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Exhibit 10.16
AMENDMENT TO INTERIM LOAN AND SECURITY AGREEMENT
AMENDMENT dated as of June 30, 1997 (this "Amendment"),
between (i) PRUDENTIAL SECURITIES CREDIT CORPORATION, a Delaware corporation
(the "Lender"), and (ii) DVI FINANCIAL SERVICES INC., a Delaware corporation
(the "Borrower"), to the Existing Agreement referred to below.
RECITALS
The Borrower and the Lender are parties to that certain
Interim Loan and Security Agreement dated as of February 20, 1997 (as amended
supplemented or otherwise modified prior to the date hereof, the "Existing
Agreement"; as amended by this Amendment, the "Agreement").
Under the Existing Agreement, the Lender provides interim
financing from time to time to provide interim funding for leases of equipment
for inclusion in a Trust, which leases and equipment are pledged to secure the
Advances made by the Lender thereunder, with the proceeds of the related
Certificates being used to repay such Advances.
The Borrower has requested that the Existing Agreement be
amended to extend the Termination Date as provided therein to July 31, 1997
(notwithstanding the sale prior to such date of the Certificates related to the
Contracts funded by the Advances made under the Existing Agreement), and the
Lender is willing to so amend the Existing Agreement.
Accordingly, in consideration of the premises, the Borrower
and the Lender hereby agree that the Existing Agreement is hereby amended as
follows:
SECTION 1. Terms and Conditions for All Advances.
(a) Section 2(a) of the Existing Agreement is hereby amended
by deleting the phrase "on the earlier to occur of (x) the date on which the
Certificates related to the Contracts funded by Advances made hereunder are
sold, or (y) September 30, 1997 (the "Termination Date")" occurring in the first
sentence thereof immediately prior to the proviso, and substituting in lieu
thereof the phrase "on July 31, 1997 (the "Termination Date")".
(b) Section 2(c) of the Existing Agreement is hereby amended
by deleting the first proviso of the first sentence thereof, and substituting in
lieu thereof the following new proviso:
"provided that the Maturity Date shall, for any Advance, be no
later than the Termination Date;".
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SECTION 2. Conditions Precedent. This Amendment shall become effective
on the date on which the Lender shall have received the following documents,
each of which shall be satisfactory to the Lender in form and substance:
(a) this Amendment, executed and delivered by a duly
authorized officer of the Borrower and the Guarantor;
(b) an opinion of counsel to the Borrower, substantially in
the form of Annex A hereto; and
(c) such other documents, certificates or opinions as the
Lender may reasonably request.
SECTION 3. Limited Effect. Except as expressly amended and
modified by this Amendment, the Existing Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
SECTION 4. Definitions in Existing Agreement. Unless otherwise
defined in this Amendment, terms defined in the Existing Agreement shall have
their defined meanings when used herein.
SECTION 5. Counterparts. This Amendment may be executed by one
or more of the parties hereto on any number of separate counterparts, each of
which shall be an original and all of which taken together shall constitute one
and the same instrument.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[Signatures Commence on the Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered in New York, New York by their
proper and duly authorized officers as of the day and year first above written
Borrower: DVI FINANCIAL SERVICES INC.
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Lender: PRUDENTIAL SECURITIES CREDIT
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CONSENTED TO:
DVI INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
Chief Financial Officer
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Annex A
[Letterhead of Counsel to Borrower]
[___________, 199_]
Prudential Securities Credit Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Interim Warehouse Financing of DVI Financial Services Inc. by
Prudential Securities Credit Corporation
Ladies and Gentlemen:
I am the counsel to DVI Financial Services Inc., a Delaware
corporation (the "Borrower"), and have acted as such in connection with the
execution and delivery of the Amendment, dated as of June 30, 1997 (the
"Amendment"), between the Borrower and the Prudential Securities Credit
Corporation (the "Lender") which Amendment amends the Interim Loan and Security
Agreement dated as of February 20, 1997 as amended, supplemented or otherwise
modified prior to the date hereof (the "Agreement"), between the Lender and the
Borrower.
Capitalized terms used herein and not defined herein shall
have the meanings assigned to them in the Agreement.
I have examined executed copies of the Agreement, the Note and
the Amendment. I have also examined originals or photostatic or certified copies
of all such corporate records of the Borrower, and such certificates of public
officials, certificates of corporate officers and other documents, as I have
deemed appropriate and necessary as a basis for the opinions hereinafter
expressed. In making my examination and rendering the opinions hereinafter
expressed I have assumed (i) that the Lender, as a party to each of the
Agreement and the Amendment has the corporate power to enter into and perform
all of its obligations thereunder, (ii) the due authorization, execution and
delivery of each of the Agreement and the Amendment by the Lender and (iii) the
validity and binding effect on the Lender of each of the Agreement and the
Amendment.
The opinions expressed below with respect to enforceability
are subject to the following additional qualifications:
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(a) The effect of bankruptcy, insolvency, reorganization,
moratorium, receivership, or other similar laws of general
applicability relating to or affecting creditors' rights generally in
the event of bankruptcy, insolvency, reorganization, moratorium or
receivership.
(b) The application of general principles of equity,
including, but not limited to, the right of specific performance
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
Based upon the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and the
Borrower is licensed or qualified to do business in each jurisdiction in which
failure to so qualify would be reasonably likely (either individually or in
aggregate) to have a material adverse effect on the business, operations or
financial condition of the Borrower, the ability of the Borrower to perform its
obligations under the Agreement and the Note, each as amended by the Amendment,
or the validity or enforceability of the Agreement, the Note, each as amended by
the Amendment, or any Contract.
2. The Borrower has the corporate power and legal right to
execute and deliver the Amendment, to borrow under the Agreement and the Note,
each as amended by the Amendment, and to grant liens under the Agreement, as
amended by the Amendment, and has taken all necessary corporate action to
authorize such borrowing and such granting of liens upon the terms and
conditions of the Agreement, as amended by the Amendment, and to authorize the
execution and delivery of the Amendment. No consent of any other person or
entity (including, without limitation, stockholders of the Borrower), and no
consent, license, permit, approval or authorization of, or registration or
declaration with, any governmental authority, bureau or agency is required in
connection with the execution and delivery of the Amendment by the Borrower or
the enforceability of each of the Agreement and the Note, each as amended by the
Amendment.
3. Assuming for purposes of the opinion expressed in this
paragraph 3 that the Agreement, the Note and the Amendment are governed by the
laws of the Commonwealth of Pennsylvania, each of the Agreement and the Note,
each as amended by the Amendment, constitutes the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its respective terms.
4. The execution and delivery of the Amendment and the
performance of each of the Agreement and the Note, each as amended by the
Amendment, (i) will not violate any provision of any existing law or regulation
or of the charter or by-laws of the Borrower or of any mortgage, indenture,
contract or other undertaking to which, to the best of my knowledge (after due
inquiry), the Borrower is a party or which is binding upon it or its assets and
(ii) to the best of my knowledge (after due inquiry), will not result in the
creation or imposition of any lien, charge or encumbrance on any of its assets
pursuant to the provisions of any of the foregoing.
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5. No material litigation or administrative proceeding of or
before any government body is presently pending, or, to the best of my knowledge
(after due inquiry), threatened against the Borrower or its assets which if
decided adversely to the Borrower would be reasonably likely (either
individually or in the aggregate) to have a material adverse effect on the
business, operations or financial condition of the Borrower, or the validity or
enforceability of any Contract, the Agreement or the Note.
6. To the best of my knowledge (after due inquiry), no
consent, approval, authorization or order of, registration or filing with, or
notice to, any governmental authority or court is required under federal laws or
the laws of the Commonwealth of Pennsylvania for the execution and delivery of
the Amendment and the performance of the Agreement or the Note, each as amended
by the Amendment, by the Borrower.
7. The execution and delivery of the Amendment and the
performance by the Borrower of the Agreement and the Note, each as amended by
the Amendment, do not conflict with, result in a breach of, or constitute a
default under, any law, rule or regulation of the federal government or of the
general corporation law of the State of Delaware.
8. (a) The Agreement, as amended by the Amendment, creates a
valid security interest in favor of the Lender in all of the right, title and
interest of the Borrower in and to the Collateral.
(b) Financing statements naming the Lender as "Secured
Party" and the Borrower as "Debtor," and describing the Collateral, having been
filed in the offices of the Secretary of the Commonwealth of Pennsylvania and
the Prothonotary of Bucks County, Pennsylvania, together with possession by the
Custodian of the Contracts pursuant to the Custodial Agreement, the security
interests in the Collateral created by the Agreement constitute perfected
security interests, and no other action is necessary to preserve or perfect such
security interests.
9. Under the laws of the Commonwealth of Pennsylvania the
stipulation of New York law in the Amendment is enforceable.
10. [Except with respect to that certain license to engage in
a commercial lending business in the State of California, which license lapsed
in May, 1995,] to the best of my knowledge (after due inquiry) and with respect
to each license, permit or authorization required to be issued by, or received
from, any federal or state agency or instrumentality in connection with the
ownership or operation of the Borrower's business, each such license, permit and
authorization is currently in effect and authorizes the Borrower to conduct, or
does not prohibit the Borrower from conducting, its business as currently
conducted and no such agency or instrumentality has given notice to the Borrower
of any pending termination, review or revocation of such license, permit or
authorization.
In rendering the foregoing opinions, no opinion is expressed
(a) as to any collateral which is subject to any registration or certificate of
title statute, such as motor vehicles,
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automotive equipment, trailers, airplanes, rolling stock, rolling equipment or
shipping containers; or (b) as to any collateral other than chattel paper, which
cannot be perfected by the filing of a UCC-1 financing statement.
I am admitted to practice law in the Commonwealth of
Pennsylvania and the foregoing opinions are limited to the federal law of the
United States and the laws of the Commonwealth of Pennsylvania and the General
Corporation Law of the State of Delaware.
The opinion is solely for your benefit in connection with the
above-captioned transaction and may not be used, circulated, referred to, or
relied on by you for any other purpose or by any other person without my prior
written consent.
Sincerely yours,
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