EXHIBIT 1.1
See Tab A.6
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$39,975,000 6.7094% ASSET-BACKED NOTES, SERIES 2000-2, CLASS A-1
$41,000,000 6.759% ASSET-BACKED NOTES, SERIES 2000-2, CLASS A-2
$74,000,000 6.808% ASSET-BACKED NOTES, SERIES 2000-2, CLASS A-3
$85,804,000 7.115% ASSET-BACKED NOTES, SERIES 2000-2, CLASS A-4
$ 4,104,000 7.063% ASSET-BACKED NOTES, SERIES 2000-2, CLASS B
$ 8,208,000 7.208% ASSET-BACKED NOTES, SERIES 2000-2, CLASS C
$ 5,472,000 7.693% ASSET-BACKED NOTES, SERIES 2000-2, CLASS D
UNDERWRITING AGREEMENT
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November 9, 2000
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
4 World Financial Center,
Floor 10 New York, New York 10080
BANC ONE CAPITAL MARKETS, INC.
One Bank One Plaza
Chicago, Illinois 60670
Ladies and Gentlemen:
DVI Receivables Corp. VIII (the "MANAGING MEMBER"), as sole owner of
all of the membership Units interest in DVI Receivables XII, L.L.C. (the
"ISSUER"), the Issuer, DVI Receivables Corp. XII (the "TRANSFEROR") and DVI
Financial Services Inc. (the "CONTRIBUTOR" or "SERVICER"), hereby agree with the
Underwriters (defined below) as follows:
Section 1. ISSUANCE AND SALE OF NOTES. The Issuer proposes to issue and
sell $39,975,000 (the "CLASS A-1 INITIAL PRINCIPAL AMOUNT") of 6.7094% Class A-1
Asset-Backed Notes (the "CLASS A-1 NOTES"); $41,000,000 (the "CLASS A-2 INITIAL
PRINCIPAL AMOUNT") of 6.759% Class A-2 Asset-Backed Notes (the "CLASS A-2
NOTES"); $74,000,000 (the "CLASS A-3 INITIAL PRINCIPAL AMOUNT") of 6.808% Class
A-3 Asset-Backed Notes (the "CLASS A-3 NOTES"), $85,804,000 (the "CLASS A-4
INITIAL PRINCIPAL AMOUNT") of 7.115% Class A-4 Asset-Backed Notes (the "CLASS
A-4 NOTES," together with the Class A-1 Notes, the Class A-2 Notes and the Class
A-3 Notes, the "CLASS A NOTES"); $4,104,000 (the "CLASS B INITIAL PRINCIPAL
AMOUNT") of 7.063% Class B Asset-Backed Notes (the "CLASS B NOTES"); $8,208,000
(the "CLASS C INITIAL PRINCIPAL AMOUNT") of 7.208% Class C Asset-Backed Notes
(the "CLASS C NOTES"); $5,472,000 (the "CLASS D INITIAL PRINCIPAL AMOUNT") of
7.693% Class D Asset-Backed Notes (the "CLASS D NOTES"; together with the Class
A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4 Notes, the
Class B Notes and the Class C Notes, the "NOTES"). The Notes will be issued
pursuant to an Amended and Restated Indenture,
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dated as of April 1, 2000 (the "INDENTURE"), between the Issuer and U.S. Bank
Trust National Association, a national banking association (the "TRUSTEE"). The
Notes are more fully described in the Prospectus Supplement (as defined below),
a copy of which the Managing Member is furnishing to the Underwriters. The Notes
will evidence secured obligations of the Issuer. The assets of the Issuer will
include a pool of leases, loans and other contracts and security interests in
the related underlying Equipment.
The Notes will be sold by the Issuer to the Underwriters listed on
Schedule A hereto (the "UNDERWRITERS") in accordance with the terms of this
agreement.
The terms which follow, when used in this Agreement, shall have the
meanings indicated:
"INITIAL PRINCIPAL AMOUNT" means the sum of the Class A-1 Initial
Principal Amount, the Class A-2 Initial Principal Amount, the Class A-3 Initial
Principal Amount, the Class A-4 Initial Principal Amount, the Class B Initial
Principal Amount, the Class C Initial Principal Amount and the Class D Initial
Principal Amount.
"TRANSFEROR-PROVIDED INFORMATION" means the information set forth under
the heading "The Contracts" in the Prospectus Supplement and any computer tape
or other information furnished to any Underwriter by or on behalf of the
Transferor concerning the assets of the Issuer.
"UNDERWRITING INFORMATION" has the meaning given to such term in
SECTION 8(B).
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in APPENDIX I to the Indenture.
Section 2. PURCHASE AND SALE OF NOTES.
(a) Subject to the terms and conditions and in reliance upon the
covenants, representations and warranties set forth herein, each of the
Underwriters agrees to purchase from the Issuer its respective Initial Principal
Amount of the Notes pursuant to the terms of this Agreement on the Closing Date
at a purchase price (the "PURCHASE PRICE") equal to the product of (x) the
aggregate of the Initial Principal Amount of each class of Notes purchased by
such Underwriter multiplied by (y) the applicable Underwriter's price set forth
on Schedule A attached hereto.
(b) The obligations of each of the Underwriters hereunder to purchase
the respective Notes of each Class shall be several and not joint. Each
Underwriter's obligation shall be to purchase the aggregate principal amount of
Notes of the related class as is indicated with respect to each Underwriter on
Schedule A attached hereto. The rights of the Issuer and any Non-Defaulting
Underwriter shall be as set forth in Section 13 hereof.
(c) It is understood that the Underwriters propose to offer the Notes
for sale to the public in the manner set forth in the Prospectus Supplement (as
defined below).
Section 3. DELIVERY AND PAYMENT. Delivery of and payment for the Notes
purchased by the Underwriters shall be made at the offices of Thacher Proffitt &
Wood, at Two World Trade
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Center, 39th Floor, New York, New York, on the Closing Date, or such other place
and time as the parties hereto agree. Delivery of the Notes shall be made
against payment of the purchase price in immediately available funds drawn to
the order of the Issuer or as it shall so direct. The Notes to be so delivered
will be initially represented by one or more Notes registered in the name of
Cede & Co., as nominee for The Depository Trust Company. The interests of
beneficial owners of the Notes will be represented by book entries on the
records of the Note Registrar and participating members thereof. Definitive
Notes will be available only under limited circumstances described in the
Indenture.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE MANAGING
MEMBER AND THE ISSUER.
(a) Each of the Managing Member or the Issuer, as the case may be,
hereby severally represents and warrants to, and agrees with, the Underwriters
as follows:
(i) The Managing Member has filed with the Securities and
Exchange Commission (the "COMMISSION") a registration statement (No.
333-94523) on Form S-3 for the registration under the Securities Act of
1933, as amended (the "ACT"), of Asset Backed Securities (issuable in
series), including the Notes, which registration statement has become
effective, and a copy of which, as amended to the date hereof, has
heretofore been delivered to you. The Managing Member proposes to file
with the Commission pursuant to Rule 424(b) under the rules and
regulations of the Commission under the Act (the "1933 ACT
REGULATIONS") a supplement dated November 13, 2000 (the "PROSPECTUS
SUPPLEMENT"), to the Prospectus dated January 12, 2000 (the "BASIC
PROSPECTUS"), relating to the Notes and the method of distribution
thereof. Such registration statement (No. 333-94523) including exhibits
thereto and any information incorporated therein by reference, as
amended at the date hereof, is hereinafter called the "REGISTRATION
STATEMENT"; and the Basic Prospectus and the Prospectus Supplement and
any information incorporated therein by reference, together with any
amendment thereof or supplement thereto authorized by the Managing
Member on or prior to the Closing Date for use in connection with the
offering of the Notes, are hereinafter called the "PROSPECTUS." The
conditions to the use by the Managing Member and the Issuer of a
Registration Statement on Form S-3 under the Act, as set forth in the
general instructions to the Form S-3, have been satisfied with respect
to the Registration Statement and the Prospectus.
(ii) The Registration Statement has become effective, and the
Registration Statement as of the effective date (the "EFFECTIVE DATE"),
and the Prospectus, as of the date of the Prospectus Supplement,
complied in all material respects with the applicable requirements of
the Act and the 1933 Act Regulations; and the Registration Statement,
as of the Effective Date, did not contain any untrue statement of a
material fact and did not omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and the Prospectus, as of the date of the Prospectus
Supplement, did not, and as of the Closing Date will not, contain an
untrue statement of a material fact and did not and will not omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, that neither the Managing Member,
the Transferor, the Issuer, the Contributor nor the Servicer makes any
representations or warranties as to the Underwriting
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Information. The conditions to the use by the Managing Member of a
registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to
the Registration Statement, as applicable, and the Prospectus, except
that the Managing Member makes no such representation regarding any
Computational Materials (as defined herein) incorporated by reference
therein. There are no contracts or documents (not including
Computational Materials) of the Managing Member which are required to
be filed as exhibits to the Registration Statement pursuant to the Act
or the 1933 Act Regulations which have not been so filed.
(iii) This Agreement has been duly authorized, executed and
delivered by the Managing Member and the Issuer and constitutes a
legal, valid and binding agreement of the Managing Member and the
Issuer enforceable in accordance with its terms, except that the
provisions hereof relating to indemnification of the Underwriters may
be subject to limitations of public policy.
(iv) Each of the Transaction Documents to which the Managing
Member or the Issuer is a party have been duly authorized by the
Managing Member or the Issuer, as the case may be and each of the
Managing Member and the Issuer has the power, authority and legal right
to execute, deliver and perform its respective obligations under each
of the Transaction Documents to which it is a party and to consummate
all transactions contemplated thereunder, and, when executed and
delivered by the Managing Member or the Issuer, each of the Transaction
Documents to which it is a party will constitute the legal, valid and
binding obligation of the Managing Member or the Issuer, as the case
may be, enforceable in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(v) The direction by the Issuer to Trustee to authenticate the
Notes has been duly authorized by the Issuer and, when duly and validly
authenticated by Trustee and delivered in accordance with the Indenture
and this Agreement, the Notes will be the legal, valid and binding
obligations of the Issuer, enforceable in accordance with their terms,
and entitled to the benefits of the Indenture, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(vi) The sale of the Notes and the performance by the
Managing Member or the Issuer, as the case may be, of this Agreement
and the Transaction Documents to which the Managing Member or the
Issuer is a party will (A) not conflict with or result in a breach of,
and will not constitute a default under any of the provisions of, its
certificate of incorporation or certificate of formation, as
applicable, its by-laws or limited liability company operating
agreement, as applicable, any law, governmental rule or regulation, or
any judgment, decree or order binding on the Managing Member or the
Issuer or either of their respective properties, or any of the
provisions of any indenture, mortgage, deed of trust, contract or other
agreement or instrument to which the Managing Member or the Issuer, as
the case may
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be, is a party or by which it is bound and (B) not result in the
creation or imposition of any adverse claim and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the sale of the
Notes or the consummation by the Managing Member or the Issuer, as the
case may be, of the transactions contemplated by this Agreement, except
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Act and under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Underwriters.
(vii) Neither the Managing Member nor the Issuer is, or will
be, subject to registration as an "investment company" under the
Investment Company Act of 1940 (the "1940 ACT").
(viii) the Issuer is a Delaware limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with its chief executive office located at 2500 York
Road, Jamison, Pennsylvania, and has the power and authority to own,
convey and otherwise deal with its assets and to engage in the
activities in which it is presently engaged and is duly qualified and
in good standing under the laws of each jurisdiction where its
ownership of property or the conduct of its activities requires such
qualification, if the failure to so qualify would have a material
adverse effect on the financial condition of the Issuer or on the
enforceability of the Contracts or the Notes or the ability of the
Issuer to perform its obligations under the Transaction Documents to
which it is a party; one hundred percent of the Units of the Issuer at
all times will be owned by the Managing Member; and the Issuer has no
subsidiaries.
(ix) Each of the Managing Member and the Issuer hereby
makes and repeats each of the respective representations and warranties
expressly made by it in the Transaction Documents. Such representations
and warranties are incorporated by reference in this Section 4(a) and
the Underwriters may rely thereon as if such representations and
warranties were fully set forth herein.
(b) The Contributor hereby represents and warrants to and agrees with
the Underwriters as follows:
(i) This Agreement has been duly authorized, executed and
delivered, each of the Transaction Documents to which the Contributor
is a party has been duly authorized, and this Agreement constitutes,
and when executed and delivered, each of such Transaction Documents
will constitute, the legal, valid and binding obligations of the
Contributor enforceable in accordance with their respective terms,
except that (A) the enforcement thereof may be subject to (1)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally
and (2) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought, and (B) the
provisions hereof relating to indemnification of the Underwriters may
be subject to limitations of public policy.
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(ii) The performance by the Contributor of each of this
Agreement and the Transaction Documents to which the Contributor is a
party, and the consummation by the Contributor of the transactions
herein and therein contemplated, will (A) not conflict with or result
in a breach of, and will not constitute a default under any of the
provisions of its certificate of incorporation or by-laws or any law,
governmental rule or regulation, or any judgment, decree or order
binding on the Contributor or its properties, or any of the provisions
of any indenture, mortgage, deed of trust, contract or other agreement
or instrument to which the Contributor is a party or by which it is
bound and (B) not result in the creation or imposition of any lien,
pledge or incumbrance upon any of the Contributor's, Transferor's or
Issuer's property and no consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body is required for the consummation by the Contributor of
the transactions contemplated by this Agreement or the Transaction
Documents, except such consents, approvals, authorizations,
registrations or qualifications as may be required under the Securities
Act and under state securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Underwriters.
(iii) The Contributor hereby makes and repeats the
representations and warranties set forth in Articles II and III of the
Contribution Agreement. Such representations and warranties are
incorporated by reference in this Section 4(b), and the Underwriters
may rely thereon as if such representations and warranties were fully
set forth herein.
(iv) The Contributor represents and warrants it has
delivered to the Underwriters complete and correct copies of its
balance sheet and statements of income and retained earnings for the
fiscal year ended June 30, 2000. Except as set forth in or contemplated
in the Registration Statement and the Prospectus, there has been no
material adverse change in the condition (financial or otherwise) of
the Contributor or any other consolidated subsidiary of the Contributor
since September 30, 2000 or in the earnings, business affairs or
business prospects of the Contributor, the Issuer or the Transferor,
whether or not arising in the ordinary course of business since
September 30, 2000.
(v) Any taxes, fees and other governmental charges arising
from the execution and delivery of this Agreement and the Transaction
Documents and in connection with the execution, delivery and issuance
of the Notes and with the transfer of the Contracts and any interest in
the Equipment, have been paid or will be paid by the Contributor.
(vi) The conditions to the use by the Managing Member and the
Issuer of a Registration Statement on Form S-3 under the Act, as set
forth in the general instructions to the Form S-3, have been satisfied
with respect to the Registration Statement and the Prospectus.
(vii) The Registration Statement as of the Effective Date, and
the Prospectus, as of the date of the Prospectus Supplement, complied
in all material respects with the applicable requirements of the Act
and the 1933 Act Regulations; and the Registration Statement, as of the
Effective Date, did not contain any untrue statement of a material fact
and did not omit to state any material fact required to be stated
therein or necessary to make
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the statements therein not misleading and the Prospectus, as of the
date of the Prospectus Supplement, did not, and as of the Closing Date
will not, contain an untrue statement of a material fact and did not
and will not omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that neither the
Managing Member, the Transferor, the Issuer, the Contributor nor the
Servicer makes any representations or warranties as to the Underwriting
Information.
(c) The Transferor hereby represents and warrants to and agrees with
the Underwriters as follows:
(i) This Agreement has been duly authorized, executed and
delivered by the Transferor and constitutes a legal, valid and binding
agreement of the Transferor enforceable in accordance with its terms,
except that the provisions hereof relating to indemnification of the
Underwriters may be subject to limitations of public policy.
(ii) Each of the Transaction Documents to which the Transferor
is a party have been duly authorized by the Transferor and the
Transferor has the power, authority and legal right to execute, deliver
and perform its obligations under each of the Transaction Documents to
which it is a party and to consummate all transactions contemplated
thereunder, and, when executed and delivered by the Transferor, each of
the Transaction Documents to which it is a party will constitute the
legal, valid and binding obligation of the Transferor, enforceable in
accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
(iii) The sale of the Notes and the performance by the
Transferor, of this Agreement and the Transaction Documents to which
the Transferor is a party will (A) not conflict with or result in a
breach of, and will not constitute a default under any of the
provisions of, its respective certificate of incorporation or limited
liability company operating agreement any law, governmental rule or
regulation, or any judgment, decree or order binding on the Transferor
or its properties, or any of the provisions of any indenture, mortgage,
deed of trust, contract or other agreement or instrument to which the
Transferor is a party or by which it is bound and (B) not result in the
creation or imposition of any adverse claim and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the sale of the
Notes or the consummation by the Transferor of the transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Act and under state securities or Blue Sky laws in connection
with the purchase and distribution of the Notes by the Underwriters.
(iv) The Transferor is not, or will it be, subject to
registration as an "investment company" under the Investment Company
Act of 1940 (the "1940 ACT").
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(v) The Transferor hereby makes and repeats each of the
respective representations and warranties expressly made by it in the
Transaction Documents. Such representations and warranties are
incorporated by reference in this Section 4(c) and the Underwriters may
rely thereon as if such representations and warranties were fully set
forth herein.
(d) Each of the Transferor, the Managing Member and the Contributor
severally represents and warrants to the Underwriters that:
(i) There is no pending or threatened action, suit or
proceeding against or affecting it in any court or tribunal or before
any arbitrator of any kind or before or by any governmental authority
(A) asserting the invalidity of this Agreement, any Transaction
Document or the Notes, (B) seeking to prevent the issuance of the Notes
or the consummation of any of the transactions contemplated by this
Agreement or the Transaction Documents or (C) seeking any determination
or ruling that might materially and adversely affect (x) its
performance or its obligations under this Agreement or the Transaction
Documents (as applicable), (y) the validity or enforceability of this
Agreement, any Transaction Documents or the Notes or (z) the federal
income tax attributes of such Notes described in the Prospectus.
(ii) Deloitte & Touche LLP is an independent public accountant
with respect to the Contributor and the Transferor within the meaning
of the Act and the rules and regulations promulgated thereunder.
Section 5. COVENANTS OF THE MANAGING MEMBER AND THE CONTRIBUTOR. The
Managing Member and the Contributor, jointly and severally, hereby covenant and
agree with the Underwriters as follows:
(a) To satisfy all conditions to the use by the Managing Member and the
Issuer, with respect to the Registration Statement and the Prospectus, of a
registration statement on Form S-3 under the Act, as set forth in the general
instructions to Form S-3; and to use best efforts to cause the Registration
Statement, and any amendment thereto, if not effective as of the date hereof, to
become effective. If the Registration Statement has become or becomes effective
pursuant to Rule 430A, or filing of the Prospectus is otherwise required under
Rule 424(b), the Managing Member will file the Prospectus, properly completed,
pursuant to Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Underwriters of such timely filing. The Managing
Member will promptly advise the Underwriters (i) when the Registration Statement
shall have become effective, (ii) when any amendment thereof shall have become
effective, (iii) of any request by the Commission for any amendment or
supplement of the Registration Statement or the Prospectus or for any additional
information or of the receipt of any comments from the Commission with respect
to the Registration Statement or the Prospectus, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose,
and (v) of the receipt by the Managing Member of any notification with respect
to the suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. Before
amending or supplementing the Registration Statement or the Prospectus with
respect to the Notes, the Managing
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Member will furnish each of the Underwriters with a copy of each such proposed
amendment or supplement within a reasonable time in advance of filing and the
Managing Member will not file any amendment of the Registration Statement or
supplement to the Prospectus to which the Underwriters reasonably object. The
Managing Member and the Contributor will use best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof.
(b) If, at any time when the Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or, if it shall be necessary to supplement such Prospectus
to comply with the Act or the rules thereunder, the Managing Member promptly
will prepare and file with the Commission, subject to paragraph (a) of this
Section 5, a supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) As soon as practicable, the Managing Member will make generally
available to Noteholders and to the Underwriters an earnings statement or
statements of the Issuer which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Issuer will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of the prospectus by
either of the Underwriters or any dealer may be required by the Act, as many
copies of each Prospectus relating to the Notes and any supplement thereto as
the Underwriters may reasonably request.
(e) The Contributor, the Managing Member and the Transferor will take
all reasonable actions requested by the Underwriters to arrange for the
qualification of the Notes for sale under the laws of such jurisdictions within
the United States and as the Underwriters may reasonably designate, will
maintain such qualifications in effect so long as required for the completion of
the distribution of the Notes; PROVIDED, in connection therewith the
Contributor, the Managing Member and the Transferor shall not be required to
qualify as a foreign corporation doing business in any jurisdiction or to file a
general consent to service of process in any jurisdiction.
(f) For so long as the Notes are outstanding, the Managing Member shall
deliver to the Underwriters by first-class mail and as soon as practicable a
copy of all reports and notices delivered by the Issuer to the Trustee or the
Noteholders under the Indenture.
(g) For so long as the Notes are outstanding, the Managing Member and
the Contributor will furnish to the Underwriters as soon as practicable after
filing any other information concerning the Transferor or the Contributor filed
with any government or regulatory authority which is otherwise publicly
available.
(h) To the extent, if any, that any rating provided with respect to the
Notes set forth in Section 6(e) is conditional upon the furnishing of documents
reasonably available to the Managing Member or the Contributor, the Managing
Member or the Contributor, as necessary, shall furnish such documents.
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(i) The Managing Member will file with the Commission within fifteen
days of the issuance of the Notes a current report on Form 8-K setting forth
specific information concerning the Notes and the Contracts to the extent that
such information is not set forth in the Prospectus. The Managing Member will
also file with the Commission a current report on Form 8-K setting forth all
Computational Materials, ABS Term Sheets and Collateral Term Sheets (as such
terms are defined herein) provided to the Managing Member by any Underwriter
within the applicable time periods allotted for such filing pursuant to the
No-Action Letters (as such term is defined herein).
(j) In connection with any Computational Materials, ABS Term Sheets or
Collateral Term Sheets provided by an Underwriter pursuant to Section 5A, the
Transferor must receive a letter from Deloitte & Touche LLP, certified public
accountants, satisfactory in form and substance to the Transferor, to the effect
that such accountants have performed certain specified procedures, all of which
have been agreed to by the Transferor, as a result of which they have determined
that the information included in the Computational Materials, ABS Term Sheets or
Collateral Term Sheets (if any), provided by the Underwriter(s) to the Managing
Member for filing on Form 8-K pursuant to Section 5A and subsection (i), is
accurate except as to such matters that are not deemed by the Managing Member to
be material. The foregoing letter shall be obtained at the expense of the
Managing Member.
(k) In the event that an Underwriter must prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets pursuant to
Section 5A(d), the Managing Member shall file any corrected Computational
Materials, ABS Term Sheets or Collateral Term Sheets no later than two days
following receipt thereof (or, if such second day is not a Business Day, then
the next immediately succeeding Business Day).
Section 5A. INVESTOR INFORMATION. Each Underwriter may prepare and
provide to prospective investors certain Computational Materials, ABS Term
Sheets or Collateral Term Sheets in connection with its offering of the Notes,
subject to the following conditions:
(a) Such Underwriter shall comply with the requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to Kidder, Peabody
Acceptance Corporation I, Kidder, Peabody & Co. Incorporated and Kidder
Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "KIDDER/PSA
LETTER"), and the requirements of the No-Action Letter of February 17, 1995
issued by the Commission to the Public Securities Association (the "PSA LETTER"
and, together with the Kidder/PSA Letter, the "NO-ACTION LETTERS").
(b) For purposes hereof, "COMPUTATIONAL MATERIALS" shall have the
meaning given such term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to prospective
investors by any Underwriter. For purposes hereof, "ABS TERM SHEETS" and
"COLLATERAL TERM SHEETS" shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term Sheets
that have been prepared or delivered to prospective investors by any
Underwriter.
(c) Each Underwriter shall provide to the Managing Member any
Computational Materials, ABS Term Sheets or Collateral Term Sheets which are
provided to investors by it no later
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than the day preceding the date such Computational Materials, ABS Term Sheets or
Collateral Term Sheets are required to be filed pursuant to the applicable
No-Action Letters. Each Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to be filed.
(d) In the event that the Managing Member or any Underwriter discovers
an error in the Computational Materials, ABS Term Sheets or Collateral Term
Sheets, the Underwriter that prepared such material shall prepare corrected
Computational Materials, ABS Term Sheets or Collateral Term Sheets, as
applicable, and deliver them to the Managing Member for filing pursuant to
Section 5(k).
Section 6. CONDITIONS OF THE UNDERWRITERS' OBLIGATION. The obligation
of the Underwriters to purchase and pay for the Notes as provided herein shall
be subject to the accuracy as of the date hereof and the Closing Date (as if
made at the Closing Date) of the representations and warranties of the
Transferor, the Managing Member, the Contributor and the Issuer contained herein
(including those representations and warranties set forth in the Transaction
Documents and incorporated herein), to the accuracy of the statements of the
Transferor, the Managing Member, the Contributor and the Issuer made in any
certificate or other document delivered pursuant to the provisions hereof, to
the performance by the Transferor, the Managing Member, the Contributor and the
Issuer of its respective obligations hereunder, and to the following additional
conditions:
(a) (i) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been initiated or threatened by the Commission and the Prospectus Supplement
shall have been filed or transmitted for filing by means reasonably calculated
to result in filing with the Commission not later than the time required by Rule
424(b) under the Act and (ii) there shall not have come to any Underwriter's
attention any facts that would cause such Underwriter to believe that the
Prospectus at the time it was required to be delivered to a purchaser of the
Notes, contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading. No challenge by the
Commission shall have been made to the accuracy or adequacy of the Registration
Statement and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus shall have been
complied with and the Transferor shall not have filed with the Commission any
amendment or supplement to the Registration Statement or the Prospectus without
prior written notice to the Underwriters.
(b) The Underwriters shall have received the Transaction Documents,
including the Notes, in form and substance reasonably satisfactory to the
Underwriters, duly executed by all signatories required pursuant to the
respective terms thereof.
(c) (i) The Underwriters shall have received the favorable opinions of
Thacher Proffitt & Wood with respect to the following items, each dated the
Closing Date:
(A) Each of the agreements to which the
Contributor, the Transferor and the Issuer is a party (the
"AGREEMENTS"), assuming the necessary authorization, execution
and delivery thereof by the parties thereto, is a valid and
legally binding
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agreement under the laws of the State of New York, enforceable
thereunder in accordance with its terms.
(B) The Notes, assuming the necessary execution,
authentication and delivery thereof and payment therefor in
accordance with the applicable Agreements, are valid and
legally binding obligations under the laws of the State of New
York, enforceable thereunder against the Issuer in accordance
with their terms, and are entitled to the benefits of the
Indenture.
(C) With respect to each of the Contributor, the
Transferor and the Issuer, the performance of its obligations
under the Agreements to which it is a party and the
consummation of the transactions contemplated thereby do not
require any consent, approval, authorization or order of,
filing with or notice to any court, agency or other
governmental body, except such as may be required under the
securities laws of any state or such as have been obtained,
effected or given.
(D) With respect to each of the Contributor, the
Transferor and the Issuer, the performance of its obligations
under the Agreements to which it is a party and the
consummation of the transactions contemplated thereby will not
result in any breach or violation of any statute or regulation
thereunder or, to such counsel's knowledge, any order of any
court, agency or other governmental body.
(E) The Agreements create, for the benefit of the
Trustee, acting under the Indenture for the benefit of the
Holders of the Notes, a valid security interest under the New
York UCC in all right, title and interest of the Issuer in and
to the Contracts and the proceeds thereof, (i) which security
interest in the Initial Contracts and the proceeds thereof,
and, with respect to the Substitute Contracts, upon the
delivery of such Substitute Contracts to the Trustee pursuant
to and in accordance with the Agreements, will be perfected
and is prior to all other security interests and (ii) which
security interest, upon the filing of the Financing Statements
in the Filing Offices, will be perfected in any Contract
constituting either an Instrument or Chattel Paper, and the
proceeds thereof, in which a security interest can be
perfected against the Issuer by filing.
(F) The statements made in the Prospectus
Supplement under the heading "DESCRIPTION OF THE NOTES AND
PRINCIPAL TRANSACTION DOCUMENTS," insofar as such statements
purport to summarize certain provisions of the Notes, the
Contribution Agreement, the SCTA and the Indenture, provide a
fair summary of such provisions. The statements made in the
Prospectus Supplement under the headings "MATERIAL FEDERAL
INCOME TAX CONSEQUENCES", "LEGAL INVESTMENT" and
"CONSIDERATIONS FOR BENEFIT PLAN INVESTORS," to the extent
that they constitute statements of the law of the State of New
York or federal law or legal conclusions with respect thereto,
while not purporting to discuss all possible consequences of
investment in the Notes, are correct in all material respects
with respect to those consequences or matters that are
discussed therein.
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(G) The Indenture has been qualified under the
Trust Indenture Act of 1939, as amended. Neither the
Transferor nor the Issuer is an "investment company" nor
"controlled by" an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(H) The Registration Statement has become effective
under the 1933 Act. To such counsel's knowledge, (1) no stop
order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn, and no
proceedings for that purpose have been instituted or
threatened under Section 8(d) of the 1933 Act and (2) the
conditions to the use by the Managing Member and the Issuer of
a Registration Statement on Form S-3 under the Act, as set
forth in the general instructions to the Form S-3, have been
satisfied with respect to the Registration Statement and the
Prospectus.
(I) The Registration Statement as of its effective
date, the date of the Prospectus Supplement and the date
hereof, and the Prospectus as of the date thereof and hereof,
other than with respect to any financial and statistical
information, Computational Materials and ABS Term Sheets
contained or incorporated by reference therein as to which we
express no opinion herein, complied as to form in all material
respects with the requirements of the 1933 Act and the
applicable rules and regulations thereunder.
(J) To such counsel's knowledge, there are no
material contracts, indentures or other documents of a
character required to be described or referred to in either
the Registration Statement or the Prospectus Supplement or to
be filed as exhibits to the Registration Statement, other than
any Computational Materials and ABS Term Sheets, as to which
such counsel expresses no opinion, and those described or
referred to therein or filed or incorporated by reference as
exhibits thereto.
(K) No information has come to the attention of the
attorneys of such counsel who are involved in the
representation of parties to the transactions described in the
Transaction Documents that causes them to believe that (A) the
Registration Statement, as of its effective date or as of the
Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made not misleading or (B) the Prospectus, as of the
date of the Prospectus Supplement or as of the Closing Date,
contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(ii) The Underwriters shall have received the favorable
opinions of Melvin Breaux, Esq. general counsel to the Issuer, the
Transferor and the Contributor with respect to the following items,
each dated the Closing Date:
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(A) Each of the Issuer, the Transferor and the
Contributor has been duly organized and is validly existing as
a corporation or, in the case of the Issuer, a limited
liability company, in good standing under the laws of the
State of Delaware, and is qualified to do business in each
jurisdiction in which the character of the properties owned or
leased by it or the nature of the business conducted by it
makes such qualification necessary to conduct its business as
presently conducted (except where the failure to be so
qualified or in good standing could not individually or in the
aggregate have a material adverse effect upon (x) the
business, assets, property, condition (financial or otherwise)
or prospects of the Issuer, the Transferor or the Contributor,
respectively, taken as a whole or (y) the validity and
enforceability of the Agreements to which it is a party. Each
of the Issuer, the Transferor and the Contributor has the
power and authority to make, deliver and perform each of the
Agreements to which it is a party.
(B) The Agreements have been duly authorized,
executed and delivered by the Issuer, the Transferor and the
Contributor, as to those Agreements as to which each
respectively is a party, and each constitutes the valid and
binding obligation of the Issuer, the Transferor or the
Contributor, respectively, enforceable against the Issuer, the
Transferor and the Contributor, as applicable, in accordance
with their respective terms, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(C) Neither the consummation of transactions
contemplated by, nor the execution, delivery and performance
of the terms of the Agreements, (x) will result in any
violation of the limited liability company operating
agreement, certificate of incorporation or bylaws of the
Issuer, the Transferor or the Contributor, as applicable; or
(y) to the best of such counsel's knowledge, any order,
judgment or decree of any court or arbitrator to which any of
the Issuer, the Transferor or the Contributor is a party or is
subject; and (z) to the best of such counsel's knowledge, will
not conflict with, result in a breach, violation or
acceleration of any of the terms of, constitute a default
under or result in the creation or imposition of any lien,
pledge or encumbrance upon either the Issuer's, the
Transferor's or the Contributor's property pursuant to the
terms of any indenture, loan agreement, any other agreement,
instrument or other undertaking to which either the Issuer,
the Transferor or the Contributor or any of their subsidiaries
is a party or by which any of them is bound or to which any of
their property or assets of any of them is subject, or upon
the Notes, except as otherwise contemplated by the Indenture.
(D) Except for the filing of the related UCC
financing statements described in the Agreements and the
registration under the Securities Act of the Publicly Offered
Notes, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution by the Underwriters, no consent,
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approval, authorization, order or withholding of objection on
the part of, or registration or qualification with, any court,
governmental agency or body or tribunal is required for the
execution and delivery by either the Issuer, the Transferor or
the Contributor of, or the consummation by each of them of the
Agreements, except such consents, approvals, authorizations,
registrations or qualifications which have been obtained and
such as have been made and are in full force and effect.
(E) Other than as may be set forth or contemplated
in the related Prospectus Supplement, there are no actions,
proceedings or investigations pending or, to the best of such
counsel's knowledge, threatened before any court,
administrative agency or other tribunal to which either the
Issuer, the Transferor or the Contributor is a party or
threatened to be made a party (i) asserting the invalidity of
the Agreements, (ii) seeking to prevent the consummation of
any of the transactions contemplated by the Agreements or
(iii) which could reasonably be expected to have a material
adverse effect upon (x) the business, assets, property,
condition (financial or otherwise) or prospects of any of the
Issuer, the Transferor or the Contributor or any of their
subsidiaries, taken as a whole or (y) the validity and
enforceability of the Indenture or the rights of the Trustee
therein.
(F) The Notes, assuming due authentication by the
Trustee, and delivery and payment therefor pursuant to the
Agreements, are validly issued and outstanding and are
entitled to the benefits of the Indenture.
(G) No information has come to the attention of
such counsel that causes him to believe that (A) the
Registration Statement, as of its effective date or as of the
Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made not misleading or (B) the Prospectus, as of the
date of the Prospectus Supplement or as of the Closing Date,
contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) The Underwriters shall have received the favorable
opinion(s), dated the Closing Date, of Thacher Proffitt & Wood, with
respect to such other related matters as the Underwriters shall
reasonably require.
In rendering their opinions, the counsel described in this Paragraph
(c) may rely, as to matters of fact, on certificates of responsible officers of
the Issuer, the Managing Member, the Transferor, the Contributor, the Trustee
and public officials. Such opinions may also assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto; PROVIDED, HOWEVER, that counsel to the Transferor, the
Managing Member, the Contributor and the Issuer may not make such assumptions
with respect to such Transferor, Managing Member, Contributor and Issuer.
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<PAGE>
(d) The Underwriters shall have received a letter from a nationally
recognized independent accounting firm, dated on or before the Closing Date, in
form and substance satisfactory to the Underwriters and counsel for the
Underwriters, to the effect that they have performed certain specified
procedures requested by the Underwriters with respect to the information set
forth in the Prospectus and certain matters relating to the Managing Member.
(e) The Class A-1 Notes shall have been rated "F1+" and "P-1" by Fitch,
Inc. ("FITCH") and Moody's Investors Service, Inc. ("MOODY'S"; together with
Fitch, the "RATING AGENCIES"), respectively; the Class A-2 Notes, the Class A-3
Notes, the Class A-4 Notes, shall have been rated "AAA" or "Aaa", as applicable,
by the Rating Agencies; the Class B Notes shall have been rated at least "AA" or
"Aa3", as applicable, by the Rating Agencies; the Class C Notes shall have been
rated at least "A" or "A2", as applicable, by the Rating Agencies; the Class D
Notes shall have been rated at least "BBB" or "Baa2", as applicable by the
Rating Agencies; and such ratings shall not have been rescinded. The
Underwriters and counsel for the Underwriters shall have received copies of any
opinions of counsel supplied to the rating organizations relating to any matters
with respect to the Class A Notes, the Class B Notes, the Class C Notes and the
Class D Notes. Any such opinions shall be dated the Closing Date and addressed
to the Underwriters or accompanied by reliance letters to the Underwriters or
shall state that the Underwriters may rely upon them.
(f) The Underwriters shall have received from the Managing Member a
certificate, signed by the president, a senior vice president or a vice
president of the Managing Member, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the Prospectus, the Indenture and this Agreement and that, to his or her
knowledge:
(i) the representations and warranties of the Managing Member
and the Issuer, as applicable, in this Agreement and in the
Contribution and Servicing Agreement, as of the Closing Date, and in
the Indenture, the Subsequent Contract Transfer Agreement and in all
related agreements, as of the date specified in such agreements, are
true and correct, and the Managing Member and the Issuer, as
applicable, has complied with all the agreements, and satisfied all the
conditions on its part to be performed or satisfied, thereunder at or
prior to the Closing Date;
(ii) there are no actions, suits or proceedings pending, or,
to such officer's knowledge, threatened, against or affecting the
Managing Member or the Issuer which, if adversely determined,
individually or in the aggregate, would be reasonably likely to
materially and adversely affect the ability of the Managing Member or
the Issuer to perform the Managing Member's or the Issuer's,
respectively, obligations under the Transaction Documents or the Notes;
and no merger, liquidation, dissolution or bankruptcy of the Managing
Member or the Issuer is pending or contemplated;
(iii) the information contained in the Registration Statement
and the Prospectus relating to the Managing Member, the Issuer, the
Contracts or the servicing procedures of its affiliates is true and
accurate in all material respects, and nothing has come to his or her
attention that would lead such officer to believe that the Registration
Statement or the
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Prospectus includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein not
misleading;
(iv) the information set forth in the List of Contracts
required to be furnished pursuant to the Indenture is true and correct
in all material respects;
(v) there has been no amendment or other document filed
affecting the certificate of incorporation or bylaws of the Managing
Member since the amendment filed July 22, 1999, and no such other
amendment or other document has been authorized. Other than with regard
to the amendments that the Issuer intends to enter into on the Closing
Date, there has been no amendment or other document filed affecting the
amended and restated limited liability company operating agreement of
the Issuer since April 1, 2000 and no such amendment has been
authorized. No event has occurred since November 9, 2000 which has
affected the good standing of the Managing Member or the Issuer under
the laws of the State of Delaware;
(vi) there has not occurred any material adverse change, or,
to such officer's knowledge, any development involving a prospective
material adverse change, in the condition, financial or otherwise,
results of operations, business or operations of the Issuer, the
Managing Member and its parent, taken as a whole, since September 30,
2000;
(vii) on or prior to the Closing Date, there has been no
downgrading nor has any notice been given of (A) any intended or
potential downgrading or (B) any review or possible change in rating,
the direction of which has not been indicted in, the rating, if any,
accorded the Notes or the long-term unsecured debt rating of DVI, Inc.
by any "nationally recognized statistical rating organization," as such
term is defined for purposes of the Act;
(viii) each person who, as an officer or representative of the
Managing Member or the Issuer, signed or signs the Registration
Statement, the Transaction Documents or any other document delivered
pursuant hereto, on the date of such execution or on the Closing Date,
as the case may be, in connection with the transactions described in
the Transaction Documents, was, at the respective times of such signing
and delivery, and is now, duly elected or appointed, qualified and
acting as such officer or representative, and the signatures of such
persons appearing on such documents are their genuine signatures; and
(ix) the Notes have been duly executed by the Issuer.
The Managing Member shall attach to such certificate a true and correct
copy of its certificate of incorporation and bylaws, which are in full force and
effect on the date of such certificate, and a certified true copy of the
resolutions of its Board of Directors with respect to the transactions
contemplated herein and the Issuer shall attach a true and correct copy of its
limited liability company operating agreement, which will be in full force and
effect on the date of such certificate.
(g) The Underwriters shall have received a certificate, signed by the
president, a senior vice president or a vice president of each of the
Contributor and the Servicer, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the
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Prospectus, the Indenture, and the Contribution and Servicing Agreement and
that, to his or her knowledge:
(i) the representations and warranties of each of the
Contributor and the Servicer in the Contributor Documents, as of the
Closing Date, and in all related agreements, as of the date specified
in such agreements, are true and correct, and each of the Contributor
and the Servicer has complied with all the respective agreements, and
satisfied all the conditions on its part to be performed or satisfied
thereunder at or prior to the Closing Date;
(ii) there are no actions, suits or proceedings pending, or,
to such officer's knowledge, threatened, against or affecting the
Contributor or the Servicer which, if adversely determined,
individually or in the aggregate, would be reasonably likely to
materially and adversely affect the Contributor's or the Servicer's
respective obligations under the Contributor Documents; and no merger,
liquidation, dissolution or bankruptcy of the Contributor or the
Servicer is pending or contemplated;
(iii) the information contained in the Registration Statement
and the Prospectus relating to the Contributor and the Servicer, the
Contracts, the origination procedures of the Contributor and the
servicing procedures of the Servicer is true and accurate in all
material respects, and nothing has come to his or her attention that
would lead such officer to believe that the Registration Statement or
the Prospectus, includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein
not misleading;
(iv) the information set forth in the List of Contracts
required to be furnished pursuant to the Contribution and Servicing
Agreement is true and correct in all material respects;
(v) there has been no amendment or other document filed
affecting the certificate of incorporation or bylaws of the
Contributor/Servicer since April 17, 1996 and no such other amendment
or other document has been authorized. No event has occurred since
November 9, 2000, which has affected the good standing of the
Contributor/Servicer under the laws of the State of Delaware;
(vi) there has not occurred any material adverse change, or,
any development involving a prospective material adverse change, in the
condition, financial or otherwise, results of operations, business or
operations of the Contributor or the Servicer and its respective
subsidiaries, taken as a whole, since September 30, 2000; and
(vii) each person who, as an officer or representative of the
Contributor or the Servicer, signed or signs the Contributor Documents
or any other document delivered pursuant hereto, on the date of such
execution, or on the Closing Date, as the case may be, in connection
with the transactions described in the Contributor Documents, was, at
the respective times of such signing and delivery, and is now, duly
elected or appointed, qualified and acting as such officer or
representative, and the signatures of such persons appearing on such
documents are their genuine signatures.
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The Contributor/Servicer shall attach to such certificate a true and
correct copy of its certificate of incorporation and bylaws, which are in full
force and effect on the date of such certificate, and a certified true copy of
the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
(h) The Underwriters shall have received a favorable opinion of counsel
to the Trustee, dated the Closing Date and in form and substance reasonably
satisfactory to the Underwriters, to the effect that:
(i) the Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the United
States of America, and has the power and authority to enter into and to
take all actions required of it under the Indenture;
(ii) the Indenture has been duly authorized, executed and
delivered by the Trustee, and the Indenture constitutes the legal,
valid and binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms, except as enforceability thereof
may be limited by (A) bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally,
as such laws would apply in the event of a bankruptcy, insolvency or
reorganization or similar occurrence affecting the Trustee, and (B)
general principles of equity, regardless of whether such enforcement is
sought in a proceeding at law or in equity;
(iii) no consent, approval, authorization or other action by
any state or federal court or any governmental agency or body or other
tribunal is required on the part of the Trustee in connection with its
execution and delivery of the Indenture or the performance of its
obligations thereunder;
(iv) the Notes have been duly authenticated and delivered by
the Trustee; and
(v) the execution and delivery of, and performance by the
Trustee of its obligations under, the Indenture do not conflict with or
result in a violation of any statute or regulation applicable to the
Trustee, or the charter or bylaws of the Trustee, or any order,
judgment, writ, injunction or decree of any governmental authority
having jurisdiction over the Trustee, or, to the best knowledge of such
counsel, the terms of any material indenture or other agreement or
instrument to which the Trustee is a party or by which it is bound.
In rendering such opinion, such counsel may rely, as to matters of
fact, on certificates of responsible officers of the Transferor, the Managing
Member, the Trustee and public officials. Such opinion may also assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Trustee.
(i) The Underwriters shall have received from the Trustee a
certificate, signed by the president, a senior vice president or a vice
president of the Trustee, dated the Closing Date, to the effect that each person
who, as an officer or representative of the Trustee, signed or signs the Notes,
the Indenture or any other document delivered pursuant hereto, on the date
hereof or on the Closing Date, in connection with the transactions described in
the Indenture, was, at the respective times of
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such signing and delivery, and is now, duly elected or appointed, qualified and
acting as such officer and representation, and the signatures of such persons
appearing on such documents are their genuine signatures.
(j) On or prior to the Closing Date, there has been no downgrading, nor
has any notice been given of (A) any intended or potential downgrading or (B)
any review or possible changes in rating, the direction of which has not been
indicated in the rating, if any, in any rating accorded the Notes by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of the Act.
(k) Since September 30, 2000, there has not occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the business or operations, of (A) the Managing Member, (B) the
Transferor, (C) the Servicer or (D) the Contributor, that, in either
Underwriter's judgment, is material and adverse and that makes it, in either
Underwriter's reasonable judgment, impracticable to market the Notes on the
terms and in the manner contemplated in the Prospectus.
(l) Reserved.
(m) The Underwriters and counsel for the Underwriters shall have
received copies of any opinions of counsel to the Contributor, the Managing
Member, the Transferor or the Issuer supplied to the Trustee relating to matters
with respect to the Notes. Any such opinions shall be dated the Closing Date and
addressed to the Underwriters or accompanied by reliance letters to the
Underwriters or shall state the Underwriters may rely thereon.
(n) The Underwriters shall have received such further information,
certificates and documents as the Underwriters may reasonably have requested not
fewer than three (3) full Business Days prior to the Closing Date.
(o) The Contributor shall have transferred to the Trustee, for deposit
in the Collection Account to be maintained by the Trustee in accordance with the
Indenture, all Contract Payments actually received by the Contributor which were
due subsequent to the Cut-Off Date and received on or prior to the Closing Date.
(p) The Financing Statements shall have been prepared and filed as set
forth in Article One of the Contribution and Servicing Agreement.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all respects when and as provided in this Agreement, if the
Managing Member, the Transferor, the Issuer or the Contributor is in breach of
any covenants or agreements contained herein or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Underwriters and counsel to the Underwriters, this Agreement and all obligations
of the Underwriters hereunder may be canceled on, or at any time prior to, the
Closing Date by the Underwriters. Notice of such cancellation shall be given to
the Managing Member in writing, or by telephone or telegraph confirmed in
writing.
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Section 7. REIMBURSEMENT OF EXPENSES. If (x) no closing of the sale of
the Notes occurs by the Closing Date through no fault of the Managing Member,
the Transferor, the Issuer or the Contributor or because the conditions set
forth in Section 6 have not been met, or (y) the Underwriters terminate the
engagement pursuant to Section 10 or because any conditions precedent in Section
6 have not been fulfilled, then the Managing Member's or the Contributor's
liability to the Underwriters shall be limited to the reimbursement of the
Underwriters' expenses incurred through the date of termination for their
reasonable out-of-pocket and incidental expenses. In addition, whether or not
the Notes are issued or sold:
(a) The Transferor or the Contributor shall pay the reasonable fees and
expenses associated with the transactions contemplated hereby not paid by the
Underwriters in accordance with the provisions of Section 7(b) including,
without limitation, the following fees and expenses:
(i) rating agency fees payable with respect to their ratings
of the Notes;
(ii) any fees charged by the firm of independent public
accountants referred to in Section 6(d);
(iii) filing fees in connection with the transactions
contemplated hereby including, but not limited to, the Commission;
(iv) reasonable fees and expenses of counsel to the
Underwriters;
(v) the Trustee's fees and expenses and reasonable fees and
expenses of counsel to the Trustee;
(vi) the costs and expenses of printing the Prospectus;
(vii) the costs of printing or reproducing this Agreement, the
Blue Sky Survey, if applicable, and any other documents in connection
with the offer, sale and delivery of the Notes;
(viii) all expenses in connection with the qualification of
the Notes under state securities laws as provided in Section 4(a)(vi),
including the fees and disbursements of counsel in connection with the
Blue Sky Survey, if applicable;
(ix) the cost of preparing the Notes;
(x) the cost or expenses of any transfer agent or registrar;
and
(xi) all other costs and expenses incident to the performance
of their obligations hereunder which are not otherwise specifically
provided for in this Section 7; PROVIDED, that neither the Contributor
nor the Managing Member waives any rights to reimbursement from the
Underwriters in the event of any Underwriter's failure to perform in
accordance with this Agreement.
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(b) It is understood and agreed that, except as provided in Sections 8
and 9, the Underwriters will pay securities transfer taxes on resale of any of
the Notes by them, and any advertising expenses connected with any offers they
may make.
Section 8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Transferor and the Contributor, jointly and severally, will
indemnify and hold harmless each Underwriter as follows: (i) against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or acts in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any preliminary Prospectus or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will promptly reimburse, from time to time as set forth in an invoice
delivered by an Underwriter, each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating,
preparing to defend or defending, or appearing as a third-party witness in
connection with, any such action or claim; PROVIDED, that the Transferor and the
Contributor shall not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement or the Prospectus or any such amendment or
supplement, in reliance upon and in conformity with the Underwriting Information
(defined below); and (ii) against any losses, claims, damages, liabilities,
joint or several, and expenses whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained in the
Computational Materials, ABS Term Sheets or Collateral Term Sheets distributed
by any Underwriter; unless such untrue statement or alleged untrue statement of
a material fact was made in reliance upon and in conformity with Derived
Information provided by such Underwriter expressly for use in the Computational
Materials, the ABS Term Sheets or the Collateral Term Sheets and the untrue
statement or alleged untrue statement did not derive from an inaccuracy in the
Transferor- Provided Information used in the preparation of such Computational
Materials, ABS Term Sheets or Collateral Term Sheets.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Transferor and the Contributor as follows: (i) against any
losses, claims, damages or liabilities to which the Transferor or the
Contributor may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or acts in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Underwriting Information or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Underwriting Information or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Transferor or the Contributor by or on behalf of
such Underwriter expressly for use therein; and will reimburse the Transferor or
the Contributor for any legal or other expenses reasonably incurred by the
Transferor or the Contributor in connection with the investigating, preparing to
defend or defending, or appearing as a third-party witness in
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connection with any such action or claim; and (ii) against any losses, claims,
damages and expenses described in the indemnity contained in subsection (a) of
this Section 8, as incurred, but only with respect to untrue statements or
alleged untrue statements made in the Computational Materials, Collateral Term
Sheets or ABS Term Sheets furnished by such Underwriter to the extent that such
untrue statement or alleged untrue statement of a material fact was made in
reliance upon and in conformity with Derived Information provided by it
expressly for use in the Computational Materials, the ABS Term Sheets or the
Collateral Term Sheets and the untrue statements or alleged untrue statements
were not derived from any inaccuracy in the Transferor-Provided Information used
in the preparation of such Computational Materials, ABS Term Sheets or
Collateral Term Sheets.
The Transferor and the Contributor acknowledge that the
statements set forth under the heading "PLAN OF DISTRIBUTION" (except for the
fifth paragraph, which incorporates by reference additional information in the
Prospectus concerning the offer or sale of the Notes) in the Prospectus
Supplement constitute the only information furnished in writing by or on behalf
of the Underwriters for inclusion in the Registration Statement or the
Prospectus (the "UNDERWRITING INFORMATION"), and the Underwriters confirm that
such statements are correct; provided, however, that if, but only if, all
Transferor Provided Information (as defined below) is accurate and complete in
all material respects, the references to "Underwriting Information" in this
Agreement shall be deemed to include any Derived Information contained in a Form
8-K relating to the Notes filed by the Transferor with the Commission. For
purposes of this Section, the term "Derived Information" means such portion, if
any, of the information contained in Computational Materials, Collateral Term
Sheets or ABS Term Sheets in any Form 8-K relating to the Notes filed by the
Transferor with the Commission as:
(1) is not also contained in the Prospectus or
the Prospectus Supplement without taking
into account information incorporated
therein by reference; and
(2) does not constitute Transferor-Provided
Information.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection; PROVIDED that the failure to provide such
notice shall relieve such indemnifying party to the extent that such failure to
notify materially prejudices the indemnifying party's ability to pursue any
right, claim, action or suit in connection with the indemnified party's claim.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party; PROVIDED, that if the defendants in any such action include
both the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by counsel that representation of such indemnified party
and the indemnifying party may be inappropriate under applicable standards of
professional conduct due to actual or potential differing interests between
them, the indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or
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<PAGE>
parties. It is understood that the indemnifying party shall, in connection with
any such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of only one separate firm of
attorneys together with appropriate local counsel at any time from all
indemnified parties not having actual or potential differing interest with any
other indemnified party. Upon receipt of notice from the indemnifying party to
such indemnified party of such counsel, the indemnifying party will not be
liable for any settlement entered into without its consent and will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the second preceding sentence, (ii)
the indemnifying party shall have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). Notwithstanding the immediately preceding sentence
and the first sentence of this paragraph, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnifying party in accordance with such request
prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (B) in respect of any losses, claims, damages or liabilities
(or actions or proceeding in respect thereon) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Transferor and the Contributor
on the one hand and the Underwriters on the other from the offering of the
Notes. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c), then each indemnifying party
shall contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Transferor or the Contributor on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Transferor or the
Contributor on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion that the total net proceeds from the offering (before
deducting expenses) received by the Transferor and the Contributor bear to the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Transferor or the Contributor on the one hand or the Underwriters on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
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<PAGE>
The Transferor, the Contributor and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to above in
this subjection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating, preparing to defend or defending, or
appearing as a third-party witness in connection with, any such action or claim.
Notwithstanding the provision for this subsection (d), the Underwriters shall
not be required to contribute any amount in excess of the total underwriting
discount as set forth on the cover page of the Prospectus. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters to contribute
pursuant to this subsection (d) are several in proportion to their respective
underwriting obligations with respect to such Notes and not joint.
(e) The obligations of the Transferor and the Contributor under this
Section 8 shall be in addition to any liability which the Transferor or the
Contributor may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls either of the Underwriters
within the meaning of the Act, and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Transferor and the Contributor and to each person,
if any, who controls the Transferor or the Contributor within the meaning of the
Act.
Section 9. SURVIVAL. The respective representations, warranties and
agreements of the Transferor, the Managing Member, the Issuer, the Contributor
and the Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, notwithstanding any investigation heretofore or
hereafter made by or on behalf of the Transferor, the Managing Member, the
Issuer, the Contributor or the Underwriters or any director, officer or
controlling person thereof, and such representations, warranties and agreements
made by the Transferor, the Managing Member, the Issuer and the Contributor
shall survive the delivery and payment for the Notes. The provisions of Sections
7 and 8 shall survive the termination or cancellation of this Agreement.
Section 10. TERMINATION.
(a) This Agreement may be terminated by the Underwriters at any time
upon the giving of notice at any time prior to the Closing Date: (i) if there
has been, since September 30, 2000, any material adverse change in the
condition, financial or otherwise, of the Contributor, the Managing Member, the
Issuer or the Transferor, or in the earnings, business affairs or business
prospects of the Contributor, the Issuer or the Transferor, whether or not
arising in the ordinary course of business, (ii) if there has occurred a
material adverse change in the financial markets of the United States or any
outbreak or escalation of hostilities or other calamity or crises, in each case,
the effect of which would make it, in the reasonable judgment of the
underwriters, impracticable to market the Notes or enforce contracts for the
sale of the Notes, (iii) if trading generally on either the American Stock
Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by
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<PAGE>
either of said exchanges or by order of the Commission or any other governmental
authority or (iv) if a banking moratorium has been declared by either federal or
New York authorities. In the event of any such termination, no party will have
any liability to any other party hereto, except as otherwise provided in
Sections 7 or 8.
(b) This agreement may not be terminated by the Transferor, the
Managing Member, the Issuer or the Contributor, except in accordance with law,
without the written consent of the Underwriters.
(c) Notwithstanding anything herein to the contrary, if the Transferor,
the Managing Member, the Issuer or the Contributor does not perform any
obligation under this agreement or any representation and warranty hereunder is
incomplete or inaccurate in any material respect, this Agreement and all of the
Underwriters' obligations hereunder may be immediately canceled by the
Underwriters by notice thereof to the Managing Member or the Contributor. Any
such cancellation shall be without liability of any party to any other party
except that the provisions of Sections 8 and 9 shall survive any such
cancellation.
Section 11. NOTICES. All communications provided for or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed by certified or registered mail, postage
prepaid, or transmitted by telex or telegraph and confirmed by a similar mailed
writing, if to the Underwriters, addressed to Merrill Lynch, Pierce, Fenner &
Smith Incorporated, addressed c/o Mr. Ted Breck, facsimile no.: (212) 449-9015,
at the address set forth in the beginning of this Agreement, to Banc One Capital
Markets, Inc., c/o Jeffrey J. Orr, facsimile no.: (312) 732-4487, at the address
set forth in the beginning of this Agreement or to such other address as any of
the Underwriters may designate with respect to itself in writing to the
Transferor or the Contributor; if to the Contributor, addressed to the
Securitization Manager at 2500 York Road, Jamison, Pennsylvania 18929, facsimile
no.: (215) 488-5416; if to the Transferor, addressed to the Transferor at 2500
York Road, Jamison, Pennsylvania 18929, facsimile no.: (215) 488-5416, or such
other address as the Transferor or the Contributor may have designated in
writing to you; if to the Managing Member, addressed to the Managing Member at
2500 York Road, Jamison, Pennsylvania 18929, facsimile no.: (215) 488-5416, or
such other address as the Managing Member may have designated in writing to you;
or, if to the Issuer, addressed to the Issuer at 2500 York Road, Jamison,
Pennsylvania 18929, facsimile no.: (215) 488-5416, or such other address as the
Issuer may have designated in writing to you.
Section 12. SUCCESSORS; ACTIONS BY THE UNDERWRITERS. This Agreement
will inure to the benefit of and be binding upon the Transferor, the Managing
Member, the Issuer and the Contributor and their respective successors and
assigns and the Underwriters and their respective successors and assigns. Any
action by the Underwriters hereunder may be taken by the Underwriters jointly or
alone or on behalf of the Underwriters, and any such action taken alone shall be
binding upon the Underwriters.
Section 13. DEFAULT BY EITHER UNDERWRITER. If any Underwriter shall
fail on the Closing Date to purchase the Notes which it is obligated to purchase
hereunder (the "DEFAULTED NOTES"), the remaining Underwriters (the
"NON-DEFAULTING UNDERWRITERS") shall have the right, but not the obligation,
within one (1) Business Day thereafter, to make arrangements to purchase all,
but not less
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<PAGE>
than all, of the Defaulted Notes upon the terms herein set forth; if, however,
the Non-Defaulting Underwriters shall not have completed such arrangements
within such one (1) Business Day period, then this Agreement shall terminate
without liability on the part of the Non-Defaulting Underwriters.
No action taken pursuant to this Section 13 shall relieve the
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, any of the Non-Defaulting Underwriters, the Transferor, the
Managing Member or the Contributor shall have the right to postpone the Closing
Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements.
Section 14. ENTIRE AGREEMENT. This Agreement and the documents referred
to herein and to be delivered pursuant hereto constitute the entire agreement
between the parties pertaining to the subject matter hereof and supersede all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties.
Section 15. GOVERNING LAW.
(a) THIS AGREEMENT IS TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF NEW YORK.
(b) EACH UNDERWRITER, THE TRANSFEROR, THE MANAGING MEMBER, THE ISSUER
AND THE CONTRIBUTOR HEREBY SUBMIT 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 IN NEW YORK CITY, AND EACH WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
REGISTERED MAIL DIRECTED TO THE ADDRESS SET FORTH IN SECTION 11 AND SERVICE SO
MADE SHALL BE DEEMED TO BE COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN
DEPOSITED IN THE U.S. MAILS, POSTAGE PREPAID. THE TRANSFEROR, THE MANAGING
MEMBER, THE ISSUER AND THE CONTRIBUTOR HEREBY WAIVE ANY OBJECTION BASED ON FORUM
NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE TRANSFEROR, THE MANAGING
MEMBER, THE ISSUER OR THE CONTRIBUTOR TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT EITHER'S RIGHT TO BRING ANY ACTION OR PROCEEDING IN
THE COURTS OF ANY OTHER JURISDICTION.
(c) EACH UNDERWRITER, THE TRANSFEROR, THE MANAGING MEMBER, THE ISSUER
AND THE CONTRIBUTOR HEREBY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR IN
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CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE
RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
Section 17. MISCELLANEOUS. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
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<PAGE>
UNDERWRITING AGREEMENT
If you are in agreement with the foregoing, please sign a counterpart
hereof and return the same to the Transferor, the Managing Member, the Issuer
and the Contributor, whereupon this Agreement shall become a binding agreement
among the Underwriters, the Transferor, the Managing Member, the Issuer and the
Contributor.
Very truly yours,
DVI RECEIVABLES CORP. XII
By:
------------------------------------------
Name: Lisa J. Cruikshank
Title: Vice President
DVI FINANCIAL SERVICES INC.
By:
------------------------------------------
Name: Lisa J. Cruikshank
Title: Vice President
DVI RECEIVABLES XII, L.L.C.
By: DVI Receivables Corp. VIII, its Managing
Member
By:
------------------------------------------
Name: Lisa J. Cruikshank
Title: Vice President
DVI RECEIVABLES CORP. VIII
By:
------------------------------------------
Name: Lisa J. Cruikshank
Title: Vice President
<PAGE>
UNDERWRITING AGREEMENT
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By:
---------------------------------
Name:
Title:
BANC ONE CAPITAL MARKETS, INC.
By:
---------------------------------
Name: Evonne W. Taylor
Title: Managing Director
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
PURCHASING PRICE
Principal Amount to be
Principal Amount to be Purchased by Merrill Lynch,
Purchased by Banc One Pierce, Fenner & Smith
Class of Note Price Capital Markets, Inc. Incorporated
------------- ----- --------------------- ------------
<S> <C> <C> <C>
The Class A-1 Notes 100.0000% $ 19,987,500.00 $ 19,987,500.00
The Class A-2 Notes 99.9991% $ 20,499,815.50 $ 20,499,815.50
The Class A-3 Notes 99.9953% $ 14,499,318.50 $ 14,499,318.50
The Class A-4 Notes 99.9980% $ 42,901,141.96 $ 42,901,141.96
The Class B Notes 99.9997% $ 2,051,993.84 $ 2,051,993.84
The Class C Notes 99.9985% $ 4,103,938.44 $ 4,103,938.44
The Class D Notes 99.9990% $ 2,735,972.64 $ 2,735,972.64
</TABLE>
A-1
