EXHIBIT 4.3
SUBSEQUENT CONTRACT TRANSFER AGREEMENT
between
DVI RECEIVABLES CORP. XVIII,
as Company
and
DVI RECEIVABLES XVIII, L.L.C.,
as Issuer
Dated as of November 1, 2002
ALL RIGHTS IN AND TO THIS AGREEMENT ON THE PART OF DVI RECEIVABLES XVIII, L.L.C.
HAVE BEEN ASSIGNED AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF U.S. BANK
NATIONAL ASSOCIATION (AS SUCCESSOR TO U.S. BANK TRUST NATIONAL ASSOCIATION), AS
TRUSTEE, UNDER THE INDENTURE DATED AS OF NOVEMBER 1, 2002 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............................................................5
Section 3.02 Authorization.............................................................................5
Section 3.03 Binding Obligation........................................................................5
Section 3.04 No Violation..............................................................................6
Section 3.05 No Proceedings............................................................................6
Section 3.06 Approvals.................................................................................6
Section 3.07 Ability to Perform........................................................................6
Section 3.08 Equipment and Contracts...................................................................6
Section 3.09 Principal Executive Office; Legal Name....................................................7
Section 3.10 No Prior Assignments......................................................................7
Section 3.11 Valid Sale; Fair Consideration............................................................8
Section 3.12 Nonconsolidation..........................................................................8
Section 3.13 Ordinary Course; No Insolvency............................................................9
Section 3.14 Assets and Liabilities....................................................................9
Section 3.15 Transfer Taxes............................................................................9
Section 3.16 Ability to Pay Debts......................................................................9
Section 3.17 Bulk Transfer Provisions..................................................................9
ARTICLE IV CONDITIONS TO PURCHASE
Section 4.01 Representations and Warranties...........................................................10
ARTICLE V FURTHER COVENANTS OF THE COMPANY
Section 5.01 Books and Records........................................................................10
Section 5.02 Preservation of Office...................................................................10
Section 5.03 Liens....................................................................................10
Section 5.04 No Bankruptcy Petition Against the Issuer or Managing Member.............................11
Section 5.05 Protection of Right, Title and Interest..................................................11
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE VI REPRESENTATIONS AND COVENANTS OF THE ISSUER
Section 6.01 Nonconsolidation.........................................................................11
Section 6.02 No Bankruptcy Petition Against the Company...............................................12
ARTICLE VII SUBSTITUTION
Section 7.01 Substitution.............................................................................12
Section 7.02 Notice of Substitution...................................................................13
Section 7.03 Contributor's and Company's Subsequent Obligations.......................................13
Section 7.04 Usage of Predecessor Contracts in Calculation............................................14
ARTICLE VIII MISCELLANEOUS
Section 8.01 Amendment................................................................................14
Section 8.02 Effect of Invalidity of Provisions.......................................................15
Section 8.03 Notices..................................................................................15
Section 8.04 Entire Agreement.........................................................................15
Section 8.05 Survival.................................................................................15
Section 8.06 Consent to Service.......................................................................16
Section 8.07 Jurisdiction Not Exclusive...............................................................16
Section 8.08 Construction.............................................................................16
Section 8.09 Further Assurances.......................................................................16
Section 8.10 Third Party Beneficiaries................................................................16
Section 8.14 Headings and Cross-References............................................................17
Section 8.15 Costs and Expenses.......................................................................18
Section 8.16 Confidential Information.................................................................18
Section 8.17 Statutory References.....................................................................18
Section 8.18 Execution in Counterparts................................................................18
Section 8.19 Power of Attorney........................................................................18
EXHIBITS
EXHIBIT A - SUBSEQUENT CONTRACT TRANSFER FORM
EXHIBIT B - FORM OF RE-ASSIGNMENT OF ISSUER'S CERTIFICATE
EXHIBIT C - FORM OF OFFICER'S CERTIFICATE PURSUANT TO ARTICLE VII
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SUBSEQUENT CONTRACT TRANSFER AGREEMENT ("Agreement") dated as of
November 1, 2002, between DVI RECEIVABLES XVIII, L.L.C., a Delaware limited
liability company (the "Issuer"), and DVI RECEIVABLES CORP. XVIII, a Delaware
corporation (the "COMPANY").
WHEREAS, the Company will from time to time acquire certain Contracts
and other Contributed Property related thereto pursuant to the Contribution and
Servicing Agreement dated as of the date hereof, between the Company and DVI
Financial Services Inc. (the "CONTRIBUTOR"), the Company will acquire from DVI
Receivables Corp. XV ("DVI CORP. XV") pursuant to a Sale Agreement (the "DVI XV
SALE AGREEMENT"), dated the date hereof, among the Company, the Issuer, DVI
Receivables Corp. XV and DVI Receivables XV, L.L.C. ("DVI RECEIVABLES XV") the
Sold Company Assets (as defined in the DVI XV Sale Agreement, and the Company
will acquire from DVI Funding Corporation ("DFC") pursuant to a Sale Agreement
(the "FUNDING SALE AGREEMENT"), dated the date hereof, among the Company, the
Issuer, DFC and DVI Funding, L.L.C. ("DVI FUNDING L.L.C.") the Sold Company
Assets (as defined in the Funding Sale Agreement).
WHEREAS, the Company desires to transfer to Issuer all Contributed
Property (other than any ownership interest in Equipment) which it acquires from
the Contributor and certain other assets, and Issuer desires to purchase such
Contributed Property and other assets, in each instance in accordance with the
terms and conditions set forth in this Agreement.
WHEREAS, pursuant to the Indenture (the "INDENTURE"), dated as of the
date hereof, by and between the Issuer and U.S. BANK NATIONAL ASSOCIATION (as
successor to U.S. Bank Trust National Association) (the "TRUSTEE"), the Issuer
intends to issue its Series 2002-2 Notes, which will be collateralized by a
pledge by the Issuer to the Trustee, on behalf of the Noteholders and the Swap
Provider 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 2002-2 Notes, the
Issuer and the Company desire to enter into this Agreement.
NOW, THEREFORE, the parties, in consideration of good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS.
For purposes of this Agreement, capitalized terms used herein but not
otherwise defined shall have the respective meanings assigned to such terms in
Appendix I to the Contribution and Servicing Agreement.
ARTICLE II
PROCEDURES FOR PURCHASES OF ELIGIBLE CONTRACTS
Section 2.01 TRANSFER.
(a) CONVEYANCE. Upon the terms and conditions herein set forth, in
exchange for cash consideration received therefore and for other good and
valuable consideration, the Company hereby transfers, pledges, assigns and sells
to the Issuer on each Contribution Date (or, in the case of any Substitute
Contracts the related Substitution Date), without recourse except as set forth
herein, all of the Company's right, title and interest in and to the Company
Assets as set forth on the related Subsequent Contract Transfer Form. All funds
received by the Company on or in connection with the Company Assets on and after
the applicable Cut-off Date shall be received, held and applied by the Company
in trust for the benefit of the Issuer as owner of the Contracts and the other
Company Assets.
(b) After giving effect to such transfer and sale, the ownership of
each such Contract and the other Company Assets transferred on the related
Contribution Date shall be vested in the Issuer. 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 Provider 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.
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 Provider and the
Noteholders on which the Issuer relies in purchasing and otherwise acquiring the
Company Assets, on which the Swap Provider relies 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
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bankruptcy, insolvency and other laws of general application affecting the
rights of creditors and equitable principles (whether considered in a proceeding
at law or in equity).
Section 3.04 NO VIOLATION.
The consummation of the transactions contemplated by this Agreement and
each SCTF and the fulfillment of the terms thereof, will not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice, lapse of time or both) a default under the certificate of
incorporation or bylaws of the Company, or any indenture, agreement, mortgage,
deed of trust or other instrument to which the Company is a party or by which it
is bound, or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of such indenture, agreement, mortgage, deed of
trust or other such instrument, other than this Agreement, or violate any law,
or, to the best of the Company's knowledge, any order, rule or regulation
applicable to it of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Company or any of its properties.
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
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Section 2.01, Section 2.02 or Section 2.05 hereof constitutes a valid transfer
of all of the Company's right, title and interest in such Company Assets or a
grant of a first-priority perfected (except for Equipment for which the Original
Equipment Cost is less than $25,000, with respect to which the Company shall be
deemed to have granted a valid security interest) security interest therein from
the Company in favor of the Issuer, free and clear of any and all claims,
charges, liens or security interests created by the Company or any of its
affiliates (other than the rights of each Obligor under the Contract to which
such Obligor is a party, claims, charges, liens or security interests to be
discharged on the Contribution Date related thereto and any liens for taxes,
assessments, and (x) governmental charges or levies not yet due and payable and
(y) liens imposed by law arising in the ordinary course of business which secure
obligations that are not yet due and payable, in the case of (x) and (y) to the
extent no enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced);
(b) the Company did not, in the exercise of its interest in any such
Company Assets waive, discharge, release or otherwise permit any modification
thereto not in effect or agreed to at the time the Company acquired its interest
therein; and
(c) notwithstanding the foregoing clauses (a) and (b), the Company
makes no representation or warranty with respect to claims, charges, liens or
security interests created, or waivers, discharges, releases or modifications
made, by the Contributor.
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 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.
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Section 3.11 VALID SALE; FAIR CONSIDERATION.
This Agreement effects a valid assignment, transfer, contribution 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 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
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 Contribution and Servicing Agreement;
(g) the Company has caused its accounting records to be clearly and
unambiguously marked to show that such Contract has been transferred by the
Company to the Issuer and pledged by the Issuer to the Trustee for the benefit
of the Noteholders and the Swap Provider; and
(h) the Company will at all times maintain two Independent Directors
(as such term is defined in the certificate of incorporation of the Company).
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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.
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.
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ARTICLE IV
CONDITIONS TO PURCHASE
Section 4.01 REPRESENTATIONS AND WARRANTIES.
The obligation of the Issuer to purchase any Contracts on the Closing
Date and each Contribution Date is subject to receipt by the Issuer of the
following:
(a) an Officer's Certificate from Company to the effect that, on or
before such Contribution Date (after giving effect to the sale of the Subsequent
Contracts on such date), all representations and warranties of the Company
contained herein shall be true and correct in all respects, with respect to each
Contract individually and all Contracts in the aggregate, with the same force
and effect as though such representations and warranties had been made on and as
of such date (unless such representations and warranties specifically relate to
an earlier date); and
(b) an Officer's Certificate from the Contributor to the effect that,
on or before such Contribution Date (after giving effect to the sale of
Subsequent Contracts on such date), all representations and warranties of the
Contributor contained in Section 2 of the Amended and Restated Contribution and
Servicing Agreement shall be true and correct in all respects, with respect to
each Contract individually and all Contracts in the aggregate as stated therein,
with the same force and effect as though such representations and warranties had
been made on and as of such date (unless such representations and warranties
specifically relate to an earlier date).
ARTICLE V
FURTHER 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.
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).
10
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(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 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 Provider.
(c) The Company shall not amend its certificate of incorporation
without the prior written consent of the Rating Agencies.
ARTICLE VI
REPRESENTATIONS AND COVENANTS OF THE ISSUER
The Issuer hereby represents and warrants to the Company as of the
Closing Date and as of each Contribution Date:
Section 6.01 NONCONSOLIDATION.
The Issuer is operated in such a manner that it would not be
substantively consolidated with Contributor, such that the separate existence of
the Issuer and Contributor would not be disregarded in the event of a bankruptcy
or insolvency of the Issuer or Contributor, and in such regard, among other
things:
(a) the Issuer is not involved in the day to day management of
Contributor;
11
(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 6.02 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).
12
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.
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
13
Substitute Contract substituted as it has with respect to all other Contracts
subject to the terms hereof.
Section 7.04 USAGE OF PREDECESSOR CONTRACTS IN CALCULATION.
After substitution therefor in accordance with the terms and conditions
of the Transaction Documents, no Predecessor Contract or any other Contract
repurchased or substituted for in accordance with the terms and conditions of
the Transaction Documents, including the subsequent default, delinquency or
breach thereof, shall be included in any calculation or determination made under
the Transaction Documents, including, without limitation, the calculation of
either any Amortization Event or Indenture Event of Default.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 AMENDMENT.
(a) This Agreement may be amended from time to time by the Issuer and
the Company with the consent of the Rating Agencies (but without the consent of
the Trustee or any of the Noteholders), to cure any ambiguity, to correct or
supplement any provision herein that may be inconsistent with any other
provisions herein, or to add or amend any other provisions with respect to
matters or questions arising under this Agreement; PROVIDED, HOWEVER, that such
amendment shall not adversely affect in any material respect the interests of
the Trustee, the Noteholders or the Swap Provider, 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, any Noteholder or the 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 Provider 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.
14
(e) In executing any amendment to this Agreement pursuant to this
Section 8.01, the Trustee shall be entitled to receive (i) an Officer's
Certificate of the Company stating that all conditions precedent for entering
into such amendment as set forth in this Agreement have been met, and (ii) an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement.
Section 8.02 EFFECT OF INVALIDITY OF PROVISIONS.
In case any one or more of the provisions contained in this Agreement
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality, and enforceability of the remaining provisions contained
herein shall in no way be affected, prejudiced or disturbed thereby.
Section 8.03 NOTICES.
All demands, notices and communications hereunder shall be in writing,
personally delivered or mailed by certified mail-return receipt requested, or
delivered by courier, or delivered by facsimile to a facsimile and telephone
number provided by the relevant Person in writing, with subsequent telephone
confirmation of the receipt thereof, and shall be deemed to have been duly given
upon receipt (a) in the case of the Trustee, at the following address: 000 Xxxx
Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Structured Finance,
Facsimile: (000) 000-0000, (b) in the case of the Servicer, at the following
address: 0000 Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Securitization
Manager, Facsimile: (000) 000-0000, (c) in the case of the Issuer, 0000 Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attn: Securitization Manager, Facsimile (215)
488-5416, with a copy to the Servicer at the address set forth in clause (b)
above, (d) in the case of the Company at the following address: 0000 Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Securitization Manager, Facsimile: (215)
488-5416, (e) in the case of the Rating Agencies, to the following addresses:
Fitch, Inc., 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xx.
Xxxxxx Xxxxxx, Facsimile: (000) 000-0000; and Xxxxx'x Investors Service, Inc.,
00 Xxxxxx Xxxxxx, 0xx Xx., Xxx Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring
Department, Facsimile: (000) 000-0000 and (f) in the case of the Swap Provider,
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.
15
All indemnities and undertakings of the Company and the Issuer
hereunder shall survive the termination of this Agreement.
Section 8.06 CONSENT TO SERVICE.
Each party irrevocably consents to the service of process by registered
or certified mail, postage prepaid, to it at its address provided on the
signature page hereto.
Section 8.07 JURISDICTION NOT EXCLUSIVE.
Nothing herein will be deemed to preclude either party hereto from
bringing an action or proceeding in respect of this Agreement in any
jurisdiction other than as set forth in Section 8.12 hereof.
Section 8.08 CONSTRUCTION.
The headings in this Agreement are for convenience only and are not
intended to influence its construction. References to Sections, Schedules and
Exhibits in this Agreement are to the Sections of and Schedules and Exhibits to
this Agreement. Any Schedules and Exhibits are hereby incorporated into and form
a part of this Agreement. In this Agreement, the singular includes the plural,
the plural the singular, the words "and" and "or" are used in the conjunctive or
disjunctive as the sense and circumstances may require and the word "including"
means "including, but not limited to." Unless otherwise stated in this
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
Section 8.09 FURTHER ASSURANCES.
In addition to its agreements set forth herein, the Company (at the
Issuer's expense) agrees to do such further acts and things and to execute and
deliver such additional assignments, agreements, powers and instruments as are
reasonably requested by the Issuer to carry into effect the purposes of this
Agreement and the transactions contemplated herein, including, without
limitation, such documents as are necessary to protect the Trustee's interest in
the Contracts, the security interest in the Equipment and the other Company
Assets in accordance with the Transaction Documents.
Section 8.10 THIRD PARTY BENEFICIARIES.
Each Noteholder, the Swap Provider 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
16
Provider 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, the Swap
Provider 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
Provider and 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.
17
The various headings in this Agreement are included for convenience
only and shall not affect the meaning or interpretation of any provision of this
Agreement. References in this Agreement to Section names or numbers are to such
Sections of this Agreement.
Section 8.15 COSTS AND EXPENSES.
The Company will pay all reasonable expenses incident to the
performance of its obligations under this Agreement and under the Indenture and
the Company agrees to pay all reasonable out-of-pocket costs and expenses of the
Issuer, including fees and expenses of counsel, in connection with the
enforcement of any obligation of the Company hereunder.
Section 8.16 CONFIDENTIAL INFORMATION.
The Issuer agrees and covenants that it will neither use nor disclose
to any person the names and addresses of the Obligors, except in connection with
the enforcement of the Issuer's rights hereunder, under the Contracts, under the
applicable Transaction Documents or as required by law.
Section 8.17 STATUTORY REFERENCES.
References in this Agreement to any section of the UCC shall mean, on
and after the effective date of adoption of any revision to the UCC in the
applicable jurisdiction, such revised or successor section thereto.
Section 8.18 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same instrument.
Section 8.19 POWER OF ATTORNEY. The Company hereby grants to each
of the Issuer and the Trustee the power as its attorney-in-fact (i) to file UCC
financing statements in the appropriate offices evidencing the conveyance of the
Contracts and other Company Assets to the Issuer and (ii) in the event an event
of default exists under any Transaction Document, to do any and all other acts
as may be necessary or appropriate to effect the transaction contemplated
herein. The Company will execute any document or instrument deemed necessary by
the Issuer or the Trustee to effect or to evidence this power of attorney. All
costs associated with such filings or instructions shall be paid by the Company.
[Signature page follows]
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. XVIII
By:____________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
Address: 0000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Securitization Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DVI RECEIVABLES XVIII, L L C
By: DVI Receivables Corp VIII,
its managing member
By:____________________________
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
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. XVIII, (the "COMPANY") and DVI RECEIVABLES XVIII,
L.L.C. (the "ISSUER"), pursuant to the Subsequent Contract Transfer Agreement,
dated as of November 1, 2002 (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;
A-1
(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 November 1, 2002 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]
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. XVIII
By:__________________________
Name:
Title:
DVI RECEIVABLES XVIII, L.L.C.
By: DVI RECEIVABLES
CORP. VIII,
its managing member
By:__________________________
Name:
Title:
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 XVIII, L.L.C. (the "ISSUER") pursuant to the Subsequent
Contract Transfer Agreement, dated as of November 1, 2002, between the Issuer
and DVI RECEIVABLES CORP. XVIII (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 XVIII, L.L.C.
By: DVI Receivables Corp. VIII,
its managing member
By:_____________________________________
Name:
Title:
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. XVIII (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 November 1,
2002, between the Company and DVI RECEIVABLES XVIII, 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. XVIII
By:______________________________
Name:
Title:
