EXHIBIT 4.3
See Tab A.5
AMENDED AND RESTATED
SUBSEQUENT CONTRACT TRANSFER AGREEMENT
between
DVI RECEIVABLES CORP. XII,
as Company
and
DVI RECEIVABLES XII, L.L.C.,
as Issuer
Dated as of April 1, 2000
-----------------------------------------------------------------------------
ALL RIGHTS IN AND TO THIS AGREEMENT ON THE PART OF DVI RECEIVABLES XII, L.L.C.
HAVE BEEN ASSIGNED AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF U.S. BANK
TRUST NATIONAL ASSOCIATION, AS TRUSTEE, UNDER THE AMENDED AND RESTATED INDENTURE
DATED AS OF APRIL 1, 2000 FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
AMENDED AND RESTATED SUBSEQUENT CONTRACT TRANSFER AGREEMENT
("Agreement") dated as of April 1, 2000, between DVI RECEIVABLES XII, L.L.C., a
Delaware limited liability company (the "Issuer"), and DVI RECEIVABLES CORP.
XII, a Delaware corporation (the "Company").
WHEREAS, the Company will from time to time acquire certain
Contracts and other Contributed Property related thereto pursuant to the Amended
and Restated Contribution and Servicing Agreement dated as of the date hereof,
between the Company and DVI Financial Services Inc. (the "Contributor").
WHEREAS, the Company desires to transfer to Issuer all
Contributed Property (other than any ownership interest in certain Equipment)
which it acquires from the Contributor and certain other assets, and Issuer
desires to purchase such Contributed Property and other assets, in each instance
in accordance with the terms and conditions set forth in this Agreement.
WHEREAS, pursuant to the Amended and Restated Indenture (the
"Amended and Restated Indenture"), dated as of the date hereof, by and between
the Issuer and U.S. Bank Trust National Association (the "Trustee"), the Issuer
intends to issue its Series 2000-2 Notes, which will be collateralized by a
pledge by the Issuer to the Trustee, on behalf of the Noteholders of all of the
Issuer's right, title and interest in, to and under the Trust Property.
WHEREAS, to facilitate the issuance of its Series 2000-2
Notes, the Issuer and the Company desire to amend and restate this Agreement in
its entirety.
NOW, THEREFORE, the parties, in consideration of good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 DEFINITIONS.
For purposes of this Agreement, capitalized terms used herein but not
otherwise defined shall have the respective meanings assigned to such terms in
Appendix I to the Amended and Restated Contribution and Servicing Agreement.
ARTICLE II.
PROCEDURES FOR PURCHASES OF ELIGIBLE CONTRACTS
SECTION 2.01 TRANSFER.
(a) CONVEYANCE. Upon the terms and conditions herein set forth,
in exchange for cash consideration received therefore and for other good and
valuable consideration, the Company hereby
transfers, pledges, assigns and sells to the Issuer on each Contribution Date
(or, in the case of any Substitute Contracts the related Substitution Date),
without recourse except as set forth herein, all of the Company's right, title
and interest in and to the Company Assets as set forth on the related Subsequent
Contract Transfer Form. All funds received by the Company on or in connection
with the Company Assets that are payable on and after the applicable Cut-off
Date shall be received, held and applied by the Company in trust for the benefit
of the Issuer as owner of the Contracts.
(b) After giving effect to such transfer and sale, the ownership of
each such Contract transferred on the related Contribution Date shall be vested
in the Issuer. 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 pursuant to the terms of the Amended and Restated Indenture. The
Company agrees to take no action inconsistent with the 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
and sold to the Issuer and to claim no ownership interest in any such Contracts
and the other Company Assets.
(c) Any Company Assets transferred to the Company from time to time
shall forthwith be transferred to the Issuer without further act,
notwithstanding the delivery of any Subsequent Contract Transfer Forms in
respect thereof.
SECTION 2.02 SUBSTITUTE CONTRACTS.
In consideration for the transfer by the Issuer to the Company of any
Predecessor Contract transferred to the Company by the Issuer in accordance with
the terms and conditions of Section 7 of the Amended and Restated Contribution
and Servicing Agreement, the Company shall transfer to the Issuer on the
Substitution Date related thereto, and the Issuer shall accept, a Substitute
Contract; PROVIDED that such Substitute Contract is in accordance with the terms
and conditions of the Amended and Restated Contribution and Servicing Agreement.
SECTION 2.03 INTENT OF PARTIES; SECURITY INTEREST.
The Issuer and the Company hereby confirm that the transactions
contemplated in this Agreement are intended as transfers, assignments,
conveyances and sales rather than as loan transactions. In the event, for any
reason, and solely in such event, any transaction hereunder is construed by any
court or regulatory authority as a loan or other than a transfer, assignment,
conveyance and sale of any or all Company Assets, then the Company shall be
deemed to have hereby pledged to the Issuer as security for the performance by
the Company of all of its obligations from time to time arising hereunder and
with respect to any and all purchases effected pursuant hereto, and shall be
deemed to have either assigned or granted to the Issuer a first priority
perfected (except Equipment for which the Original Equipment Cost is less than
$25,000 and subject to Finance Leases or Secured Equipment Notes, in which case,
the Company shall be deemed to have granted a valid security interest) security
interest in all of the Company Assets. In furtherance of the foregoing, (i) this
Agreement shall constitute a security agreement, (ii) the Trustee shall be
deemed to be a bailee for purposes of perfection of the security interest
granted to Issuer, (iii) Issuer shall
-2-
have all of the rights of a secured party with respect to the Company Assets
pursuant to applicable law and (iv) in the manner consistent with the Amended
and Restated Indenture, the Company shall execute all documents, including, but
not limited to, UCC financing statements, to effectively perfect and evidence
Issuer's first priority security interest in the Company Assets except that UCC
financing statements need not be filed with respect to Equipment for which the
Original Equipment Cost is less than $25,000 and subject to Finance Leases or
Secured Equipment Notes. The Company also covenants not to pledge, assign or
grant any security interest to any other party in any of the Company Assets. The
consideration received and to be received by the Company in exchange for the
transfer, assignment and conveyance of the Company Assets is intended to be fair
consideration having value equivalent to or in excess of the value of the assets
being transferred by the Company.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and warranties
for the benefit of the Issuer, the Trustee and the Noteholders on which the
Issuer relies in purchasing and otherwise acquiring the Company Assets and on
which the Noteholders rely in funding advances under their respective Notes.
Other than as set forth in Section 3.08 hereof, such representations and
warranties are and will be true and correct as of the Closing Date and as of
each Contribution Date or Substitution Date, as the case may be (unless an
earlier date is specified therein) and shall survive each transfer, assignment,
conveyance and sale to the Issuer of the Company Assets and the subsequent
pledge thereof by the Issuer pursuant to the Amended and Restated Indenture.
SECTION 3.01 ORGANIZATION AND GOOD STANDING.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
SECTION 3.02 AUTHORIZATION.
Company has all requisite power and authority and all necessary
licenses and permits to enter into and perform its obligations under this
Agreement and each Subsequent Contract Transfer Form (each, an "SCTF") and the
transactions contemplated hereby and thereby, and the execution, delivery, and
performance of this Agreement and each SCTF, have been duly authorized by the
Company by all necessary corporate action.
SECTION 3.03 BINDING OBLIGATION.
This Agreement has been, and each SCTF will be, duly and validly
executed and delivered by the Company and will constitute a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its respective terms, subject to bankruptcy, insolvency and other laws of
general application affecting the rights of creditors and equitable principles
(whether considered in a proceeding at law or in equity).
-3-
SECTION 3.04 NO VIOLATION.
The consummation of the transactions contemplated by this Agreement and
each SCTF and the fulfillment of the terms thereof, will not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice, lapse of time or both) a default under the certificate of
incorporation or bylaws of the Company, or any indenture, agreement, mortgage,
deed of trust or other instrument to which the Company is a party or by which it
is bound, or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of such indenture, agreement, mortgage, deed of
trust or other such instrument, other than this Agreement, or violate any law,
or, to the best of the Company's knowledge, any order, rule or regulation
applicable to it of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Company or any of its properties.
SECTION 3.05 NO PROCEEDINGS.
The Company is not subject to any injunction, writ, action, suit,
restraining order or other order of any nature, and there are no actions, suits,
proceedings or investigations to which the Company is a party pending or, to the
knowledge of the Company, threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality (A)
asserting the invalidity of this Agreement or any SCTF, (B) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement or
any SCTF or (C) seeking any determination or ruling that would materially and
adversely affect the performance by the Company of its obligations under, or the
validity or enforceability of this Agreement or any SCTF.
SECTION 3.06 APPROVALS.
All approvals, authorizations, consents, orders or other actions of any
person, corporation or other organization, or of any court, governmental agency
or body or official, required in connection with the execution and delivery of,
and compliance with the terms of, this Agreement or any SCTF, have been or will
be taken or obtained on or prior to the related Contribution Date.
SECTION 3.07 ABILITY TO PERFORM.
The Company has the ability to perform all of its obligations under
this Agreement, any SCTF and the Amended and Restated Contribution and Servicing
Agreement.
SECTION 3.08 EQUIPMENT AND CONTRACTS.
With respect to each Contract, the Company hereby represents and
warrants to the Issuer, as of each Contribution Date that:
(a) the sale to the Issuer of the Company's interest in such
Contract(s) transferred on such date and the assignment of the Company's
security interest, or grant of a first priority perfected security interest, as
the case may be, in the Equipment related thereto pursuant to Section 2.01 or
Section 2.02 hereof constitutes a valid transfer of all of the Company's right,
title and interest in such
-4-
Company Assets or a grant of a first-priority perfected (except for Equipment
for which the Original Equipment Cost is less than $25,000 and subject to
Finance Leases or Secured Equipment Notes, with respect to which the Company
shall be deemed to have granted a valid security interest) security interest
therein from the Company in favor of the Issuer, free and clear of any and all
claims, charges, liens or security interests created by the Company or any of
its affiliates;
(b) the Company did not, in the exercise of its interest in any such
Company Assets waive, discharge, release or otherwise permit any modification
thereto not in effect or agreed to at the time the Company acquired its interest
therein; and
(c) notwithstanding the foregoing clauses (a) and (b), the Company
makes no representation or warranty with respect to claims, charges, liens or
security interests created, or waivers, discharges, releases or modifications
made, by the Contributor.
The representations and warranties described in this Section 3.08 shall
survive the conveyance of the Company Assets to the Issuer.
SECTION 3.09 PRINCIPAL EXECUTIVE OFFICE.
The principal executive office of the Company is located at 0000 Xxxx
Xxxx, Xxxxxxx, XX 00000, and has been located in the same county and state for
at least four months immediately preceding the Closing Date. The Company has no
trade names, fictitious names, assumed names or "doing business as" names. If
(i) any change in either the Company's name, structure or the location of its
principal place of business or chief executive office occurs, then the Company
shall deliver thirty (30) days' prior written notice of such change or
relocation to the Issuer and the Trustee and (ii) if the Company 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 Trust
Property. The Company shall pay all filing fees or taxes payable in respect of
any UCC financing or continuation statements required to be filed pursuant to
Section 1.03 of the Amended and Restated Contribution and Servicing Agreement
and not paid by the Contributor.
SECTION 3.10 NO PRIOR ASSIGNMENTS.
The Company has not pledged, assigned or encumbered or terminated, in
whole or in part, any of the Company Assets.
SECTION 3.11 FAIR CONSIDERATION.
The consideration received by the Company in connection with the
transfer and sale of the Company Assets constitutes reasonably equivalent value
and fair consideration for the Company Assets.
-5-
SECTION 3.12 NONCONSOLIDATION.
The Company is operated in such a manner that it would not be
substantively consolidated with Contributor, such that the separate existence of
the Company and Contributor would not be disregarded in the event of a
bankruptcy or insolvency of the Company or Contributor, and in such regard,
among other things:
(a) the Company is not involved in the day to day management of
Contributor;
(b) the Company maintains separate corporate records and books of
account from Contributor and otherwise observes corporate formalities and has a
separate business office from Contributor (which may be at the same address as
Contributor; PROVIDED that the Company and Contributor have entered into a
written agreement specifying a reasonable allocation of expenses with respect to
overhead and other shared costs with respect to such premises or a lease
agreement);
(c) the financial statements and books and records of the Company
prepared after the date of creation of Contributor reflect and will reflect the
separate existence of Contributor;
(d) the Company maintains its assets separately from the assets of
Contributor (including through the maintenance of a separate bank account), the
Company's funds and assets, and records relating thereto, have not been and are
not commingled with those of Contributor and the separate creditors of
Contributor will be entitled to be satisfied out of Contributor's assets prior
to any value in Contributor becoming available to Contributor's equityholders or
the Company's creditors;
(e) all business correspondence of the Company and other communications
are conducted in the Company's own name and on its own stationery;
(f) Contributor does not act as an agent of the Company in any capacity
and the Company does not act as agent for Contributor, but instead presents
itself to the public as a corporation separate from Contributor; PROVIDED that
Contributor is the Servicer under the Amended and Restated Contribution and
Servicing Agreement; and
(g) the Company will cause its accounting records to be clearly and
unambiguously marked to show that such Contract has been transferred by the
Company to the Issuer and pledged by the Issuer to the Trustee for the benefit
of the Noteholders.
SECTION 3.13 ORDINARY COURSE; NO INSOLVENCY.
The transactions contemplated by this Agreement are being consummated
by the Company and the Issuer, respectively, in furtherance of the Company's
ordinary business purposes and constitute a practical and reasonable course of
action by the Company designed to improve the financial position of the Company
with no contemplation of insolvency and with no intent to hinder, delay or
defraud any of its present or future creditors. Neither as a result of the
transactions contemplated by this Agreement, nor immediately before or after
such transactions, will the
-6-
Company be insolvent, and the Company has adequate capital for the conduct of
its business and the payment of anticipated obligations.
SECTION 3.14 ASSETS AND LIABILITIES.
(a) Both immediately before and after the assignment, transfer and
conveyance of Contracts (including the right to receive all payments due or to
become due thereunder) and the other Company Assets, the present fair salable
value of the Company's assets will be in excess of the amount that will be
required to pay the Company's probable liabilities as they then exist and as
they become absolute and matured.
(b) Both immediately before and after the assignment and transfer of
Contracts and the other Company Assets, the sum of the Company's assets will be
greater than the sum of the Company's debts, valuing the Company's assets at a
fair salable value.
SECTION 3.15 VALID SALE.
This Agreement effects a valid assignment, transfer and conveyance of
the Company's interest in the Company Assets, enforceable against creditors of
the Company.
The consideration received by the Transferor upon the sale of the
Company Assets to the Issuer constitutes reasonably equivalent value and fair
consideration for such Company Assets.
SECTION 3.16 ABILITY TO PAY DEBTS.
Neither as a result of the transactions contemplated by this Agreement
nor otherwise does the Company believe that it will incur debts beyond its
ability to pay or which would be prohibited by its charter documents or by-laws.
The Company's assets and cash flow enable it to meet its present obligations in
the ordinary course of business as they become due.
SECTION 3.17 BULK TRANSFER PROVISIONS.
No transfer, assignment or conveyance of Contracts or the other Company
Assets by the Company to the Issuer contemplated by this Agreement will be
subject to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
SECTION 3.18 TRANSFER TAXES.
No transfer, assignment or conveyance of Company Assets contemplated by
this Agreement is subject to or will result in any tax, fee or governmental
charge payable by the Company or the Issuer to any federal, state or local
government ("Transfer Taxes"). In the event that the Company or the Issuer
receives actual notice of any Transfer Taxes arising out of the transfer,
assignment and conveyance of any Company Assets, on written demand by the
Issuer, or upon the Company otherwise being given notice thereof, the Company
shall pay, and otherwise indemnify and hold the Issuer, the Trustee and the
holders of the Notes harmless, on an after-tax basis, from and against any
-7-
and all such Transfer Taxes (it being understood that neither the holders of the
Notes nor the Trustee shall have any obligation to pay such Transfer Taxes).
ARTICLE IV.
CONDITIONS TO PURCHASE
SECTION 4.01 REPRESENTATIONS AND WARRANTIES.
The obligation of the Issuer to purchase any Contracts on the Closing
Date each Contribution Date, is subject to receipt by the Issuer of the
following:
(a) an Officer's Certificate from Company to the effect that, on or
before such Contribution Date (after giving effect to the sale of the Subsequent
Contracts on such date), all representations and warranties of the Company
contained herein shall be true and correct in all respects, with respect to each
Contract individually and all Contracts in the aggregate, with the same force
and effect as though such representations and warranties had been made on and as
of such date (unless such representations and warranties specifically relate to
an earlier date); and
(b) an Officer's Certificate from the Contributor to the effect that,
on or before such Contribution Date (after giving effect to the sale of
Subsequent Contracts on such date), all representations and warranties of the
Contributor contained in Section 2 of the Amended and Restated Contribution and
Servicing Agreement shall be true and correct in all respects, with respect to
each Contract individually and all Contracts in the aggregate as stated therein,
with the same force and effect as though such representations and warranties had
been made on and as of such date (unless such representations and warranties
specifically relate to an earlier date).
ARTICLE V.
COVENANTS OF THE COMPANY
So long as this Agreement remains in effect or the Company shall have
any obligations hereunder, Company hereby covenants and agrees with Issuer as
follows:
SECTION 5.01 BOOKS AND RECORDS.
The Company will clearly xxxx its books and records to reflect each
sale to the Issuer of all Company Assets and to show that the Issuer owns the
Company Assets absolutely.
SECTION 5.02 PRESERVATION OF OFFICE.
The Company will give the Issuer, each Noteholder and the Trustee prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement.
-8-
SECTION 5.03 LIENS.
The Company shall defend the right, title and interest of the Issuer in
the Company Assets against all claims of third parties claiming through or under
the Company (excluding claims arising from actions of the Contributor, in its
capacity as Servicer under the Amended and Restated Contribution and Servicing
Agreement, or any agent of Contributor as such Servicer).
SECTION 5.04 NO BANKRUPTCY PETITION AGAINST THE ISSUER OR MANAGING
MEMBER.
The Company covenants and agrees it will not, prior to the date that is
one year and one day after the payment in full of all amounts owing pursuant to
the Transaction Documents, institute against, or join any other Person in
instituting against, any of the Issuer, the Managing Member or itself, any
bankruptcy, reorganization, receivership, arrangement, insolvency or liquidation
proceedings or other similar proceedings under any federal or state bankruptcy
or similar law. This Section 5.04 shall survive the termination of this
Agreement.
SECTION 5.05 PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) The Company shall not change its name, identity, or corporate
structure in any manner that would, could, or might make any UCC financing
statement or continuation statement filed by the Contributor in accordance with
Section 1.01(d) of the Amended and Restated Contribution and Servicing Agreement
seriously misleading within the meaning of Section 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.
(b) If at any time the Company shall propose to sell, grant a security
interest in or otherwise transfer any interest in contracts to any prospective
lender, or other transferee, the Company shall give to such prospective lender,
or other transferee, computer tapes, records, or print-outs (including any
restored from archives) that, if they shall refer in any manner whatsoever to
any Contract, shall indicate clearly that such Contract have been sold to the
Issuer and pledged by the Issuer to the Trustee for the benefit of the
Noteholders.
(c) The Company shall not amend its certificate of incorporation
without the prior written consent of the Rating Agencies.
ARTICLE VI.
REPRESENTATIONS AND COVENANTS OF
THE ISSUER
The Issuer hereby represents and warrants to the Company as of the
Closing Date and as of each Contribution Date:
-9-
SECTION 6.01 NONCONSOLIDATION.
The Issuer is operated in such a manner that it would not be
substantively consolidated with Contributor, such that the separate existence of
the Issuer and Contributor would not be disregarded in the event of a bankruptcy
or insolvency of the Issuer or Contributor, and in such regard, among other
things:
(a) the Issuer is not involved in the day to day management of
Contributor;
(b) the Issuer maintains separate company records and books of account
from Contributor and otherwise observes company formalities and has a separate
business office from the Company;
(c) the financial statements and books and records of the Issuer
prepared after the date of creation of Contributor reflect and will reflect the
separate existence of Contributor;
(d) the Issuer maintains its assets separately from the assets of
Contributor (including through the maintenance of a separate bank account), the
Issuer's funds and assets, and records relating thereto, have not been and are
not commingled with those of Contributor and the separate creditors of
Contributor will be entitled to be satisfied out of Contributor's assets prior
to any value in Contributor becoming available to Contributor's equityholders or
the Issuer's creditors;
(e) all business correspondence of the Issuer and other
communications are conducted in the Issuer's own name and on its own stationery;
(f) Contributor does not act as an agent of the Issuer in any capacity
and the Issuer does not act as agent for Contributor, but instead presents
itself to the public as a limited liability company separate from Contributor
and the Company; PROVIDED that Contributor is the Servicer under the
Contribution and Servicing Agreement.
(g) The Issuer shall not issue any securities or cause any Person of
which it is the sole shareholder or economic owner to issue any securities
(other than the Notes, any Class F Instruments and any securities issued prior
to the Closing Date) unless it shall have received from the Rating Agencies a
written confirmation that the issuance of such securities will not result in a
Ratings Effect with respect to any class of Notes.
SECTION 6.02 NO BANKRUPTCY PETITION AGAINST THE COMPANY.
The Issuer covenants and agrees it will not, prior to the date that is
one year and one day after the payment in full of all amounts owing pursuant to
the Transaction Documents, institute against, or join any other Person in
instituting against, any of the Company, the Managing Member or itself, any
bankruptcy, reorganization, receivership, arrangement, insolvency or liquidation
proceedings or other similar proceedings under any federal or state bankruptcy
or similar law. This Section 6.01 shall survive the termination of this
Agreement.
-10-
ARTICLE VII.
SUBSTITUTION
SECTION 7.01 SUBSTITUTION.
In the event that the Contributor contributes and assigns a Substitute
Contract to the Company pursuant to Section 7.01 of the Amended and Restated
Contribution and Servicing Agreement, the Company hereby agrees to sell,
transfer, convey and assign any such Substitute Contract and the security
interest in the related Equipment to the Issuer. In addition, the Company hereby
agrees to take any action to facilitate the transfer of any Predecessor
Contract, including (i) delivery to the Contributor by the Company of an
instrument, substantially in the form of Exhibit D of the Amended and Restated
Contribution and Servicing Agreement, transferring to the Contributor, without
representation or warranty, all of the Company's right, title and interest in
and to the related Predecessor Contract, (ii) 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 (iii) 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.
In the Monthly Servicer Report to be delivered on each Determination
Date, the Company shall cause the Servicer to give written notice to the
Trustee, each Noteholder, and the Company of each substitution of Contracts
pursuant to Section 7.01 hereof during the preceding Collection Period. Such
Monthly Servicer Report or other written notice shall (i) specify the amount of
each periodic Contract Payment under the Predecessor Contract and the amount of
each periodic Contract Payment under each Eligible Contract being substituted,
(ii) specify the residual values of the Equipment subject to the Predecessor
Contract and the Equipment subject to the Eligible Contract being substituted,
(iii) specify the Discounted Contract Balance of the Predecessor Contracts, the
Discounted Contract Balance of the Substitute Contracts, and any amounts to be
deposited in the Collection Account in connection with such Substitute Contracts
and (iv) with respect to a substitution pursuant to Section 7.01 hereof, be
accompanied by an Officer's Certificate, substantially in the form of Exhibit F
of the Amended and Restated Contribution and Servicing Agreement, certifying as
to compliance with the provisions of Section 7.01 hereof.
SECTION 7.03 CONTRIBUTOR'S AND COMPANY'S SUBSEQUENT OBLIGATIONS.
Upon any substitution of Contracts in accordance with the provisions of
this Section 7, the Company's obligations hereunder with respect to the
Predecessor Contract shall cease but the Contributor and the Company shall each
thereafter have the same obligations with respect to the Substitute Contract
substituted as it has with respect to all other Contracts subject to the terms
hereof.
-11-
SECTION 7.04 USAGE OF PREDECESSOR CONTRACTS IN CALCULATION.
After substitution therefor in accordance with the terms and conditions
of the Transaction Documents, no Predecessor Contract or any other Contract
repurchased or substituted for in accordance with the terms and conditions of
the Transaction Documents, including the subsequent default, delinquency or
breach thereof, shall be included in any calculation or determination made under
the Transaction Documents, including, without limitation, the calculation of
either any Amortization Event or Indenture Event of Default.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.01 AMENDMENT.
(a) This Agreement may be amended from time to time by the
Issuer and the Company with the consent of the Rating Agencies (but without the
consent of the Trustee or any of the Noteholders), to cure any ambiguity, to
correct or supplement any provision herein that may be inconsistent with any
other provisions herein, or to add or amend any other provisions with respect to
matters or questions arising under this Agreement; PROVIDED, HOWEVER, that such
amendment shall not adversely affect in any material respect the interests of
either the Trustee or the Noteholders, unless so consented to by each entity so
affected.
(b) This Agreement may also be amended from time to time by
the Issuer and the Company, with the consent of the Rating Agencies and the
Majority of Voting Rights, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
PROVIDED, HOWEVER, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Contracts or payments that are required to be made on any Note
without the consent of the Holder of such Note, (b) reduce the aforesaid
percentage required to consent to any such amendment or (c) adversely affect in
any material respect the interests of the Trustee or any Noteholder without, in
each instance, the consent of each entity so affected.
(c) Approval of the particular form of any proposed amendment
or consent shall not be necessary for the consent of the Noteholders under
Section 8.01(b), but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Trustee may prescribe.
(d) Prior to the execution of any such amendment to this
Agreement proposed in accordance with Section 8.01(b), the Issuer shall deliver
a copy of the proposed amendment to the Company, the Rating Agencies and the
Trustee.
(e) In executing any amendment to this Agreement pursuant to
this Section 8.01, the Trustee shall be entitled to receive (i) an Officer's
Certificate of the Company stating that all conditions precedent for entering
into such amendment as set forth in this Agreement have been met,
-12-
and (ii) an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement.
SECTION 8.02 EFFECT OF INVALIDITY OF PROVISIONS.
In case any one or more of the provisions contained in this Agreement
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 8.03 NOTICES.
All demands, notices and communications hereunder shall be in writing,
personally delivered or mailed by certified mail-return receipt requested, or
delivered by courier, or delivered by facsimile to a facsimile and telephone
number provided by the relevant Person in writing, with subsequent telephone
confirmation of the receipt thereof, and shall be deemed to have been duly given
upon receipt (a) in the case of the Trustee, at the following address: 000 Xxxx
Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance,
Facsimile: (000) 000-0000, (b) in the case of the Servicer, at the following
address: 0000 Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Securitization
Manager, Facsimile: (000) 000-0000, (c) in the case of the Issuer, 0000 Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attn: Securitization Manager, Facsimile (215)
488-5416, with a copy to the Servicer at the address set forth in clause (b)
above, (d) in the case of the Company at the following address: 0000 Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Securitization Manager, Facsimile: (215)
488-5416, (e) in the case of the Rating Agencies, to the following addresses:
Fitch, Inc., 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xx.
Xxxxxx Xxxxxx, Facsimile: (000) 000-0000; and Xxxxx'x Investors Service, Inc.,
00 Xxxxxx Xxxxxx, 0xx Xx., Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring
Department, Facsimile: (000) 000-0000, or at other such respective address as
shall be designated by such party in a written notice to the other parties. Any
notice required or permitted to be mailed to a Noteholder shall be given by
first class mail, postage prepaid, at the address of such Holder as shown in the
Note Register. Any notice so mailed within the time prescribed in this Agreement
shall be conclusively presumed to have been duly given, whether or not the
Noteholder receives such notice.
SECTION 8.04 ENTIRE AGREEMENT.
This Agreement, including the Exhibits hereto, contains the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements between them, whether oral
or written, of any nature whatsoever with respect to the subject matter hereof.
SECTION 8.05 SURVIVAL.
All indemnities and undertakings of the Company and the Issuer
hereunder shall survive the termination of this Agreement.
-13-
SECTION 8.06 CONSENT TO SERVICE.
Each party irrevocably consents to the service of process by registered
or certified mail, postage prepaid, to it at its address provided on the
signature page hereto.
SECTION 8.07 JURISDICTION NOT EXCLUSIVE.
Nothing herein will be deemed to preclude either party hereto from
bringing an action or proceeding in respect of this Agreement in any
jurisdiction other than as set forth in Section 8.12 hereof.
SECTION 8.08 CONSTRUCTION.
The headings in this Agreement are for convenience only and are not
intended to influence its construction. References to Sections, Schedules and
Exhibits in this Agreement are to the Sections of and Schedules and Exhibits to
this Agreement. Any Schedules and Exhibits are hereby incorporated into and form
a part of this Agreement. In this Agreement, the singular includes the plural,
the plural the singular, the words "and" and "or" are used in the conjunctive or
disjunctive as the sense and circumstances may require and the word "including"
means "including, but not limited to." Unless otherwise stated in this
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
SECTION 8.09 FURTHER ASSURANCES.
In addition to its agreements set forth herein, the Company (at the
Issuer's expense) agrees to do such further acts and things and to execute and
deliver such additional assignments, agreements, powers and instruments as are
reasonably requested by the Issuer to carry into effect the purposes of this
Agreement and the transactions contemplated herein.
SECTION 8.10 THIRD PARTY BENEFICIARIES.
Each Noteholder and the Trustee shall be an express third party
beneficiary of this Agreement. The obligations of the Company hereunder may be
assigned by the Issuer to the Trustee under the Amended and Restated Indenture.
The Company acknowledges that the Issuer intends, pursuant to the Amended and
Restated Indenture, to pledge the Company Assets, together with its respective
rights under this Agreement to the Trustee on the Closing Date, each
Contribution Date and each Substitution Date, with respect to each Contract and
each Substitute Contract. The Company acknowledges and consents to such
conveyance and waives any further notice thereof and covenants and agrees that
the representations and warranties of the Company contained in this Agreement
and the rights of the Issuer hereunder, are intended to benefit the Trustee, and
each Securityholder. In furtherance of the foregoing, the Company covenants and
agrees to perform its duties and obligations hereunder, in accordance with the
terms hereof and for the benefit of the Trustee and the Noteholder and that,
notwithstanding anything to the contrary in this Agreement, the Company shall be
directly liable to the Trustee (notwithstanding any failure by the Servicer or
the
-14-
Issuer to perform its duties and obligations hereunder, or under the Amended and
Restated Indenture or Amended and Restated Contribution and Servicing
Agreement), and that the Trustee may enforce the duties and obligations of the
Company under this Agreement against the Company for the benefit of the
Securityholder.
SECTION 8.11 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS RULES REGARDING
CONFLICT OF LAWS.
SECTION 8.12 CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO
VENUE.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, EACH OF THE ISSUER AND THE COMPANY HEREBY
AGREED TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT LOCATED WITH THE
STATE OF NEW YORK. EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE NON-
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, AND
EACH PARTY IRREVOCABLY HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY
OF THE AFOREMENTIONED COURTS AND CONSENT TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
SECTION 8.13 WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE ISSUER AND THE
COMPANY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO
ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
SECTION 8.14 HEADINGS AND CROSS-REFERENCES.
The various headings in this Agreement are included for convenience
only and shall not affect the meaning or interpretation of any provision of this
Agreement. References in this Agreement to Section names or numbers are to such
Sections of this Agreement.
-15-
SECTION 8.15 COSTS AND EXPENSES.
The Company will pay all reasonable expenses incident to the
performance of its obligations under this Agreement and under the Amended and
Restated Indenture and the Company agrees to pay all reasonable out-of-pocket
costs and expenses of the Issuer, including fees and expenses of counsel, in
connection with the enforcement of any obligation of the Company hereunder.
SECTION 8.16 CONFIDENTIAL INFORMATION.
The Issuer agrees and covenants that it will neither use nor disclose
to any person the names and addresses of the Obligors, except in connection with
the enforcement of the Issuer's rights hereunder, under the Contracts, under the
applicable Transaction Documents or as required by law.
SECTION 8.17 STATUTORY REFERENCES.
References in this Agreement to any section of the UCC shall mean, on
and after the effective date of adoption of any revision to the UCC in the
applicable jurisdiction, such revised or successor section thereto.
SECTION 8.18 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same instrument.
-16-
AMENDED AND RESTATED SUBSEQUENT CONTRACT TRANSFER AGREEMENT
IN WITNESS WHEREOF, Issuer and Company have duly executed this Amended
and Restated Subsequent Contract Transfer Agreement as of the date and year
first above written.
DVI RECEIVABLES CORP. XII
By
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Address: 0000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Securitization Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DVI RECEIVABLES XII, L.L.C.
By: DVI Receivables Corp. VIII,
its managing member
By
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Address: 0000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Securitization Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Consented to with respect to Section 8.01 only by:
PRUDENTIAL SECURITIES CREDIT CORP., LLC
By:
Name:
Title:
-17-
EXHIBIT A
SUBSEQUENT CONTRACT TRANSFER FORM
[DATE]
DVI Receivables Corp. XII, (the "Company") and DVI Receivables XII,
L.L.C. ("the Issuer"), pursuant to the Amended and Restated Subsequent Contract
Transfer Agreement, dated as of April 1, 2000 (the "SCTA"), hereby confirm their
understanding with respect to the sale, transfer, assignment and conveyance by
the Company to the Issuer of those Contracts listed on Schedule 1 attached
hereto (the "Contracts"), together with a first priority perfected (except with
regard to Equipment related to either a Finance Lease or a Secured Equipment
Note that had an Original Equipment Cost of less than $25,000) security interest
in all of the Company's right, title and interest in and to the related
Equipment (except for (i) such item of Equipment related to either a Finance
Lease or a Secured Equipment Note that had an Original Equipment Cost of less
than $25,000 and (ii) any ownership interest in such item of Equipment, with
respect to which the Company instead grants to the Issuer a first priority
perfected security interest therein), and other related property described
herein.
Conveyance of Company Assets. On the date set forth above, the Company
hereby transfers to the Issuer all of the Company's rights, title and interest
in, to, and under the Contracts listed on Schedule 1 hereto including, without
limitation, its interests in the proceeds of such Contracts, the right to
receive all amounts due or to become due thereunder after __________ (the
"Cut-off Date") together with all of the other Company Assets related thereto.
The Company hereby confirms that:
(1) On or prior to the date hereof (the "Subsequent Contract Transfer
Date"), the Contributor shall have deposited in the Collection Account all
collections in respect of the Contracts that were due on or after the Cut-off
Date;
(2) Each representation and warranty of the Company under the Amended
and Restated Contribution and Servicing Agreement and the SCTA is true and
correct as of the date hereof, the Contributor was not insolvent nor will it be
made insolvent by the transfer contemplated herein nor is it aware of any
pending insolvency and the Company is not in breach of any covenant under the
SCTA;
(3) Each Contract sold, transferred, assigned and conveyed pursuant
hereto is an Eligible Contract;
(4) On or prior to the Subsequent Contract Transfer Date, the Company
shall have delivered to the Trustee the sole original, manually executed
counterpart of each Contract;
(5) The sum of the Discounted Contract Balances as of the Cut-off Date
of the Contracts listed on Schedule 1 attached hereto is $__________ (calculated
using a Discount Rate of 7.660%);
A-1
(6) Reserved
(7) When the Contracts are added to the Trust Property, all
representations and warranties of the Company in the SCTA will be true and
correct as of the date set forth in the heading of this Subsequent Contract
Transfer Form unless any breach of such representations and warranties resulting
from the inclusion of such Contract shall have been waived in advance by
Noteholders evidencing more than 50% of the Voting Rights; and
(8) The Contributor has delivered to the Trustee (i) amendments to, or
executed originals of, the UCC financing statements referred to in Section
1.01(d) of the Amended and Restated Contribution and Servicing Agreement (the
"Amended and Restated Contribution and Servicing Agreement"), dated as of April
1, 2000 between Contributor Financial Services Inc. and the Company, reflecting
the addition of the Contract(s) and (ii) an amendment to the Contract Schedule.
All terms and conditions of the SCTA with respect to the Company and
the Contracts have been complied with and are hereby ratified, confirmed and
incorporated herein;, PROVIDED THAT in the event of any conflict, the provisions
of this Subsequent Contract Transfer Form shall control over the conflicting
provisions of the Amended and Restated Contribution and Servicing Agreement.
[Signature page follows]
A-2
Terms capitalized herein and not defined herein shall have their
respective meanings as set forth in the SCTA and if not defined therein, then as
such terms are defined in Appendix I to the Amended and Restated Contribution
and Servicing Agreement.
DVI RECEIVABLES CORP. XII
By:
--------------------------------
Name:
Title:
DVI RECEIVABLES XII, L.L.C.
By: DVI RECEIVABLES CORP. VIII, it
managing member
By:
--------------------------------
Name:
Title:
A-3
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS
SECTION 1.01 DEFINITIONS........................................1
ARTICLE II.
PROCEDURES FOR PURCHASES OF ELIGIBLE CONTRACTS
SECTION 2.01 TRANSFER...........................................1
SECTION 2.02 SUBSTITUTE CONTRACTS...............................2
SECTION 2.03 INTENT OF PARTIES; SECURITY INTEREST...............2
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.01 ORGANIZATION AND GOOD STANDING.....................3
SECTION 3.02 AUTHORIZATION......................................3
SECTION 3.03 BINDING OBLIGATION.................................3
SECTION 3.04 NO VIOLATION.......................................4
SECTION 3.05 NO PROCEEDINGS.....................................4
SECTION 3.06 APPROVALS..........................................4
SECTION 3.07 ABILITY TO PERFORM.................................4
SECTION 3.08 EQUIPMENT AND CONTRACTS............................4
SECTION 3.09 PRINCIPAL EXECUTIVE OFFICE.........................5
SECTION 3.10 NO PRIOR ASSIGNMENTS...............................5
SECTION 3.11 FAIR CONSIDERATION.................................5
SECTION 3.12 NONCONSOLIDATION...................................6
SECTION 3.13 ORDINARY COURSE; NO INSOLVENCY.....................6
SECTION 3.14 ASSETS AND LIABILITIES.............................7
SECTION 3.15 VALID SALE.........................................7
SECTION 3.16 ABILITY TO PAY DEBTS...............................7
SECTION 3.17 BULK TRANSFER PROVISIONS...........................7
SECTION 3.18 TRANSFER TAXES.....................................7
ARTICLE IV.
CONDITIONS TO PURCHASE
SECTION 4.01 REPRESENTATIONS AND WARRANTIES.....................8
-i-
ARTICLE V.
COVENANTS OF THE COMPANY
SECTION 5.01 BOOKS AND RECORDS..................................8
SECTION 5.02 PRESERVATION OF OFFICE.............................8
SECTION 5.03 LIENS..............................................9
SECTION 5.04 NO BANKRUPTCY PETITION AGAINST THE ISSUER
OR MANAGING MEMBER........................9
SECTION 5.05 PROTECTION OF RIGHT, TITLE AND INTEREST............9
ARTICLE VI.
REPRESENTATIONS AND COVENANTS OF
THE ISSUER
SECTION 6.01 NONCONSOLIDATION..................................10
SECTION 6.02 NO BANKRUPTCY PETITION AGAINST THE COMPANY........10
ARTICLE VII.
SUBSTITUTION
SECTION 7.01 SUBSTITUTION......................................11
SECTION 7.02 NOTICE OF SUBSTITUTION............................11
SECTION 7.03 CONTRIBUTOR'S AND COMPANY'S SUBSEQUENT
OBLIGATIONS..............................11
SECTION 7.04 USAGE OF PREDECESSOR CONTRACTS IN CALCULATION.....12
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.01 AMENDMENT.........................................12
SECTION 8.02 EFFECT OF INVALIDITY OF PROVISIONS................13
SECTION 8.03 NOTICES...........................................13
SECTION 8.04 ENTIRE AGREEMENT..................................13
SECTION 8.05 SURVIVAL..........................................13
SECTION 8.06 CONSENT TO SERVICE................................13
SECTION 8.07 JURISDICTION NOT EXCLUSIVE........................14
SECTION 8.08 CONSTRUCTION......................................14
SECTION 8.09 FURTHER ASSURANCES................................14
SECTION 8.10 THIRD PARTY BENEFICIARIES.........................14
SECTION 8.11 GOVERNING LAW.....................................15
SECTION 8.12 CONSENT TO JURISDICTION; WAIVER OF
OBJECTION TO VENUE.......................15
SECTION 8.13 WAIVER OF JURY TRIAL..............................15
SECTION 8.14 HEADINGS AND CROSS-REFERENCES.....................15
-ii-
SECTION 8.15 COSTS AND EXPENSES................................16
SECTION 8.16 CONFIDENTIAL INFORMATION..........................16
SECTION 8.17 STATUTORY REFERENCES..............................16
SECTION 8.18 EXECUTION IN COUNTERPARTS.........................16
EXHIBIT A SUBSEQUENT CONTRACT TRANSFER FORM
-iii-
