A Supplement).
6. Intercreditor Agreement (as defined in the 8/13/01 Indenture).
7. Insurance Agreement (as defined in the 8/13/01 Indenture).
8. Limited Liability Company Agreement of each of R-II and R-V, and
Limited Partnership Agreement of SSC.
9. Repurchase Agreement, dated as of August 13, 2001, by and among
SSC, X.X. Xxxxxxxxx Receivables I LLC, R-II, X.X. Xxxxxxxxx Receivables III LLC,
X.X. Xxxxxxxxx Receivables IV LLC and R-V.
10. Swap Agreement, dated as of August 13, 2001, executed in
connection with the 8-13-01 Indenture, and related Guarantee, dated as of August
13, 2001, from General Re Corporation in favor of R-V.
-31-
