EXHIBIT 4.3
SUBSEQUENT CONTRACT TRANSFER AGREEMENT
between
DVI RECEIVABLES CORP. XIX,
as Company
and
DVI RECEIVABLES XIX, L.L.C.,
as Issuer
Dated as of May 1, 2003
ALL RIGHTS IN AND TO THIS AGREEMENT ON THE PART OF DVI RECEIVABLES XIX, L.L.C.
HAVE BEEN ASSIGNED AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF U.S. BANK
NATIONAL ASSOCIATION, AS TRUSTEE, UNDER THE INDENTURE DATED AS OF MAY 1, 2003
FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.01 Definitions...................................................................................1
ARTICLE II
PROCEDURES FOR PURCHASES OF ELIGIBLE CONTRACTS
Section 2.01 Transfer......................................................................................2
Section 2.02 Substitute Contracts..........................................................................2
Section 2.03 Intent of Parties; Security Interest..........................................................3
Section 2.04 Obligations to Transfer Certain Collections...................................................3
Section 2.05 Grant Of Security Interest....................................................................3
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
Section 3.01 Organization and Good Standing................................................................6
Section 3.02 Authorization.................................................................................6
Section 3.03 Binding Obligation............................................................................6
Section 3.04 No Violation..................................................................................7
Section 3.05 No Proceedings................................................................................7
Section 3.06 Approvals.....................................................................................7
Section 3.07 Ability to Perform............................................................................7
Section 3.08 Equipment and Contracts.......................................................................7
Section 3.09 Principal Executive Office; Legal Name........................................................8
Section 3.10 No Prior Assignments..........................................................................8
Section 3.11 Valid Sale; Fair Consideration................................................................8
Section 3.12 Nonconsolidation..............................................................................9
Section 3.13 Ordinary Course; No Insolvency...............................................................10
Section 3.14 Assets and Liabilities.......................................................................10
Section 3.15 Transfer Taxes...............................................................................10
Section 3.16 Ability to Pay Debts.........................................................................10
Section 3.17 Bulk Transfer Provisions.....................................................................11
ARTICLE IV
CONDITIONS TO PURCHASE
Section 4.01 Representations and Warranties...............................................................11
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE V
FURTHER COVENANTS OF THE COMPANY
Section 5.01 Books and Records............................................................................11
Section 5.02 Preservation of Office.......................................................................11
Section 5.03 Liens........................................................................................12
Section 5.04 No Bankruptcy Petition Against the Issuer or Managing Member.................................12
Section 5.05 Protection of Right, Title and Interest......................................................12
ARTICLE VI
REPRESENTATIONS AND COVENANTS OF THE ISSUER
Section 6.01 Nonconsolidation.............................................................................13
Section 6.02 No Bankruptcy Petition Against the Company...................................................14
ARTICLE VII
SUBSTITUTION
Section 7.01 Substitution.................................................................................14
Section 7.02 Notice of Substitution.......................................................................15
Section 7.03 Contributor's and Company's Subsequent Obligations...........................................15
Section 7.04 Usage Of Predecessor Contracts In Calculation................................................15
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Amendment....................................................................................15
Section 8.02 Effect of Invalidity of Provisions...........................................................16
Section 8.03 Notices......................................................................................16
Section 8.04 Entire Agreement.............................................................................17
Section 8.05 Survival.....................................................................................17
Section 8.06 Consent to Service...........................................................................17
Section 8.07 Jurisdiction Not Exclusive...................................................................17
Section 8.08 Construction.................................................................................17
Section 8.09 Further Assurances...........................................................................18
Section 8.10 Third Party Beneficiaries....................................................................18
Section 8.11 Governing Law................................................................................18
Section 8.12 Consent to Jurisdiction; Waiver of Objection to Venue........................................18
Section 8.13 Waiver of Jury Trial.........................................................................19
Section 8.14 Headings and Cross-References................................................................19
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TABLE OF CONTENTS
(continued)
PAGE
Section 8.15 Costs and Expenses...........................................................................19
Section 8.16 Confidential Information.....................................................................19
Section 8.17 Statutory References.........................................................................19
Section 8.18 Execution in Counterparts....................................................................20
Section 8.19 Power of Attorney............................................................................20
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SUBSEQUENT CONTRACT TRANSFER AGREEMENT ("AGREEMENT") dated as of May 1,
2003, between DVI RECEIVABLES XIX, L.L.C., a Delaware limited liability company
(the "ISSUER"), and DVI RECEIVABLES CORP. XIX, a Delaware corporation (the
"COMPANY").
WHEREAS, the Company will from time to time acquire certain Contracts
and other Contributed Property related thereto pursuant to the Contribution and
Servicing Agreement, dated as of the date hereof, between the Company and DVI
Financial Services Inc. (the "CONTRIBUTOR"), and the Company will acquire from
DVI Receivables Corp. XV ("DVI CORP. XV") pursuant to a Sale Agreement (the "DVI
XV SALE AGREEMENT"), dated as of the date hereof, among the Company, the Issuer,
DVI, DVI Receivables Corp. XV and DVI Receivables XV, L.L.C. ("DVI RECEIVABLES
XV") the Sold Company Assets (as defined in the DVI XV Sale Agreement), and the
Company will acquire from DVI Funding Corporation ("DFC") and pursuant to a Sale
Agreement (the "FUNDING SALE AGREEMENT"), dated as of the date hereof, among the
Company, DVI, the Issuer, DFC and DVI Funding, L.L.C. ("DVI FUNDING L.L.C.") the
Sold Company Assets (as defined in the Funding Sale Agreement).
WHEREAS, the Company desires to transfer to Issuer all Contributed
Property (other than any ownership interest in Equipment) which it acquires from
the Contributor and certain other assets, and Issuer desires to purchase such
Contributed Property and other assets, in each instance in accordance with the
terms and conditions set forth in this Agreement.
WHEREAS, pursuant to the Indenture (the "INDENTURE"), dated as of the
date hereof, by and between the Issuer and U.S. BANK NATIONAL ASSOCIATION (the
"TRUSTEE"), the Issuer intends to issue its Series 2003-1 Notes, which will be
collateralized by a pledge by the Issuer to the Trustee, on behalf of the
Noteholders and the Swap Providers, 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 2003-1 Notes, the
Issuer and the Company desire to enter into this Agreement.
NOW, THEREFORE, the parties, in consideration of good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS.
For purposes of this Agreement, capitalized terms used herein but not
otherwise defined shall have the respective meanings assigned to such terms in
Appendix I to the Contribution and Servicing Agreement.
ARTICLE II
PROCEDURES FOR PURCHASES OF ELIGIBLE CONTRACTS
Section 2.01 TRANSFER.
(a) CONVEYANCE. Upon the terms and conditions herein set forth, in
exchange for cash consideration received therefor and for other good and
valuable consideration, the Company hereby transfers, pledges, assigns and sells
to the Issuer on each Contribution Date (or, in the case of any Substitute
Contracts the related Substitution Date), without recourse except as set forth
herein, all of the Company's right, title and interest in and to the Company
Assets as set forth on the related Subsequent Contract Transfer Form. All funds
received by the Company on or in connection with the Company Assets on and after
the applicable Cut-off Date shall be received, held and applied by the Company
in trust for the benefit of the Issuer as owner of the Contracts and the other
Company Assets.
(b) After giving effect to such transfer and sale, the ownership of
each such Contract and the other Company Assets transferred on the related
Contribution Date shall be vested in the Issuer. On each Contribution Date, the
Contract Files and any other documents relating to each Contract and the other
Company Assets shall be delivered to the Trustee and at all times held in trust
by the Trustee for the benefit of the Noteholders and the Swap Providers
pursuant to the terms of the Indenture. The Company agrees to take no action
inconsistent with the ownership of any Contract or the other Company Assets, to
promptly indicate to all parties with a valid interest inquiring as to the true
ownership of each Contract, that each Contract and the other Company Assets have
been transferred, assigned and sold to the Issuer and to claim no ownership
interest in any such Contracts and the other Company Assets.
(c) Any Company Assets transferred by the Contributor to the Company
from time to time shall forthwith be transferred to the Issuer without further
act, notwithstanding the delivery of any Subsequent Contract Transfer Forms in
respect thereof.
Section 2.02 SUBSTITUTE CONTRACTS.
(a) In consideration for the transfer by the Issuer to the Company of
any Predecessor Contract transferred to the Company by the Issuer in accordance
with the terms and conditions of Section 7 of the Contribution and Servicing
Agreement, the Company shall transfer to the Issuer on the Substitution Date
related thereto, and the Issuer shall accept, a Substitute Contract; provided
that such Substitute Contract is in accordance with the terms and conditions of
the Contribution and Servicing Agreement.
(b) With respect to all Predecessor Contracts and the ownership or the
security interest (as the case maybe) in the related Equipment purchased or
replaced by the Contributor pursuant to Section 5 or Section 7 of the
Contribution and Servicing Agreement, the Issuer shall deliver to the Company an
instrument substantially in the form of Exhibit B hereto, assigning to the
Company, without recourse, representation or warranty (except as to the absence
of liens, claims, or encumbrances resulting from actions taken, or failed to be
taken, by the Issuer), all of the Issuer's right, title and interest in and to
such Predecessor Contracts and the ownership or the
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security interest (as the case may be) in the related Equipment, and all
security and documents relating thereto.
Section 2.03 INTENT OF PARTIES; SECURITY INTEREST.
The Issuer and the Company hereby confirm that the transactions
contemplated in this Agreement are intended as transfers, assignments,
conveyances and sales rather than as loan transactions. In the event, for any
reason, and solely in such event, any transaction hereunder is construed by any
court or regulatory authority as a loan or other than a transfer, assignment,
conveyance and sale of any or all Company Assets, then the Company shall be
deemed to have hereby pledged to the Issuer as security for the performance by
the Company of all of its obligations from time to time arising hereunder and
with respect to any and all purchases effected pursuant hereto, and shall be
deemed to have either assigned or granted to the Issuer a first priority
perfected (except Equipment for which the Original Equipment Cost is less than
$25,000, in which case, the Company shall be deemed to have granted a valid
security interest) security interest in all of the Company Assets. In
furtherance of the foregoing, (i) this Agreement shall constitute a security
agreement, (ii) the Trustee shall be deemed to be a bailee for purposes of
perfection of the security interest granted to Issuer (and its assigns), (iii)
the Issuer shall have all of the rights of a secured party with respect to the
Company Assets pursuant to applicable law and (iv) in the manner consistent with
this Agreement, the Company shall execute all documents, including, but not
limited to, UCC financing statements, to effectively perfect and evidence
Issuer's first priority security interest in the Company Assets except that UCC
financing statements need not be filed with respect to Equipment for which the
Original Equipment Cost is less than $25,000. The Company also covenants not to
pledge, assign or grant any security interest to any other party in any of the
Company Assets. The consideration received and to be received by the Company in
exchange for the transfer, assignment and conveyance of the Company Assets is
intended to be fair consideration having value equivalent to or in excess of the
value of the assets being transferred by the Company.
Section 2.04 OBLIGATIONS TO TRANSFER CERTAIN COLLECTIONS. The Company
shall cause the Servicer to pay to the Issuer, by deposit into the Collection
Account within two (2) business days after receipt thereof, any and all payments
and other amounts (other than Purchase Option Payments, any Excluded Amounts and
any other payments not included in the determination of Discounted Contract
Balance with respect to the related Contract as such Balance is set forth in the
related Contract Schedule), if any, received by or on behalf of the Company in
respect of any Equipment owned by the Transferor following or as a result of any
default or early termination under the related Contract.
Section 2.05 GRANT OF SECURITY INTEREST.
(a) To secure the timely payment of all obligations owing by the
Company and the performance and observance of all the obligations and
liabilities of the Company contained in this Agreement and the other Transaction
Documents (collectively, the "COMPANY OBLIGATIONS"), the Company hereby conveys,
warrants, assigns, transfers, pledges and grants a security interest unto (all
of the following are collectively, the "COMPANY COLLATERAL") (i) the Trustee,
for the benefit and security of the Issuer, all of the Company's right, title
and interest in and to all Equipment of the Company subject to certificates of
title or similar evidences of ownership, and
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all proceeds thereof, and (ii) the Issuer, all of the Company's right, title and
interest in and to all Equipment of the Company, including all proceeds thereof.
(b) This Agreement shall create a continuing security interest in the
Company Collateral and shall:
(i) remain in full force and effect until payment in full and
performance of all Company Obligations;
(ii) be binding upon the Company and its successors,
transferees and assigns (except with respect to Company Collateral as
to which the Issuer, pursuant to Section 2.05(d) or 2.05(e) or with the
prior written consent of the Trustee, or the Trustee shall have
released its security interest therein); and
(iii) inure, together with the rights and remedies of the
Issuer hereunder, to the benefit of the Issuer and its successors and
assigns.
(c) Upon the payment in full and performance of all Company
Obligations, the security interest granted herein shall, immediately and without
further action, terminate and be released and all rights to the Company
Collateral shall revert to the Company. Upon any such termination and release,
the Issuer and the Trustee will, at the Company's sole expense, deliver to the
Company all certificates and instruments representing or evidencing any Company
Collateral, and execute and deliver to the Company such documents as the Company
shall reasonably request to evidence such termination and release.
(d) In the event that (i) the Contributor or the Servicer shall have
substituted a Substitute Contract and an ownership interest or security interest
(as the case may be) in the Equipment subject thereto for a Predecessor Contract
and an ownership interest of security interest (as the case may be) in the
Equipment subject thereto in accordance with the Contribution and Servicing
Agreement, or (ii) the Contributor or the Servicer shall have repurchased a
Contract and an ownership interest or security interest (as the case may be) in
the related Equipment in accordance with the Contribution and Servicing
Agreement, the Predecessor Contract or the repurchased Contract, as applicable,
and the ownership interest or security interest (as the case may be) in the
Equipment subject thereto, shall be released from the ownership interest or
security interest (as the case may be) granted hereunder when the Trustee shall
have (i) in the case of the repurchase of a Contract, deposited in the
Collection Account all amounts received in accordance with the section of the
Contribution and Servicing Agreement pursuant to which such Contract is
purchased, (ii) in the case of a Substitute Contract, received a fully executed
original of the Substitute Contract Transfer Form and the Contract File with
respect to such Substitute Contract plus any cash amount delivered as provided
in the section of the Contribution and Servicing Agreement pursuant to which
such Contract is substituted and (iii) delivered to the Contributor or the
Servicer, as the case may be, acknowledgment of its receipt of the related
Contract Files. If there are such unreimbursed amounts, any proceeds received
with respect to such Predecessor Contract or repurchased Contract, as
applicable, and the security interest in the related Equipment shall be applied
hereunder only to the extent necessary to reimburse the Collection Account for
such amounts drawn thereon and the balance of such proceeds, if any, shall be
paid to, or as directed by, the Contributor.
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(e) In the event that the Trustee shall have received written
certification from an Authorized Officer of the Servicer that the Trustee has
received from amounts paid by the Obligor or from the proceeds of the Equipment
subject to any Contract (i) the final Contract Payment due and payable under any
Contractor or (ii) a Prepayment Amount in respect of any Contract and, following
such final Contract Payment or Prepayment Amount, no further payments on, or in
respect of, such Contract are or will be due and payable, such Contract and the
Equipment subject thereto shall be released from the security interest granted
hereunder.
(f) The Issuer and the Trustee shall promptly execute and deliver such
documents (which shall be furnished to the Issuer and the Trustee by the
Company) and take such other actions as the Company may reasonably request to
fully effectuate (i) the release from the security interest granted hereunder
relating to Equipment (and proceeds thereof) required to be so released pursuant
to this Section 2.05 together with (ii) the release of any interest the Issuer
or Trustee may have in the related Contract and any income, payments and
proceeds thereof.
Section 2.06 RATING AGENCY SECURITY INTEREST REPRESENTATIONS.
(a) This Agreement creates a valid and continuing security interest (as
defined in the applicable UCC) in the Company Collateral in favor of the
Trustee, which security interest, except as contemplated by the Transaction
Documents, is prior to all other liens and is enforceable as against creditors
of and purchasers from the Company.
(b) An original executed copy of each Transaction Document and all
originals of the related chattel paper or instruments that constitute or
evidence the Company Assets (or, if the original chattel paper or instrument
constituting such item of Company Assets does not exist, then a certified true
copy) have been delivered to the Trustee.
(c) The Company has caused the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the security interest in the Company
Collateral Granted to the Trustee.
(d) Except as contemplated by the Transaction Documents, the Company
has not (1) pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Company Collateral or (2) authorized the filing of
and is not aware of any financing statements against the Company that include a
description of collateral covering the Company Collateral other than any
financing statement (i) relating to the security interest granted to the Trustee
in this Agreement and which names the Trustee as secured party or assignee of
the secured party, or (ii) that has been terminated. The Company is not aware of
any judgment or tax lien filings against the Company.
(e) None of the Transaction Documents and the Contracts transferred
hereunder have any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Trustee. With
respect to all Contracts constituting chattel paper, the Company has, or has
caused to be taken, such steps as are necessary to protect the Company or the
Issuer's interest in any related Equipment securing such chattel paper.
(f) The Company has good and marketable title to (1) the Contract(s)
transferred on the Contribution Date and (2) the security interest assigned or
granted, as the case may be, in the
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Equipment related thereto (except for Equipment for which the Original Equipment
Cost is less than $25,000, with respect to which the Company shall be deemed to
have granted a valid security interest), in each case free and clear of any and
all claims, charges, liens or security interests created by the Company or any
of its affiliates (other than the rights of each Obligor under the Contract to
which such Obligor is a party, claims, charges, liens or security interests to
be discharged on the Contribution Date related thereto and any liens for taxes,
assessments, and (x) governmental charges or levies not yet due and payable and
(y) liens imposed by law arising in the ordinary course of business which secure
obligations that are not yet due and payable, in the case of (x) and (y) to the
extent no enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced).
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
The Company hereby makes the following representations and warranties
for the benefit of the Issuer, the Trustee, the Swap Providers and the
Noteholders on which the Issuer relies in purchasing and otherwise acquiring the
Company Assets, on which the Swap Providers rely in entering into the Swap
Agreement with the Issuer and on which the Noteholders rely in funding advances
under their respective Notes. Other than as set forth in Section 3.08 hereof,
such representations and warranties are and will be true and correct as of the
Closing Date and as of each Contribution Date or Substitution Date, as the case
may be (unless an earlier date is specified therein) and shall survive each
transfer, assignment, conveyance and sale to the Issuer of the Company Assets
and the subsequent pledge thereof by the Issuer pursuant to the Indenture.
Section 3.01 ORGANIZATION AND GOOD STANDING.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
Section 3.02 AUTHORIZATION.
The Company has all requisite power and authority and all necessary
licenses and permits to enter into and perform its obligations under this
Agreement and each Subsequent Contract Transfer Form (each, an "SCTF") and the
transactions contemplated hereby and thereby, and the execution, delivery, and
performance of this Agreement and each SCTF, have been duly authorized by the
Company by all necessary corporate action.
Section 3.03 BINDING OBLIGATION.
This Agreement has been, and each SCTF will be, duly and validly
executed and delivered by the Company and will constitute a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its respective terms, subject to bankruptcy, insolvency and other laws of
general application affecting the rights of creditors and equitable principles
(whether considered in a proceeding at law or in equity).
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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.
There are no injunctions, writs, actions, suits, restraining orders or
other orders 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, government authority or agency or
arbitration board or tribunal (A) asserting the invalidity of this Agreement or
any SCTF, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any SCTF or (C) seeking any determination or
ruling that would materially and adversely affect the performance by the Company
of its obligations under, or the validity or enforceability of this Agreement or
any SCTF.
Section 3.06 APPROVALS.
All approvals, authorizations, consents, orders or other actions of any
person, corporation or other organization, or of any court, governmental agency
or body or official, required in connection with the execution and delivery of,
and compliance with the terms of, this Agreement or any SCTF, have been or will
be taken or obtained on or prior to the related Contribution Date.
Section 3.07 ABILITY TO PERFORM.
The Company has the ability to perform all of its obligations under
this Agreement, any SCTF and the Contribution and Servicing Agreement.
Section 3.08 EQUIPMENT AND CONTRACTS.
With respect to each Contract, the Company hereby represents and
warrants to the Issuer, as of each Contribution Date that:
(a) the sale to the Issuer of the Company's interest in such
Contract(s) transferred on such date and the assignment of the Company's
security interest, or grant of a first priority perfected security interest, as
the case may be, in the Equipment related thereto pursuant to Section 2.01,
Section 2.02 or Section 2.05 hereof constitutes a valid transfer of all of the
Company's right, title and interest in such Company Assets or a grant of a
first-priority perfected (except for Equipment for which the Original Equipment
Cost is less than $25,000, with respect
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to which the Company shall be deemed to have granted a valid security interest)
security interest therein from the Company in favor of the Issuer, free and
clear of any and all claims, charges, liens or security interests created by the
Company or any of its affiliates (other than the rights of each Obligor under
the Contract to which such Obligor is a party, claims, charges, liens or
security interests to be discharged on the Contribution Date related thereto and
any liens for taxes, assessments, and (x) governmental charges or levies not yet
due and payable and (y) liens imposed by law arising in the ordinary course of
business which secure obligations that are not yet due and payable, in the case
of (x) and (y) to the extent no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced);
(b) the Company did not, in the exercise of its interest in any such
Company Assets waive, discharge, release or otherwise permit any modification
thereto not in effect or agreed to at the time the Company acquired its interest
therein; and
(c) notwithstanding the foregoing clauses (a) and (b), the Company
makes no representation or warranty with respect to claims, charges, liens or
security interests created, or waivers, discharges, releases or modifications
made, by the Contributor.
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; LEGAL NAME.
The principal executive office of the Company is located at 0000 Xxxx
Xxxx, Xxxxxxx, XX 00000, and has been located in the same county and state for
at least four months immediately preceding the Closing Date. The Company has no
trade names, fictitious names, assumed names or "doing business as" names, and
at all times has been organized under the laws of the State of Delaware. 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 Swap Providers, 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, the
Company shall file such amendments or statements as may be required to preserve
and protect the Issuer's and the Trustee's interest in the Contracts, the
Equipment and the other Trust Property. The Company shall pay all filing fees or
taxes payable in respect of any UCC financing or continuation statements
required to be filed pursuant to Section 1.03 of the Contribution and Servicing
Agreement and not paid by the Contributor.
Section 3.10 NO PRIOR ASSIGNMENTS.
Except as permitted by the Transaction Documents, the Company has not
pledged, assigned or encumbered or terminated, in whole or in part, any of the
Company Assets.
Section 3.11 VALID SALE; FAIR CONSIDERATION.
This Agreement effects a valid assignment, transfer and conveyance of
the Company's interest in the Company Assets to the Issuer, enforceable against
creditors of the Company. The
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consideration received by the Company upon the sale of the Company Assets to the
Issuer is fair consideration having value equivalent to or in excess of the
value for such Company Assets.
Section 3.12 NONCONSOLIDATION.
The Company is operated in such a manner that it would not be
substantively consolidated with Contributor, such that the separate existence of
the Company and Contributor would not be disregarded in the event of a
bankruptcy or insolvency of the Company or Contributor, and in such regard,
among other things:
(a) the Company is not involved in the day to day management of
Contributor;
(b) the Company maintains separate corporate records and books of
account from Contributor and otherwise observes corporate formalities and has a
separate business office from Contributor (which may be at the same address as
the 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 the Company 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 Contribution and Servicing Agreement;
(g) the Company has caused its accounting records to be clearly and
unambiguously marked to show that each Contract has been transferred by the
Company to the Issuer and pledged by the Issuer to the Trustee for the benefit
of the Noteholders and the Swap Providers;
(h) the Company will at all times maintain two Independent Directors
(as such term is defined in the certificate of incorporation of the Company);
and
(i) except as contemplated by the Transaction Documents and its
certificate of incorporation (including, without limitation, any assets that may
be distributed to it pursuant to the Transaction Documents or any Predecessor
Contract and its related Equipment), the assets of the Company shall be the
Company Assets and the Company shall take such actions as may be
9
necessary or advisable to effect the transfers contemplated hereby and protect
the validity of any security interest granted hereunder.
Section 3.13 ORDINARY COURSE; NO INSOLVENCY.
The transactions contemplated by this Agreement are being consummated
by the Company and the Issuer, respectively, in furtherance of the Company's
ordinary business purposes and constitute a practical and reasonable course of
action by the Company designed to improve the financial position of the Company
with no contemplation of insolvency and with no intent to hinder, delay or
defraud any of its present or future creditors. Neither as a result of the
transactions contemplated by this Agreement, nor immediately before or after
such transactions, will the Company be insolvent, and the Company has adequate
capital for the conduct of its business and the payment of anticipated
obligations.
Section 3.14 ASSETS AND LIABILITIES.
(a) Both immediately before and after the assignment, transfer and
conveyance of Contracts (including the right to receive all payments due or to
become due thereunder) and the other Company Assets, the present fair salable
value of the Company's assets will be in excess of the amount that will be
required to pay the Company's probable liabilities as they then exist and as
they become absolute and matured.
(b) Both immediately before and after the assignment and transfer of
Contracts and the other Company Assets, the sum of the Company's assets will be
greater than the sum of the Company's debts, valuing the Company's assets at a
fair salable value.
Section 3.15 TRANSFER TAXES.
No transfer, assignment or conveyance of Company Assets contemplated by
this Agreement is subject to or will result in any tax, fee or governmental
charge payable by the Company or the Issuer to any federal, state or local
government ("TRANSFER TAXES"). In the event that the Company or the Issuer
receives actual notice of any Transfer Taxes arising out of the transfer,
assignment and conveyance of any Company Assets, on written demand by the
Issuer, or upon the Company otherwise being given notice thereof, the Company
shall pay, and otherwise indemnify and hold the Issuer, the Trustee and the
holders of the Notes harmless, on an after-tax basis, from and against any and
all such Transfer Taxes (it being understood that neither the holders of the
Notes nor the Trustee shall have any obligation to pay such Transfer Taxes).
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.
10
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.
ARTICLE IV
CONDITIONS TO PURCHASE
Section 4.01 REPRESENTATIONS AND WARRANTIES.
The obligation of the Issuer to purchase any Contracts on the Closing
Date and each Contribution Date is subject to receipt by the Issuer of the
following:
(a) an Officer's Certificate from the 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 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
FURTHER COVENANTS OF THE COMPANY
So long as this Agreement remains in effect or the Company shall have
any obligations hereunder, the Company hereby covenants and agrees with the
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, the Swap Providers, 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.
11
Section 5.03 LIENS.
The Company shall defend the right, title and interest of the Issuer in
the Company Assets against all claims of third parties claiming through or under
the Company (excluding claims arising from actions of the Contributor, in its
capacity as Servicer under the Contribution and Servicing Agreement, or any
agent of Contributor as such Servicer).
Section 5.04 NO BANKRUPTCY PETITION AGAINST THE ISSUER OR MANAGING
MEMBER.
The Company covenants and agrees it will not, prior to the date that is
one year and one day after the payment in full of all amounts owing pursuant to
the Transaction Documents, institute against, or join any other Person in
instituting against, any of the Issuer or the Managing Member, 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(c) of the Contribution and Servicing Agreement seriously misleading
within the meaning of Section 9-506 of the UCC, unless it shall have given the
Issuer and the Trustee 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 all right, title and interest in such
Contract (other than the Company's Retained Interest) have been sold to the
Issuer and pledged by the Issuer to the Trustee for the benefit of the
Noteholders and the Swap Providers.
(c) The Company shall not amend its certificate of incorporation unless
it shall have received a written confirmation from the Rating Agencies stating
that such amendment will not result in a Ratings Effect with respect to any
class of Notes.
ARTICLE VI
REPRESENTATIONS, WARRANTIES 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:
12
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 Contributor (which may be at the same address as the
Contributor, provided that the Issuer and the 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 Issuer
prepared after the date of creation of the Issuer 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 or any Class F Instruments) 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;
(h) except as contemplated by the Transaction Documents or permitted by
its operating agreement, the Issuer shall not pledge any of its assets for the
benefit of any Person; and
(i) except as contemplated by the Transaction Documents or permitted by
its operating agreement (including, without limitation, any amounts payable to
the Issuer or the Managing Member pursuant to Article III of the Indenture or
any Predecessor Contract and the related Equipment), the assets of the Issuer
shall be the Trust Property and the Issuer shall take
13
such actions as may be necessary or advisable to protect the validity of the
Grant of the Trust Property.
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 or the Managing Member, any bankruptcy,
reorganization, receivership, arrangement, insolvency or liquidation proceedings
or other similar proceedings under any federal or state bankruptcy or similar
law. This Section 6.02 shall survive the termination of this Agreement.
ARTICLE VII
SUBSTITUTION
Section 7.01 SUBSTITUTION.
In the event that the Contributor or the Servicer contributes,
transfers, sells or assigns a Substitute Contract to the Company pursuant to
Section 7.01 of the Contribution and Servicing Agreement, the Company
simultaneously therewith, hereby sells, transfers, conveys and assigns any such
Substitute Contract and the security interest in the related Equipment to the
Issuer (or, in the case of Fair Market Value Leases, grant a valid security
interest in the related Equipment). In addition, the Company hereby agrees to
take any action to facilitate the transfer of any Predecessor Contract,
including (i) delivery to the Trustee and the Issuer of the Substitute Contract
Transfer Form, substantially in the form of Exhibit D to the Contribution and
Servicing Agreement, transferring to the Issuer all right, title and interest of
the Company in and to the Eligible Contract being substituted and a security
interest in the related Equipment subject thereto, and granting the Trustee a
valid and first priority security interest in such Substitute Contracts and the
related Equipment (in accordance with the Transaction Documents), (ii) delivery
to the Trustee of amendments to, or executed originals of, the UCC financing
statements referred to in Section 1.01(c) of the Contribution and Servicing
Agreement reflecting the deletion of the Predecessor Contract and the addition
of the Substitute Contract, (iii) delivery to the Contributor or the Servicer,
as the case may be, by the Company of an instrument, substantially in the form
of Exhibit D of the Contribution and Servicing Agreement, transferring to the
Contributor or the Servicer, as the case may be, without representation or
warranty, all of the Company's right, title and interest in and to the related
Predecessor Contract, (iv) delivery to the Trustee of the original, manually
executed counterpart of each Substitute Contract that constitutes "chattel
paper" or an "instrument" under the UCC as appropriate for the purposes of
perfecting a security interest under the UCC and (v) delivery to the Trustee of
an amendment to the Contract Schedule, reflecting the deletion of the
Predecessor Contract and the addition of the Substitute Contract. Upon delivery
of each Substitute Contract and the Substitute Contract Transfer Form therefor,
the definition of "COMPANY ASSETS" will be automatically amended to (1) include
such Substitute Contract and all related property and rights contained in the
definition of Contributed Property and (2) not include the related Predecessor
Contract and all related property and rights contained in the definition of
Contributed Property.
14
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 C
hereto, certifying as to compliance with the provisions of Section 7.01 hereof.
Section 7.03 CONTRIBUTOR'S AND COMPANY'S SUBSEQUENT OBLIGATIONS.
Upon any substitution of Contracts in accordance with the provisions of
this Section 7, the Company's obligations hereunder with respect to the
Predecessor Contract shall cease but the Contributor and the Company shall each
thereafter have the same obligations with respect to the Substitute Contract
substituted as it has with respect to all other Contracts subject to the terms
hereof.
Section 7.04 USAGE OF PREDECESSOR CONTRACTS IN CALCULATION.
After substitution therefor in accordance with the terms and conditions
of the Transaction Documents, no Predecessor Contract or any other Contract
repurchased or substituted for in accordance with the terms and conditions of
the Transaction Documents, including the subsequent default, delinquency or
breach thereof, shall be included in any calculation or determination made under
the Transaction Documents, including, without limitation, the calculation of
either any Amortization Event or Indenture Event of Default.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 AMENDMENT.
(a) This Agreement may be amended from time to time by the Issuer and the
Company with the written confirmation of the Rating Agencies that such amendment
will not result in a Ratings Effect with respect to any class of Notes (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 the Trustee, the Noteholders or the Swap
Providers, unless so consented to by each entity so affected.
15
(b) This Agreement may also be amended from time to time by the Issuer
and the Company, with (x) the written confirmation of the Rating Agencies that
such amendment will not result in a Ratings Effect with respect to any class of
Notes and (y) the consent of 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, any
Noteholder or any Swap Provider 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 or the Swap Providers
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 Swap Providers, the Rating Agencies
and the Trustee.
(e) In executing any amendment to this Agreement pursuant to this
Section 8.01, the Trustee shall be entitled to receive (i) an Officer's
Certificate of the Company stating that all conditions precedent for entering
into such amendment as set forth in this Agreement have been met, and (ii) an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement.
Section 8.02 EFFECT OF INVALIDITY OF PROVISIONS.
In case any one or more of the provisions contained in this Agreement
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall in no way be affected, prejudiced or disturbed thereby.
Section 8.03 NOTICES.
All demands, notices and communications provided for or permitted
hereunder shall be in writing, and shall be deemed to have been duly given if
personally delivered to or mailed by certified or registered 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, and addressed or delivered to it at its address (or in
case of facsimile, to the facsimile number at such address) as follows or at
such other address as may be designated by it by notice to the other party: (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,
00
Xxxxxxxxxxxx 00000, Attention: Securitization Manager, Facsimile: (215)
488-5416, (c) in the case of the Issuer, 0000 Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx
00000, Attn: Securitization Manager, Facsimile (000) 000-0000, 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: (000) 000-0000, (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; Standard & Poor's Ratings Services, 00 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Structured Finance ABS Surveillance,
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 and (f) in the case of the Swap Providers, at the
contact information provided in the Swap Agreement, 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.
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
17
or disjunctive as the sense and circumstances may require and the word
"including" means "including, but not limited to." Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
Section 8.09 FURTHER ASSURANCES.
In addition to its agreements set forth herein, the Company (at the
Issuer's expense) agrees to do such further acts and things and to execute and
deliver such additional assignments, agreements, powers and instruments as are
reasonably requested by the Issuer to carry into effect the purposes of this
Agreement and the transactions contemplated herein, including, without
limitation, such documents as are necessary to protect the Trustee's interest in
the Contracts, the security interest in the Equipment and the other Company
Assets in accordance with the Transaction Documents.
Section 8.10 THIRD PARTY BENEFICIARIES.
Each Noteholder, the Swap Providers and the Trustee shall be an express
third party beneficiary of this Agreement. The obligations of the Company
hereunder may be assigned by the Issuer to the Trustee under the Indenture. The
Company acknowledges that the Issuer intends, pursuant to the Indenture, to
pledge the Company Assets, together with its respective rights under this
Agreement to the Trustee on the Closing Date, each Contribution Date and each
Substitution Date, with respect to each Contract and each Substitute Contract.
The Company acknowledges and consents to such conveyance and waives any further
notice thereof and covenants and agrees that the representations and warranties
of the Company contained in this Agreement and the rights of the Issuer
hereunder, are intended to benefit the Trustee, the Swap Providers and each
Noteholder. 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, the Swap Providers and the
Noteholders and that, notwithstanding anything to the contrary in this
Agreement, the Company shall be directly liable to the Trustee (notwithstanding
any failure by the Servicer or the Issuer to perform its duties and obligations
hereunder, or under the Indenture or Contribution and Servicing Agreement), and
that the Trustee may enforce the duties and obligations of the Company under
this Agreement against the Company for the benefit of the Swap Providers and the
Noteholder.
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 (EXCEPT FOR SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
Section 8.12 CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE.
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
18
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.
Section 8.15 COSTS AND EXPENSES.
The Company will pay all reasonable expenses incident to the
performance of its obligations under this Agreement and under the Indenture and
the Company agrees to pay all reasonable out-of-pocket costs and expenses of the
Issuer, including fees and expenses of counsel, in connection with the
enforcement of any obligation of the Company hereunder.
Section 8.16 CONFIDENTIAL INFORMATION.
The Issuer agrees and covenants that it will neither use nor disclose
to any person the names and addresses of the Obligors, except in connection with
the enforcement of the Issuer's rights hereunder, under the Contracts, under the
applicable Transaction Documents or as required by law.
Section 8.17 STATUTORY REFERENCES.
References in this Agreement to any section of the UCC shall mean, on
and after the effective date of adoption of any revision to the UCC in the
applicable jurisdiction, such revised or successor section thereto.
19
Section 8.18 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same instrument.
Section 8.19 POWER OF ATTORNEY
The Company hereby grants to each of the Issuer and the Trustee the
power as its attorney-in-fact (i) to file UCC financing statements in the
appropriate offices evidencing the conveyance of the Contracts and other Company
Assets to the Issuer and (ii) in the event an event of default exists under any
Transaction Document, to do any and all other acts as may be necessary or
appropriate to effect the transaction contemplated herein. The Company will
execute any document or instrument deemed necessary by the Issuer or the Trustee
to effect or to evidence this power of attorney. All costs associated with such
filings or instructions shall be paid by the Company.
[Signature page follows]
20
SUBSEQUENT CONTRACT TRANSFER AGREEMENT
IN WITNESS WHEREOF, Issuer and Company have duly executed this
Subsequent Contract Transfer Agreement as of the date and year first above
written.
DVI RECEIVABLES CORP. XIX
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: EVP and CFO
Address: 0000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Securitization Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DVI RECEIVABLES XIX, L L C
By: DVI Receivables Corp VIII,
its managing member
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: EVP and CFO
Address: 0000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Securitization Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXHIBIT A
SUBSEQUENT CONTRACT TRANSFER FORM
[DATE]
DVI RECEIVABLES CORP. XIX (the "COMPANY") and DVI RECEIVABLES XIX,
L.L.C. (the "ISSUER"), pursuant to the Subsequent Contract Transfer Agreement,
dated as of May 1, 2003 (the "SCTA"), hereby confirm their understanding with
respect to the sale, transfer, assignment and conveyance by the Company to the
Issuer of those Contracts listed on Schedule 1 attached hereto (the
"CONTRACTS"), together with a first priority perfected (except with regard to
Equipment that had an Original Equipment Cost of less than $25,000) security
interest in all of the Company's right, title and interest in and to the related
Equipment (except for (i) such item of Equipment that had an Original Equipment
Cost of less than $25,000 and (ii) any ownership interest in such item of
Equipment, with respect to which the Company instead grants to the Issuer a
first priority perfected security interest therein), and other related property
described herein.
CONVEYANCE OF COMPANY ASSETS. On the date set forth above, the Company
hereby transfers to the Issuer all of the Company's rights, title and interest
in, to, and under the Contracts listed on Schedule 1 hereto including, without
limitation, its interests in the proceeds of such Contracts, the right to
receive all amounts due or to become due thereunder after _______________ (the
"CUT-OFF DATE"), but excluding the Company's Retained Interest, if any, together
with all of the other Company Assets related thereto.
The Company hereby confirms that:
(1) On or prior to the date hereof (the "SUBSEQUENT CONTRACT TRANSFER
DATE"), the Contributor shall have deposited in the Collection Account all
collections in respect of the Contracts that were due on or after the Cut-off
Date;
(2) Each representation and warranty of the Company under the
Contribution and Servicing Agreement and the SCTA is true and correct as of the
date hereof, the Contributor was not insolvent nor will it be made insolvent by
the transfer contemplated herein nor is it aware of any pending insolvency and
the Company is not in breach of any covenant under the SCTA;
(3) Each Contract sold, transferred, assigned and conveyed pursuant
hereto is an Eligible Contract;
(4) On or prior to the Subsequent Contract Transfer Date, the Company
shall have delivered to the Trustee the sole original, manually executed
counterpart of each Contract;
(5) The sum of the Discounted Contract Balances as of the Cut-off Date
of the Contracts listed on Schedule 1 attached hereto is $__________ (calculated
using a Discount Rate of __________%);
(6) Reserved;
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(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 Contribution and Servicing Agreement (the "CONTRIBUTION AND
SERVICING AGREEMENT"), dated as of May 1, 2003 between DVI Financial Services
Inc. and the Company, reflecting the addition of the Contract(s) and (ii) an
amendment to the Contract Schedule.
All terms and conditions of the SCTA with respect to the Company and
the Contracts have been complied with and are hereby ratified, confirmed and
incorporated herein; provided that, in the event of any conflict, the provisions
of this Subsequent Contract Transfer Form shall control over the conflicting
provisions of the Contribution and Servicing Agreement.
[signature page follows]
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Terms capitalized herein and not defined herein shall have their
respective meanings as set forth in the SCTA and if not defined therein, then as
such terms are defined in Appendix I to the Contribution and Servicing
Agreement.
DVI RECEIVABLES CORP. XIX
By:
--------------------------
Name:
Title:
DVI RECEIVABLES XIX, L.L.C.
By: DVI RECEIVABLES CORP. VIII,
its managing member
By:
--------------------------
Name:
Title:
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EXHIBIT B
FORM OF RE-ASSIGNMENT OF ISSUER'S CERTIFICATE
PURSUANT TO SECTION 1.04(C) OR 5.01 OF THE
SUBSEQUENT CONTRACT TRANSFER AGREEMENT
DVI RECEIVABLES XIX, L.L.C. (the "ISSUER") pursuant to the Subsequent
Contract Transfer Agreement, dated as of May 1, 2003, between the Issuer and DVI
RECEIVABLES CORP. XIX (the "COMPANY") does hereby sell, transfer, assign,
deliver and otherwise convey to Company, without recourse, representation or
warranty, all of the Issuer's right, title and interest in and to all of the
Predecessor Contracts listed on Schedule A hereto and all security and documents
relating thereto.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
__________________.
DVI RECEIVABLES XIX, L.L.C.
By: DVI Receivables Corp. VIII,
its managing member
By:
-------------------------------------
Name:
Title:
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EXHIBIT C
FORM OF OFFICER'S CERTIFICATE PURSUANT TO ARTICLE VII
The undersigned certifies that the undersigned is a duly
authorized officer of DVI RECEIVABLES CORP. XIX (the "COMPANY"), and that, as
such the undersigned is authorized to execute and deliver this certificate on
behalf of the Company and further certifies pursuant to Section 7.02 of the
Subsequent Contract Transfer Agreement (the "AGREEMENT") dated as of May 1,
2003, between the Company and DVI RECEIVABLES XIX, L.L.C. (the "ISSUER"), that
to his or her knowledge, the Company's transfer to the Issuer of those
Substitute Contracts listed in Schedule 1 attached hereto, together with all of
the Company's right, title and interest in and to the related Contracts (other
than the Company's Retained Interest) and the related Company Assets, is in
compliance with Article VII of the Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name.
DVI RECEIVABLES CORP. XIX
By:
-----------------------------
Name:
Title:
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