EXHIBIT 4.4
AMENDED AND RESTATED SUBSEQUENT CONTRACT TRANSFER AGREEMENT
between
DVI RECEIVABLES CORP. VIII,
as Company
and
DVI RECEIVABLES VIII, L.L.C.
as Issuer
Dated as of December 1, 1998
TABLE OF CONTENTS
ARTICLE I.
DEFINITIONS
SECTION 1.01 DEFINITIONS.....................................................-1-
ARTICLE II.
PROCEDURES FOR PURCHASES OF ELIGIBLE CONTRACTS
SECTION 2.01 CONTRIBUTION....................................................-1-
SECTION 2.02 SUBSTITUTE CONTRACTS............................................-2-
SECTION 2.03 INTENT OF PARTIES; SECURITY INTEREST............................-2-
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.01 ORGANIZATION AND GOOD STANDING..................................-3-
SECTION 3.02 AUTHORIZATION...................................................-3-
SECTION 3.03 BINDING OBLIGATION..............................................-3-
SECTION 3.04 NO VIOLATION....................................................-4-
SECTION 3.05 NO PROCEEDINGS..................................................-4-
SECTION 3.06 APPROVALS.......................................................-4-
SECTION 3.07 ABILITY TO PERFORM..............................................-4-
SECTION 3.08 EQUIPMENT AND CONTRACTS.........................................-5-
SECTION 3.09 PRINCIPAL EXECUTIVE OFFICE......................................-5-
SECTION 3.10 NO PRIOR ASSIGNMENTS............................................-6-
SECTION 3.11 FAIR CONSIDERATION..............................................-6-
SECTION 3.12 NONCONSOLIDATION................................................-6-
SECTION 3.13 ORDINARY COURSE; NO INSOLVENCY..................................-7-
SECTION 3.14 ASSETS AND LIABILITIES..........................................-7-
SECTION 3.15 VALID SALE......................................................-7-
SECTION 3.16 ABILITY TO PAY DEBTS............................................-7-
SECTION 3.17 BULK TRANSFER PROVISIONS........................................-8-
SECTION 3.18 TRANSFER TAXES..................................................-8-
ARTICLE IV.
CONDITIONS TO PURCHASE
SECTION 4.01 REPRESENTATIONS AND WARRANTIES..................................-8-
ARTICLE V.
COVENANTS OF THE COMPANY
SECTION 5.01 BOOKS AND RECORDS...............................................-9-
SECTION 5.02 PRESERVATION OF OFFICE..........................................-9-
SECTION 5.03 LIENS...........................................................-9-
SECTION 5.04 NO BANKRUPTCY PETITION AGAINST THE ISSUER.......................-9-
SECTION 5.05 PROTECTION OF RIGHT, TITLE AND INTEREST........................-10-
ARTICLE VI.
REPRESENTATIONS AND COVENANTS OF
THE ISSUER
SECTION 6.01 NONCONSOLIDATION...............................................-10-
SECTION 6.02 NO BANKRUPTCY PETITION AGAINST THE COMPANY.....................-11-
ARTICLE VII.
SUBSTITUTION
SECTION 7.01 SUBSTITUTION...................................................-11-
SECTION 7.02 NOTICE OF SUBSTITUTION.........................................-12-
SECTION 7.03 CONTRIBUTOR'S AND COMPANY'S SUBSEQUENT OBLIGATIONS.............-12-
SECTION 7.04 USAGE OF PREDECESSOR CONTRACTS IN CALCULATIONS.................-13-
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 8.11 GOVERNING LAW..................................................-17-
SECTION 8.12 CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO
VENUE..........................................................-17-
SECTION 8.13 WAIVER OF JURY TRIAL...........................................-17-
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-
EXHIBIT A FORM OF SUBSEQUENT CONTRACT TRANSFER FORM
ii
AMENDED AND RESTATED SUBSEQUENT CONTRACT TRANSFER AGREEMENT
("AGREEMENT") dated as of December 1, 1998, between DVI Receivables VIII,
L.L.C., a Delaware limited liability company (the "ISSUER"), and DVI Receivables
Corp. VIII, a Delaware corporation (the "COMPANY").
WHEREAS, the Company will from time to time acquire certain
Contracts and other Contributed Property related thereto pursuant to the Amended
and Restated Contribution and Servicing Agreement, dated as of the date hereof,
between the Company and DVI Financial Services Inc. (the "CONTRIBUTOR").
WHEREAS, the Company desires to transfer to Issuer all
Contributed Property (other than any ownership interest in certain Equipment)
which it acquires from the Contributor and certain other assets, and Issuer
desires to purchase such Contributed Property and other assets, in each instance
in accordance with the terms and conditions set forth in this Agreement.
WHEREAS, pursuant to the Amended and Restated Indenture,
dated as of the date hereof, by and between the Issuer and U.S. Bank Trust
Company National Association (the "TRUSTEE") the Issuer intends to issue its
Series 1999-1 Notes, which will be collateralized by a pledge by the Issuer to
the Trustee, on behalf of the Noteholders of all of the Issuer's right, title
and interest in, to and under the Trust Property.
WHEREAS, to facilitate the issuance of its Series 1999-1
Notes, the Issuer and the Company desire to amend and restate this Agreement in
its entirety.
NOW, THEREFORE, the parties, in consideration of good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 DEFINITIONS.
For purposes of this Agreement, capitalized terms used herein but not
otherwise defined shall have the respective meanings assigned to such terms in
Appendix I hereto.
ARTICLE II.
PROCEDURES FOR PURCHASES OF ELIGIBLE CONTRACTS
SECTION 2.01 CONTRIBUTION.
(a) CONVEYANCE. Upon the terms and conditions herein set forth, in
consideration for issuance to the Company of 100% of the Units in the Issuer and
for other good and valuable consideration, the Company hereby transfers,
pledges, assigns, sells and contributes to the Issuer on each Contribution Date
(or, in the case of any Substitute Contracts, the related Substitution Date),
without recourse except as set forth herein, all of the Company's right, title
and interest in and to the Company Assets as set forth on the related Subsequent
Contract Transfer Form. All funds received by the Company on or in connection
with the Company Assets that are payable on and after the applicable Cut-off
Date shall be received, held and applied by the Company in trust for the benefit
of the Issuer as owner of the Contracts.
(b) After giving effect to such contribution and sale, the ownership
of each such Contract transferred on the related Contribution Date shall be
vested in the Issuer. The Contract Files and any other documents relating to
each Contract shall be held in trust by the Trustee for the benefit of the
Noteholders pursuant to the terms of the Amended and Restated Indenture. The
Company agrees to take no action inconsistent with the ownership of any
Contract, to promptly indicate to all parties with a valid interest inquiring as
to the true ownership of each Contract, that each Contract has been contributed
and sold to the Issuer and to claim no ownership interest in any such Contracts
and the other Company Assets.
(c) Any Company Assets transferred to the Company from time to time
shall forthwith be contributed to the Issuer without further act,
notwithstanding the delivery of any Subsequent Contract Transfer Forms in
respect thereof.
SECTION 2.02 SUBSTITUTE CONTRACTS.
In consideration for the transfer by the Issuer to the Company of any
Predecessor Contract transferred to the Company by the Issuer in accordance with
the terms and conditions of Section 7 of the Amended and Restated Contribution
and Servicing Agreement, the Company shall transfer to the Issuer on the
Substitution Date related thereto, and the Issuer shall accept, a Substitute
Contract, PROVIDED that such Substitute Contract is in accordance with the terms
and conditions of the Amended and Restated Contribution and Servicing Agreement.
SECTION 2.03 INTENT OF PARTIES; SECURITY INTEREST.
The Issuer and the Company hereby confirm that the transactions
contemplated in this Agreement are intended as contributions and sales rather
than as loan transactions. In the event, for
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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 contribution 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 $20,000 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, (iii) 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 the Amended and Restated Indenture, the Company shall
execute all documents, including, but not limited to, UCC financing statements,
to effectively perfect and evidence Issuer's first priority security interest in
the Company Assets, except that UCC financing statements need not be filed with
respect to Equipment for which the Original Equipment Cost is less than $20,000.
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 assignment, transfer and
contribution of the Company Assets is intended to be fair consideration having
value equivalent to or in excess of the value of the assets being transferred by
the Company.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby makes the following representations and warranties
for the benefit of the Issuer, the Trustee and the Noteholders on which the
Issuer relies in purchasing and otherwise acquiring the Company Assets and on
which the Noteholders rely in funding advances under their respective Notes.
Other than as set forth in Section 3.08 hereof, such representations and
warranties are and will be true and correct as of the Closing Date and as of
each Contribution Date or Substitution Date, as the case may be (unless an
earlier date is specified therein), and shall survive each contribution and sale
to the Issuer of the Company Assets and the subsequent pledge thereof by the
Issuer pursuant to the Amended and Restated Indenture.
SECTION 3.01 ORGANIZATION AND GOOD STANDING.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
SECTION 3.02 AUTHORIZATION.
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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, a "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 principle
(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.
The Company is not subject to any injunction, writ, action, suit,
restraining order or other order of any nature, and there are no actions, suits,
proceedings or investigations to which the Company is a party pending or, to the
knowledge of the Company, threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality (A)
asserting the invalidity of this Agreement or any SCTF, (B) seeking to prevent
the consummation of any of the transactions contemplated by this Agreement or
any SCTF or (C) seeking any determination or ruling that would materially and
adversely affect the performance by the Company of its obligations under, or the
validity or enforceability of this Agreement or any SCTF.
SECTION 3.06 APPROVALS.
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All approvals, authorizations, consents, orders or other actions of
any person, corporation or other organization, or of any court, governmental
agency or body or official, required in connection with the execution and
delivery of, and compliance with the terms of, this Agreement or any SCTF, have
been or will be taken or obtained on or prior to the related Contribution Date.
SECTION 3.07 ABILITY TO PERFORM.
The Company has the ability to perform all of its obligations under
this Agreement, any SCTF and the Amended and Restated Contribution and Servicing
Agreement.
SECTION 3.08 EQUIPMENT AND CONTRACTS.
With respect to each Contract, the Company hereby represents and
warrants to the Issuer, as of each Contribution Date that:
(a) the sale to the Issuer of the Company's interest in such
Contract(s) transferred on such date and the assignment of the Company's
security interest, or grant of a first priority perfected security interest, as
the case may be in the Equipment related thereto pursuant to Section 2.01 or
Section 2.02 hereof constitutes a valid transfer of all of the Company's right,
title and interest in such Company Assets or, with respect to Equipment owned by
the Company, a grant of a first priority perfected security interest therein
(except, in either case, for Equipment that had an Original Equipment Cost of
less than $20,000 with respect to which, the Company shall be deemed to have
granted a valid security interest) from the Company in favor of the Issuer, free
and clear of any and all claims, charges, liens or security interests created by
the Company or any of its affiliates;
(b) the Company did not, in the exercise of its interest in any such
Company Assets, waive, discharge, release or otherwise permit any modification
thereto not in effect or agreed to at the time the Company acquired its interest
therein; and
(c) notwithstanding the foregoing clauses (a) and (b), the Company
makes no representation or warranty with respect to claims, charges, liens or
security interests created, or waivers, discharges, releases or modifications
made, by the Contributor.
The representations and warranties described in this Section 3.08
shall survive the conveyance of the Company Assets to the Issuer.
SECTION 3.09 PRINCIPAL EXECUTIVE OFFICE.
The principal executive office of the Company is located at 000 Xxxx
Xxxx, Xxxxxxxxxx, XX 00000, and has been so located 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.
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If (i) any change in either the Company's name, structure or the location of its
principal place of business or chief executive office occurs, then the Company
shall deliver thirty (30) days' prior written notice of such change or
relocation to the Issuer and the Trustee and (ii) if the Company becomes aware
of the change in location of any Equipment, then, no later than sixty (60) days
after the effective date of such change or relocation, shall file such
amendments or statements as may be required to preserve and protect the Issuer's
and the Trustee's interest in the Contracts, the Equipment and the other Trust
Property. The Company shall pay all filing fees or taxes payable in respect of
any UCC financing or continuation statements required to be filed pursuant to
Section 1.03 of the Amended and Restated Contribution and Servicing Agreement
and not paid by the Contributor.
SECTION 3.10 NO PRIOR ASSIGNMENTS.
The Company has not pledged, assigned or encumbered or terminated, in
whole or in part, any of the Company Assets.
SECTION 3.11 FAIR CONSIDERATION.
The consideration received by the Company in connection with the
contribution and sale of the Company Assets constitutes reasonably equivalent
value and fair consideration for the Company Assets.
SECTION 3.12 NONCONSOLIDATION.
The Company is operated in such a manner that it would not be
substantively consolidated with DVI, such that the separate existence of the
Company and DVI would not be disregarded in the event of a bankruptcy or
insolvency of the Company or DVI, and in such regard, among other things:
(a) the Company is not involved in the day to day management of DVI;
(b) the Company maintains separate corporate records and books of
account from DVI and otherwise observes corporate formalities and has a separate
business office from DVI (which may be at the same address as DVI; PROVIDED that
the Company and DVI 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 DVI reflect and will reflect the separate
existence of DVI;
(d) the Company maintains its assets separately from the assets of DVI
(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 DVI and the separate creditors
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of DVI will be entitled to be satisfied out of DVI's assets prior to any value
in DVI becoming available to DVI'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) DVI does not act as an agent of the Company in any capacity and
the Company does not act as agent for DVI, but instead presents itself to the
public as a corporation separate from DVI; PROVIDED that DVI is the Servicer
under the Amended and Restated Contribution and Servicing Agreement; and
(g) the Company will cause its accounting records to be clearly and
unambiguously marked to show that such Contract has been transferred by the
Company to the Issuer and pledged by the Issuer to the Trustee for the benefit
of the Noteholders.
SECTION 3.13 ORDINARY COURSE; NO INSOLVENCY.
The transactions contemplated by this Agreement are being consummated
by the Company and the Issuer, respectively, in furtherance of the Company's
ordinary business purposes and constitute a practical and reasonable course of
action by the Company designed to improve the financial position of the Company
with no contemplation of insolvency and with no intent to hinder, delay or
defraud any of its present or future creditors. Neither as a result of the
transactions contemplated by this Agreement, nor immediately before or after
such transactions, will the 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
contribution of Contracts (including the right to receive all payments due or to
become due thereunder) and the other Company Assets, the present fair salable
value of the Company's assets will be in excess of the amount that will be
required to pay the Company's probable liabilities as they then exist and as
they become absolute and matured.
(b) Both immediately before and after the assignment and transfer of
Contracts and the other Company Assets, the sum of the Company's assets will be
greater than the sum of the Company's debts, valuing the Company's assets at a
fair salable value.
SECTION 3.15 VALID SALE.
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This Agreement effects a valid assignment, transfer and contribution
of the Company's interest in the Company Assets, enforceable against creditors
of the Company.
The conveyance to the Issuer shall be treated as a sale to the extent
of cash remitted to the Company and shall be treated as an additional
contribution to the capital of the Issuer to the extent of the excess of the
Discounted Contract Balances of the Contracts conveyed over the amount of such
cash.
SECTION 3.16 ABILITY TO PAY DEBTS.
Neither as a result of the transactions contemplated by this Agreement
nor otherwise does the Company believe that it will incur debts beyond its
ability to pay or which would be prohibited by its charter documents or by-laws.
The Company's assets and cash flow enable it to meet its present obligations in
the ordinary course of business as they become due.
SECTION 3.17 BULK TRANSFER PROVISIONS.
No transfer, assignment or conveyance of Contracts or the other
Company Assets by the Company to the Issuer contemplated by this Agreement will
be subject to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
SECTION 3.18 TRANSFER TAXES.
No transfer, assignment or conveyance of Company Assets contemplated
by this Agreement is subject to or will result in any tax, fee or governmental
charge payable by the Company or the Issuer to any federal, state or local
government ("TRANSFER TAXES"). In the event that the Company or the Issuer
receives actual notice of any Transfer Taxes arising out of the transfer,
assignment and conveyance of any Company Assets, on written demand by the
Issuer, or upon the Company otherwise being given notice thereof, the Company
shall pay, and otherwise indemnify and hold the Issuer, the Trustee and the
holders of the Notes harmless, on an after-tax basis, from and against any and
all such Transfer Taxes (it being understood that neither the holders of the
Notes nor the Trustee shall have any obligation to pay such Transfer Taxes).
ARTICLE IV.
CONDITIONS TO PURCHASE
SECTION 4.01 REPRESENTATIONS AND WARRANTIES.
The obligation of the Issuer to purchase any Contracts on the Closing
Date each Contribution Date is subject to receipt by the Issuer of the
following:
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(a) an Officer's Certificate from Company to the effect that, on or
before such Contribution Date (after giving effect to the sale of the Subsequent
Contracts on such date), all representations and warranties of the Company
contained herein shall be true and correct in all respects, with respect to each
Contract individually and all Contracts in the aggregate, with the same force
and effect as though such representations and warranties had been made on and as
of such date (unless such representations and warranties specifically relate to
an earlier date); and
(b) an Officer's Certificate from the Contributor to the effect that,
on or before such Contribution Date (after giving effect to the sale of
Subsequent Contracts on such date), all representations and warranties of the
Contributor contained in Section 2 of the Amended and Restated Contribution and
Servicing Agreement shall be true and correct in all respects, with respect to
each Contract individually and all Contracts in the aggregate as stated therein,
with the same force and effect as though such representations and warranties had
been made on and as of such date (unless such representations and warranties
specifically relate to an earlier date).
ARTICLE V.
COVENANTS OF THE COMPANY
So long as this Agreement remains in effect or the Company shall have
any obligations hereunder, Company hereby covenants and agrees with Issuer as
follows:
SECTION 5.01 BOOKS AND RECORDS.
The Company will clearly xxxx its books and records to reflect each
contribution and 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 Securityholder 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 Amended and Restated Contribution and
Servicing Agreement, or any agent of DVI as such Servicer).
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SECTION 5.04 NO BANKRUPTCY PETITION AGAINST THE ISSUER.
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, either the Issuer or itself, any bankruptcy,
reorganization, receivership, arrangement, insolvency or liquidation proceedings
or other similar proceedings under any federal or state bankruptcy or similar
law. This Section 5.04 shall survive the termination of this Agreement.
SECTION 5.05 PROTECTION OF RIGHT, TITLE AND INTEREST.
(a) The Company shall not change its name, identity, or corporate
structure in any manner that would, could, or might make any UCC financing
statement or continuation statement filed by the Contributor in accordance with
Section 1.01(d) of the Amended and Restated Contribution and Servicing Agreement
seriously misleading within the meaning of ss. 9-402(7) of the UCC, unless it
shall have given the Issuer at least thirty (30) days' prior written notice
thereof and shall promptly file appropriate amendments to all previously filed
UCC financing statements or continuation statements.
(b) If at any time the Company shall propose to sell, grant a security
interest in, or otherwise transfer any interest in contracts to any prospective
lender, or other transferee, the Company shall give to such prospective lender,
or other transferee computer tapes, records, or print-outs (including any
restored from archives) that, if they shall refer in any manner whatsoever to
any Contract, shall indicate clearly that such Contract have been sold to the
Issuer and pledged by the Issuer to the Trustee for the benefit of the
Noteholders.
(c) The Company shall not amend its certificate of incorporation without
the prior written consent of the Rating Agencies.
ARTICLE VI.
REPRESENTATIONS AND COVENANTS OF
THE ISSUER
The Issuer hereby represents and warrants to the Company as of the
Closing Date and as of each Contribution Date:
SECTION 6.01 NONCONSOLIDATION.
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The Issuer is operated in such a manner that it would not be
substantively consolidated with DVI, such that the separate existence of the
Issuer and DVI would not be disregarded in the event of a bankruptcy or
insolvency of the Issuer or DVI, and in such regard, among other things:
(a) the Issuer is not involved in the day to day management of DVI;
(b) the Issuer maintains separate company records and books of account
from DVI 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 DVI reflect and will reflect the separate
existence of DVI;
(d) the Issuer maintains its assets separately from the assets of DVI
(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 DVI and the separate creditors of DVI will be entitled
to be satisfied out of DVI's assets prior to any value in DVI becoming available
to DVI'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) DVI does not act as an agent of the Issuer in any capacity and the
Issuer does not act as agent for DVI, but instead presents itself to the public
as a limited liability company separate from DVI and the Company; PROVIDED that
DVI is the Servicer under the Amended and Restated Contribution and Servicing
Agreement; and
(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, the 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, either the Company or itself, any bankruptcy,
reorganization, receivership, arrangement, insolvency or liquidation proceedings
or other similar proceedings under any federal or state bankruptcy or similar
law. This Section 6.01 shall survive the termination of this Agreement.
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ARTICLE VII.
SUBSTITUTION
SECTION 7.01 SUBSTITUTION.
In the event that the Contributor contributes and assigns a Substitute
Contract to the Company pursuant to Section 7.01 of the Amended and Restated
Contribution and Servicing Agreement, the Company hereby agrees to contribute
and assign any such Substitute Contract and the security interest in the related
Equipment to the Issuer. In addition, the Company hereby agrees to take any
action to facilitate the transfer of any Predecessor Contract, including (i)
delivery to the Contributor by the Company of an instrument, substantially in
the form of Exhibit D of the Amended and Restated Contribution and Servicing
Agreement, transferring to the Contributor, without representation or warranty,
all of the Company's right, title and interest in and to the related Predecessor
Contract, (ii) delivery to the Trustee of the original, manually executed
counterpart of each Contract that constitutes "chattel paper" or an "instrument"
under the UCC as appropriate for the purposes of perfecting a security interest
under the UCC and (iii) delivery to the Trustee of an amendment to the Contract
Schedule, reflecting the deletion of the Predecessor Contract and the addition
of the Substitute Contract.
SECTION 7.02 NOTICE OF SUBSTITUTION.
In the Monthly Servicer Report to be delivered on each Determination
Date, the Company shall cause the Servicer to give written notice to the
Trustee, each Noteholder, and the Company of each substitution of Contracts
pursuant to Section 7.01 hereof during the preceding Collection Period. Such
Monthly Servicer Report or other written notice shall (i) specify the amount of
each periodic Contract Payment under the Predecessor Contract and the amount of
each periodic Contract Payment under each Eligible Contract being substituted,
(ii) specify the residual values of the Equipment subject to the Predecessor
Contract and the Equipment subject to the Eligible Contract being substituted,
(iii) specify the Discounted Contract Balance of the Predecessor Contracts, the
Discounted Contract Balance of the Substitute Contracts, and any amounts to be
deposited in the Collection Account in connection with such Substitute Contracts
and (iv) with respect to a substitution pursuant to Section 7.01 hereof, be
accompanied by an Officer's Certificate, substantially in the form of Exhibit F
of the Amended and Restated Contribution and Servicing Agreement, certifying as
to compliance with the provisions of Section 7.01 hereof.
SECTION 7.03 CONTRIBUTOR'S AND COMPANY'S SUBSEQUENT
OBLIGATIONS.
Upon any substitution of Contracts in accordance with the provisions of
this Section 7, the Company's obligations hereunder with respect to the
Predecessor Contract shall cease but the Contributor and the Company shall each
thereafter have the same obligations with respect to the
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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 CALCULATIONS.
After substitution therefore 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.
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ARTICLE VIII.
MISCELLANEOUS
SECTION 8.01. AMENDMENT.
(a) This Agreement may be amended from time to time by the Issuer
and the Company with the consent of the Rating Agencies (but without the consent
of the Trustee or any of the Noteholders), to cure any ambiguity, to correct or
supplement any provision herein that may be inconsistent with any other
provisions herein, or to add or amend any other provisions with respect to
matters or questions arising under this Agreement; PROVIDED, HOWEVER, that such
amendment shall not adversely affect in any material respect the interests of
either the Trustee or the Noteholders, unless so consented to by each entity so
affected.
(b) This Agreement may also be amended from time to time by the
Issuer and the Company, with the consent of the Rating Agencies and the majority
of Voting Rights, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement; PROVIDED,
HOWEVER, that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Contracts or payments that are required to be made on any Note without the
consent of the Holder of such Note, (b) reduce the aforesaid percentage required
to consent to any such amendment (c) adversely affect in any material respect
the interests of the Trustee or any Noteholder without, in each instance, the
consent of each entity so affected.
(c) Approval of the particular form of any proposed amendment or
consent shall not be necessary for the consent of the Noteholders under Section
8.01(b), but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Trustee may prescribe.
(d) Prior to the execution of any such amendment to this
Agreement proposed in accordance with Section 8.01(b), the Issuer shall deliver
a copy of the proposed amendment to the Company, the Rating Agencies and the
Trustee.
(e) In executing any amendment to this Agreement pursuant to this
Section 8.01, the Trustee shall be entitled to receive (i) an Officer's
Certificate of the Company stating that all conditions precedent for entering
into such amendment as set forth in this Agreement have been met, and (ii) an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement.
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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: 000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Securitization Manager, Facsimile: (000) 000-0000, (c) in the case of the
Issuer, 000 Xxxx Xxxx, Xxxxxxxxxx, 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: 000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Securitization Manager, Facsimile: (000) 000-0000, (e) in the case of the Rating
Agencies, to the following addresses: Duff & Xxxxxx Credit Rating Co., 00 Xxxx
Xxxxxx Xx., Xxxxxxx, Xxxxxxxx 00000, Attention: Asset Backed Monitoring Group,
Facsimile: (000) 000-0000; Fitch IBCA, Inc., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xx. Xxxxx Xxxxxx Xxxx, Facsimile: (212) 480- 4438;
and Xxxxx'x Investors Service, Inc., 00 Xxxxxx Xxxxxx, 0xx Xx., Xxx Xxxx, Xxx
Xxxx 00000, Attention: ABS Monitoring Department, Facsimile: (000) 000-0000, or
at other such respective address as shall be designated by such party in a
written notice to the other parties. Any notice required or permitted to be
mailed to a Noteholder shall be given by first class mail, postage prepaid, at
the address of such Holder as shown in the Note Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Noteholder receives such notice.
SECTION 8.04 ENTIRE AGREEMENT.
This Agreement, including the Exhibits hereto, contains the entire
agreement of the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements between them, whether oral
or written, of any nature whatsoever with respect to the subject matter hereof.
SECTION 8.05 SURVIVAL.
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All indemnities and undertakings of Company and 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.
SECTION 8.10 THIRD PARTY BENEFICIARIES.
Any Securityholder and the Trustee shall be an express third party
beneficiary of this Agreement. The obligations of the Company hereunder may be
assigned by the Issuer to the Trustee under the Amended and Restated Indenture.
The Company acknowledges that the Issuer intends, pursuant to the Amended and
Restated Indenture, to pledge the Company Assets, together with its respective
rights under this Agreement, to the Trustee on the Closing Date and 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
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covenants and agrees that the representations and warranties of the Company
contained in this Agreement and the rights of the Issuer hereunder, are intended
to benefit the Trustee, and each Securityholder. In furtherance of the
foregoing, the Company covenants and agrees to perform its duties and
obligations hereunder, in accordance with the terms hereof and for the benefit
of the Trustee and the Securityholder 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 Amended and Restated Indenture or
Amended and Restated Contribution and Servicing Agreement), and that the Trustee
may enforce the duties and obligations of the Company under this Agreement
against the Company for the benefit of the Securityholder.
SECTION 8.11 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS RULES REGARDING CONFLICT OF
LAWS.
SECTION 8.12 CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO
VENUE.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, EACH OF THE ISSUER AND THE COMPANY HEREBY
AGREED TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT LOCATED WITH THE
STATE OF NEW YORK. EACH OF THE PARTIES HERETO IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE 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
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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 Amended and Restated
Indenture and the Company agrees to pay all reasonable out-of-pocket costs and
expenses of the Issuer, including fees and expenses of counsel, in connection
with the enforcement of any obligation of the Company hereunder.
SECTION 8.16 CONFIDENTIAL INFORMATION.
The Issuer agrees 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.
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AMENDED AND RESTATED SUBSEQUENT CONTRACT TRANSFER AGREEMENT
DATED AS OF DECEMBER 1, 1998
IN WITNESS WHEREOF, Issuer and Company have duly executed this Amended
and Restated Subsequent Contract Transfer Agreement as of the date and year
first above written.
DVI RECEIVABLES CORP. VIII
By /s/ Xxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Address: 000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Securitization Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DVI RECEIVABLES VIII, L.L.C.
By /s/ Xxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Address: 000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Securitization Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXHIBIT A
SUBSEQUENT CONTRACT TRANSFER FORM
---------------------------------
[DATE]
DVI Receivables Corp. VIII (the "COMPANY") and DVI Receivables
VIII, L.L.C. (the "ISSUER"), pursuant to the Amended and Restated Subsequent
Contract Transfer Agreement, dated as of December 1, 1998 (the "AMENDED AND
RESTATED SUBSEQUENT CONTRACT TRANSFER AGREEMENT"), hereby confirm their
understanding with respect to the contribution by the Company to the Issuer of
those Contracts listed on Schedule 1 attached hereto (the "CONTRACTS"), together
with a first priority perfected (except for such item of Equipment related to
either a Finance Lease or a Secured Equipment Note that had an Original
Equipment Cost of less than $20,000) security interest in all of the Company's
right, title and interest in and to the related Equipment (except for (i) such
item of Equipment related to either a Finance Lease or a Secured Equipment Note
that had an Original Equipment Cost of less than $20,000 and (ii) any ownership
interest in such item of Equipment, with respect to which the Company instead
grants to the Issuer a first priority perfected security interest therein), and
other related property described herein.
CONVEYANCE OF COMPANY ASSETS. On the date set forth above, the
Company hereby transfers to the Issuer all of the Company's rights, title and
interest in, to, and under the Contracts listed on Schedule 1 hereto including,
without limitation, its interests in the proceeds of such Contracts, the right
to receive all amounts due or to become due thereunder after __________ (the
"CUT-OFF DATE") together with all of the other Company Assets related thereto.
The Company hereby confirms that:
(1) On or prior to the date hereof (the "SUBSEQUENT CONTRACT
TRANSFER DATE"), the Contributor shall have deposited in the Collection Account
all collections in respect of the Contracts that were due on or after the
Cut-off Date;
(2) Each representation and warranty of the Company under the
Amended and Restated Contribution and Servicing Agreement and the Amended and
Restated Subsequent Contract Transfer Agreement 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 Amended and Restated
Subsequent Contract Transfer Agreement;
(3) Each Contract contributed 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;
A-1
(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.
(7) When the Contracts are added to the Trust Property, all
representations and warranties of the Company in the Amended and Restated
Subsequent Contract Transfer Agreement 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 Securityholders evidencing
more than 50% of the Voting Rights; and
(8) The Contributor has delivered to the Trustee (i) amendments
to, or executed originals of, the UCC financing statements referred to in
Section 1.01(d) of the Amended and Restated Contribution and Servicing Agreement
reflecting the addition of the Contract(s) and (ii) an amendment to the Contract
Schedule.
All terms and conditions of the Amended and Restated Subsequent
Contract Transfer Agreement with respect to the Company and the Contracts have
been complied with and are hereby ratified, confirmed and incorporated herein;
PROVIDED that in the event of any conflict, the provisions of this Subsequent
Contract Transfer Form shall control over the conflicting provisions of the
Amended and Restated Contribution and Servicing Agreement.
Terms capitalized herein and not defined herein shall have their
respective meanings as set forth in the Amended and Restated Subsequent Contract
Transfer Agreement and if not defined therein, then as such terms are defined in
Appendix I to the Amended and Restated Contribution and Servicing Agreement,
dated as of December 1, 1998, between the Contributor and the Company.
DVI RECEIVABLES CORP. VIII
By:_____________________________
Name:
Title:
DVI RECEIVABLES VIII, L.L.C.
By: _____________________________
Name:
Title:
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